Motibhai Shambhubhai Pagi vs State of Gujarat

Z.K. Saiyed, J.—The present Appellant- original accused No. 1 has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 29.9.1998 passed by the learned Addl. Sessions Judge, Panchmahals, at Godhra in Sessions Case No. 62/1995 whereby, the learned Judge has convicted the present Appellant - original accused No. 1 u/s 323 of IPC and sentenced to undergo R/I for six months and to pay a fine of Rs. 100/-, in default, to undergo further S/I for one month. The present Appellant- original accused No. 1 is also convicted and u/s 3(1)(10) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocity) Act and sentenced to undergo R/I for a period of six months and to pay a fine of Rs 250/- in default, to undergo further R/I for one month, which is impugned in this appeal.

The brief facts of the prosecution case is as under:

That on 22.9.1994, when the complainant and his wife and sons were going to their house from their field, at that time, at about 3.00 pm, accused persons came thee and have given a dhariya blow to the complainant as well as his wife and have also abused them about their caste.

Therefore a complaint came to be filed by the complainant. Thereafter, the police has investigated the case and statements of complainant and other witnesses were recorded and on completion of the investigation, charge-sheet was filed in the Court of learned JMFC, Godhra. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, which was given number as Sessions Case No. 62/1995.

Thereafter, the charge was framed at Ex. 3 against the accused persons. The accused have pleaded not guilty and claimed to be tried.

In order to bring the home the charge levelled against the Appellant- accused, the prosecution has examined the witnesses and also produced documentary evidence before the trial Court.

Thereafter, after examining the witnesses, further statement of the accused persons u/s 313 of Code of Criminal Procedure was recorded in which the Appellant-accused have denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned Judge vide impugned judgment and order dated 29.9.1998 held the present Appellant -ori. accused No. 1 guilty to the charge levelled against him u/s 323 of IPC and u/s 3(1)(10) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocity) Act and convicted and sentenced the present Appellant - ori. Accused No. 1, as stated above and acquitted the original accused No. 2 and 3 of the charges levelled against them.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Panchmahals at Godhra, the present Appellant - original accused No. 1, has preferred this appeal.

Heard Mr. Samir B. Bundela learned advocate for Mr UM Shashtra the Appellant and Mr HL Jani learned APP for the Respondent-State.

Mr Bundela learned advocate for the Appellant has vehemently argued that looking to the charge Ex. 3, the prosecution has failed to prove its case beyond reasonable doubt. Mr Bundela has read the impugned judgment and order as well as the documentary evidence produced on record and argued that looking to the allegations made by the original complainant, he has never produced any castes certificate. He has further argued that when caste certificate is not produced on record, then the Appellant cannot be convicted for the offence punishable under the Atrocity Act. Mr. Bundela has also read the medical evidence of injured and argued that the injured has only complained before the Medical Officer regarding tenderness and back pain and there was no external injuries found on the body of the complainant. He has also read the contents of medical certificate and argued that in connection with the definition of injury is concerned, the prosecution has failed to prove the injury of the injured witness. He has also argued that the learned Judge has committed a grave error when the medical evidence is also not proved beyond reasonable doubt and, therefore, the impugned judgment and order of conviction and sentence requires to be quashed and set aside.

As against this, learned APP Mr. HL Jani has read the oral as well as documentary evidence and argued that looking to the impugned judgment and order of conviction and sentence is concerned, no doubt, the prosecution has not produced caste certificate, but the prosecution has proved its beyond reasonable doubt for the offence punishable u/s 323 of IPC. He has also read the charge and medical evidence and contended that the learned Judge has not committed any error while convicting and sentencing the present Appellant-ori. Accused No. 1 and, therefore, the impugned judgment and order of conviction and sentence requires to be confirmed.

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. From the medical evidence, it appears that simply a complaint was made by the injured before the Medical Officer that there was some back pain but no external injury was found during the treatment and it was the only allegation made by the complainant and witness that the opposite part of the blade of dhariya was used and one blow was given on the back side of the injured person. I have gone through the oral evidence of the witness and I am of the opinion that when the muddamal weapon dhariya was used by the present Appellant- ori. Accused No. 1, then some external injuries were bound to be found on the body of injured person, but the same were not found. So far as witnesses are concerned, they are relatives and interested witnesses and, therefore, their evidences are not trustworthy, reliable and acceptable and the learned Judge has committed grave error while convicting and sentencing the present Appellant-original accused No. 1 and, therefore, the impugned judgment and order of conviction and sentence requires to be quashed and set aside.

In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence dated 29.9.1998 passed by the learned Addl. Sessions Judge, Panchmahals at Godhra in Sessions Case No. 62/1995 is hereby quashed and set aside. The Appellant - original accused No. 1 is hereby acquitted from all the charges levelled against him. Bail bond stands discharged. R & P to be sent back to the trial court forthwith.