Gujarat High Court
The State Of Gujarat vs Ranchodbhai Malabhai Vansh & ... on 6 April, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/1117/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1117 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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 or any order
made thereunder ?
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THE STATE OF GUJARAT....Appellant(s)
Versus
RANCHODBHAI MALABHAI VANSH & 1....Opponent(s)/Respondent(s)
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Appearance:
MS. HANSA PUNANI, APP, for the Appellant(s)
MR HARSHIT S TOLIA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
-2
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 06/04/2015
ORAL JUDGMENT
[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 20.11.2004 rendered by the learned Special Page 1 of 9 R/CR.A/1117/2005 JUDGMENT Judge (Prevention of Scheduled Caste and Scheduled Tribe) and Additional Sessions Judge, 5th Fast Track Court, Veraval, in Atrocity Sessions Case No.31 of 2001. The said case was registered against the present respondents- original accused for the offences punishable under Sections-354, 504, 506(2), and 114 of the Indian Penal Code and under Section-3(i)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.
[2] According to the prosecution case, on 04.04.2001, at 23:00 hours, Dayuben, who was the victim and Benaben Babubhai, Meenaben Kanubhai went near Rammandir to fetch water. Dayuben and others reached near the house of Koli Vashram Karsan of Vansoj village. At that time, accused No1.-Ranchhod Malabhai caught hold victim Dayuben and took her in his arms and tried to molest her. The victim Dayuben shouted and other persons rushed to the place. Thereafter, accused No.1 ran away from the place of offence. Thereafter, Kanubhai and his mother- Madhuben Tabhabhai went to the house of the Ranchhodbhai Melabhai and rebuked them. The accused No.2 is the cousin brother of accused No.1. Both the accused and Bhikharam were present. All three person got excited and threatened that if the they filed any complaint, they they would kill them. As a result of which, the complainant filed the complaint against the respondents-accused before the Una Police Station bearing registration No.I-C.R.No.0087 of 2001 for the alleged offence as stated above. Then, investigation was Page 2 of 9 R/CR.A/1117/2005 JUDGMENT carried out and statements of the witnesses were recorded. Then, panchnama of place of offence was drawn and special report was submitted. The, charge-sheet was filed against the respondents-accused for the alleged offece before the learned Judicial Magistrate First Class, Una, which was numbered as Criminal Case No.509 of 2001. As the said offences were exclusively triable by the Sessions Court, learned Chief Judicial Magistrate, Una, committed the said case to the learned Special Judge (Prevention of Scheduled Caste and Scheduled Tribe) and Additional Sessions Judge, 5th Fast Track Court, Veraval, which was numbered as Atrocity Sessions Case No.31 of 2001.
[3] On the basis of above allegations, charge was framed vide Exh.4 and read-over and explained to the accused for the offence punishable under Sections-354, 504, 506(2), and 114 of the Indian Penal Code and under Section-3(i)
(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Then, plea was recorded vide Exh.5 and 6 and respondents-accused pleaded not guilty to the charge and claimed to be tried.
[4] In support of the prosecution case, prosecution has examined four oral evidences :-
Sr. Exh. Name of Witness No .
1 7 Kanubhai Tabhabhai
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R/CR.A/1117/2005 JUDGMENT
2 10 Meenaben Kanubhai
3 11 Benaben Balubhai
4 12 Madhuben Tabhabhai
5 13 Jeshabhai Ramsingbhai
6 15 Arvind Devayatbhai
7 16 Jaytabhai Hamirbhai
8 18 Pratapbhai Punjbhai Asari
[5] In support of the prosecution case, the prosecution has produced several documentary evidences like complaint at Exh.8, panchnama of place of offence at Exh.14 and special report at Exh.17.
[6] Thereafter, after filing closing pursis at Exh.47 by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The respondents-accused disclosed that they were innocent and they have wrongly charge-sheeted by the complainant and they have denied the case of the prosecution and submitted that a false case is filed against them.
[7] Then, arguments of both the parties were heard. After considering the defence version of the respondents- accused, the learned trial Judge passed the acquittal order in favour of the respondents-accused.
[8] Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 20.11.2004 rendered by the learned Special Judge (Prevention of Page 4 of 9 R/CR.A/1117/2005 JUDGMENT Scheduled Caste and Scheduled Tribe) and Additional Sessions Judge, 5th Fast Track Court, Veraval, in Atrocity Sessions Case No.31 of 2001.
[9] On 20.11.2007, against both the respondents- accused, the appeal was admitted by this Court. During the pendency of the appeal, respondent No.1-accused- Ranchhodbhai Malabhai Vansh died on 09.02.2008. Death certificate to that effect is produced by Mr.Harshit Tolia, learned counsel for the respondents-accused. Therefore, the present Criminal Appeal is ordered to be abated qua respondent No.1-accused.
[10] Heard Ms. Hansa Punani, learned Additional Public Prosecutor for the appellant-State and Mr.Harshit Tolia, learned advocate for the respondent No.2-accused.
[11] Ms. Hansa Punani, learned Additional Public Prosecutor for the appellant-State. Ms. Punani read the charge and contended that charge under Sections-354, 504 and 506(2) and under Section-3(1)(xi) of the Atrocity Act was framed against respondent No.1-accused, who is expired and against respondent No.2-accused, originally charge under Sections-504 and 506(2) of the IPC was framed. She contended that prosecution has produced oral versions of material witnesses of the prosecution case i.e. victim PW-1-Kanubhai Tabhabhai at Exh.7 and Meenaben Kanubhai and Benaben Kalubhai at Exh.10 and 11, who are eye witnesses and Madhuben Tabhabhai(mother of the victim) at Exh.12 From the evidence of panchas Jeshabhai Ramsinghbhai at Exh.13 Page 5 of 9 R/CR.A/1117/2005 JUDGMENT and Arvind Devayatbhai at Exh.15, contents of panchnama of place of offence at Exh.14 is proved. She then contended that the learned trial Judge wrongly observed that the prosecution could not prove its case beyond reasonable doubt as evidences of witnesses are contradictory to each other hence, wrongly acquitted the respondent No.2-accused from the alleged offence. She then contended that presence of respondent No.2-accused at the place of offence is proved, even though, learned trial Judge committed a grave error in acquitting him. Lastly, she prayed to allow this appeal and set aside the judgment and order of acquittal.
[12] Mr.Harshit Tolia, learned advocate for the respondent No.2-accused contended that the learned trial Judge rightly observed evidence of the prosecution at para-11 of the judgment and as per the statement made by the witnesses, prosecution proved its case beyond reasonable doubt. Learned trial Judge did not found charge under Sections-504 and 506(2) of IPC against the respondent No.2-accused and rightly acquitted him from the said alleged charge. Lastly, he prayed to dismiss the appeal.
[13] I have gone through the impugned judgment and order passed by the learned trial Judge. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the respondent No.2- accused. I have also considered the submissions made by learned advocate for the parties.
[14] As per the evidence of the complainant, PW-1, who Page 6 of 9 R/CR.A/1117/2005 JUDGMENT was examined at Exh.7 and Madhuben Tabhabhai, who was examined at Exh.12, they deposed against respondent No.1-accused. Just to give advise, they went to meet Taluka President Bhikharam and Bhikharam and Babu Bhima threatened them, is disclosed by PW-1 Kanubhai Tabhabhai. He further disclosed that they threatened him "Tane Udavi Dais" (they would kill him) and "what he would do". As per the complaint at Exh.8, all three persons got provoked and abused them and threatened them that if they would tell this anyone or file any complaint, they would kill him. As per the evidence of complainant, it is not disclosed by him that both the respondents-accused and Ram Bhikha, threatened him by uttering the same words and word "tane udavi dais" (they would kill him), is not mentioned in the complaint. PW-5 Madhuben Tabhabhai and evidence of other witnesses did not disclose that what actual threat was given to the complainant and other witnesses. I have perused ingredient of Sections-504 and 506(2) of IPC. From the perusal of the evidences, main ingredient of afore-stated Sections is not proved beyond reasonable doubt. When sufficient doubt is created, learned trial Judge rightly acquitted respondent No.2-accused from the said alleged charge levelled against him. In present case, respondent No.1-accused is expired and appeal qua against him is abated. As far as respondent No.2-accused is concerned, only charge under Sections-504 and 506(2) of IPC was framed. As per the above observation, when the main Page 7 of 9 R/CR.A/1117/2005 JUDGMENT ingredient of Sections-504 and 506(2) is not proved and established, through oral versions of the witnesses, learned trial Judge has not committed any error in acquitting him. In view of the above observations made by the learned Judge, I am in complete agreement that the learned Judge has rightly acquitted the respondent No.2- accused. There in no substance in the appeal and the arguments made by the learned Additional Public Prosecutor. Though learned Additional Public Prosecutor has tried to establish her case, but the Court has not found any sufficient evidence to consider and entertain this appeal.
[15] 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 re-appreciate 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."
[16] Similar principle has been laid down by the Apex Page 8 of 9 R/CR.A/1117/2005 JUDGMENT 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.
[17] In view of the above, the Appeal is hereby dismissed. The impugned judgment and order dated 20.11.2004 rendered by the learned Special Judge (Prevention of Scheduled Caste and Scheduled Tribe) and Additional Sessions Judge, 5th Fast Track Court, Veraval, in Atrocity Sessions Case No.31 of 2001, acquitting the respondent No.2-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 9 of 9