Gujarat High Court
Dhanabhai vs State on 28 October, 2010
Author: Akil Kureshi
Bench: Akil Kureshi
CR.RA/691/2007 5/ 9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 691 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= DHANABHAI PUNIYABHAI MOHANIYA - Applicant(s) Versus STATE OF GUJARAT & 6 - Respondent(s) ========================================================= Appearance : MR YS LAKHANI SR ADVCOATE WITH MR BY MANKAD for Applicant(s) : 1, PMR KARTIK PANDYA, APP for Respondent(s) : 1, MR BM MANGUKIA WITH MR PINAKIN M RAVAL for Respondent(s) : 2 - 6. NOTICE SERVED for Respondent(s) : 7, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 28/10/2010 CAV JUDGMENT
The petitioner is the original complainant. In the present petition, he has challenged legality of judgement and order dated 12.9.2007 passed by learned JMFC, Petlad by which Magistrate was pleased to dismiss the complaint i.e. Criminal Inquiry Case No. 5/2007. In the complaint it was alleged inter-alia that uncle of the complainant Babubhai Malabhai Mohania was a labourer. On 17.7.2006 said Babubhai could not arrange for food for his children. He therefore, went to Ashram of accused no.1 at Dantali hoping that he might find some food there. Accused no. 2 to 5 were present at that time in Ashram. When he asked for food, it was refused. He was insulted and pushed on the ground. Thereafter there was a scuffle. Accused no. 2 to 5 started beating him. Babubhai also started attacking the said accused in self defence at which time accused no. 2 to 5 shouted for accused no.1 who came out with his revolver and fired injuring Babubhai near his shoulder. Babubhai thereupon ran away and went to Anand and thereafter, to Ahmedabad where he died. His wife Mangiben performed his last rites. Some three days thereafter, police had come to their house and inquired about the place where Babubhai's body was burnt. People of the village had shown them the spot from where, from the burnt ashes with help of a magnet, they had recovered a small iron pallet which the police had put in a packet and seized along with the bones. The complainant thereafter had gone to the police station on several occasions. However, his complaint was not being attended to. He therefore, alleged that all the accused had committed offence punishable under Section 302 read with Section 114 of the IPC and the Arms Act and the Schedule Caste and Schedule Tribes(Prevention of Atrocity)Act.
Learned Magistrate recorded the statement of complainant on verification on 4.1.2007. In the statement, the complainant stated that when the dead body of Babubhai was brought home, he had seen a deep injury mark on the right side of the back portion. Wife of the deceased had told him about what had happened. He was told that after being injured deceased had gone to Anand and in the early morning he was shifted to Ahmedabad where he died. His body was brought to the native place in an ambulance. On 4.1.2007, learned Magistrate ordered Court inquiry under Section 202 of the Code of Criminal Procedure.
Learned Magistrate examined several witnesses. Certain documents were also produced before him. He ultimately passed his impugned order dated 12.9.2007 and dismissed the complaint under Section 203 of the Code of Criminal Procedure.
Before taking note of the findings and observations of the learned Judge in the said order, it may be noted that during the course of inquiry, learned Magistrate recorded statements of Mansang Veerchand Solanki, Ramilaben Navabhai Parmar, Parnambhai Punabhai Mohaniya, Mangiben Babubhai Mohania i.e wife of deceased and Rameshbhai Madhiyabhai Damor who claimed to be with the deceased at Dantali Ashram when the alleged incident took place. The complainant also produced along with the list exh.13 certain documents which pertained primarily to a complaint dated 17.7.2006 filed by one Jayantibhai Purshotambhai Patel with respect to alleged attempt of robbery and assault on the inmates of Dantali Ashram on 17.7.2006. These documents included FIR registered before the Petlad police station, charge-sheet filed by the police in connection with said FIR, statement of present accused no.1 Swami Sachidanand recorded with police during investigation besides other documents.
Learned Magistrate in his impugned order evaluated statements of witnesses examined on behalf of the complainant and come to the conclusion that evidence of witnesses was not reliable. He was of the opinion that except for witness Rameshbhai Madhiyabhai Damor, there was no other person present at Dantali Ashram with Babubhai when the alleged incident took place. He however discarded the evidence of Rameshbhai Madhiyabhai Damor finding it doubtful and not reliable. He was of the opinion that complainant had not stated in the complaint that Rameshbhai Madhiyabhai Damor was present at Dantali Ashram and evidence of Rameshbhai Madhiyabhai Damor therefore, cannot be relied upon. Learned Judge further observed that if the said witness had taken Babubhai to a Government hospital, his life could have been saved. He was therefore, of the opinion that due to negligence of this witness, Babubhai died. Learned Judge further opined that one who seeks equity must come with clean hands. He was of the opinion that the complainant had not come to the Court with clean hands. He brushed aside several decisions of the Apex Court and High Court cited on behalf of the complainant observing that ratio laid down therein would apply to the case at the time of trial and not to the present case. He also did not rely on any of the documents produced along with the list exh. 13 stating that these documents were not exhibited.
In my opinion, learned Magistrate committed a serious error in coming to such a conclusion. Wife of deceased Babubhai had stated before the Court that she did not know exactly what incident had taken place. However, her husband had told her that he had received bullet injury. When he was being taken to her parents house near Ahmedabad, her husband had died. Thereupon his dead body was brought to the native place where his last rites were performed. Police had come and inquired about the incident. Further witness Rameshbhai Madhiyabhai Damor had stated before the Court that he was with the deceased on the date of incident. They had gone to Ashram and asked for food by knocking at the door. After opening the door, people of Ashram had insulted them and started beating up his brother-in-law i.e Babubhai Mohania. He had started shouting for help since people were beating up Babubhai at which point of time, Maharaj had fired from his gun on Babubhai who received bullet injury. He had thereafter, taken Babubhai out of the Ashram. He had gone to Anand, collected some money and brought him to Ahmedabad where Babubhai died in Rickshaw.
At the stage of deciding whether there was enough evidence to issue process against the accused, such evidence could not have been discarded as held by the Apex Court in case of Kewal Krishna v. Suraj Bhan and another reported in AIR 1980 Supreme Court 1780, wherein the Apex Court held and observed as under :
9.
In the instant case, there was prima facie evidence against Suraj Bhan accsud which required to be weighed and appreciated by the Court of Session. At the stage of Sections 203 and 204, Criminal Procedure Code in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202, Criminal Procedure, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is sufficient ground for proceeding against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This Court has held in Ramesh Singh's case (ibid), that even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session.
7.1 In case of S.N. Palantikar and others v. State of Bihar and another reported in AIR 2001 Supreme Court 2960, the Apex Court held and observed as under :
15.
In case of a complaint under Section 200 Cr.P.C. or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complain-ant and his witnesses; if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words 'sufficient ground', used under Section 203 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction.
In my opinion, learned Magistrate committed a grave error in dismissing the complaint under section 203 of the Code of Criminal Procedure so far as accused no.1 present respondent no.2 is concerned. There was sufficient prima facie evidence to proceed further against said accused. Learned Magistrate adopted strange principle of complainant not having come with clean hands, confusing the criminal jurisprudence with equity jurisdiction. His opinion that deceased died due to negligence of witness Rameshbhai Madhiyabhai Damor is also fallacious.
Further I find that along with list exh. 13, several documents of the cross case were produced which included, as already noted, FIR, charge-sheet filed by the police, statements of witnesses recorded and other related documents. In the said cross case, complainant had alleged that several persons including the deceased had attacked inmates of Ashram at which time accused no.1 had fired three rounds in self defence. In the charge-sheet also this aspect has been stated. It is true that documents were not exhibited. Learned Magistrate could have taken steps to ensure that documents are produced and properly exhibited. To throw entire burden of proving the charge even at the stage where process was yet to be issued on the complainant who was an illiterate Adivasi, was too much to expect from him to fulfill.
Considering the particulars of inquiry, I am of the opinion that learned Magistrate committed an error in dismissing the complaint for offence punishable under Section 302 of the IPC and the Arms Act against accused no.1.
Counsel for the private respondents however, submitted that firing, if at all, had taken place in private defence. He submitted that the statement of accused no.1 recorded by police in connection with the investigation of the cross complaint cannot be utilised against him. He relied on the following decisions of the Apex Court in this regard :
1) Mahabir Mandal and others v. State of Bihar reported in (1972) 1 Supreme Court Cases 748.
2) Pakala Narayana Swami v. Emperor reported in AIR 1939 Privy Council 47 With respect to legal proposition discussed in above judgements, there can be no dispute. However, in the present case, I have not based my conclusion on statements recorded by police of accused no.1 under Section 162 of the Code of Criminal Procedure. Further, question whether said accused had fired in self defence or even if such defence was valid, whether he exceeded such right of self defence are questions which can be gone into only at the time of trial and not at this stage.
Insofar as rest of the accused are concerned, however, there is nothing on record to link them with the said firing. Their involvement for offence under Section 302 read with Section 114 of IPC is simply not made out. With respect to allegations of offence punishable under the Atrocities Act, allegations are too general. None of the witnesses including Rameshbhai Madhiyabhai Damor alleged as to which accused abused or insulted the deceased or anyone else in the name of caste. Against accused no.2 to 5 therefore, there is no case to proceed further.
In the result, the impugned order dated 12.9.2007 passed by learned JMFC, Petlad insofar as it pertains to original accused no.1 respondent no.2 is quashed and set aside and confirmed qua respondents no. 3 to 6. Learned Magistrate shall issue process under Section 204 of the Code of Criminal Procedure against accused no.1 for offence under Section 302 of the IPC and under the Arms Act and proceed further in accordance with law, thereafter.
Petition is disposed of accordingly.
(Akil Kureshi,J.) (raghu)