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CR.A/123/1994 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 123 of 1994
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
NARANBHAI
VELJIBHAI PATEL - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
YOGESH S LAKHANI for
Appellant(s) : 1,
MR LR PUJARI ASST. PUBLIC PROSECUTOR for
Opponent.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 05/09/2008
ORAL
JUDGMENT
1.0 By
way of this appeal, the appellant has challenged the judgment and
order of the learned Special Judge, Bhavnagar passed in Special
Criminal Case(Atrocity) No.3 of 1993 dated 25.01.1995.
2.0 The
appellant, herein, is original accused who was charged with and
convicted for the offence punishable under Section 3(1)(10) of the
Atrocity Act and was sentenced to undergo rigorous imprisonment for
six months and to pay fine of Rs.1,000/- and in case of default to
undergo rigorous imprisonment for further two months. He was also
charged with and convicted for the offence punishable under Section
323 of the I.P.C. and was sentenced to undergo simple imprisonment
for one month and to pay fine of Rs.100/- and in case of default to
undergo further simple imprisonment for a period of five days.
3.0 As
per the charge Exhibit-2 framed against the appellant, the
prosecution case was that on 08.12.1990, at about 8:00 p.m. while the
complainant, who belongs to schedule caste community, was sitting
near the quarters of Gram Sevak, at that time, original accused-the
appellant, herein, picked up quarrel with him (the complainant). The
appellant used abusive words about the caste of the complainant and
also delivered kick blows to him and thereby committed the offences
as mentioned above. The complainant, hence, lodged complaint against
the appellant with Botad Police Station. On completion of the
investigation, the case was committed before the trial Court. The
appellant did not plead guilty and claimed to be tried. Hence, at
the end of the trial, the trial Court convicted and sentenced the
appellant as mentioned in Paragraph-2 of the judgment.
4.0 The
prosecution in support of its case has examined four witnesses i.e.
(1) Bhagvanbhai Rupabhai Harijan-P.W.-1, (2) Rameshbhai Jivabhai
Harijan-P.W.-2, (3) Devubha Kalubha-P.W.-3, (4) Kishorsinh
Narsinh-P.W.4.
5.0 Bhagvanbhai
Rupabhai Harijan-the complainant- P.W.-1 was examined at Exhibit-8.
He deposed that he resides at Pati village and since accused is also
resident of Pati, he knows him very well. He has further deposed
that the incident in question took place before three years. On that
day he was sitting near the quarter of Gram Sevak since
‘fuleku'(Procession) was to pass-by in the village. He has deposed
that since there was darkness, he is not aware as to who else were
sitting there. At that time, the appellant herein picked up quarrel
with him and used abusive word about his caste. The appellant also
delivered kick blows to him. Hence, he consulted the advocate and
lodged the complaint. He deposed that he had filed the complaint on
the next day. He has further deposed that there is no reason for
filing the complaint on the next day.
5.1 P.W.-1,
in his cross-examination, stated that at the time of commission of
alleged offence, there was darkness and many persons had gathered
there. He stated that it is not true that he cannot identify the
person amongst the crowd who had used abusive words about his caste.
He further stated that he used to work with the appellant and his
brother. He stated that while he was working with the appellant, the
appellant did not say anything. He further stated that after the
appellant delivered him kick blows, he had not gone to see doctor.
6.0 Rameshbhai
Jivabhai-P.W.-2 was examined at Exhibit-10. He deposed that he knows
the complainant as well as the appellant. On the date of alleged
incident, he was sitting near the temple and he along with other
people went near the complainant and the appellant after the scuffle
took place between them. The appellant used abusive words about the
caste of the complainant and told him that why are you people not
repaying the money, after borrowing the same? He further deposed
that the appellant delivered kick blows to the complainant.
6.1 P.W.-2,
in his cross-examination, stated that it is not true that he had not
seen the appellant delivering kick blows to the complainant. He
further stated that it is not true that there was darkness. The light
of mercury was there. This witness stated that it is not true that
he was not present at the place of incident and that he had not seen
anything. This witness denied that it is not true that no such
incident had taken place and since he and the complainant belong to
the same caste, he was deposing wrongly.
7.0 Prosecution
also examined other witnesses, but, it would not be relevant to take
note of their depositions in detail.
8.0 In
the light of the above evidence, now, it has to be examined as to
whether trial Court has committed an error in convicting the
appellant or not.
9.0 The case
put forward by the prosecution before the trial Court was that on the
date of alleged incident the appellant herein picked up quarrel with
P.W.-1 and also delivered kick-blows to him, and thus, it was alleged
that the appellant committed the offence punishable under Section 323
of the I.P.C.
9.1 So far
as the conviction of the appellant under Section 323 of the I.P.C. is
concerned, Mr. Lakhani, learned Advocate for the appellant has
submitted that the same is compoundable. In support of his say, Mr.
Lakhani has produced a compromise ‘Pursis’ signed by the original
complainant as well as the appellant in the presence of witnesses
and they are all present in the Court. The original
complainant-Bhagvanbhai Rupabhai Harijan has submitted that with a
view to maintain the harmony between both the communities, the
compromise has been arrived at between both the parties.
9.2 In view
of the compromise produced by Mr. Lakhani, the conviction of the
appellant qua Section 323 of the I.P.C. deserves to be quashed and
set aside. The compromise ‘Pursis’ is ordered to be taken on record.
9.3 So far
as the conviction of the appellant under Section 3(1)(10) of the
Atrocity Act is concerned the same is non-compoundable, and hence, it
was argued by Mr. Lakhani that the alleged incident took place on
08.12.1990 whereas the complaint was filed by the complainant on the
next day that too after consulting an advocate. Even, P.W.-1-himself
in his cross-examination has admitted that there is no reason for
filing the complaint on the next day. P.W.-1 also admitted before
the Court that when the alleged offence took place there was
darkness. It has also come on record in the evidence of P.W.-1 that
he used to work with the appellant and his brother and while he was
working with them they had not said anything.
9.4 So far
as the evidence of P.W.2 are concerned, he deposed that on the date
of alleged offence the appellant picked up quarrel with P.W.-1 using
abusive words about the caste of P.W.-1, saying ?SWhy you ___are not
returning money, after borrowing the same???. P.W.-2, in his
cross-examination, stated that at the time of commission of offence
there was light of mercury which is in stark contradiction to the
evidence of P.W.-1 who, in his deposition, deposed that there was
darkness at the time of commission of offence. Apart from that as per
the say of P.W.-1, on the date of alleged incident, the appellant
asked him as to who was sitting there and on knowing that P.W.-1 was
sitting there he picked up quarrel with P.W.-1, using abusive words
about the caste of P.W.-1 whereas as per the say of P.W.-2, the
appellant was abusing P.W.-1 saying that why you__ are not returning
the money, after borrowing the same? Hence, it clearly transpires
that there are vital contradictions in the evidence of P.W.-1 and
P.W.-2 so far as the manner in which the offence in question took
place. Apart from that no satisfactory explanation was given by
P.W.-1 before the trial Court, for filing the complaint late. It has
also come on record by way of evidence of P.W.-1 himself that
whenever he went to work with the appellant, no untoward incident
took place. As per the say of P.W.-1, at the time of commission of
alleged offence, many persons had gathered there, but, none of the
aforesaid persons was examined by P.W.-1 in support of his case.
10.0 In view
of the above discussion, I am of the opinion that the trial Court has
committed an error in convicting the appellant.
11.0 In the
result, the appeal is allowed. The judgment and order of conviction
and sentence passed by the learned Special Judge, Bhavnagar in
Special Criminal Case(Atrocity) No.3 of 1993 dated 25.01.1995 is
quashed and set aside. The appellant is acquitted of the offences
punishable under Section 323 of the I.P.C. and Section 3(1)(10) of
the Prevention of Atrocity Act. Fine, if any, paid by the appellant
will be refunded to him.
(M.D.
Shah,J.)
Umesh/-
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