STATE OF GUJARAT vs MAGANBHAI VAGHABHAI BHARVAD And 3 Other(S)

The appeal arises out of the judgment and order of acquittal dated 31.07.2009 rendered in Special (Atrocity) Case No. 5 of 2009 by the Sessions Court, Anand, for the offences punishable under Sections 323, 325, 504, 506(2) and 114 of the Indian Penal Code (for short "IPC") as also Section 135 of the Bombay Police Act (for short "B.P.Act") and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

The controversy lies in narrow compass. The complainant and the witness were the agriculturists and the accused were the cattle gazers. While the complainant, witness and other persons were taking the crop on 28.10.2008 at the disputed site, the accused persons allegedly arrived with their cattle and damaged the crop of the complainant who, upon noticing that, asked the accused to take away their cattle; and thereupon heated exchange of words ensued, the accused persons allegedly lost their control and assaulted the complainant and the witness P.W.2 who sustained simple injury and the complainant sustained right ulna fracture. The day after the incident in question, FIR was lodged. Upon investigation, report under Section 173 of Cr.P.C. was filed for the offence aforesaid and the case being triable by the court of sessions, was committed to it under Section 219 of Cr.P.C., and accused having sought trial rather than pleading guilty, were tried and acquitted.

Amongst various eye-witnesses the complainant was examined being P.W.1 and Bhagabhai Ichchabhai who is stated to have intervened the scuffle to save the complainant was examined as P.W.2. In addition, the doctor was examined as P.W.6 at Exh.31 and medical certificate was produced at Exh.32.

The court below doubted the entire incident; discarded the evidence of the injured eye-witnesses and recorded acquittal.

This court, in absence of the participation by the accused in the present criminal appeal filed by the State against the acquittal, over-turned the impugned judgment and order of acquittal and convicted and sentenced the accused No.1 - Maganbhai Vaghabhai Bharvad, accused No.2 - Zalabhai Hanubhai Bharvad and accused No.3 - Melabhai Bhikhabhai Bharvad for the offence punishable under Section 323 and imposed a sentence of fine of Rs.1,000/- and in default a sentence for three months R.I. was imposed. For the offence punishable under Section 325 of IPC the said accused persons were sentenced to R.I. for one year and Rs.1,000/- fine; in default a sentence of simple imprisonment for three months was also imposed. All the accused were acquitted for rest of the charges. The accused No.4 was acquitted for all the charges. The said order was appealed being Criminal Appeal No.352 of 2019 with the Apex Court and the case was remanded on the ground that this court ought to have appointed a counsel to assist the court on behalf of the accused in their absence and thereafter ought to have proceeded to judgment. Accordingly notice was issued after remand to the accused persons who are now represented by learned advocate Mr. Goswami.

On consideration of the rival contentions it would appear that the trial court was swayed away by immaterial facts rather than concentrating on the fact that the complainant and P.W.2 were injured eye-witnesses and for that reason their presence could not have been doubted and that they had no reason to implicate the accused persons. Except as indicated elsewhere in the judgment, the injuries of both the witnesses were fortified by medical evidence; treating doctor was examined and medical certificate was also placed on record. Without considering the facts as indicated in para 7 and below, injuries sustained by complainant and witness were doubted.

It was irrelevant for the prosecution to establish the possession of the land in question with the complainant. Only presence of complainant, witnesses and accused and their participation in crime was sufficient. However, absence of the complainant's possession of the land in question unnecessarily obsessed the mind of the court; as one of the firmed for disbelieving the prosecution case.

The FIR was lodged attributing abuse as also assault on the complainant by the accused - Maganbhai Vaghabhai Bharvad, Zalabhai Hanubhai Bharvad, Melabhai Bhikhabhai Bharvad during the quarrel with the complainant which ensued after the complainant's objecting accused grazing the livestock on his agricultural land. The informant in his FIR dated 27.10.2008 came out with the case that on 26.10.2008, the livestock belonging to the accused entered the agricultural field and damaged the wheat crop and they also addressed him in derogation of his caste "sala dhedha". It is the case of the informant that owing to the assault by the accused persons he sustained right hand fracture as also an injury on his back and P.W.2 sustained the injury on his palms in the process of obstructing the stick blow intended by Melabhai Bhikhabhai on the informant. It is stated in the FIR that medical help was sought by dialing 108 and he went to Khambhat General Hospital where he was provided first-aid treatment and for the fracture he was asked to consult Dr. Gargi and therefore, he went there along with Bhagabhai - P.W.2 who attended him there. The fracture was treated by plaster and by that time it was already night hours and therefore, the complaint was lodged on the next date. The delay and the circumstances under which private doctor was consulted by the complainant were thus clearly explained, however, the court below, in ignorance of the said facts, rendered a perverse finding on both the counts.

P.W.1 and P.W.2 were the injured eye-witnesses and P.W.5 is the doctor who treated Bhagabhai - P.W.2 and P.W.6 is the treating doctor of the informant. At Ex.-17 FIR was produced, injury certificates were produced respectively at Exh.-30 (Bhagabhai) and Exh.-32 (informant). The revenue's records of the land showing informant in its possession as also school leaving certificate to establish his caste also formed the record. Yadi addressed to the Khambhat General Hospital by Police Station Officer, Khambhat Rural referring to the lodgment of the FIR and sustaining of the injuries by P.W.2 is produced at Exh.-29.

9.1 If the testimony of P.W.1 and P.W.2, the injured eye-witnesses is seen, it would appear that both of them attribute to Maganbhai Vaghabhai; an assault on the right hand of the informant, with stick. They also attribute the assault on the back of the informant, to accused Zalabhai. They also deposed that P.W.2 rushed to P.W.1 to save him; while P.W.1 attributes the assault by stick on his lower abdomen, P.W.2 testifies that when accused Melabhai was in the process of assaulting P.W.1, he obstructed the blow by catching hold of the stick and thus he sustained injuries on his palms. Further, while P.W.1 deposed that after the assault people gathered and asked the accused persons to leave, P.W.2 does not state that accused persons were asked to go away but says that they left the place and while leaving they threatened them to death; which statement is not made by P.W.1 in his examination-in-chief. Moreover, P.W.1 attributes the assault on his left shoulder to accused Bhagvanbhai; no such attribution is made by P.W.2.

9.2 P.W.2 also testifies that his wife requisitioned ambulance (108) and he went to General Hospital, Khambhat where he was given the primary treatment and was told to consult Dr. Gargi for the fracture and accordingly, he was treated by Dr. Gargi - P.W.6, on his consulting him. In the cross-examination of P.W.2, it is elicited that the weapon of offence - stick is easily available with the village people as also is sold in the market. On consideration of this fact, the trial court has given much weightage to the failure of the witnesses in identifying the stick as one of the grounds for acquittal.

9.3 It is deposed by P.W.1 and P.W.2 in their respective cross-examination that on the west side of the land of the informant there exists the passage ad-measuring 15 to 20 ft. wide, leading to the gaucher land reserved for the people of the village; which passage is used as approach-road to gaucher land for the purpose of grazing livestock. P.W.2 has however, given contradictory version by stating that the use of the said passage is not permissible for everyone but only for tractors, and for approaching gaucher land other road namely 'Charanmata' road is being used. Much weightage has been given by the court below to this aspect for doubting the presence of P.W.2.

9.4 The trial court has also given much weightage to the fact that never in past accused persons had caused damage to the crops of the informant, for finding the accused innocent. Furthermore, even in absence of the facts capable of doubting the scene of offence, the court below has given unnecessary weightage to the fact that the land in question is a huge piece of land and the scene of offence is not identified. This Court does not find anything in the cross-examination of the witnesses to doubt the scene of offence. In fact, it is borne in the testimony of P.W.1 that he was holding the land in question since more than 30 years. Furthermore, there is nothing in the cross-examination of two witnesses to doubt their presence at the scene of offence. The trial court has unnecessarily doubted the possession of the land in question by the informant though on perusal of village From No.7/12, 8A it has noted that the informant is one of the occupant of the land in question. The trial court has also given much weightage to the fact that exact location of the scene of offence is not identified by the informant.

9.5 In the cross-examination P.W.1 has reiterated his case as regards the existence of the crops on the land in question, the entry of the livestock belonging to accused Maganbhai on the said land, the damage to his crops by the said livestock. The informant however, appears to have not referred to the damage in his FIR. He has also reiterated that before the livestock of the accused entered his land, he was on the other part of the land and upon his telling accused Maganbhai to withdraw the livestock therefrom, there ensued the exchange of words between them which lasted for about 15 minutes. P.W.1 has however, disputed the suggestion that immediately after the said exchange of words people from vicinity came there and advised the accused to leave the scene. He has further admitted that thereafter the accused persons left the scene and went towards gaucher land and he along with his wife went to his home. It may be recalled that in his examination-in-chief P.W.1 has testified that after exchange of words, there was assault by accused persons and thereafter, upon arrival of the people from the vicinity, the accused persons were asked to leave the scene and they left. The trial court by selectively reading the statement of the P.W.1 in isolation has doubted the very factum of assault by accused persons on P.W.1 and P.W.2 without appreciating the denial by P.W.1 that the people from the vicinity arrived immediately after the exchange of words and advised the accused persons to go away. P.W.1 only stated that thereafter the accused persons left the scene but the denial of the suggestion of the accused having left the scene immediately after exchange of words would, clearly indicate a reiteration that after exchange of words, there was assault by accused upon him and other persons, and then, after arrival of the people from vicinity, the accused left the scene. The denial was required to be read with the statement by the informant and P.W.2 in their respective testimony that it was only after assault that the people from the near vicinity arrived and asked the accused to leave. Thus the findings in this regard were the result of misreading of relevant evidence.

9.6 The court below also has given unnecessary weightage to the delay in the lodgment of the FIR by one day without appreciating the explanation given by the informant in the FIR itself that he suffered the fracture and initially consulted the General Hospital, wherefrom he was asked to consult Dr. Gargi and eventually, he was treated by him and at the end of the treatment it was already night hours. As such the delay was not fatal.

9.7 While rejecting the testimony of P.W.1, one of the reason assigned by the trial court is that he was able to state the minute details as regards exact place of assault on his body whereas, the evidence of P.W.2 is rejected with one of the reasons that he is unable to give the minute details. This Court fails to understand the manner of appreciation of the evidence by the court below.

9.8 So far as right arm fracture on the person of P.W.1 is concerned, the submission by the learned counsel for the appellant that, in absence of X-ray, the case was not proved beyond reasonable doubt is required to be accepted. X-ray was the material part of the diagnosis which could determine whether fracture was caused or not. In absence of x-ray a doubt existed whether fracture was caused. The only evidence in absence of x-ray was the oral recollection by the doctor that the fracture was caused. In the opinion of this court, when the better material was available, it cannot be said that the case was proved beyond reasonable doubt in absence of its production for consideration of the court under Section 3 of the Indian Evidence Act.

9.9 Similarly, the medical evidence pertaining to P.W.1 came to be rejected in absence of yaadi recommending his treatment and the reference note and the informant himself approaching private hospital. The credentials of doctor Exh.-31 were doubted because he had not informed the police about the incident in question, without, however considering the explanation given by the doctor that the information of the occurrence was already with the police.

9.10 In the cross-examination certain quotations were picked up from the examination-in-chief of P.W.2 and he admitted the said quotations as omissions from his statement recorded under Section 161 of Cr.P.C., however, the witness was not confronted under Section 145 of Evidence Act; with his statement under Section 161 neither any such questions were put to the investigator. It is possible for a witness to use different versions in different documents conveying the same facts. In absence of confronting the witness with the statement under Section 161 of Cr.P.C. and pointing out to him that neither the words quoted by him in his examination-in-chief nor the substance thereof has been stated by him in the statement under Section 161 of Cr.P.C., the omission cannot be said to have been established in accordance with law. Moreover, the omission like coming of Maganbhai from the river side with his livestock to the agricultural field and invasion of the livestock onto the field of the informant are not the material omissions if the evidence as a whole is considered. No material omissions are found in the testimony of P.W.1.

The evidence on record proves the invasion of the livestock of the accused on the field of the informant, his objections to the same; the exchange of words; assault by accused aforementioned and sustenance of injuries by injured witnesses.

For the foregoing reasons, in the opinion of this Court the case for the offence punishable under Sections 323 of the Indian Penal Code is made out. However, in absence of the cogent evidence in relation to the offence punishable under Sections 504, 506(2) and 114 of IPC, no case is made out.

10.1 So far as Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is concerned, apart from the fact that the evidence is as feeble as can be, the case cannot be sustained in absence of the averments and the proof that the assailants were not the members of scheduled caste/scheduled tribe as required by Section 3(1)(x) which specifically states that the offence can be registered under the said provision against the person not being the member of Scheduled Castes and Scheduled Tribes. The Hon'ble Supreme Court in case of Gorige Pentaiah Vs. State of Andhra Pradesh reported in [(2008) 12 SCC 531] quashed and set aside the FIR devoid of such averments. Thus no offence is made out under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

It is found that except naming the accused - Bhagvanbhai Chhelabhai Bharvad uttering the derogatory words in relation to the caste of P.W.1, he is not attributed, in the testimony of witnesses, with the assault and thus no offence against him is proved. Acquittal of the accused - Bhagvanbhai Chhelabhai Bharvad - accused No.4 is therefore, required to be confirmed. Accordingly ordered.

Failure of the witness to identify the weapon of offence, the contradiction of immaterial fact as to the nature of use of the approach road; the possession of the land by the complainant/witness, non-identification of the scene of offence in absence of any serious controversy on the same, delayed FIR by one day, inability of P.W.1 to state the minute details to P.W.2 and ability of P.W.1 to state minute details, absence of injury marks on the palms of P.W.2 were the doubts expressed by the court below for recording acquittal. As can be seen from above discussion all the material were brought in evidence to sustain the connection of the aforesaid accused and other facts discussed were hardly materialised.

The court below also could not have rejected the evidence of eye-witnesses on the mere ground of their failure to mention the names of their assaulters in the medical history. Furthermore, it ought to have appreciated the fact that the injury complained of by P.W.2 was simple injury which may or which may not leave any mark of assault, and therefore, on the mere ground that no mark of assault was left on the palms of P.W.2, his overall statement could not have been rejected by the court below.

It can thus be seen from the above discussion that instead of focusing on the material facts of the case, the court below went too microscopic and gave extra weightage to peripheral immaterial facts not having much bearing on the material facts and unnecessarily examined them threadbare. When the evidence of the eye-witness was unimpeachable and when they withstood the cross-examination successfully; when the defence could not point out any serious material contradictions, the evidence ought not to have been rejected on immaterial contradictions.

In the result, the appeal partly succeeds. The impugned judgment and order qua Section 323 of Indian Penal Code qua accused No.1 to 3 is quashed and set aside. Each of the accused shall suffer a fine of Rs.1,000/-, and in default they shall suffer imprisonment for 2 months and 17 days. They have already undergone the said period between 14.12.2018 and 01.03.2019 and therefore the same shall be treated as the period undergone against the fine of Rs.1,000/-; no fine therefore shall be recovered from them nor the accused are required to suffer any more sentence.