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CR.A/773/1993 4/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 773 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
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 ?
=========================================================
GAMBHIRSINH
ALIAS BODABHAI PRAVINSINH THAKOR - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
JC SHETH for
Appellant(s) : 1,
MR PD BHATTE, APP for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 10/01/2008
ORAL
JUDGMENT
The
appellant original accused has challenged a judgement and order
dated 17.7.1993 rendered by learned Sessions Judge, Panchmahalas at
Godhra in Special Case No.2/92.
The
appellant was charged with and convicted under Section 323 of the
Indian Penal Code, Section 3(1)(10) of the Schedule Caste and
Schedule Tribe(Prevention of Atrocities) Act (here-in-after referred
to as ?Sthe Atrocities Act??). He was sentenced to simple
imprisonment for ten days and six months respectively for the said
offence. He also ordered to pay fine.
Broadly
stated prosecution case was that on 21.10.1991 at about 5:30 in the
evening the complainant Nathabhai had gone to the grocery shop of
the appellant. At that time, the appellant abused the complainant
saying that he belongs to a Schedule Caste and why did he enter the
shop. So saying he gave fist and kick blows. Wife of the complainant
was also present. The appellant picked up an iron rod lying nearby
and gave a blow to the complainant on his head.
The
complainant Nathabhai Lakhabhai-PW4 was examined at exh.12. He
stated that one of his daughters is married in village Suliyat. He
therefore, frequently goes to the said village. On 21.10.1991, in
the evening, he wanted to go to his daughter’s house. He had
therefore, started of with his wife from his village. To reach
Suliyat, he had to cross Mettal village. He reached Mettal village
at 5:30 in the evening. At Mettal village he entered a shop for
buying the bidies. Many people were in the shop at that time. The
appellant was inside the shop and was doing his business. When the
complainant asked for bidies, the appellant abused him in the name
of his community and asked him why did he enter the shop. He
slapped the complainant. His wife also reached there. The accused
picked up an iron rod and hit him on the head. At that time cousin
brother of the appellant came there and admonished the appellant He
and his wife thereafter, came to Suliyat village by bus. They went
to the police station to lodge the complaint, but the police officer
was not present there. He identified the rod shown to him in the
Court as one used in the offence.
4.1 In
the cross examination, he denied the suggestion that while trying to
board on tempo, he was prevented by the cleaner to do so and in the
process he had received injury.
Wife
of the complainant Dhaniben Kanabhai-PW5 was examined at exh.15. She
stated that she and her husband had started of to reach Suliyat
village. At 5:30 they reached Mettal village. Her husband had
entered the shop. She stood outside. Her husband asked for bidies
from the appellant. The appellant ordered the complainant to leave
the shop using derogatory language about his Caste. He slapped the
complainant and also hit him with an iron rod. They thereafter, took
a bus and reached Suliyat village and went to the police station to
lodge the complaint. The police officer was not present. They
thereafter, lodged the complaint on the next date.
Raising
Jokhnabhai-PW6 was examined at exh.16. He was supposedly the
eyewitness to the incident. He however, turned hostile and did not
support prosecution.
Dr.
Girishkumar Damordas-PW1 was examined at exh.6. He was the medical
officer, Primary Health Centre when the complainant was brought to
him for treatment by the police. He had found that the complainant
had one lacerated wound on the right side of his head. He opined
that such injury could be caused by hard blunt substance such as
Muddamal article no.1 iron rod.
7.1 In
the cross examination, he agreed that such injuries can also be
caused if a person accidentally fell down.
It
was on the basis of above evidence that prosecution sought to
establish the charge against the appellant.
At
the outset, it may be noted that in the cross examination of the
complainant-PW4 and his wife PW5, no suggestion is put by defence
that there was any enmity between the complainant and accused prior
to the incident. The evidence of the said two witnesses need to be
assessed in light of the above circumstances.
As
already noted, Nathabhai-PW4 clearly stated that when he entered the
shop of the accused, he was transacting business. Nathabhai-PW4
asked for bidies. The accused therefore, insulted him in the name of
his caste and asked him why he even entered his shop. He thereafter,
gave him some slaps and hit him with an iron rod lying nearby. This
evidence of the complainant is fully supported by his wife
Dhaniben-PW5 who is also an eyewitness. She stated that she had
started off with her husband to reach the village where their
daughter was married. On the way when they were at Mettal village,
her husband had entered the shop where the accused was present. She
had stood outside.
As
indicated there was no previous enmity between the complainant and
the accused. No suggestion has been put forth by the defence in the
cross examination about the motive of the complainant to involve the
accused falsely. Though suggestion was made to the effect that the
complainant received injuries while trying to board the tempo upon
being prevented by the driver, same was denied by the complainant.
I
have no reason to discard the testimony of these eyewitnesses only
on the ground that Raising Jokhnabhai-PW6 turned hostile and did not
support the prosecution.
Dr.
Girishkumar Damordas-PW1 had treated the complainant and found that
there was an injury corresponding to one described by the
complainant on his head. In that respect, the testimony of the
Doctor corroborates with the evidence of the complainant. I have
noticed the language stated to have been used by the accused to
insult and humiliate the complainant with reference to his Caste.
There is no dispute that the applicant belongs to the Schedule
Caste. The incident took place in full public view. Learned trial
Judge therefore, rightly believed that the accused had committed
offence punishable under Section 3(1)(10) under the Atrocities Act.
In
the result, I see no infirmity in the judgement. The appeal is
therefore, required to be and hereby dismissed. Bail bond cancelled.
(Akil
Kureshi,J.)
(raghu)
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