Gujarat High Court
Becharbhai Valabhai Vaniya vs The State Of Gujarat on 18 July, 2024
NEUTRAL CITATION
R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 78 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
==========================================================
1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the No
fair copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
==========================================================
BECHARBHAI VALABHAI VANIYA & ORS.
Versus
THE STATE OF GUJARAT
==========================================================
Appearance:
MR JB DASTOOR(239) for the Appellant(s) No. 1,2,3,4,5
MS MONALI BHATT, APP for the Opponent/Respondent No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 18/07/2024
CAV JUDGMENT
1. By way of preferring present appeal under Section 374 of the Code of Criminal Procedure, 1973, the appellants have assailed the judgment and order Page 1 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined of conviction and sentence dated 16.12.2004 passed by learned Additional Sessions Judge, 2nd Fast Track Court, Dhrangadhra in Sessions Case No.14 of 2002, whereby, the appellants have been convicted for the offence punishable under Sections 323, 324, 186, 332 and 333 read with Sections 147, 148 and 149 of the Indian Penal Code and Section 135 of the Bombay Police Act read with Sections 147, 148 and 149 of the Indian Penal Code.
2. The brief facts of the case of the prosecution can be summarized as under:
2.1. As per the case of the prosecution, on 29.09.2001, the liquidator had gone to the village of the appellants to take custody of the tractor and trolley lying on the land of appellants and at that relevant point of time the appellants and other accused persons have formed unlawful assembly and made attack upon them. Therefore, FIR is registered against the accused persons. Pursuant to the registration of the FIR, the investigation has started and investigating officer has collected ample evidences against the accused persons. Therefore, they were arrested and subsequently charge-sheeted.
As the offences are exclusively triable by the Court of Sessions, the learned Judge concerned has committed the case to the Court of Sessions. The accused persons have not pleaded guilty and therefore trial has been commenced. To prove the charges Page 2 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined against the accused persons, the prosecution has examined total 22 witnesses and many other documentary evidences were also adduced. After appreciating and evaluating the oral as well as documentary evidences available on record, the impugned judgment and order of conviction and sentence has been passed against the appellants accused, whereas, some other co-accused persons have already been acquitted by the learned Trial Court. It is found out from the record that State has also not challenged the said order of acquittal by way of preferring any appeal. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence passed by the learned Trial Court, the appellants have preferred present appeal.
3. Heard learned advocate Mr. J. B. Dastoor for the appellants and learned APP Ms. Monali Bhatt for the respondent - State.
4. Learned advocate Mr. Dastoor submits that the impugned judgment and order passed by the learned Trial Court is erroneous, unjust, improper and against the evidence available on record and against the facts and circumstances of the case and at the time of jumping to the conclusion, learned Judge has not properly appreciated the evidence available on record and not considered basis principle of criminal jurisprudence and therefore the impugned judgment and order of conviction is required to be quashed and set Page 3 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined aside. Learned advocate Mr. Dastoor further submits that it is settled proposition of law that in a criminal proceedings, prosecution has to prove its case beyond reasonable shadow of doubt, whereas, in civil litigation the plaintiff has to prove his case on the basis of principle of law of preponderance of probability. Learned advocate Mr. Dastoor submits that in the present case, the prosecution has to prove its case beyond reasonable shadow of doubt. He further submits that if the evidences of all the prosecution witnesses are to be read together in juxtaposition, in that event, number of infirmities, improvements, contradictions, inconsistencies and lacuna are found in the depositions of the said witnesses and therefore it can safely be said that the prosecution has miserably failed to prove the charges levelled against the appellants beyond reasonable shadow of doubt. He further submits that the appellants have falsely been dragged into the FIR in question. Learned advocate Mr. Dastoor has read the evidence of all the witnesses and submitted that essentially at the time of appreciating the evidence available on record, the learned Sessions Judge has given much emphasis to unimportant and unreliable documents while jumping to the conclusion and passing the impugned judgment and order of conviction and sentence.
5. Learned advocate Mr. Dastroor further submits that all the appellants were convicted under Section Page 4 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined 186 IPC read with Sections 147, 148 and 149 of the IPC. If this Court would make cursory glance upon the operative part of the impugned judgment and order, more particularly on sentence part, in that event, it would be found out that no separate sentence is imposed so far as offence punishable under Sections 147, 148 and 149 IPC is concerned. He further submits that despite the fact that at the time of assigning reasons and giving finding, learned trial Court has come to a definite conclusion that all the accused persons have formed an unlawful assembly and as a part of assembly they have acted in a particular manner, the other co-accused persons, who were, as per the case of the prosecution also the members of the so-called unlawful assembly, have been acquitted by the learned Trial Court. Learned advocate Mr. Dastoor submits that the said view adopted by the learned Judge is not in consonance with the statutory provisions of law. Hence, the impugned judgment and order is required to be quashed and set aside.
6. Learned advocate Mr. Dastoor has read Section 195 of the Code of Criminal Procedure, 1973 and submitted that there is statutory bar insofar as invocation of provisions of Sections 172 to 188 (both inclusive) of the Indian Penal Code when prosecution could have been launched against the accused persons on the basis of police papers. The language employed in the said section would clearly goes on to show that the Court is not empowered to take cognizance of Page 5 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned or other public servant to whom he is administratively subordinate. In the instant case, admittedly, no such complaint in writing has been given by the concerned public servant, despite the said fact, the trial has been proceeded with and order of conviction and sentence for commission of the offence punishable under Section 186 of Indian Penal Code is passed. The said finding of the learned Trial Court is contrary to the statutory provisions of law. Therefore, the impugned judgment and order of conviction and sentence is required to be quashed and set aside.
7. Learned advocate Mr. Dastoor further submits that as per the case of the prosecution, PW 12 - Tapubhai Becharbhai - Head Constable has deposed in his cross-examination that official liquidator had not come along with them in the vehicle and said fact is also supported by another witness Vanrajsinh Pathubha and said fact was confronted to those witnesses in cross-examination and at that relevant point of time, they stated that liquidator had reached to the place of offence after some time on his motorcycle. The said set of evidence creates doubt about the narration of fact on the part of the witnesses. Even though the learned Trial Court has put reliance upon the evidence of the said witnesses and passed the order of conviction. Learned advocate Page 6 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined Mr. Dastoor further submits that it is the specific case of the prosecution that on the date of incident, the police officer had called the Panchas to his office and thereafter along with Panchas they had gone to the place of occurrence. He submits that at that point of time, they had to draw preliminary panchnama but record shows that no preliminary panchnama was drawn by the police officer which clearly goes on to show that a false story is created subsequently with a sole intent to frame the present appellants in the offence. It is further submitted that it is the case of the prosecution that the police officials along with liquidator and panchas had gone to the field of the appellants for the purpose of getting custody of the tractor and trolley and at that point of time, they have to prepare Panchnama about taking over the physical custody of the said tractor and trolley but the said panchnama is at all not prepared and placed on record by the prosecution which clearly creates doubt about the story put forward and theory placed on record by the prosecution. He further submits that official liquidator has also not produced any copy of proceedings recorded by him for the purpose of taking possession of the tractor and trolley.
8. Learned advocate Mr. Dastoor further submits that at the time of leading evidence, prosecution has come with a specific case that due to the said incident one police constable had sustained very Page 7 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined grievous injury and that is why charge under Section 333 of Indian Penal Code is levelled against the appellants. He submits that prosecution has examined one Doctor Yogendrasinh Devsinh (PW 14), who treated the said police constable viz. Tapubhai Becharbhai (PW 12) and as per the deposition of the said witness Tapubhai, it is found out that the said witness sustained injury at the time when he tried to intervene and separate two persons, who were fighting and immediately after taking preliminary treatment, the said injured person was discharged from the hospital. Therefore, considering the said set of evidence available on record, it clearly goes on to show prima facie that basic ingredients of Section 333 IPC that appellants have caused grievous hurt to a public servant in discharge of his duty are not satisfied in the instant case. Therefore, the impugned judgment and order of conviction and sentence passed against the appellants accused is required to be quashed and set aside.
9. Learned advocate Mr. Dastoor submits that to prove the charge levelled against the accused persons, prosecution has examined 22 witnesses and considering the above stated factual aspects as well as material available on record, prosecution has miserably failed to lead evidence, which ultimately proves the hypothesis of the guilt of the accused persons and on the basis of said set of evidence the judgment and order of conviction can be passed. He Page 8 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined submits that there are so many inconsistencies, infirmities, omissions and contradictions in the depositions of the prosecution witnesses which are required to be taken into consideration by the learned Trial Court while passing the impugned judgment and order of conviction, however, for the reasons best known to the learned Trial Court, the said inconsistencies, infirmities, omissions and contradictions in the depositions of the prosecution witnesses have been ignored by the learned Trial Court and learned Trial Court has given undue emphasis upon unimportant and irrelevant documents and thereby the evidences available on record have not been evaluated and appreciated in its true spirit and on its proper perspective. He, therefore, submits that the impugned judgment and order of conviction and sentence passed against the appellants accused may be quashed and set aside and appellants may be acquitted from all the charges levelled against them.
10. The present appeal is opposed by learned APP Ms. Monali Bhatt with vehemence and submitted that it is the specific case of the prosecution that all the 10 accused persons have formed an unlawful assembly and as a part of that assembly they have acted and made attack upon the prosecution witnesses. Learned APP Ms. Bhatt further submits that FIR is filed against total 10 accused persons and during the course of investigation, the prosecuting agency has filed charge-sheet against total 10 accused persons and Page 9 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined thereafter at the time of trial, learned Judge has passed order of acquittal so far as five accused persons are concerned and rest of the five accused have been convicted. She further submits that to prove the charge against the accused persons, prosecution has examined total 22 witnesses including the Panchas and they have supported the case of the prosecution. Thus, the prosecution has successfully proved the guilt of the accused persons beyond any reasonable shadow of doubt and therefore the judgment and order of conviction and sentence has been passed. The judgment and order of conviction and sentence is just, fair and proper and based upon the sound principle of law. Learned APP Ms. Bhatt further submits that the prosecution has led cogent, reliable and convincing evidence and learned Judge has discussed the said evidence in great detail at the time of appreciating and evaluating the said evidence. She further submits that it is the specific case of the prosecution that the official liquidator has to go to the village of the appellants to get the custody of the tractor and trolley and therefore he preferred an application to the concerned police officer to give police protection to him and on the strength of the said application received by the police authority, a team is formed and two police officials were deputed by the police inspector to go along with the official liquidator. As the official liquidator has to take the custody of the tractor and trolley, two panchas were also called in the police Page 10 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined station well in advance and thereafter all had gone together. The official liquidator had gone to the place of occurrence on a separate motorcycle of his own, whereas, other persons had gone in another vehicle. As soon as they reached to the place of occurrence, all the accused persons have started abusing them and within a spur of the moment all the accused persons have formed an unlawful assembly and in furtherance of the common intention of unlawful assembly, upon the instructions of one of the accused, they have made attack upon the prosecution witnesses by inflicting blows with deadly weapons upon the body of prosecution witnesses. The prosecution witnesses have described the entire sequence of events of incident in a very graphical manner by specifically stating that which kind of injury sustained by victim, name of the assailants who had inflicted blows upon which body part of the injured witnesses and the weapons which they have used at the time of commission of crime. The weapon used by the accused persons as well as act and action committed by them at the time of incident is clearly stated by the said witnesses in their police statement as well as at the time of recording their depositions. The evidences led by the prosecution witnesses are in consonance with each other. Those witnesses have been cross-examined by the defence very extensively and in a great detail but nothing fruitful could have been elicited from the evidence of the said witnesses which ultimately deface the Page 11 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined evidence of those prosecution witnesses. She further submits that all the panchas have supported the case of the prosecution and those witnesses were cross- examined by the defence but nothing fruitful has come out from the evidence of those Panch Witnesses which ultimately shaken the evidence of the prosecution witnesses.
11. Learned APP Ms. Bhatt further submits that the prosecution has also examined the Doctor, who treated the injured witnesses. If the evidence of the said witness is to be seen, in that event, it would be found out that the history given by the injured witnesses were also recorded by the Doctor and in his deposition, the Doctor has very categorically stated that injured witnesses have sustained severe as well as minor injuries and those injuries could have been made through sharp edged weapon and hard and blunt weapon respectively. She further submits that as per the deposition of the said witness, injured Tapubhai Becharbhai had sustained injury through sharp edged weapon and another injured witness had sustained injury through hard and blunt substance and as per his opinion, the said injuries were grievous in nature. The said witness has been cross-examined by the defence but nothing fruitful could have been come out from the evidence of the said witness.
12. Learned APP Ms. Bhatt has read Sections 332 and 333 of the Indian Penal Code and submitted that theon Page 12 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined 29.09.2001, the liquidator had gone to the village of the appellants to take custody of the tractor and trolley lying on the land of appellants and at that relevant point of time the appellants and other accused persons have formed unlawful assembly and made attack upon them. Therefore, FIR is registered against the accused persons. Pursuant to the registration of the FIR, the investigation has started and investigating officer has collected ample evidences against the accused persons. Therefore, they were arrested and subsequently charge-sheeted. As the offences are exclusively triable by the Court of Sessions, the learned Judge concerned has committed the case to the Court of Sessions. The accused persons have not pleaded guilty and therefore trial has been commenced. To prove the charges against the accused persons, the prosecution has examined total 22 witnesses and many other documentary evidences were also adduced. After appreciating and evaluating the oral as well as documentary evidences available on record, the impugned judgment and order of conviction and sentence has been passed against the appellants accused, whereas, some other co-accused persons have already been acquitted by the learned Trial Court. She further submits that it is found out from the record that State has also not challenged the said order of acquittal by way of preferring any appeal. The accused persons are very headstrong persons and they had made daring attack upon the police officials Page 13 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined and thereby taken the law in their hands with a sole intent to stop them and interrupt them in discharging their duties as public servants. The appellants had made daring attack upon the injured witnesses with deadly weapons and sustained grievous injuries to them and said fact is proved by the prosecution by leading cogent, convincing and reliable evidence and all the evidences available on record are in consonance with each other. Learned APP Ms. Bhatt has read the evidences of the prosecution witnesses and submitted that it is an admitted position of fact that the police officials were on duty and in uniform and despite the said fact, the accused persons have made attack upon them. The Police Constable Mr. Tapubhai Becharbhai has very categorically deposed in his deposition that he has sustained very serious and grievous injury and due to the said injury bleeding was started profusely from his little finger of left hand and immediately after taking preliminary treatment he was discharged from the hospital but the effect of the injury was so severe that still his little finger is bent and is unable to straighten up. She further submits that the Doctor who had given preliminary treatment to the said injured witness has very categorically deposed that he had treated the injured and the injury sustained by the injured victim is grievous in nature and it could be made through sharp edged weapon. In the medical certificate the said Doctor has mentioned that the injured has sustained grievous injury. Therefore, Page 14 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined simply on the ground that the victim was discharged from the hospital on the same day after receiving preliminary treatment, it cannot be said that the injury was not grievous one which would fall under Section 320 of the Indian Penal Code. She has referred to and read Section 320 of the Indian Penal Code and submitted that from bare perusal of the said section, it clearly goes on to show that the injury caused to the injured witness would fall under the definition of grievous hurt. She further submits that the medical evidence is in consonance with the deposition given by the injured victim and hence it can definitely be said that the prosecution has successfully proved the charge levelled against the appellants. She further submits that another injured witness Jahaji Sangaji was also treated by the Doctor and deposition of all the witnesses are in consonance with each other and it is also found out from the evidence on record that the said witness was also on duty and in uniform and he has sustained injury. Therefore, on the strength of the above stated evidences available on record, prosecution has successfully proved the charges levelled against the appellants accused and therefore the appeal is required to be dismissed.
13. Having heard the learned advocates appearing for the rival parties and having gone through the material placed on record, it is found out from the record that as per the case of the prosecution, on Page 15 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined 29.09.2001, the liquidator along with two police personnel and panch witnesses, had gone to the village of the appellants to take custody of the tractor and trolley lying on the land of appellants and at that relevant point of time the appellants and other accused persons have formed unlawful assembly and attacked upon them. Therefore, FIR is registered against the accused persons. Pursuant to the registration of the FIR, the investigation has started and investigating officer has collected ample evidences against the accused persons. Therefore, they were arrested and subsequently charge-sheeted. As the offences are exclusively triable by the Court of Sessions, the learned Judge concerned has committed the case to the Court of Sessions. The accused persons have not pleaded guilty and therefore trial has been commenced. To prove the charges against the accused persons, the prosecution has examined total 22 witnesses and many other documentary evidences were also adduced. After appreciating and evaluating the oral as well as documentary evidences available on record, the impugned judgment and order of conviction and sentence has been passed against the appellants accused, whereas, some other co-accused persons have already been acquitted by the learned Trial Court. It is found out from the record that State has also not challenged the said order of acquittal by way of preferring any appeal.
Page 16 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined
14. The prosecution has examined one Jahaji Sangaji as PW-1 vide Exh. 56. The said witness has deposed that at the relevant point of time he was serving as security guard at Ambedkar Agricultural Cooperative Society at Pipli. He further deposed that he along with liquidator Shri Mori, two police constables, one Bhikha Baldev and driver of the tractor viz. Ishwarbhai Chhaganbhai all had gone to the agricultural field at Medusar for the purpose of getting the possession of tractor and trolley of the Cooperative Society. At that time, Becharbhai Valabhai, Suresh Babu, Babu Bechar, Bhavan Bechar, Kanji Bechar, Kuber Ratna and two ladies were present over there with deadly weapons and they ran towards them and at that relevant point of time, one Suresh Babu had inflicted Dhariya blow upon one of the police constables and the said police constable sustained injury over the little finger of his right hand. He further deposed that Kuber Ratna had inflicted one stick blow on his right hand and thereafter all the accused ran away from the place of occurrence. In his cross-examination, the said witness has admitted that the first blow was inflicted upon one of the police constables.
15. The prosecution has examined Tapubhai Becharbhai
- PW 12 at Exh.80. In his examination-in-chief, the said witness has deposed that when he was on duty on 28.09.2001 at Bajana Police Station, he received Vardhi in the evening that on next day, he along with Page 17 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined one police constable Vanrajsinh and liquidator of Cooperative Society, Pipli, have to go for Police Bandobast. Therefore, on 29.09.2001, after making entry at Bajana Police Station, he and Vanrajsinh had gone to village Pipli in a private vehicle and they reached there at 10:00 a.m. and at that time they talked with liquidator. He further deposed that thereafter two police constables (he himself and Vanrajsinh) and two panchas had gone along with the liquidator at the house of one Becharbhai Valabhai. The house was closed and therefore one paper was pasted by the liquidator at the door of the said house and thereafter they came back to the office of Panchayat. He further deposed that thereafter at about 5:00 p.m., he himself, Vanrajsinh, two panchas, security guard Jahaji had gone in a tractor of Bhagwanbhai Patel to take the custody of tractor and trolley which were lying in the agricultural field of Bechar Vala. Liquidator reached there afterwords in his motorcycle. When they reached at the agricultural field of Bechar Vala, at that time, Bechar Vala, his children as well as two ladies i.e. total 6 to 8 persons were present at the place of occurrence. They informed them that they are coming to take the custody of trolley, at that relevant point of time, one Suresh Babu told them not to take the custody of the trolley and hurled abuses and inflicted Dhariya blow to the said witness which was hit on his little finger of left hand which has resulted into profusely bleeding. He further deposed that due to that injury Page 18 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined his little finger is bent and unable to straighten. The said witness has been cross-examined by the defence but except minor contradictions and/or omissions, nothing fruitful has come out which creates doubt about the trustworthiness of the said witness.
16. The prosecution has also examined Vanrajsinh Pathubha - PW 13 vide Exh. 81. The said witness has specifically deposed that on the date of incident, Sureshbhai had inflicted Dhariya blow on little finger of Shri Tapu Bechar (PW 12) and thereafter Shri Tapu Bechar was taken to the hospital. The said witness has been cross-examined by the defence but nothing fruitful has come out from the cross- examination of the said witness which affects the case of the prosecution.
17. Doctor Yogendrasinh Devisinh Solanki - PW 14 is examined at Exh. 82. The said witness has deposed that at around 8:10 p.m. on 29.09.2001, when he was on duty as Orthopedic Surgeon at C. U. Shah Hospital, one patient viz. Tapubhai Becharbhai was taken before him and said Tapubhai informed him that he sustained injury with Dhariya at the time when he tried to intervene and separate two persons who were fighting. The said witness has specifically deposed that the injury is grievous in nature which could be possible through sharp edged weapon. In his examination-in- chief, the said witness further deposed that at 8:30 Page 19 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined p.m. on the same day, he also treated one Jahajibhai Sangajibhai. The said injured had sustained injury in the right hand. There was swelling in the right hand but no fracture was found. The said injury is simple in nature which could be possible through hard and blunt substance. The said witness has been cross- examined by the defence but nothing fruitful has come out from the cross-examination of the said witness which affects the case of the prosecution.
18. The prosecution has also examined Dr.Ashwinkumar Shankardan Gadhvi - PW 19 vide Exh. 91. The said witness deposed that on 29.09.2001 when he was on duty as Surgeon in C. U. Shah Medical Centre of C. J. Hospital, at about 8:10 p.m., a patient viz. Ishwarbhai Chhaganbhai was admitted in the said hospital. He was admitted as an indoor patient from 8:10 p.m. on 29.09.2001 to 9:45 a.m. on 16.10.2001. He sustained two injuries on his hands, which are simple in nature. He further deposed that another patient viz. Bhikhabhai Baldevbhai was also admitted as indoor patient from 29.09.2001 to 16.10.2001. He had sustained total four injuries over various body parts. The said injuries are grievous in nature. The said witness has been cross-examined with regard to the nature of injuries sustained by both the injured witnesses. However, nothing fruitful has come on record which affects the case of the prosecution.
19. At this stage, I would like to refer Section 320 Page 20 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined of the IPC, which provides the definition of the 'Grievous Hurt'.
"320. Grievous Hurt: The following kinds of hurt only are designated as "grievous":
1. Emasculation.
2. Permanent privation of the sight of either eye.
3. Permanent privation of the hearing of either ear.
4. Privation of any member or joint.
5. Destruction or permanent impairing of the powers of any member or joint.
6. Permanent disfiguration of the head or face.
7. Fracture or dislocation of a bone or tooth.
8. Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
Thus, considering the aforesaid provision, the injuries sustained by the injured victims Tapubhai Becharbhai and Bhikhabhai Baldevbhai would clearly fall under the category of 'grievous hurt' and said fact is also reflected from the evidence of the Doctors. It is also found out from the record that immediately after treating the injured witnesses, Doctors have issued medical certificates wherein it is stated that the injured victims have sustained grievous injuries and at the time of recording the depositions of the said Doctors, they deposed that the injuries sustained by the injured victims are Page 21 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined grievous in nature. Therefore, the prosecution has successfully proved the fact that the injured victim Tapubhai Becharbhai has sustained grievous injury at the time when he was discharging his official duty. Moreover, it is pertinent to note that the injured victims have sustained various injuries while they were performing their duties and the appellants have, in connivance with each other, acted in a particular manner so as to create hindrance and prevent the Government officials to do their duties. It is also pertinent to note that two other injured victims have also sustained various simple injuries. Thus, when the appellants have caused grievous hurt to the injured victims with the use of deadly weapons and that too when they were discharging their official duties, the said act and conduct of the appellants cannot be tolerated and no mercy is required to be shown towards them.
20. At the time of argument, learned advocate Mr. Dastoor has emphatically submitted that FIR is filed against total 10 accused persons and all the 10 persons were chargesheeted and tried by the concerned Court. It is the specific case of the prosecution that all the accused persons have formed an unlawful assembly and in furtherance of the common intention of the unlawful assembly, they have made attack upon the complainant and prosecution witnesses and as per the settled proposition of law, individual role and act of the members of the unlawful assembly is not Page 22 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined required to be seen at the time of appreciating the evidence, despite the said fact, 5 accused persons though they were members of the unlawful assembly. have been acquitted by the Court concerned. Therefore, being the members of the unlawful assembly, the said benefit can be extended in favour of the appellants also by allowing present appeal and quashing and setting aside the impugned judgment and order of conviction and sentence. I find strength in the said contention and agree with the said proposition of law that common object of unlawful assembly would be same but intention can be developed at the spur of the moment and all the members of an unlawful assembly are equally liable for the same. However, it is an admitted position of fact that considering the role attributed by the accused persons at the time of commission of crime, order of acquittal has been passed. The original complainant as well as State have not challenged the said order of acquittal by preferring any appeal before this Court. In short, the said judgment and order of acquittal passed by the learned Trial Court, so far as other accused persons are concerned, has attained finality. Learned advocate Mr. Dastoor submits that when the other co-accused persons, who were members of the unlawful assembly, have been acquitted by the learned Trial Court, the said benefit can also be extended to the appellants. It is settled proposition of law that once mistake is committed, it cannot be perpetuated forever and as soon as one would come to Page 23 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined know about the said mistake, the same can be rectified. Admittedly, at the time of appreciating the evidence available on record, considering the role attributed by each of the appellants accused at the time of commission of crime, the different weapons used by them and the nature of injuries caused to each of the injured witnesses, the learned Trial Court has passed the order of conviction.
21. Thus, from the depositions of the aforesaid injured witnesses and doctors, it can safely be said that most of the injuries sustained by the injured witnesses are grievous in nature and they sustained those injuries while they were discharging their official duties and therefore the learned Trial Court has not committed any error while convicting the appellants and imposing sentence upon them. The prosecution has also examined Panch Witnesses of various Panchnama and other prosecution witnesses, who have supported the case of the prosecution and from their cross-examination, except minor contradictions and/or omissions, nothing fruitful has come out which creates doubt about the trustworthiness of the said witnesses.
22. I have also gone through the reasoning recorded by the learned Trial Court while arriving at the conclusion and passing the impugned judgment and order of conviction and sentence and from the material available on record it can be said that the Page 24 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined learned Trial Court has not committed any error while passing the impugned judgment and order of conviction and sentence against the appellants insofar as the offence punishable under Sections 323, 324, 332 and 333 read with Section 147, 148 and 149 of the Indian Penal Code.
23. Learned advocate Mr. Dastoor submits that as per the provisions of Sub-section 1(a) of Section 195 of the Code of Criminal Procedure, 1973, there is statutory bar and Court shall not take cognizance insofar as invocation of provisions of Sections 172 to 188 (both inclusive) of the Indian Penal Code, except on the complaint in writing of the public servant concerned or other public servant to whom he is administratively subordinate. Admittedly, in the instant case, the public servant concerned has not given any complaint in writing and therefore the learned Trial Court has committed an error while convicting and sentencing the appellants for the offence punishable under Section 186 of the Indian Penal Code. However, he has fairly submitted that for the first time before this Court, the said argument is canvassed. Sub-section 1(a) of Section 195 reads as under:
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1)No Court shall take cognizance -Page 25 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024
NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined
(a)(i)of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii)of any abetment of, or attempt to commit, such offence, or
(iii)of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or other public servant to whom he is administratively subordinate;
While addressing the issue whether the Court concerned could have taken cognizance of the offence under Section 186 of the IPC on a police report, the said issue is no longer res integra. Section 186 of the IPC is to be found in Section 195 of the Cr.P.C. Section 195 of the Cr.P.C. makes it abundantly clear that no court shall take cognizance of the offence punishable under Section 186 of the IPC except upon a complaint in writing by the public servant or any other officer subordinate to the public servant. Section 2(d) of the Cr.P.C. defines the 'complaint', which clearly restricts inclusion of a police report in the definition of 'complaint'.
24. At this stage, I would like to refer to and rely upon the decision of the Hon'ble Apex Court in the case of Durgacharan Naik v. State of Orissa, reported in AIR 1966 (SC) 1775, wherein the Hon'ble Apex Court has observed and held as under:
Page 26 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined "5. We pass on to consider the next contention of the appellants that the conviction of the appellants under s. 353, Indian Penal Code is illegal because there is a contravention of s.195(1) of the Criminal Procedure Code which requires a complaint in writing by the process server or the A.S.I. It was submitted that the charge under s. 353, Indian Penal Code is based upon the same facts as the charge under s. 186, Indian Penal Code and no cognizance could be taken of the offence under S. 186, Indian Penal Code unless there was a complaint in writing as required by s. 195(1) of the Criminal Procedure Code. It was argued that the conviction under s.
353, Indian Penal Code is tantamount, in the circumstances of this case, to a circumvention of the requirement of s. 195(1) of the Criminal Procedure Code and the conviction of the appellants under S. 353, Indian Penal Code by the High Court was, therefore, vitiated in law. We are unable to accept this argument as correct. It is true that most of the allegations in this case upon which the charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that ss. 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under s. 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with Contempts of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well-established Page 27 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined that s. 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section. In Satis Chandra Chakravarti v. Ram Dayal De(1) it was held by Full Bench of the Calcutta High Court that where the maker of a single statement is guilty of two distinct offences, one under s. 21 1, Indian Penal Code, which is an offence against public justice, and the other an offence under S. 499, wherein the personal element largely predominates, the offence under the latter section can be taken cognizance of without the sanction of the court concerned, as the Criminal Procedure Code has not provided for sanction of court (1) 24 C.W.N. 982. for taking cognizance of that offence. It was said that the two offences being fundamentally distinct in nature, could be separately taken cognizance of. That they are distinct in character is patent from the fact that the former is made non-compoundable, while the latter remains compoundable; in one for the initiation of the proceedings the legislature requires the sanction of the court under S. 195, Criminal Procedure Code, while in the other, cognizance can be taken of the offence on the complaint of the person defamed. It is pointed out in the Full Bench case that where upon the facts the commission of several offences is disclosed some of which require sanction and others do not, it is open to the complainant to proceed in respect of those only which do not require sanction; because to hold otherwise would amount to legislating and adding very materially to the provisions of ss. 195 to 199 of the Code of Criminal Procedure. The decision of the Calcutta case has been quoted with approval by this Court in Basir-ul-Huq and Others v. The State of West Bengal (1) in which it was held that if the allegations made in a false report disclose two distinct offences, one against a public servant and the other against a private individual, the Page 28 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined latter is not debarred by the provisions of s. 195, Criminal Procedure Code, from seeking redress for the offence committed against him.
6. In the present case, therefore, we are of the opinion that S. 195, Criminal Procedure Code does not bar the trial of the appellants for the distinct offence under s. 353 of the Indian Penal Code, though it is practically based on the same facts as for the prosecution under s. 186, Indian Penal Code.
7. Reference may be made, in this connection, to the decision of the Federal Court in Hori Ram Singh v. The Crown (2). The appellant in that case was charged with offences under ss. 409 and 477-A, Indian Penal Code. The offence under s. 477-A could not be taken cognizance of without the previous consent of the Governor under s. 270(1) of the Constitution Act, while the consent of the Governor was not required for the institution of the proceedings under s. 409, Indian Penal Code. The charge was that the accused dishonestly misappropriated or converted to his own use certain medicines entrusted to him in his official capacity as a sub-assistant surgeon in the Punjab Provincial Subordinate Medical Service. He was further charged that being a public servant, he wilfully and with intent to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession. The proceedings under s. 477-A were quashed by the Federal Court for want of jurisdiction, the consent of the Governor not having been obtained, but the case was sent back to the sessions judge for hearing on the merits as regards the charge under s. 409, Indian Penal (1) [1953] F.C.R. 159. (2) [1939] F.C.R. 159. Code, and the order of acquittal passed by the sessions judge under that charge was set aside. Two distinct offences having been committed in the same transaction, one an offence of Page 29 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined misappropriation under s. 409 and the other an offence under s. 477-A which required the sanction of the Governor, the circumstance that cognizance could not be taken of the latter offence without such consent was not considered by the Federal Court as a bar to the trial of the appellant with respect to the offence under s.
409."
25. Thus, considering the aforesaid observations made by the Hon'ble Apex Court as well as the provisions of Sub-section 1(a) of Section 195 of Cr.P.C., if the facts of the present case are to be examined, in that event, it is found out that the Court shall not take cognizance of the offence punishable under Section 186 of the IPC except on the complaint in writing by the concerned public servant or any other public servant to whom he is administratively subordinate. It is also an admitted fact that in the case on hand, the public servant concerned has not made any complaint in writing. Thus, in the opinion of this Court, the learned Trial Court has committed an error while passing the impugned judgment and order of conviction and sentence against the appellants so far as Section 186 IPC is concerned. Now, the question arises as to whether bar will attract other offences, which are not included in S. 195(1)(a) of Cr.P.C. In the opinion of this Court, there is no bar of taking cognizance u/s. 195(1)(a) of CrPC if offences are separate and distinct having different ingredients Page 30 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined and characteristics from those contained in S. 195(1)
(a) of CrPC. In the case of Pankaj Aggarwal Vs. State of Delhi, JT 2001 (5) S.C. 233, the Hon'ble Supreme Court has quashed the charge under Section 186 of the IPC but has allowed the criminal proceedings to continue so far as the charge under Sections 332 and 34 IPC is concerned.
26. It is also found out from the record that at the time of recording deposition of the investigating officer, number of documents were referred by the Public Prosecutor and all those documents were duly exhibited. At that relevant point of time, notification issued by the Additional District Magistrate, Surendranagar under Section 37(1) of the Bombay Police Act was also referred by him and investigating officer has admitted that at the time of investigation the said document was referred and placed along with the compilation of charge-sheet papers and on the strength of the said statement, the said document was exhibited by the learned Trial Court. Admittedly, at that relevant point of time, the contents of the said document were not at all deposed by the investigating officer and for the purpose of proving the contents of the said notification, except investigating officer, not a single person is examined. It is an admitted position of fact that if a document is exhibited then automatically the contents of that document cannot be Page 31 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024 NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined said to be proved and the contents of a particular document are required to be proved by the party who is putting reliance upon the said document by adducing evidence in that regard. In the instant case, admittedly, except referring to the notification, any concrete steps have not been taken by the prosecuting agency to prove the contents of the said document. The said notification is very important document and at the time of commission of crime by the accused persons the said document was in existence and the said fact was well within the knowledge of the people of that particular territory is required to be brought on record. However, not a single evidence in that regard is produced by the prosecuting agency. Therefore, at the time of appreciating and evaluating the evidence, reliance cannot be placed upon the said piece of evidence. Hence, in absence of any concrete material, charge levelled against the appellants accused under Section 135 of the Bombay Police Act is not at all proved beyond reasonable shadow of doubt.
27. In view of the aforesaid discussion, the appeal stands partly allowed. The impugned judgment and order of conviction and sentence dated 16.12.2004 passed by learned Additional Sessions Judge, 2nd Fast Track Court, Dhrangadhra in Sessions Case No.14 of 2002 is hereby modified to the following extent.
Page 32 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024NEUTRAL CITATION R/CR.A/78/2005 CAV JUDGMENT DATED: 18/07/2024 undefined (1) All the appellants are hereby acquitted from the charges levelled against them for the offence under Section 186 read with Sections 147, 148 and 149 of the Indian Penal Code and under Section 135 of Bombay Police Act read with Sections 147, 148 and 149 of the Indian Penal Code.
(2) However, the rest of the part of impugned judgment and order of conviction and sentence passed by the learned Trial Court shall stand unaltered.
As the appellants are on bail, their bail bond shall stand cancelled and they are directed to surrender before the concerned Jail Authority within a period of six weeks.
R & P be sent back to the learned Trial Court forthwith.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 33 of 33 Downloaded on : Thu Jul 18 21:02:45 IST 2024