State Of Gujarat vs Ghughabhai Audhadbhai Bharai - Rabari & Anr

S.V. Pinto, J

The appeal is filed by the appellant State under Section 378 of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by the learned Presiding Officer, 6th Fast Track Court, Gondal Camp at Upleta (hereinafter referred to as "the learned Trial Court") in Sessions Case No. 97/2009 on 10.01.2011, whereby, the learned Trial Court has acquitted the respondent for the offence punishable under Sections 323, 324, 504 and 506(2) of Indian Penal Code, 1860, Section 135 of the B.P. Act and Section 3(1)(10) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocity Act" for short).

1.1 The respondent is hereinafter referred to as "the accused" as he stood in the original case for the sake of convenience, clarity and brevity.

The brief facts that emerge from the record of the case are as under:

2.1 The complainant - Arjanbhai @ Jagabhai Gorabhai Jadav and the accused had their fields adjoining each other and on 30.06.2009 at around 17.00 hours, they had a dispute with regard to making the way for the water through their fields. The accused took the sickle which was in his hand and assaulted the complainant and his wife Kantaben intervened and they both were injured. The complainant filed the complaint at Rajkot Rural Police Station under Sections 323, 504, 506(2) of the Indian Penal Code, 1860, Section 135 of the B.P. Act and Section 3(1)(10) of the Atrocity Act which came to be registered as II - C.R. No. 3045 of 2009.

2.2 The Investigating Officer recorded the statements of the connected witnesses and seized the necessary documents and after completion of investigation, a charge-sheet came to be filed before the Court of the Judicial Magistrate First Class, Upleta and as the said offences against the accused were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Gondal Camp at Upleta as per the provisions of Section 209 of Code of Criminal Procedure and the case was registered as Sessions Case No. 97/2009.

2.3 The accused was duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 207 of the Code. A charge at Exh. 3 was framed against the accused and the statement of the accused was recorded at Exh. 4 wherein, the accused denied the contents of the charge and the entire evidence of the prosecution was taken on record.

2.4 The prosecution examined 12 witnesses and produced 13 documentary evidences on record in support of his case and after the learned Additional Public Prosecutor filed the closing pursis, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. After the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned Trial Court by the impugned judgement and order was pleased to acquit the accused from the charges levelled against him.

Being aggrieved and dissatisfied with the said judgment and order of acquittal, the appellant - State has filed the present appeal mainly stating that the impugned judgment and order of acquittal passed by the learned Trial Court is contrary to law and evidence on record and the learned Trial Court has not appreciated the fact that all the witnesses have supported the case of the prosecution and during the cross-examination, nothing adverse has been elicited in favor of the respondent. The case has been proved beyond reasonable doubt and the prosecution has successfully established the case against the respondent and the judgment and order of acquittal is unwarranted, illegal, and without any basis in the eyes of the law and the reasons stated while acquitting the respondent are improper, perverse and bad in law. Hence the impugned judgment and order passed by the learned Trial Court deserves to be quashed and set aside.

Heard learned APP Mr. Rohan Shah for the appellant State and learned advocate Ms. Shivangi Rana for the respondent no. 1. Though served, the respondent no. 2 has not remained present either in person or through an advocate. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.

Learned APP Mr. Rohan Shah has taken this Court through the entire evidence of the prosecution on record of the case and submitted that the complainant has fully supported the facts of his complaint. The impugned judgement and order is perverse and learned APP has urged this Court to quash and set aside the same and find the respondent guilty for the offences.

Learned advocate Ms. Shivangi Rana for the respondent has submitted that the learned Trial Court has appreciated the evidence and passed the impugned judgement and order and no interference is required hence, the appeal may be rejected.

The law with regard to acquittal appeals is well crystallized and in acquittal appeals, there is presumption of innocence in favour of the accused and it has finally culminated when a case ends in an acquittal. The learned Trial Court has appreciated all the evidence and when the learned Trial Court has come to a conclusion that the prosecution has not proved the case beyond reasonable doubts, the presumption of innocence in favour of the accused gets strengthened. There is no inhibition to re appreciate the evidence by the Appellate Court but if after re appreciation, the view taken by the learned Trial Court was a possible view, there is no reason for the Appellate Court to interfere in the same.

To prove the offence against the accused, the prosecution has in all examined ten witnesses. PW1 -Jeevanbhai Bhikhabhai Gohil examined at Exh. 6 and PW6 - Bhupatbhai Savjibhai Degama examined at Exh. 14 are the panch witnesses of the panchnama of the place of offence which is produced at Exh. 7. Both the witnesses have not supported the case of the prosecution and have been declared hostile.

8.1 PW2 - Farooqbhai Iqbalbhai Notiyar examined at Exh.

8 and PW3 - Girishbhai Ravjibhai Makwana examined at Exh. 10 are the panch witnesses of the arrest panchnama which is produced at Exh. 9. Both the witnesses have not supported the case of the prosecution and have been declared hostile.

8.2 PW4 - Arjanbhai Gorabhai Jadav examined at Exh. 11 is the complainant who has fully supported the contents of the FIR which is produced at Exh. 12. The witness has stated that the accused had assaulted his wife on her head with the sickle and she started bleeding and his son Puneet who was working on the other edge of the field saw the quarrel and came running and the accused hurled caste slurs against them and went away. Hemant with his wife were taken to the Bhayawadar Police Station and the police asked them to go to the hospital for treatment and they went to the hospital and after treatment went to the Police Station to file the complaint. During the cross-examination by the learned advocate for the accused, the witness has stated that the accused is known as Arjanbhai and Jagabhai and not by any other name. To go to Bhayawadar, they have to go to Paneli village and after the incident they went to their house in Paneli village and thereafter, went to the Bhayawadar Police Station. The complainant has admitted that there is a Police Station at Paneli but they did not go to the Paneli Police Station and went to the Bhayawadar Police Station. His wife was working at a distance of about ten feet away in the field and after the incident, he drove his motorcycle and went to the Bhayawadar Police Station and his wife was the pillion rider. The complainant has immediately thereafter stated that his son was driving the motorcycle.

8.3 PW5 - Kantaben Arjanbhai Jadhav has been examined at Exh. 13 and the witness is the wife of the complainant who has supported the contents of the complaint. During the cross examination the witness has stated that besides Gugabhai there were no other persons in the field and her son was working at the well at a distance of about 400 to 500 feet away. Her husband was assaulted twice by the accused and he was given one blow on the hand and another blow on his back. They went on the motorcycle to their house and thereafter, they went to the Police Station and their son was driving the motorcycle. At the time of the incident they had a dispute regarding the land with the accused and earlier they had given complaints in the Police Station.

8.4 PW7 - Punitbhai Arjanbhai Jadhav examined at Exh.

15 is the son of the complainant and he has not supported the case of the prosecution. The witness has been declared hostile and cross examined by the learned APP. During the cross examination by the learned advocate for the accused the witness has stated that earlier applications were given in the Police Station by his father and the accused against each other, and the field in which they were working is in the name of his father. His father is known as Arjanbhai @ Jagabhai and by no other name and at the time of the incident he had gone to fill water and was at a distance of about 400 to 500 feet. He did not hear what was being said at the place of incident as he was at a distance and before he could return the accused had gone away. After the incident he, his father and mother returned home at around 06.00 pm and thereafter they went to Bhayawadar.

8.5 PW8 - Govindbhai Jaisabhai Bharwad examined at Exh. 16 is a witness as per the case of the prosecution but the witness has not supported the case of the prosecution and has been declared hostile.

8.6 PW9 - Mulubhai Jivabhai Bharai examined at Exh. 17 is also an eyewitness as per the case of the prosecution but the witness has not supported the case of the prosecution and has been declared hostile.

8.7 PW10 - Idrisbhai Abdulbhai Syed examined at Exh. 18 was working as the Police Sub-Inspector at Bhayawadar Police Station and he had recorded the complaint of the complainant. During the cross examination the witness has stated that no person by the name of Jagdishbhai Gorabhai Jadhav came to file the complaint and whenever a complaint is filed, the signature of the complainant is taken on the complaint.

8.8 PW11 - Dr. Nishitkumar Dhirajlal Kardani examined at Exh. 20 was working as a Medical Officer at CHC Bhayawadar on 30.06.2009 and he has stated that Jagdishbhai Gorabhai Jadhav, a resident of Moti Paneli was brought for treatment. In the history, he has stated that he was assaulted by stick at about 05.00 pm on 30.06.2009 and he had complained of pain at right lower forearm and right upper back. On examination there was tenderness on the right forearm one third and on the back and he was given primary treatment. The medical certificate is produced at Exh. 21. On the same day at around 05.30 pm Kantaben wife of Jagdishbhai Gorabhai was brought for treatment by a relative and in the history she has stated that she was assaulted by a stick. She had pain on the right temporal region with bleeding and she was treated as an outdoor patient. The medical certificate of Kantaben Jagdishbhai Jadhav is produced at Exh. 22. During the cross-examination by the learned advocate for the accused, the witness has stated that the certificate at Exh. 21 is of Jagdishbhai Gorabhai Jadhav and the certificate at Exh. 22 is of Kantaben Jagdishbhai Jadhav. The age of the injury is not stated in the certificates and none of the injured stated that they were assaulted by a sickle. The witness has opined that if a person falls down from a motorcycle and is injured with a sharp object, the injuries sustained by both the patients could be possible.

8.9 PW12 - Aziz Ahmedkhan Firozkhan Sindhi examined at Exh. 24 is the Investigating Officer who has narrated in detail the procedure undertaken by him during investigation. During the cross examination the witness has stated that the complainant had submitted a copy of the village form no. 8A which is produced at Exh. 25, a copy of the village form no. 7/12 which is produced at Exh. 26 and the caste certificate of the complainant at Exh. 27 but he did not investigate about these documents. In the medical certificate at Exh. 21, the name of the patient is Jagdishbhai Gorabhai and there is no evidence with regard to the name of the complainant and as to whether he was also known as Jagdishbhai in the village.

On minute appreciation of the entire evidence of the prosecution the evidence that has emerged on record is that as per the case of the complainant the incident has occurred in the field and there were two independent witnesses PW8 - Govindbhai Jaisabhai Bharai and PW9 Mulubhai Jeevabhai Bharai but they have not supported the case of the prosecution and they have stated that they have not witnessed any incident. Admittedly, it is on record that a dispute with regard to the property was pending between the parties and it is the defence of the accused that the complainant and his wife were going on the motorcycle at Bhayawadar and they fell down and were injured but because of the dispute regarding the property, a false case at Bhayawadar Police Station has been filed against them. The medical certificate of the complainant produced at Exh. 21 and the medical certificate of the witness - Kantaben Jagdishbhai Jadhav produced at Exh.

22 are not the medical certificates of the complainant Arjanbhai @ Jagabhai Jadhav and there are major contradictions in the evidence of the complainant, PW5 -Kantaben Arjanbhai Jadhav and PW7 - Puneet Arjanbhai Jadhav. In fact, PW7 - Puneet Arjanbhai Jadhav who is the son of the complainant has not supported the case of the prosecution and has been declared hostile. The complainant is not clear as to who was driving the motorcycle and there is no explanation as to why if there was a Police Station at Paneli, they went to the Bhayawadar Police Station to file the complaint. Moreover, the Investigating Officer has categorically stated that he did not investigate about the ownership of the land or the caste certificate and the caste of the complainant is not proved during investigation. There is no clarification about the name of the complainant as the same is different in the medical certificate and there is no evidence that the medical certificate produced at Exh. 21 and the medical certificate of witness - Kantaben Jagdishbhai produced at Exh. 22 are the medical certificates of the complainant and his wife Kantaben.

In view of the settled position of law, the learned Trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned Trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed.

The impugned judgement and order of acquittal passed by the learned Presiding Officer, 6th Fast Track Court, Gondal Camp at Upleta in Sessions Case No. 97/2009 on 10.01.2011, is hereby confirmed.

Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.