Nanjibhai Ravjibhai and Others vs State of Gujarat

Z.K. Saiyed, J.—The present Appeal, u/s 374 of the Code of Criminal Procedure, is filed by the Appellants - original accused against the judgment and order dated 08.04.1999 passed by learned Special Judge, Metro City Court & Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad, whereby learned Judge has held the Appellants - accused guilty (i) for the offence punishable u/s 3(1)(x) of the Atrocity Act and sentenced them to suffer rigorous imprisonment for 3 years and 1 month and to pay a fine of Rs. 500/- each i/d to undergo SI for one month; (ii) accused No. 1 was held guilty of the offence u/s 323, 114 of I.P. Code and sentenced him to suffer RI for 3 months and to pay a fine of Rs. 100/- i/d to undergo SI for one month; and (iii) accused Nos. 2, 3 & 4 were held guilty for the offence under Sections 323, 114 of I.P. Code and imposed fine of Rs. 500/- each i/d to undergo SI for one month. The learned Judge has ordered that the sentences imposed upon the accused shall run concurrently. However, the learned Judge has acquitted the Appellants - accused of the offences under Sections 504, 506(2) and 114 of I.P. Code.

The brief facts of the prosecution case are that the complainant Rekhaben belongs to Scheduled Tribe, residing at Vankarvas. It is alleged that in Vankarvas there was no facility for drinking water and, therefore, the village people have collected the fund and put the hand pump in the territory of village Panchayat and the villagers are taking the water from the said hand pump. It is alleged that the complainant and other residents of Vankarvas are going to take water, but, the other village people are not permitting them to take water and they are quarreling with them. It is alleged that on 2.6.1996, the complainant and witness Gauriben Jethabhai had gone to take water on the hand pump, at that time, the accused No. 1 also came there to take the water. It is alleged that accused No. 1 had instigated the accused Nos. 2, 3 & 4 and, therefore, they have beaten the complainant and also gave filthy abuses and used the filthy language about her caste and gave a threat to kill her . Therefore, the complainant lodged her complaint against the accused in Barvala Police Station. The police registered the offence against the accused and investigated into the matter.

Necessary investigation was carried out by the Police. The statements of the complainant and other witnesses were recorded. Panchnama of scene of offence was also drawn. Thereafter, after completion of investigation, the charge-sheet was filed against the Appellant - accused for offence under Sections 3(1)(x) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short "Atrocity Act") and under Sections 323, 504, 506(2) and 114 of Indian Penal Code before the Court of learned Special Atrocity Judge, Ahmedabad (Rural), Ahmedabad. The learned Special Judge framed the charges against the Appellants - accused. The Appellants - accused pleaded not guilty to the charge and claimed to be tried.

To prove the case against the accused, the prosecution has examined in all 5 witnesses and relied upon 3 documents and at the end of trial, after recording the statement of Appellants - accused, u/s 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Special Judge held the Appellants (original accused) guilty of the offences charged against them and awarded sentence as narrated herein above.

Being aggrieved by and dissatisfied with the aforesaid judgment and order of conviction and sentence the Appellants - accused has preferred this Appeal.

Heard learned Advocate Mr. Mitul Shelat, appearing on behalf of the Appellants and learned APP Mr. H.L. Jani on behalf of the Respondent - State. I have gone through the judgment and order passed by the Special Court and also considered the documents produced on the record of the case.

Learned Advocate appearing on behalf of the Appellants - accused has contended that the Appellants - accused have not committed any offence, as alleged in the charge. He has contended that there is no direct, cogent and convincing evidence to prove the guilt of the accused. He has contended that looking to the provisions of the Act the investigation in the matter is to be carried by the Police Officer, not below the rank of Deputy Superintendent of Police. But, herein in the present case, the investigation has been carried out by P.W. 5 Udesinh Ramsinh (Exh.25), who was the Head Constable in Barvala Police Station. He has contended that as per the provisions of law the offence under the Atrocity Act cannot be investigated by him. He has contended that P.W. 1 - Ranchhodbhai Maganbhai (Exh.14), who was the panch of Panchnama (Ex.15 and Exh.17), has not supported the case of the prosecution and he has been declared hostile. Even another Panch P.W. 2 - Nathubhai Narubha (Exh.16) has also not supported the case of prosecution and he has been declared hostile. Therefore, Panchnama (Exh.15 and 17) are not proved. He has contended that the complainant - P.W.3 Rekhaben Madhabhai (Exh.20) in her cross examination has categorically admitted that quarrel took place for taking water and due to the problem of water complaint was lodged by her. He has contended that the alleged incident took place in the public place, however, the prosecution has not examined any independent witness and, therefore, benefit of doubt is required to be given in favour of the Appellants - accused. He has contended that the Investigating Agency is totally negligent in investigating the case and the investigation is totally bias. He, therefore, contended that the learned Special Judge has not considered the material aspect of the matter and has erred in holding the Appellant - accused guilty for the charges levelled against him.

Learned APP Mr. Jani has supported the judgment of the trial Court and contended that looking to the facts and evidence on record the prosecution has proved its case beyond reasonable doubt and the learned Judge has rightly held the Appellants guilty of the offences charged against them and, therefore, no interference is required to be called for. He has contended that looking to the place of offence no other independent witnesses could be available and so the oral evidence of P.W.3 & 4 is required to be considered.

Heard the learned Counsel, appearing for the parties. I have also gone through the papers produced before me. I have also considered the oral evidence of the complainant P.W.3 - Rekhaben Madhabhai (P.W.3) and P.W.4 - Gauriben Jethabhai (Exh.22), have accompanied the complainant at the time of incident. No doubt, it is the case of prosecution that both the witnesses have received injuries, but, they have not gone for medical treatment and the prosecution has not produced any medical certificate in support of the alleged injuries received by the witnesses. Even looking to the panchnama of scene of offence, the offence alleged to have taken place in a public place and in the morning every female members used to go to get the water, but, no independent witness is examined by the prosecution and looking to the defence put forward by the Appellants before the learned Judge, I am of the opinion that reasonable doubt is created, but, the learned Judge has not considered the same.

As per Rule - 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, it has been clearly observed that "an offence committed under the Act shall be investigated by a Police Officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. " Here, in the present case, from the record, it clearly appears that the investigation was carried out by the Head Constable and, therefore, the learned Judge has committed grave error in not appreciating the fact that the investigation is not carried out as prescribed under the Rules. Hence, investigation itself is vitiated.

From the oral evidence of Investigating Officer, prima facie, it is established that the investigation is totally biased and the same is not carried out properly. The panchas P.W. 1 (Exh.14) and P.W.2 (Exh.16) have also not supported the case of prosecution. Even the Investigating Agency has not cited other independent person from the public as witnesses to support the case of prosecution though the offence is alleged to have been committed in the public place during the morning time.

From the perusal of above facts, it clearly appears that learned Special Judge has committed grave error in holding the Appellants - accused guilty for the offences charged against them. No independent witnesses have been examined by the prosecution and even the Panchas have not supported the case of the prosecution. In my opinion, therefore, the judgment of the trial Court requires to be quashed and set aside.

In view of above, the Appeal is allowed. The judgment and order of conviction and sentence dated 08.04.1999 passed by the learned Special Judge, Atrocity Court & Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad, in Special Sessions Case No. 111 of 1996, holding the Appellants - accused guilty for the offences u/s 3(1)(x) of Atrocity Act and under Sections 323, 114 of I.P. Code, is hereby quashed and set aside. The Appellants - accused are hereby acquitted from the offences charged against them. Bail Bonds shall stand discharged. Record & Proceeding to be sent back to the trial Court immediately.