Gujarat High Court
Parshottamdas Haridas Patel vs State Of Gujarat on 13 July, 2018
Equivalent citations: AIRONLINE 2018 GUJ 95
Author: B.N. Karia
Bench: B.N. Karia
R/CR.A/737/2001 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 737 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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PARSHOTTAMDAS HARIDAS PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR JAYESH DAVE for MR R E VARIAVA(971) for the PETITIONER(s) No.
1,2
MR HARDIK SONI, APP (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 13/07/2018
CAV JUDGMENT
1. Present appellants-original accused nos.4 and 5 have preferred this appeal under Section 374 (1) of the Criminal Procedure Code, 1973 challenging the judgment and order of conviction dated 16.8.2001 passed by learned Special Judge, Page 1 of 21 R/CR.A/737/2001 CAV JUDGMENT Court No.15, Ahmedabad, in Atrocity Criminal Case no.50 of 2000, whereby accused nos.4 and 5 have been convicted for the offences punishable under Sections 143, 144, 147 and 148 of the Indian Penal Code and ordered to undergo rigorous imprisonment for one year. For the offence under Section 323 read with Section 149 of IPC also present appellants are convicted and ordered to undergo one year's rigorous imprisonment and for offence under Section 427 read with Section 149, present appellants are ordered to undergo two years' rigorous imprisonment. For the offence under Section 435 read with Section 149, the appellants are ordered to undergo three years imprisonment with fine of Rs.500/-, in default of payment of fine, further simple imprisonment of 15 days was imposed. For the offence under Section 451 read with Section 149, the accused are ordered to undergo two years rigorous imprisonment with fine of Rs.500/- and in default of payment of fine, further 15 days simple imprisonment was awarded. For the offence under Section 3 (1) (15) of the Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act read with Section 149 of IPC, three years' rigorous imprisonment was imposed with fine of Rs.500/- and in default therefore, 15 days simple imprisonment was awarded. For the offence under Section 3 (2) (3) of the Page 2 of 21 R/CR.A/737/2001 CAV JUDGMENT Atrocities Act read with Section 149 of IPC, three years' rigorous imprisonment was imposed. All the sentences were ordered to run concurrently.
2. The case of the prosecution is that the accused and the complainant are residents of the same society. Next to the house of the complainant, there is common plot. Members of the society intended to construct a community hall on the said common plot for the benefit of the members of the society. The complainant objected to it because if the community hall would be constructed his house would be blocked and it will affect his house. On 24.10.1999, in the morning at about 10 to 10.15 a.m., ten to 15 persons gathered there and with the help of labourers and mason they started construction work. The complainant said that if this construction is carried on, door of his house will be blocked. Other members of the society insisted that the wall would be constructed at that place only, therefore, a quarrel started. Accused no.4 inflicted a pipe blow on the head of the complainant, and another blow was given on the wrist of his right hand. Other accused persons started pelting stones, while accused no.5 had also given a pipe blow on the head of the brother of the complainant. The accused persons also entered the house of the complainant and Page 3 of 21 R/CR.A/737/2001 CAV JUDGMENT ransacked it and also demolished one wall of the house. It is also alleged that the accused persons looted gold chain, two gold rings, Rs.20,000/- cash, five sarees, gas bottle etc. having total value of Rs.33,500/-. It is also the case of the prosecution that though the accused knew that the complainant are belonging to scheduled caste, they insulted them in public and asked them to vacate the house and threatened them to kill. As the complainant and his brother were injured they were taken to Civil Hospital for treatment, where they have given the complaint. Such complaint was registered as I.C.R.No.204/99 with Meghaninagar Police Station, Ahmedabad.
3. Upon investigation being carried out, charge-sheet was filed in the Court of Metropolitan Magistrate, against the accused persons for the above referred offences. Since the offence under the Atrocities Act was alleged against the accused, the case was committed to the Court of Special Judge. Thereafter, charge was framed against the accused and the accused pleaded not guilty to the charge and claimed to be tried.
4. During trial, the prosecution has examined eight witnesses and also produced seventeen documentary evidence Page 4 of 21 R/CR.A/737/2001 CAV JUDGMENT on record. After completion of trial, learned Judge convicted the accused persons for the offences, as aforesaid, and imposed the sentence as referred to in earlier paragraph.
5. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 16.8.2001 passed by learned Special Judge, Court No.15, Ahmedabad, in Atrocity Criminal Case no.50 of 2000, present appeal is preferred.
6. Heard learned advocate Mr.Jayesh Dave for the appellants-original accused nos.4 and 5 and Mr.Hardik Soni, learned APP for the respondent-State.
7. It is submitted by learned advocate Mr.Jayesh Dave for the appellants that there was no material placed on record of the trial Court to prove that the present appellants-accused nos.4 and 5 are involved in the commission of offence or they have caused any injuries to the complainant or any other witnesses, they are falsely convicted by the trial Court. It is further submitted that out of three injured eye-witnesses, two of them viz. Manjibhai Padamshibhai Harijan and Parbatbhai Khetabhai Harijan have not supported the prosecution case. That only injured witness, who had supported the prosecution Page 5 of 21 R/CR.A/737/2001 CAV JUDGMENT case was one Chhaganbhai Harijan. That there was discrepancy between the ocular version and the medical evidence on record. That no medical expert or doctor was examined by the prosecution as a witness before the trial Court to support injuries caused to the injured persons and it is admitted on record. That medical certificates produced on record cannot be proved in evidence without producing any expert's opinion. That panchas have not been examined by the prosecution. Conviction is based on solitary injured eye- witness, who was not at all reliable. That evidence adduced before the Court by the prosecution was not appropriately appreciated. That learned trial Judge has ignored the facts that no independent witnesses have been examined by the prosecution and on mere say of the complainant and his relatives trial Court has proceeded and convicted accused nos.4 and 5, who are the appellants before this Court. That, in fact, the incident had happened in the society before a considerable number of persons and there ought to have been some independent witnesses, however, none of them were examined by the prosecution. It was not possible to evaluate the evidence as to who had thrown stones. There was no evidence to believe that the present appellants had ransacked the house, by taking out petrol burned the vehicles of the Page 6 of 21 R/CR.A/737/2001 CAV JUDGMENT victims. That this was a case of a society where due to some internal feud, the incident had resulted and by giving a big picture to such a small incident, complaint is filed. That there was no question of any incident to occur with regard to, "Dheda go away from here", as none of the witnesses have stated in their statements to support the prosecution case of using such words by the present appellants/accused. That they were not aware as to whether such words have been spoken or not. That merely on the say of the complainant, appellants cannot be saddled with the offence and the punishment under the said provisions. That evidence of the witness no.1 and 2 are contrary to each other in chief and, therefore, evidence cannot be believed for involvement of present appellants in the offence nor they can be convicted for the same. That involvement of the accused/appellants in the incident is not proved by the prosecution as there was no person who had seen the entire incident and no independent witnesses or evidence has been examined. That investigation was not done properly and prosecution has failed to prove the case beyond reasonable doubt. That appellants/accused are falsely roped in and complainant has failed to prove serious and grave injuries. No evidence of the doctor was placed on record, as there is no substance in the prosecution case. That barring present Page 7 of 21 R/CR.A/737/2001 CAV JUDGMENT appellants/accused, other seven accused were acquitted from all the charges levelled against them and no acquittal appeal was preferred by the State against them. That rest of the accused, i.e. present appellants, cannot be convicted under Section 143, 147, 148, 149 of IPC. In support of these arguments, learned advocate Mr.Jayesh Dave has placed reliance on the decision in the case of Amar Singh and Others v. State of Punjab reported in AIR 1987 SC 826. That complainant and other witnesses have not supported their case in cross-examination. That complainant has given names of the accused in his complaint as per the say of the community people. That by C.R.No.I-203/1999, first complaint was registered against the complainant before Meghaninagar Police Station and, therefore, to save his own skin from said FIR, present FIR was lodged after delay of four hours with an oblique motive. That panch of the recovery panchnama of muddamal does not support the panchnama and has also not identified pipe (muddamal) before the Court. That in a vardhi received by the PSI at 9.00 a.m., Exh.24, no names of the accused were given by the complainant. That Dy.S.P., Ratilal Devjibhai Mankadiya, has recorded the statements of the people residing nearby the place of incidence, however, no independent witnesses were examined by the prosecution. Page 8 of 21 R/CR.A/737/2001 CAV JUDGMENT Said Dy.S.P. has stated that panchnama of scene of offence was drawn by the Writer but record shows that said panchnama was already drawn pertaining to FIR being C.R.No.I-203/1999 and was placed record. It shows that investigation was not done by Dy.S.P. in the present case and, therefore, entire investigation is in violation of Rules of 1985. That prosecution has failed to prove that "pipe" muddamal was used in the offence. As there is no legal, reliable or credible and trustworthy evidence connecting the appellants/accused with the offence, it was requested by learned advocate Mr. Dave to quash and set aside the impugned judgment and order convicting the present appellants in the offence by allowing this appeal.
8. From the other side, Mr.Hardik Soni, learned APP for the respondent-State supported the impugned judgment and submitted that learned trial Judge has rightly believed the evidence of prosecution witnesses for valid and reasonable cause. That no undue weightage can be given to minor discrepancies in the deposition of prosecution witnesses to pass any acquittal order in favour of the accused involved in a serious offence. That trial Court has correctly assessed the facts and circumstances of the case and there was no legal error in the impugned order seeking interference of this Court. Page 9 of 21 R/CR.A/737/2001 CAV JUDGMENT That the prosecution witnesses were won over by the accused side, as after chief examination was over, adjournment was sought and on next date their cross-examination was done. The injuries caused to the complainant as well as other witnesses were proved by the prosecution by producing necessary medical certificates. History recorded by the medical officer was reflected from the medical certificate. That panchnama prepared by the investigating officer has also supported the prosecution case. That the injured were shifted to hospital for their treatment is undisputedly admitted by the other side as well as treatment given to them. The trial Court has not committed any legal error in appreciating the ocular and medical evidence to reach to the conclusion that the present appellants/accused are guilty of the offence. That this Court should refrain from disturbing the findings and conclusions recorded by the trial Court in absence of any contrary evidence. That this Court ought not to interfere with the order of conviction passed by the trial Court. That no irregularity is committed by the trial Court in convicting the appellants/accused after recording evidence laid by the prosecution. Ultimately, it is requested by learned APP, Mr.Soni, to dismiss the appeal by confirming the order of conviction passed against present appellants. Page 10 of 21 R/CR.A/737/2001 CAV JUDGMENT
9. This Court has given consideration to the material placed before me and arguments advanced by learned counsel on either side.
10. The trial Court, who having appreciated the evidence on record has come to a diametrically opposite conclusions mandating to observe certain witnesses statements which may have an important bearing in this case. In the process of appreciating the evidence at the appellate stage, this Court is of the opinion that entire approach of the trial Court in dealing with the evidence was patently illegal and conclusions arrived at by it was wholly untenable for the reasons as herein before discussed.
11. As per the prosecution case, accused nos.3, 4 and 5 have received injuries in the incident by weapon of pipe and their medical certificates of treatment were produced before the trial Court. The injuries shown was CLW 0.5X 0.5 cm. on left side of frontal region, x-ray of right R/UC wrist was taken and fracture was seen through 1/3rd right Ulna.
12. They have taken their treatment as outdoor patients in the Civil Hospital. Complainant, Chhaganbhai Rathod, PW-1, is Page 11 of 21 R/CR.A/737/2001 CAV JUDGMENT eye-witness as well as injured person as per the prosecution case. As per his chief-examination, involvement of Parshottam, Lilachandbhai and one Natubhai was found by him and he had identified accused no.3, Kanubhai in the Court. As per his case, he was injured by both the appellants by pipe i.e. on head and right hand. His brother Manjibhai was injured by Lilachand, accused no.5, by pipe on his head. Thereafter, other people of the society came there and started stone pelting. From the record, it appears that prosecution has not examined any doctor to prove the injuries to the complainant nor referred to the weapon by which the injury was caused. Therefore, it can be said that the prosecution has failed to prove the injuries caused to the injured. It also appears that, at the initial stage, complainant has referred to only two persons without any weapon in their hands and, thereafter, society people gathered and they pelted stones and, therefore, it would be difficult to accept the deposition of the complainant that present appellants had formed an unlawful assembly and by that unlawful assembly attacked on the complainant. It is material to point out that the trial Court has acquitted seven accused out of nine accused persons and against such order of acquittal of seven accused, State has not preferred any acquittal appeal. In the chief examination, the complainant has Page 12 of 21 R/CR.A/737/2001 CAV JUDGMENT not identified the weapon-pipe before the Court. Injury certificate produced vide Exh.30 does not disclose that the injury sustained by the complainant can be caused by weapon like pipe, in absence of any medical opinion. The complainant in his cross-examination has admitted that verbal altercation took place with Supervisor, and at the same time, present appellants accused were not present when the incident took place as well as during stone pelting somebody caused injuries to him and his brother, Manji and Parbat. It is also a case in his cross-examination that before lodging of the complaint, his community people had a meeting with him and they have provided names of some people and names of those people as accused in the present complaint. He has clearly admitted that nobody from the accused side had insulted him by his caste nor they have caused any injury to him. From the cross- examination of this witness, it is clearly found that he has not supported his own case in his cross-examination. Of course, complainant has supported the case of prosecution in his chief examination, but in the cross-examination, he has not supported his case. Learned trial Judge has not taken into consideration the cross-examination of the complainant and by relying only on the chief-examination convicted the present appellants. From the record, it appears that the complainant Page 13 of 21 R/CR.A/737/2001 CAV JUDGMENT himself has admitted that present appellants-accused were not present for causing injury nor they have spoken any bad words relating to their caste or he does not know, who caused injuries to him. He has not attributed any kind of weapon in the hands of the present appellants nor he has identified muddamal pipe before the Court. Learned trial Judge, by relying upon the chief- examination only, has convicted both the appellants for several offences like unlawful assembly and under Section 323, 451 of IPC, without considering his cross-examination. Complainant has concealed the facts that before he lodged the complaint, complaint against him and other four accused was already filed before police at 10.00 a.m.
13. Another prosecution witness no.2, Naresh Chhaganbhai, Exh.9, is the eye witness. He has also referred to three names i.e. (1) Pashabhai, (2) Natubhai and (3) Kanubhai, saying that they were standing and got excited and other people of the society also gathered and started stone pelting. He has further stated that Pashabhai gave a pipe blow on the head of his father. His uncle also received injury by stone. He is not sure about the words, who spoke about his caste. In his cross- examination, he has admitted that during verbal quarrel, members of the society were gathered and within 10 to 15 Page 14 of 21 R/CR.A/737/2001 CAV JUDGMENT minutes, stone pelting was started, wherein his father Manjibhai and Parbatbhai received injuries. He further admits that, at the time of incident of stone pelting, receiving injuries by his father, accused of present case were not present. In his police statement, names of the accused were given upon say of community people. As he was knowing all the accused persons before incident, he has identified them in the Court. This witness has not stated at any point of time in his deposition before the trial Court that what role was played by appellant no.2, in his chief examination nor about any kind of injury to the prosecution witnesses. As per his chief examination, none of the accused were armed with any kind of weapon. Under the circumstances, it would be difficult to accept the story of the prosecution that the accused formed an unlawful assembly and committed the offence.
14. Prosecution witness no.3, Manjibhai Padamshibhai Rathod, Exh.20, who happens to be the brother of the complainant and injured has turned hostile. In his cross- examination also nothing has come to establish that present appellants along with other co-accused formed an unlawful assembly and attacked upon them. In fact, he has admitted in his cross-examination that, "it is true that before a statement Page 15 of 21 R/CR.A/737/2001 CAV JUDGMENT recorded by the police, people of his community came there and as per the say of community people he has given statement before the police". He has also admitted that present appellants/accused were not present when he and his brother received injuries and he has not seen the accused at the place of incident. It appears that this witness has not supported the prosecution case in any manner but, contrary to it, he has admitted that present appellants/accused were not present at the place of incidence and only because of say of the community people he has given police statement.
15. PW-4, Prakashbhai Chhaganji Rathod, Exh.21, who is son of the complainant, has not supported the prosecution case and, therefore, he was declared hostile. Another PW-7, Parbatbhai Khetabhai, Exh.40, who happens to be the relative of the complainant was also turned hostile by the prosecution. This witness was relative of the complainant and alleged to be injured has not supported the prosecution case.
16. PW-5, Ramanbhai Kashiram, Exh.24, was also turned hostile. He was examined as a witness as to the panchnama of recovery of pipe but he has not supported the case of the prosecution. He admits in his cross-examination that, when he Page 16 of 21 R/CR.A/737/2001 CAV JUDGMENT reached the police station, panchnama was already written and he was told to sign and, therefore, he has signed the same. From the deposition of this panch witness, panchnama of recovery of weapon was not proved.
17. PW-6, Manilal Nathabhai Vankar, Exh.24, was Police Sub- Inspector of Meghaninagar Police Station, has stated that he reached Civil Hospital at 12.05 p.m. and complaint was recorded and investigation was handed over to Dy.S.P. He admitted in his cross-examination that C.R.No.I-203/1999 and 204/1999 complaint was taken as per the complaints. Before filing of the complaint in the present case at Civil Hospital at 10.00 a.m., C.R.No.I-203/1999 complaint was recorded. He was well aware with the previous complaint. In the first vardhi, names of the accused were not disclosed. That no documents about the caste of the complainant at the time of complaint were collected by him during his investigation tenure. He further admits that complainant and two other injured persons were not admitted in Civil Hospital and have been treated as OPD patients. Injury certificates, Exh.30, 31 and 32 shows that injured were already treated at 11.00 a.m. as OPD then why they were in hospital at 12.05 p.m. No satisfactory answer was forwarded by the prosecution.
Page 17 of 21 R/CR.A/737/2001 CAV JUDGMENT
18. Ratilal Devji Mankadiya, PW-8, who happens to be Dy.S.P., carried out further investigation. As per his statement, he has recorded the statement of injured witness and also drawn panchnama of scene of offence. He also came to know that against the complainant and witnesses, another complaint was already lodged before Meghaninagar Police Station. He also admitted in his cross-examination that telephonic message was received by him on 24.10.1999 at 2.05 p.m. and in the panchnama of scene of offence number of cross- complaint was mentioned.
19. Even we look to the evidence of PSI, Mr.Vankar, it appears that he has not investigated the offence, as required under law. He has recorded the statements of so many persons but none of them have been examined as independent witnesses. Trial Court has only considered chief-examination of the witnesses and has not considered the cross-examination of these witnesses, who in terms have stated that present appellants/accused were not present at the place of the incident.
20. In the case of Amar Singh and Others (supra), out of seven accused, two of them were acquitted by the trial Court and one by High Court. Honourable the Apex Court held that Page 18 of 21 R/CR.A/737/2001 CAV JUDGMENT for constituting unlawful assembly, there must be five or more persons. Here also out of nine accused, seven accused are acquitted by the trial Court against which the State has not preferred appeal before this Court. The appellants, who are remaining two, cannot be held to have formed an unlawful assembly within the meaning of Section 141 of IPC and, therefore, offence under Sections 148 and 149 of IPC were not at all maintainable against the accused. As the appellants were only two in number, there was no question of their forming an unlawful assembly. Therefore, on the acquittal of seven accused persons, remaining two accused i.e. the appellant cannot be convicted under Section 148 or 149 of IPC. For committing offence material condition to be fulfilled in designating assembly as an "unlawful assembly" and that such assembly must be of five or more persons as required under Section 141 of IPC.
21. Considering the evidence of the prosecution case, witnesses examined by the prosecution are totally inconsistent and contrary to their own statements. It is sufficient to discard the entire evidence. Apart from the fact that the appellants cannot be convicted for offence under Sections 148 and 149 of IPC, it is difficult to convict them on any charges on the basis of evidence of only two eye witnesses.
Page 19 of 21 R/CR.A/737/2001 CAV JUDGMENT
22. Under totality of consideration of all relevant facts and circumstances, the evidence of PW-1, who is witness of the incident, as projected him, is wholly unacceptable with improbabilities, doubts and oddities inconceivable and this cannot be acted upon on the basis of conviction. The testimony of PW-2 and PW-3 even if taken on their face value, fall short of the requirement of proof of charges beyond reasonable doubt. The appellants thus entitled for acquittal, considering the facts and circumstances of the case. Conviction cannot be based on testimony of a single eye witness, if he or she passes the test of reliability. It is not the number of witnesses but quality of evidence that is importance. Evidence must be weighed and not counted, decisive test being whether it is a correct and true and it is cogent, credible, trustworthy or otherwise. Herein evidence of eye witnesses, PW-1 and PW-2 was not reliable. Hence, conviction of the present appellants is reversed.
23. In the result, present appeal succeeds and is allowed. The impugned judgment and order dated 16.8.2001 passed by learned Special Judge, Court No.15, Ahmedabad, in Atrocity Criminal Case no.50 of 2000 is quashed and set aside so far as present appellants, i.e. original accused nos.4 and 5, are concerned. The appellants-accused nos.4 and 5 are acquitted Page 20 of 21 R/CR.A/737/2001 CAV JUDGMENT of all the charges levelled against them. The appellants- accused nos.4 and 5 are ordered to be released forthwith, if not required in any other criminal case. Bail bond, if any, stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith. Fine if paid, be refunded.
Sd/-
(B.N. KARIA, J) R.S. MALEK Page 21 of 21