Gujarat High Court
State Of Gujarat vs Ranmalbhai Kacharabhai Koli & ... on 2 December, 2014
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/1189/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1189 of 2014
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STATE OF GUJARAT....Appellant(s)
Versus
RANMALBHAI KACHARABHAI KOLI & 2....Opponent(s)/Respondent(s)
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Appearance:
MR. HARDIK SONI, APP,for the Appellant(s)
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 02/12/2014
ORAL ORDER
[1] The present acquittal Appeal has been filed by the appellant - original complainant, State of Gujarat under Section 378(1)(3) of the Cr. P.C., against the Judgment and order dated 05.07.2014 rendered by the learned 2nd Additional Sessions Judge, Veraval, District Junagadh, in Atrocity Sessions Case No. 08 of 2012. The said case was registered against the present respondentsoriginal accused for the offences punishable under Sections 323, 504, 506(2) and 114 of the IPC and under Section 135 of the Gujarat Police Act and under Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act.
[2] According to the prosecution case, on 29.03.2002, when the complainantKarshanbhai Arjanbhai Jadav was at his residence at about 4:00 p.m. At that time, the respondentsaccused came asked his mother about him. On seeing the complainant, respondent accusedBhima Ranmalbhai Koli straightway inflicted knife blow. In protection of himself, the complainant raised left hand and due to that he was injured between finger and thumb and he was bleeding. Other respondentaccused also started beating him and gave kick and fist blow. As the complainant started shouting, other Page 1 of 8 R/CR.A/1189/2014 ORDER persons rushed to the place of incident and the complainant was protected from further injuries and the respondentsaccused gave filthy abusive language regarding the caste of the complainant and administered threat that the respondentsaccused would be killed him and run away from the spot. It is further the case of the prosecution that there was previous enmity between the complainant and the respondentaccused Bhima because of incident took place prior to six months from the date of present incident. When the respondentaccused Bhima was trying to have electric wire near the complainant, at that time, complainant's family member asked the respondentaccused to take wire connection from other nearby place. Due to this, there was exchange of words and therefore, the respondentaccused kept vengeance and present incident took place. Thereafter, on 29.03.2002 the complaint was filed by the complainant before Sutrapada Police Station, Navagam. Thereafter, the investigation was carried out and statements of the witnesses are also recorded by the Investigating Agency. After sufficient evidence was found against the respondentsaccused, chargesheet was filed before the learned Judicial Magistrate First Class, Veraval, which was registered as Criminal Case No.692 of 2002. As the said case was exclusively triable by the Special Judge, learned JMFC committed the case to the Court of learned Additional Sessions Judge, Veraval Dhanghdhra which was numbered as Atrocity Sessions Case No. 08 of 2012.
[3] On the basis of above allegations, charge was framed vide Exh.8 and readover and explained to the accused for the offence punishable under Sections Sections 323, 504, 506(2) and 114 of the IPC and under Section 135 of the Gujarat Police Act and under Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act. The respondentsaccused pleaded not guilty to the charge and claimed to be Page 2 of 8 R/CR.A/1189/2014 ORDER tried.
[4] Thereafter, after filing closing pursis by the prosecution, further statement of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded, wherein, it is admitted by the respondentsaccused that they were innocent and they have not committed any offence and they were wrongly booked by the complainant in the complaint. The respondentsaccused have denied the case of the prosecution and submitted that a false case is filed against them.
[5] In support of the prosecution case, prosecution has examined following oral evidences : Sr. Exh. Name of Witness No. 1 12 Lakhubhai Tabhabhai Vala 2 15 Gigabhai Masribhai Bamaniya 3 20 Dr.Krishnaprasad Ram Avadesh Das 4 26 Karsanbhai Arjanbhai Jadav 5 31 Somiben Arjanbjai Jadav 6 32 Dinesh Punja Vala 7 33 Arshibhai Arjanbhai 8 34 Parbabhai Kalabhai 9 36 Shivgar Zaverbhai Aparnathi 10 39 Kishabhai Karsanbhai Jadav 11 41 Shaileshbhai Valjibhai Bhatt [6] In support of the prosecution case, the prosecution has produced
several documentary evidences like panchanama of scene of offence at Exh.13, pachanama of arrest of accused at Exh.14, OPD Case papers at Page 3 of 8 R/CR.A/1189/2014 ORDER Exh.21, letter written by PSO to Medical Officer at Exh.22, Medical Certificate at Exh.23, FIR at Exh.27, caste certificate of the complainant given by Navagam Gram Panchayat at Exh.37, written order at Exhg.42, VHF Message at Exh.43, letter written by PSO to Medical Officer at Exh.44 and caste certificate of the complainant at Exh.45.
[7] Thereafter, arguments of both the sides were heard by the learned trial Judge at length and considered the defence version of the respondentsaccused and also discussed oral and documentary evidence produced on record and passed the acquittal order in favour of the respondentsaccused. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 5.07.2014 rendered by the learned 2nd Additional Sessions Judge, Veraval, District Junagadh, in Atrocity Sessions Case No. 08 of 2012, the appellant-State has preferred the present appeal before this Court.
[8] Heard Mr. Hardik Soni, learned APP for the appellant-State.
[9] Mr.Soni, learned APP contended that the learned trial Judge has not considered the medical certificate as well as the complaint. He read the panchanama of scene of offence and contended that the prosecution has examined material witnesses and independent witnesses. Lerned trial Judge has not considered the evidence of independent witness i.e. mother of the complainant, who was present at the time of incident and her evidence was discarded by learned trial Judge. As per the cross examination also, in defence versions of the respondentsaccused, they could not establish their defence therefore, learned trial Judge has wrongly considered their defence version and committed grave error by acquitting the respondentsaccused. Lastly, he prayed to quash and set aside the judgment and order of the acquittal.
[10] I have gone through the impugned judgment and order passed by the learned trial Judge. I have read the oral evidence of prosecution Page 4 of 8 R/CR.A/1189/2014 ORDER witnesscomplainant and also perused the charge framed against the respondentsaccused. I have also considered the submissions made by learned APP.
[11] Perused the documents produced on record. I have minutely perused the complaint at Exh.27, wherein time of the incident disclosed by the complainant was round about 4:00 o'clock. When the respondentsaccused came to the place of house of the complainant, without uttering any single word, respondent No.2accused inflicted knife blow and assaulted the complainant and other respondents accused also gave kick and fist blow and thereby the complainant was injured. I have also perused the oral evidence of doctorKrishnaprasad Ram Avadhesh Das, who has been examined at Exh.20 in place of doctor Sinha, who gave the treatment to the injured witnesses. It is admitted by him in his crossexamination that the said injury was possible by hard and blunt object only. Now, if the contents of medical certificate at Exh.23 are perused, it is disclosed that on 29.09.2002, the incident took place at round about 7:00 o'clock and he gave the treatment at round about 5:30 o'clock. Now, as per the complainant's evidence at Exh.26, it is admitted by him that he has obtained treatment at 5:30 O'clock, but as per the MLC Certificate, time was shown as 7:00 o'clok. It is admitted by him in the crossexamination that at the time of incident, except his mother, none was present and therefore, ingredient of Section3(1)(x) of the Atrocity Act is not established because as narrated by the complainant, the incident took place in the house and not at the public place. Learned trial Judge has rightly considered that the provisions of Section3(1)(x) of the Atrocity Act cannot come into force by the complainant against the respondentsaccused. So, there are material contradictions between the evidence of injured witness and doctor. Further, if the crossexamination of the complainant is perused, on the day of incident, he was studying at Keshod and staying in hostel and due to Holi festival, he came to his house. It is also admitted by him that on Page 5 of 8 R/CR.A/1189/2014 ORDER Holi festival, generally people consume liquor and therefore, on that day, he consumed liquor and therefore, in the intoxication of liquor and to take revenge, false complaint is filed against the respondentsaccused by him. Further, the complainant has not identified the muddamal weapon knife. It is admitted by him that he obtained treatment at Sutrapada, Government Hospital. At that time, police vehicle was present and therefore, he explained the entire incident in police vehicle and thereafter, he went to the hospital and no complaint was given. As per the evidence of the prosecution, on 29.03.2002 at 4:00 o'clock, the complaint was lodged while time of the incident as disclosed by the complainant was 5:30 o'clock and treatment was also obtained at the same time, which creates doubt against the prosecution case. I have perused the evidence of mother of the complainantSomiben Arjanbhai Jadav at Exh.31, wherein, she admitted that on the day of incident, the respondentsaccused came to the house and as they were refused to provide electric supply, they went away and the incident in question took place. She has disclosed that at round about 4:00 o'clock, the incident took place and she was alone at home, at that time, the complainant came out and sustained injury and Dinesh Punjabhai took the complainant to the hospital, but the muddamal was not identified by her. As per the evidence of the mother of the injured witness, time of the incident was disclosed as 7:00 o'clock and as per the evidence of the complainant, time of the incident was disclosed as 4:00 o'clock while medical certificate shows that at 7:00 o'clcok, the complainant visited the hospital and obtained treatment. Witness Dinesh Punjabhai Vala, who has been examined at Exh.32 and as per his evidence, he was not present at the time of incident. Another witness Arshibhai Arjanbha, eye witness, who has been examined at Exh.33, but he has not disclosed anything in favour of the complainant. It is admitted by this witness that at the time of the incident, he was not present. WitnessParbatbhai Kalabhai, who has been examined at Exh.34, but he was declared as Page 6 of 8 R/CR.A/1189/2014 ORDER hostile. Therefore, considering the evidence of the witnesses, learned trial Judge has rightly observed that the prosecution could not prove injury sustained by the complainant because as per the evidence of the doctor, the said injury can be possible only through hard and blunt object. Time narrated by the witnesses is totally different to the facts of the prosecution case. Learned trial Judge has rightly observed that ingredient of Provision of Atrocity Act is not proved beyond reasonable doubt. In view of the above observation made by the learned Judge, I am in complete agreement that the learned Judge has rightly acquitted the respondentsaccused. There in no substance in the appeal and the arguments made by the learned APP. Though learned APP has tried to establish his case, but the Court has not found any sufficient evidence to consider and entertain this appeal.
[12] In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."Page 7 of 8
R/CR.A/1189/2014 ORDER [13] Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
[14] In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 05.07.2014 rendered by the learned 2nd Additional Sessions Judge, Veraval, District Junagadh, in Atrocity Sessions Case No. 08 of 2012, acquitting the respondents- accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bond shall stand cancelled.
(Z.K.SAIYED, J.) siddharth// Page 8 of 8