Gujarat High Court
Karshanbhai Ramabhai Vansh vs State Of ... on 9 June, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/881/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 881 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
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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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KARSHANBHAI RAMABHAI VANSH....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR HRIDAY C BUCH, ADVOCATE for the Appellant(s) No. 1
MS MONALI BHATT APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 09/06/2015
ORAL JUDGMENT
1. The present appellant has preferred this Page 1 of 13 R/CR.A/881/2014 JUDGMENT appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 25.6.2014 passed by the learned Addl. Sessions Judge, Junagadh, in Sessions Case No. 81/2008, whereby, the learned trial Judge has convicted the appellant under sec. 332 of IPC and sentenced to undergo R/I for three years and to pay a fine of Rs. 2000/-, in default, to undergo further S/I for thirty days. The appellant is also convicted under section 186 of IPC and sentenced to undergo R/I for three months and to pay a fine of Rs.500/-, in default, to undergo further S/I for seven days, which is impugned in this appeal.
2. The brief facts of the prosecution case is as under:
2.1 That the complainant Ramjibhai Limbabhai Varmora was serving as Taluka Panchayat Revenue Officer at Una and his duty to supervise the work of Talati-Mantri of respective talukas. That the present appellant was serving as Talati-mantri at Nandrakhi Nesda village in Una Taluka and due to irregularities, the appellant has been suspended in March, 2008. It is further the Page 2 of 13 R/CR.A/881/2014 JUDGMENT case of the prosecution that on 5.7.2008 when complainant was going to attend the meeting at the office of District Panchayatat, Junagadh, on the way, the appellant had met him and told him to forget the past and have a tea. They had taken the tea. At that time, the appellant had told him that he had been suspended due to him and got excited and gave blows of wooden piece on the elbow of his left hand and knee of right leg. Hence, the complainant had lodged the complaint. After the aforesaid complaint having been lodged, the investigation had been carried out and charge-
sheet had been filed against the present appellant in the Court of learned Chief Judicial Magistrate, Junagadh. As the case was exclusively triable by the Court of Sessions, the learned Magistrate, committed the case to the Court of Sessions, which was numbered as Sessions Case No. 81/2008.
3. The accused was charged vide Ex. 2. The appellant - accused pleaded not guilty and claimed to be tried.
4. In order to bring home the charge levelled against the appellant- accused, the Page 3 of 13 R/CR.A/881/2014 JUDGMENT prosecution has examined the following witnesses:
1. Dr.Ashokkumar Laxmidas Samani Ex.9
2. Panch witness-Parbatbhai Lakhmanbhai Barad Ex.16
3. Panch witness-Salimbhai Aamadbhai Sodha Ex.18
4. Panch witness-Lalabhai Bhikhabhai Dharukiya Ex.19
5. Panch witness-Haresh Devabhai Mushal Ex.25
6. Witness-Mansukhlal Bhagvanjibhai Gor Ex.31
7. Complainant-Ramjibhai Limbabhai Varmora Ex.46
8. Witness-Naranbhai Raiyabhai Singhal Ex.48
9. Witness-Dhirubhai Limbabhai Varmora (Brother of the complainant) Ex.50
10. Govindbhai Punjabhai Chauhan Ex.51
11. Police witness-Vrajlal Shamjibhai Dave Ex.52
12. Investigating officer-Balvantsinh Bhavubha Zala Ex.58
13. Dr.Nikhilkumar Pushpakray Buch Ex.74
14. Lalitbhai Devjibhai Vagadiya Ex.84
5. The prosecution has also produced the following documentary evidence before the trial Court.
1. Certificate of injury of the patient Ex.10
2. Patient's MLC case papers Ex. 11
3. Entry regarding admitting the patient Ex.12 Page 4 of 13 R/CR.A/881/2014 JUDGMENT
4. Patient's X-Ray form and report Ex. 13,14
5. Patient's X-ray form and report Ex. 15
6. Panchnama of arrest of accused Ex.17
7. Panchnama of place of offence Ex.20
8. Original complaint Ex.47
9. D.O. Letter Ex.53
10. Yadi regarding offence Ex.54
11. True copy of FIR Ex.55
12. True copy of extract of Station diary Ex.56
13. Copy of report regarding addition of Section 333 of IPC. Ex.59
14. Copy of notification Ex.60
15. True copies of different FIRs Ex.63-66
16. Medical certificate regarding injury of the accused. Ex.75
17. OPD and indoor case papers of the accused Ex.76
18. Report Ex.85
19. True copy of extract of Station diary Exh.86
6. Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.
7. After considering the oral as well as documentary evidence and after hearing the parties, learned 2nd Addl. Sessions Judge, Page 5 of 13 R/CR.A/881/2014 JUDGMENT Veraval vide impugned judgment and order dated 14.7.2014 held the appellant - accused guilty to the charge levelled against her under sec. 317 of IPC and convicted and sentenced the appellant accused, as stated above.
8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned 2nd Addl. Sessions Judge, Veraval, the present appellant has preferred this appeal.
9. Heard Mr. Hriday Buch learned advocate for the appellant and Ms. Monali Bhatt learned APP for the respondent-State.
10. Mr. Buch learned advocate appearing for the appellant-accused has vehemently submitted that the evidence on record goes to show that the offence under section 332 and 182 of IPC is not made out, and therefore, the impugned judgment and order of conviction and sentence may be quashed and set aside and the appeal be allowed. Mr. Buch learned advocate for the appellant has submitted that the trial Court has erred in believing the prosecution case and evidence on record. He has further Page 6 of 13 R/CR.A/881/2014 JUDGMENT submitted that the judgment and order of conviction is based on improper appreciation of the evidence of prosecution and based on improbabilities and therefore the same deserves to be quashed and set aside and the appeal be allowed.
11. Per contra, learned APP Ms. Bhatt has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Ms. Bhatt learned APP further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused, and therefore, the present appeal does not deserve to be allowed.
12. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. Mr. Buch learned advocate further submitted that the appellant and the complainant had gone for tea, and so, can it be said that the appellant Page 7 of 13 R/CR.A/881/2014 JUDGMENT had obstructed the complainant in discharge of his public functions. The answer is no. The incident occurred at the spur of moment. Section 332 and 186 reads as under:
"332. Voluntarily causing hurt to deter public servant from his duty.- Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
186. Obstructing public servant in discharge of his public functions.- Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."
13. Both the offences are non-
compoundable. However, they are made
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R/CR.A/881/2014 JUDGMENT
punishable with fine and/or imprisonment. In that view of the matter, Mr. Buch has submitted that some leniency may be shown. In the facts and circumstances of the case, as the Government servant who was injured has filed his affidavit for compounding the offence, which is taken on record.
14 This Court (Coram: G.B. Shah, J.) on 15.7.2014, has passed the following order while granting bail to the appellant till the final disposal of this appeal:
1. Heard learned advocate Mr. Hriday Buch for the applicant-original and learned Additional Public Prosecutor Mr.N.J. Shah on behalf of opponent State of Gujarat.
2. Rule. Learned Additional Public Prosecutor Mr.N.J. Shah waives notice of rule on behalf of opponent State.
3. Present Criminal Miscellaneous Application has been filed under 389 of the Code Criminal Procedure, 1973 by the applicant original accused for suspension of the sentence recorded by the learned Additional Sessions Judge, Junagadh while passing the judgment and of conviction dated 25.06.2014 in Sessions Case No.81 of 2008.
4. It appears that for the offence Page 9 of 13 R/CR.A/881/2014 JUDGMENT punishable under Section 332 of the Indian Penal Code, the Court concerned has imposed three years' rigorous imprisonment and a fine of Rs.2000 and for the offence punishable under Section 186 of the Indian Penal Code, the Court has imposed three months' rigorous imprisonment and a fine of Rs.500 upon the applicant herein.
Learned advocate for the applicant submitted that the applicant herein was arrested on 05.07.2008 and thereafter, he was actually released on bail on 24.11.2008 and thus, upto this stage, the applicant herein has undergone imprisonment of four months and twenty days. The applicant has also paid the fine imposed upon him on 25.6.2014.
5. Considering the impugned judgment and order, more particularly, the sentence imposed and also considering the fact that the applicant original accused was on bail during the trial and appeal filed by the applicant original accused has been admitted, the applicant is hereby ordered to be enlarged on bail pending hearing and final disposal of the appeal on same bail with fresh bond of Rs.5,000/ ( Rupees Five Thousand Only) and one surety of like amount to the satisfaction of the trial Court on usual terms and conditions and on conditions that the applicant herein:
i. shall not take undue advantage of liberty or misuse the liberty;
ii. shall surrender Passport, if Page 10 of 13 R/CR.A/881/2014 JUDGMENT any, before the concerned Police Authority;
iii. shall not leave territory of India without prior permission of this Court.
6. The application is thus allowed. Rule is made absolute accordingly. Direct service is permitted.
15. However, on going through the record and going through the facts, it appears that the complainant was present before this Court and has orally conveyed that as the accused has felt remorse. He wants to compound the offence. The accused is also Government servant and he was suspended in the year 2008. Can it be said that he had stopped the complainant from performing any official duty. The answer is no for the following reasons. The learned trial Judge has misread the entire provisions of section 332 and 186 of IPC. It cannot be said that there was any stopping of official work of the complainant. It is an admitted position of fact that, both, the complainant and the accused have now settled in life. The accused is also a Government servant. However, going through the ocular version of the complainant, it cannot be said that the accused tried to obstruct him in his Page 11 of 13 R/CR.A/881/2014 JUDGMENT official duties. If at all any offence is committed, is one, which is a compoundable offence, and the same is permitted by this Court. The evidentiary value of the complainant itself goes to show that the learned Judge has misread the evidence in convicting the accused and the evidence categorically goes to show that the appellant did not obstruct the official work of the complainant. The imprisonment under section 186, whose meaning thereby, to voluntarily obstructs any public servant in the discharge of his public functions. They were not even in office when this act had occurred, and therefore, he cannot be said to have hurt so that the complainant may be deterred from doing his duty as public servant. In that view of the matter, the appellant is required to be given benefit of doubt and the appeal deserves to be allowed.
16. In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 25.6.2014 passed in Sessions Case No. 81/2008 by the learned Addl. Sessions Judge, Junagadh, is quashed and set aside. However, fine paid by the appellant Page 12 of 13 R/CR.A/881/2014 JUDGMENT accused be given to the complainant. The appellant-accused acquitted of all the charges levelled against him. The appellant-accused is on bail, he need not surrender. R & P to be sent back to the trial court.
(K.J.THAKER, J) mandora Page 13 of 13