Bhulabhai Valabhai Vankar vs State of Gujarat

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S.G. Shah, J.

Heard learned counsel for the parties.

Rule. Mr. K.R. Dave, learned advocate for respondent nos. 2 to 4 waives service of notice of rule while Ms. J.D. Jhaveri, learned APP waives service of notice of rule for respondent No. 1-State.

Applicant herein is original complainant, whereas, respondent nos. 2 to 4 are original accused. They are referred in the same capacity herein also since they are referred as such in the impugned judgment.

Complainant has lodged an F.I.R. with Mehsana police station being 1st CR No. 302 of 2012 under Sections 323, 504, 506(2) and 114 of I.P.C. as well as Section 3(1)(10) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act (In short "Atrocities Act"). It is contended in such complaint that on 23.7.2012 supply of water from water works was not available and hence complainant and witnesses were drawing the water from trough (open tank used for storage of water, which is called Havada in vernacular) by poring their utensils and snatching the water from such trough. However, in such exercise, the utensils of different people dashed with each other and because the accused were also collecting water in similar manner when utensils of complainant had dashed with their utensils, they started to give filthy abused words to the complainant and witnesses and there was exchange of words whereby accused had given a threat by catching the neck of witness Ashabhai Bhavanbhai Rohit and accused No. 2 has intentionally insulted and threatened the complainant to commit his murder. Only because they are all of Darbar caste and they do not like to have a touch of utensils of the complainant and witnesses with their utensils. There are also allegations of abatement of such offences by each other amongst all accused. Based upon such FIR, the Investigating Agency investigated the offence and filed a charge-sheet which was committed to the Court of Sessions where Sessions Court has tried all the accused for all such offences and by impugned judgment dated 30.11.2013 in Special (Scheduled Caste and Scheduled Tribes) Case No. 24 of 2012, the 4th Additional Sessions Judge, Nadiad has acquitted all the accused from all the charges giving them benefit of doubt when prosecution has failed to prove their case beyond reasonable doubt.

Being aggrieved by such acquittal, complainant has filed such Revision to quash and set aside the order of acquittal by the Sessions Court and to remand the case for fresh trial. The main contention of the applicant-complainant herein is to the effect that when other side has not challenged the certificate produced by the complainant at Exh. 31, the trial Court has erred in not considering that complainant and witnesses are of Scheduled Caste. It is also contended that though witness Ashabhai Bhavanbhai Rohit at Exh. 25 as well as deposition of Laxmiben Bhavanbhai Rohit at Exh. 27 and Chandrikaben Ashabhai Rohit at Exh. 29 supports the complainant as well as deposition of Nainaben Bhulabhai Vankar at Exh. 26 and Kinjalben Bhulabhai Vankar at Exh. 30 have supported the complaint, the trial Court has failed to appreciate such evidence. It is further submitted that since applicant is Central Government employee, there cannot be any suspicious regarding the place of incident and that there is no dispute that incident took place in public. It is also submitted that accused have uttered abusive words and, therefore, there is sufficient evidence to convict them. It is also contended that when petitioner is Central Government employee working in the Telephone Department, the trial Court has erred in not accepting his evidence. It is also alleged that previous complaint under Atrocity by the accused has not been considered by the trial Court and trial Court has failed to consider that accused No. 3 has given a slept to Ashabhai Bhavanbhai Rohit and used filthy language against applicant. It is also submitted that respondent No. 4 gave threats that if complainant does not go away from the place, then accused nos. 3 and 4 will commit rape with his wife. It is also submitted that trial Court has failed to consider the documentary evidence and Panchnama produced and proved on record and that the applicant being a Central Government employee since last thirty years when he is not of the nature to raise quarrel and issue like such and when there is no enmity amongst the parties, the version of the complainant is to be relied upon for convicting the accused.

Before scrutinizing the factual details on record, it would be appropriate to recollect here jurisdiction and limitation of this Court in such Revision, wherein, judgment of acquittal is challenged on factual merits. At the same time, it cannot be ignored that the applicant is expecting some extra ordinary privilege only because he is serving in telephone department, when he submits that because of his such employment, Court should rely upon his statement as a gospel truth. There is nothing in law which confirms that only because a person is serving in a Central Government or telephone department, whatever he says is to be believed as gospel truth. At the same time, there cannot be any presumption in favour of the petitioner-complainant only because of his tenure of service being thirty years or more.

The respondent has relied upon decisions of Supreme Court in following cases;

[a] Bindeshwari Prasad Singh @ B.P. Singh and Others Vs. State of Bihar (Now Jharkhand) and Another, .

[b] Gorige Pentaiah Vs. State of A.P. and Others, .

[c] Sheetala Prasad and Others Vs. Sri Kant and Another, .

* The sum and substance of all above cited cases are to the effect that unless there is a manifest illegality committed by the trial Court, High Court cannot interfere with any order of acquittal. There is no justification that High Court can interfere in exercising such jurisdiction against order of acquittal only because another view is possible.

* When allegation in the complaint is about abusing with the name of caste, it must have been alleged that accused was not Member of Scheduled Caste or Scheduled Tribes and that complainant was intentionally insulted or intimidated by accused with intention to humiliate him at any public place. In case of missing of such basic ingredients of said offence even trial would be totally unjustified which would lead to abuse of process of law.

* It is also well settled that revisional jurisdiction, when invoked by a private complainant against order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where interest of public justice require interference for correction of manifest illegality or prevention of gross miscarriage of justice.

* Re-appreciation of evidence is an exercise that High Court must refrain from while examining an order of acquittal in the exercise of its revisional jurisdiction under the Code. Needless to say, if within the limited parameters, interference of the High Court is justified, the only course of action that can be conducted is to order only retrial after setting aside the acquittal which is done by the Hon''ble Supreme Court in the Best Bakery case.

Therefore, what is required to be looked into in such revision is the illegality or irregularity, if any, committed by the trial Court while deciding the case and not to re-appreciate the evidence which is otherwise appreciated by the trial Court with reference to the demeanour of the witnesses since evidence was recorded by the trial Court, more particularly, in such cases, where there is oral evidence only and even supporting evidence is also oral say of the witnesses and when there is no other corroborating evidence to prove a particular fact. It is also pertinent to note that the only allegation in the complaint is regarding use of abusive language. With due respect, it cannot be ignored that to allege such is certainly an easy job for every one. Therefore, when there is no other incident except an allegation that accused have abused the complainant and witnesses, threatened them, both either to kill or to commit a rape on their wives. When except such bare words, there is no other evidence, it would not be appropriate to convict the accused so as to award them sentence of imprisonment, when it is not proved beyond reasonable doubt.

In view of above discussion, when there is little scope of re-appreciation of evidence, the same exercise is carried out only for the purpose to verify that whether trial Court has committed any irregularity or illegality in recording the evidence or in its consideration by failure of taking care of such evidence while deciding the case. The applicant has produced relevant depositions which simply confirm that except bare words, as referred hereinabove, there is no other evidence. Thereby, when there is no injury to any one, the charges under Section 323 of I.P.C. are also unwarranted. When complainant is relying upon four depositions as referred hereinabove, who support the version of the complainant, it cannot be ignored that some witnesses, who are otherwise independent witnesses, have not supported the complainant''s version. It cannot be ignored that there is material contradiction so far as actual incident is concerned. Inasmuch as some witnesses are talking about the catching of collar of Ashabhai, whereas, some witnesses are talking about slept by accused No. 2 to Ashabhai. It can also be taken into consideration that at-least witness No. 2 Babubhai Shankerbhai Vaghela at Exh. 22, witness No. 3 Jashubhai Bhemabhai Dabhi at Exh. 24 and witness No. 10-Javanbhai Motibhai Parmar at Exh. 35 have not supported the case of prosecution. Whereas, though complainant has given a full story of his complaint, he has to admit in his complaint that he has not disclosed certain facts in the complaint which he has deposed in evidence before the trial Court and thereby added his version while adducing evidence and that he has filed similar complaints against different persons. Though he has denied the suggestion that to file such complaint against the accused, who has refused to regularize his illegal construction as a Sarpanch; whereas, prosecution witness No. 5 Nainaben Bhulabhai Vankar at Exh. 26 has admitted that they have built a new house in a gaucher land, which is a Government land and that she is ready to produce permission of such house. However, they could not provide such permission. This witness is none but the wife of the complainant. Therefore, now, it has been proved on record that there is enmity with reference to the house of the complainant which is built on gaucher land of Government. He has also admitted that by filing such complaint he will get compensation from the Government. In view of such fact, if trial Court has come to a conclusion that there is no substance in the complaint, there is no reason to interfere in such decision. The other two witnesses, who have supported the version of the complainant are family members of the complainant.

I have also perused the impugned judgment and statement of accused recorded under Section 313 of the Code of Criminal Procedure. The trial Court has taken care of the trial in accordance with law and rules and has discussed all material evidence as well as citations referred by the parties before it and there is no submission regarding any illegality or irregularity in the trial except re-appreciation of evidence for remanding the case for re-trial. The trial Court has taken care of recording of evidence in accordance with law and appreciated the evidence in detail. Therefore, there is no illegality or irregularity in the trial.

In view of above facts and circumstances, when, there is nothing illegal in conducting the trial and when there is no jurisdiction and reasons for this Court to re-appreciate the evidence only for coming to different conclusion, there is no substance in the revision so as to remand the matter for retrial, as prayed for. Therefore, the present Revision Application stands dismissed. Rule is discharged.