State of Gujarat vs Vishnubhai Ambalal Patel and 3

Harsha Devani, J.—By this application under sections 378(1) and 378(3) of the Code of Criminal Procedure, 1973, the applicant - State of Gujarat seeks leave to appeal against the judgment and order of acquittal dated 26th April, 2012 passed by the learned Special Judge and 4th Additional Sessions Judge, Nadiad, Kheda in Special (SC/ST) Case No. 3/2011. Mr. H.K. Patel, learned Additional Public Prosecutor invited the attention of the court to the depositions of the witnesses and the record and proceedings of the case to submit that the prosecution has led cogent and convincing evidence for the purpose of establishing the charges against the accused, however, the learned Special Judge has failed to appreciate the evidence on record in proper perspective and has erroneously come to the conclusion that the prosecution had not proved the charges against the accused beyond reasonable doubt. Under the circumstances, the appeal deserves to be examined on merits and leave to appeal deserves to be granted.

The prosecution case is that one Hiraben, wife of Bhagabhai Gotabhai Bhangi, lodged a first information report with the Kheda Town Police Station alleging that she was residing at Malharpura Harijanvas alongwith her husband and children and was doing household work. Her husband was a member of the Panchayat. On the previous night, that is, on 11th September, 2010 at 8 o''clock, the first informant as usual went to get her supper from the village Patelvas where Vishnubhai Ambalal Patel''s house is located near the entrance. When she reached there, Vishnubhai got angry with her and hurled abuses at her and told her that they were not cleaning the village properly and were coming to take supper. Upon his saying so, the first informant returned to her house and informed her husband about it and both of them went to Vishnubhai''s place and asked him as to why he was saying such things. Upon their saying so, Vishnubhai, his brother Rameshbhai Ambalal Patel and Dineshbhai Chhotabhai Vaghela (who was sitting in their house) and Madhuben, mother of Vishnubhai, all four of them, all of a sudden got incensed with the first informant and started hurling abuses at them. At that time, Vishnubhai with a stick in his hand and Madhuben with a brick in her hand came to beat them and all the four accused were telling both of them in terms derogatory to their caste that they should henceforth not come to ask for supper and if they came again to ask for supper, they would not leave them and would kill them. Since such threats were given, both of them returned to their house and at night, some sensible people of the village having made them understand, they had not gone to lodge the complaint. However, on 12th September, 2010, in the morning, all the four accused had told them that they could do whatever they wanted and hence, the first informant along with her husband went to lodge the first information report which came to be registered as Kheda Town Police Station II-C.R. No. 150/2010 for the offences punishable under sections 504, 506(2) and 114 of the Indian Penal Code, section 135 of the Bombay Police Act and section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Pursuant to the lodging of the first information report, investigation came to be carried out and charge-sheet came to be submitted in the Court of the learned Judicial Magistrate First Class, Kheda who committed the same to the Court of Sessions where the same came to be registered as Special (SC/ST) Case No. 3/2011.

A perusal of the record of the case reveals that the prosecution had examined, in all, thirteen witnesses and had also produced certain documentary evidence in support of its case. P.W. 1 - Hiraben Bhagabhai Gotabhai had deposed to the effect that at 8 o''clock in the night, she had gone to the Patelvas to ask for supper when Vishnubhai had abused her, and in terms derogatory to her caste, asked as to why they were coming to ask for supper and threatened that if they come again, he would kill them. That she returned home and told her husband about it who came along with her, whereupon Vishnubhai started using bad words against him and came with a stone to beat him. The first information report had been lodged on the next day. She has further deposed that she used to go to the Patelvas to ask for supper. On that day, Vishnubhai, Rameshbhai, Dineshbhai and Madhuben were present at his house. These persons had addressed them in terms derogatory to their caste and threatened that if they come again, they would break their legs. At that time, Madhuben had a stick in her hand and Vishnubhai and Rameshbhai were throwing stones. She has further deposed that the accused belong to the Patel community and they belong to the Bhangi Harijan community. She has further deposed that Vishnubhai came out and Madhuben threw a brick at them and that Vishnubhai had inflicted blows with a stick.

In her cross-examination, she has stated that she has been going to the village to ask for supper since the last twenty years. That prior to the present incident, at no point of time, had any such incident taken place. She has accepted that she has not stated in the first information report that Madhuben had thrown a brick at them and that by addressing her in terms derogatory to her caste, she had been told that if they come again, they would kill them. She has further accepted that at the time when she came home and told her husband about the incident, her husband and other persons had gone to the house of the accused at which point of time she had stayed with her son. She has also accepted that in the first information report she has not alleged that they had come with stones to beat them and that they had threatened them that they would break their legs. It has also come out that she has not stated that Madhuben had a stick in her hand and that Vishnubhai and Rameshbhai were throwing stones. It is further revealed from her cross-examination that initially she and her husband had gone in a rickshaw to Goblaj Police Station which is at a distance of four kilometres from Malharpura to lodge a complaint. Her husband had gone alone to Goblaj Police Station to lodge the first information report however, the police officer at Goblaj Police Station felt that the complaint was false and hence did not register the same. Therefore, they had come to Kheda to lodge the first information report. Her husband was a member of the Panchayat and when they reached the Kheda Police Station, the Jamadar present there upon seeing her husband called him and asked him as to why he had come. That her husband had given all the details to the said Jamadar, who had written down the same and thereafter called her and obtained her thumb impression. In her cross-examination, it has further come out that on the night of the incident, she, her husband and children had a discussion and they felt that these people were required to be taught a lesson and hence, after due planning, the first information report came to be lodged on the next day. She has further accepted that when there is any exchange of words people belonging to different castes are addressed in a particular manner on the basis of their caste.

P.W. 2 - Bhagabhai Gotabhai Valmiki, husband of the first informant has, inter alia, deposed that his wife had gone to ask for supper, whereupon Vishnubhai had admonished her that they were not doing the work of cleaning and was abusing her. Hence, his wife had come to call him. Thereafter, he had gone alongwith her whereupon the said persons also started abusing him. That both he and his wife had gone to Vishnubhai''s house and had asked him as to why he was saying such things whereupon the accused had told him that they were not doing the work of cleaning. Thereafter Vishnubhai had a stick in his hand and Madhuben had a brick in her hand and Rameshbhai Ambalal and Dineshbhai Chhotabhai were hurling abuses. Thereafter, they had come home and had gone to Kheda to lodge the first information report. He has further alleged that the accused had abused them in terms derogatory to their caste and had threatened them that if they come again they would kill them.

The prosecution has also examined one Manubhai Gotabhai Valmiki who is a resident of Ahmedabad and used to visit the village on Sundays. He is the brother-in-law of the first informant and has deposed that on 11th September, 2010 at 8 o''clock at night his sister-in-law had gone to the Patelvas to bring supper, when Vishnubhai, Madhuben, Rameshbhai and Dineshbhai had told her that she does not come to sweep then why does she come to ask for supper and addressing her in terms derogatory to their caste told her not to come there to ask for supper. His sister-in-law had come home and told them about the incident after which he along with his brother and his sister-in-law and his wife had gone there and asked them as to why they were hurling such abuses in response to which they said that they were not coming to clean and were coming to ask for supper, is everything at their house for free. Thereafter the exchange of words escalated and Vishnubhai took a stick and Madhuben took a brick and came towards them to hit them, thereafter the village people came and conciliated. Thereafter on the next day these people by addressing them in terms derogatory to their caste had said that they could go to the court, but what would happen, what could they do? Thereafter on the next day the first information report came to be lodged.

Prosecution Witness No. 4 - Mayaben Manubhai Valmiki, sister-in-law of the first informant has deposed to the effect that her sister-in-law had gone to ask for food at Vishnubhai''s house located in the Patel area and Vishnubhai had used terms derogatory to their caste. Thereafter, her sister-in-law had come home and told them about it whereupon her brother-in-law, her husband and she had gone there where Vishnubhai''s mother had started belabouring her sister-in-law with a brick. Thereafter, four to five persons from the village had been called to conciliate and they had tried to make them understand but the same was to no avail. Thereafter, a first information report had been lodged with the police. She has further stated that the incident had taken place in her presence and there was an altercation regarding not doing the work of cleaning properly. She has further stated that except for this, nothing else had happened. The said witness had been declared to be hostile to the prosecution case. In her cross-examination, she has accepted that Vishnubhai had come with a stick to beat her sister-in-law and thereafter all four of them were abusing them by using terms derogatory to their caste and were telling them that they should not come to ask for supper again and if they do so, they would not leave them and would kill them.

Prosecution Witness No. 5 - Bhikhabhai Mohanbhai Shenva has deposed that the incident had taken place on 11th September, 2010 at 8 o''clock in the night. Hiraben had gone to take supper from Vishnubhai''s house whereupon addressing her in terms derogatory to her caste, he had started telling Hiraben that she was not cleaning properly and was coming to ask for supper. Thereafter, Hiraben went and called her husband who came with her and alongwith him Mayaben Manubhai and he himself had gone near the house of Vishnubhai and had gathered there. Vishnubhai and Rameshbhai got incensed with them and took a stick to beat them. Vishnubhai had a stick in his hand and Madhuben had a brick in her hand to beat Hiraben. Thereafter, there has been a scuffle and a lot of people gathered there. After people gathered there, a complaint was to be lodged. However, no complaint was lodged on that day as the people from the village had placated them. However, in the morning they were told that the courts are open and hence, at 11 o''clock, the first informant had lodged the first information report. In his cross-examination, it has been revealed that he had met his advocate who had read over his police statement and that he had deposed in terms of the police statement

Having regard to the evidence which has come on record, it is evident that there are material discrepancies in the depositions of the witnesses. Firstly insofar as the first informant and her husband are concerned they have testified that after the accused abused the first informant, she returned home and told her husband about it and thereafter both of them went to the Vishnubhai''s house. Neither of them have made any reference to the presence of the other three witnesses, viz. Manubhai Gotabhai, Mayaben Manubhai or Bhikhabhai Mohanbhai Shenva at the scene of the incident. Thus, the presence of the said witnesses at the scene of incidence is itself doubtful. Moreover, all the witnesses have also given conflicting versions as regards the weapons which were being wielded by the accused. Though in the first information report, all that is stated is that Vishnubhai had a stick in his hand and Madhuben had a brick in her hand, in their depositions, the witnesses have improved upon the version and have stated that they had, in fact, used the stick and the bricks. One witness has also stated that the accused had thrown stones at them.

The offences alleged against the accused are under sections 504 and 506(2) I.P.C. Section 504 I.P.C. provides that whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, would constitute an offence under the said section. Insofar 25 as the offence u/s 504 is concerned, it has been alleged that the accused had started hurling abuses at th255em and had used words derogatory to their caste. However, on the allegations made in the first information report as well as the facts emerging from the depositions of the witnesses, there is no material whatsoever to show that the first informant and her husband were intentionally insulted with a view to provoke them in such a manner as likely to break the public peace or to commit any other offence. Under the circumstances, the ingredients of section 504 I.P.C. are clearly not satisfied.

As regards the offence u/s 506(2) I.P.C. all that is alleged is that the accused had told them that if they come again to ask for supper, they would not leave them and would kill them. However, none of the witnesses have stated that such threats were made with an intention to cause alarm to them or to cause them to do any act which they were not legally bound to do, or to omit to do any act which they were legally entitled to do. Under the circumstances, simple threats of this nature would not constitute an offence u/s 506(2) I.P.C. As regards the offence u/s 3(1)(x) of the Atrocities Act, there are material discrepancies in the depositions of the witnesses who have given different versions of the manner in which the incident has taken place. Moreover, from the cross-examination of the first informant it is revealed that in the village people of different communities are addressed with reference to their communities whenever there is any exchange of words. Therefore, on the evidence which has come on record it cannot be said that the accused had intentionally insulted or intimidated the first informant and her husband with intent to humiliate them within public view as envisaged u/s 3(1)(x) of the Atrocities Act. In the aforesaid premises, it would not be safe to base a conviction merely on the basis of the bare allegations made by the first informant and her husband. Thus, the prosecution has not proved the charges levelled against the accused beyond reasonable doubt. Besides, the learned Special Judge has given cogent, convincing and sufficient reasons while holding that the prosecution has failed to establish the charges against the accused beyond reasonable doubt. This court does not find any reason to take a different view. Under the circumstances, no prima facie case has been made out so as to warrant a detailed scrutiny of the evidence on record. Leave is, therefore, refused and the application is rejected.