Adambhai Mohmadbhai and Others vs State of Gujarat

Rajesh H. Shukla, J.—The present appeal has been directed against the judgment and order passed in Special Criminal Case No. 19/93 by the learned Addl. Sessions Judge, Bhavnagar dated 2.5.1994 recording the acquittal of the accused persons for the offence u/s 504, 506(2) of IPC and recording conviction of the appellants herein-original accused, for the offence u/s 3(1)(10) of the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ''the Atrocities Act'') r/w Section 114 of IPC and imposing R.I. for 1 year and fine of Rs. 500/-, in default R.I. for 3 months.

The facts of the case, briefly summarised, are that on 20.11.1992 the complainant was at his house and the supply of electricity was disrupted all of a sudden with some noise. Therefore, when he came out he found a crowd and it was learnt that A-1 and his sons- A-2 and A-3, were cutting the tree on the road-side and in the process two wires of the electric line mixed up resulting in short circuit. The complainant had gone out for his work and at about 8.30 when he returned it was found that when the residents of the locality who had gathered tried to warn the accused persons there was some quarrel and they were abused. Therefore, the complainant went to A-1 father and the two sons who were standing there to impress upon and warn them as to what had transpired. At that time A-1 is stated to have abused using filthy language and used the words intentionally to insult and humiliate and thereby committed the offence. Therefore, the complaint was lodged by the complainant which has been registered as C.R. No. 139/92 with Gariyadar Police Station for the alleged offences u/s 504, 506(2) of IPC and also for offence u/s 3(1)(1) of the Atrocities Act r/w Section 114 of IPC.

On the basis of the complaint, an offence came to be registered as Special Criminal Case No. 19/93 against the accused persons and the learned Addl. Sessions Judge, Bhavnagar framed the charges at Exh. 2 for the alleged offences. After recording the plea of the accused, the accused denied to have committed any such offence and therefore the learned Addl. Sessions Judge proceeded with the trial.

In order to bring home the charges levelled against the accused persons, the prosecution examined the witnesses and also produced documentary evidence. After recording the evidence of the prosecution witnesses, the learned Addl. Sessions Judge, Bhavnagar recorded further statement of the accused u/s 313 of Cr.P.C.

After hearing the learned APP as well as the learned advocate for the defence, the learned Addl. Sessions Judge, Bhavnagar recorded the acquittal of the accused for the alleged offences u/s 504 and 506(2) of IPC. However, he recorded conviction of the accused persons for the offence u/s 3(1)(10) of the Atrocities Act and imposed sentence as stated hereinabove.

It is this judgment and order which has been alleged on the grounds, inter alia, that the conviction of the accused persons is erroneous as the learned judge has erred in appreciating the evidence. It is also contended that the learned Judge has failed to appreciate that the prosecution case is not supported by any independent witnesses with regard to the alleged offence. It is also contended that the learned judge has erred in appreciating that the provisions of the Atrocities Act cannot be said to have been fulfilled as there is no evidence on this aspect which would constitute an offence under the Atrocities Act. It is also contended that none of the persons have corroborated that a particular appellant had addressed the original informant by a word which may amount to commission of the offence under the Atrocities Act.

Learned advocate Mr. Mangukiya for the appellants-accused referred to the testimony of complainant Somabhai Babariya at Exh. 8 and his complaint at Exh. 12. He referred to the complaint and submitted that in the complaint he has stated as to what had transpired and he has state that A-1 and his two sons insulted him uttering words derogatory to his caste and thereby committed the offence. They had also rushed to attack him. Learned advocate Mr. Mangukiya submitted that in the complaint he has also stated about intervention of other people who came to his rescue. However, learned advocate Mr. Mangukiya submitted that in his testimony at Exh. 8 he has not stated as to who had uttered the word. For that purpose, he referred to the cross-examination and submitted that these words were spoken of by A-1 or two of his sons, that is, A-2 and A-3 he cannot say. He, therefore, submitted that he has not stood by his complaint.

Learned advocate Mr. Mangukiya further submitted that independent witnesses have not been examined, though in the complaint he has referred to their presence at the time of the incident. He submitted that the two independent witnesses who have been examined like Jaisukhgiri Harnamgiri Goswami, PW-2, and Salemanbhai Nanjibhai, PW-3, have not supported the prosecution case in any manner. Learned advocate Mr. Mangukiya submitted that PW-4 Kantilal Dave, Police Constable, who had recorded the complaint, Exh. 12, has stated in his testimony that all the accused had abused and uttered words derogatory to the complainant. However, he submitted, referring to the statement of Jaisukhgiri Harnamgiri Goswami, PW-2, recorded by the police, that it has been recorded that after hearing the shouts he (Jaisukhgiri) rushed and he saw A-1 was abusing the complainant and his two sons were also abusing with the utterance of words derogatory to the complainant. Learned advocate Mr. Mangukiya therefore submitted that what he has stated is from the statement recorded by Jaisukhgiri, but Jaisukhgiri is examined at Exh. 13 and in his testimony he has not supported the prosecution case and has been declared hostile. Jaisukhgiri in his testimony at Exh. 13 has clearly stated that he has not heard what was the quarrel about. He has specifically stated that he has not stated in his statement before the police that when he went he saw A-1 was abusing the complainant and his two sons had also abused and uttered words derogatory to the complainant. Learned advocate Mr. Mangukiya submitted that A-1 has expired and in any case even the complainant in his testimony at Exh. 8 has stated and also admitted in the cross-examination that there were some talks of compromise. He has also stated that he has no personal grievance against A-1 who had died and otherwise they had cordial relations. He therefore submitted that the impugned judgment and order recording conviction for offence under the Atrocities Act may be quashed and set aside.

Learned APP Mr. Jani submitted that though independent witnesses have not corroborated or supported the case, the complainant in his testimony at Exh. 8 has stated that he has lodged the complaint at Exh. 12. He therefore submitted that if the complaint, Exh. 12, is read, he has clearly stated as to what had transpired and how the complainant was abused by the accused persons. Therefore, it was submitted that the impugned judgment and order may be sustained.

In view of rival submissions, it is required to be considered whether the impugned judgment and order can be sustained or not.

As it transpires from the record, A-1 has expired for which a xerox copy of the death certificate is also produced. Therefore, the appeal qua A-1, Adambhai Mohmadbhai , who is the main accused, stands abated and his two sons who were present are said to have joined him. However, whether A-2 and A-3 could also be held guilty for the offence under the Atrocities Act, for which the conviction has been recorded, is required to be considered.

It is required to be noted that the learned Judge has recorded acquittal for the alleged offences u/s 504 and 506(2) of IPC. Therefore, as it transpires from the material and evidence on record and particularly the testimony, the complainant himself at Exh. 8 has stated that he has lodged the complaint at Exh. 12 wherein he has specifically stated as to what transpired and how he was abused, insulted with derogatory words by the accused persons. In his testimony at Exh. 8 he has not stood by his complaint and in the cross-examination he has stated that he cannot say as to who had uttered such word from the crowd or whether such words were uttered by A-1 or his two sons. Therefore, there is a shift in his stand. Further, he has also stated that there was some talks of compromise and otherwise their relations have been cordial. Therefore, the complainant himself has not fully supported his complaint or the version in the complaint. The independent witnesses, PW-2 and PW-3 have not supported the prosecution case in any manner. PW-4 Kantilal Dave, police constable who recorded the complaint at Exh. 12, has merely recorded the complaint and, as rightly pointed out, what he has referred to is the statement of one Jaisukhgiri Harnamgiri Goswami, though he had stated in his statement that when he (Jaisukghgiri) reached there he saw the accused No. 1 abusing the complainant and also his two sons uttering derogatory words. Jaisukhgiri, who is examined as PW-2 has not supported in his testimony at Exh. 13 the prosecution case in any manner and he has been declared hostile. Therefore, what has been stated by PW-4 is only hearsay based on the statement recorded during the investigation, but in the testimony the same person (Jaisukhgiri) has not supported the said statement.

In the circumstances, the observations and discussions made by the learned Addl. Sessions Judge with regard to utterance of the insulting words has not been properly appreciated as there is no evidence as to who had uttered such words and particularly when the complainant himself has not supported the version in his own complaint, the impugned judgment and order recording the conviction under the Atrocities Act cannot be sustained.

Accordingly, the present appeal stands allowed. The impugned judgment and order recording conviction of the appellants-accused u/s 3(1)(10) of the Atrocities Act passed by the learned Addl. Sessions Judge, Bhavnagar in Special Criminal Case No. 19 of 1993 dated 2.5.1994 is quashed and set aside. Appeal qua A-1 has been abated. Appellant-accused Nos. 2 & 3 are ordered to be set at liberty forthwith, if their presence is not required in any other case. Bail bond, if any, shall stand cancelled. The fine paid, if any, is ordered to be refunded.