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CR.A/812/1994 7/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 812 of 1994
With
CRIMINAL
REVISION APPLICATION No. 236 of 1992
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
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 ?
=========================================================
PATEL
MULIBEN BABALDAS - Appellant(s)
Versus
AMRUTLAL
KHEMCHANDDAS & 2 - Opponent(s)
=========================================================
Appearance
:
NOTICE
SERVED for Appellant(s) : 1,MS MEENU KUMAR for Appellant(s) : 1,
MR
VS SHAH for Opponent(s) : 1,
RULE SERVED for Opponent(s) : 2,
MS
CM SHAH, ADDL.PUBLIC PROSECUTOR for Opponent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 15/04/2010
ORAL
JUDGMENT
1. Heard
learned advocate Ms. Meena Kumar for the appellant. Ms. C.M.Shah,
learned Additional Public Prosecutor, for the State. None is present
for the respondent Nos.1 and 2 in appeal and respondent of Criminal
Revision Application.
2. Original
complainant has preferred this appeal under Section 378(4) of the
Code of Criminal Procedure, 1973 challenging the order of acquittal
dated 29th February, 1992 passed by the Chief Judicial
Magistrate, Mehasana in Criminal Case No.3098 of 1982 acquitting the
respondent Nos.1 and 2 i.e. original accused Nos.2 and 4 respectively
of the charge of committing the offence punishable under Sections 500
read with Section 114 of the I.P.C. The complainant has also
preferred Civil Revision Application No.236 of 1992 challenging the
order dated 29.2.1992 whereunder despite convicting the accused No.3
Jashwantlal Khemchanddas Patel granted him benefit of probation of
good conduct under Section 360 of the Code of Criminal Procedure,
1973 as well as the Sections 4 and 5 of the Probation of Offenders
Act on the ground that the Court committed serious error in granting
probation to accused No.3 and it should be quashed and set aside.
3. As
both these proceedings namely Criminal Appeal No.812 of 1994 and
Criminal Revision Application No. 236 of 1992 are assailed against
the order of learned Chief Judicial Magistrate, Mehsana passed in
Criminal Case No. 3098 of 1982, these appeal and Revision Application
are heard together and are being disposed of by this common judgment
and order.
4. The
facts in brief leading to filing of these proceedings deserve to be
set out as under :-
4.1 The
appellant-applicant (original-complainant) hereinabove presented her
complaint on 22.7.1982 in the Court of Judicial Magistrate First
Class, Mehsana against four accused who have been named thereunder
alleging that she is teacher by profession and teaching in Gujarati
Primary School at Chatiyarda village and is also Honorary Secretary,
Mehsana Taluka Prathamik Shiksha Sangh. She started leaving at
Chatyarda from 4.6.1981 in a rented premises in the street where the
accused No.1 is residing. As she did not accept the advances of
accused No.1, he got infuriated and threatened her that she would be
defamed in the academic world. Accused No.1, thereafter, instigated
accused No.2 who happened to be husband of the complainant. The
accused No.3, who happened to be brother of the complainant and
younger brother of the husband of the accused and accused No.4 who
happened to be farm labourer, they wrote the complaint against the
complainant addressed to Mehsana District Education Committee on
16.2.1982, which was addressed by accused no.2 and letter dated
10.5.1982, on 2.7.1982 addressed by accused No.4 containing serious
allegations against the appellant-applicant and thus tarnishing her
image in the society. The character of the complainant was
assassinated by writing such complaints in the form of allegation for
seeking appropriate action to be initiated against the complainant.
By acting in this way, accused seriously damaged the prestige and
reputation of the complainant and thus committed crime under Section
500 read with Section 114 of the Indian Penal Code. The Court on
16.12.1982 framed the charge against all the accused that they by
helping each other lodged complaint on 16.2.1982, 10.5.1982 and
2.7.1982 and assassinated the character of the complainant and thus
damaging her reputation in the society, which is punishable under
Section 500 of the Indian Penal Code. The complainant examined
herself, the prosecution witnesses are examined, hand writing expert
was examined and after perusing the evidence on record, the court
came to the conclusion that the prosecution could not prove its case
against the accused Nos.2 and 4 whereas accused No.1 had already
compromised with the complainant in a proceeding, namely of quashing
taken out at the High Court. The accused No.1 had already compromised
his dispute with the complainant as could be seen from the judgment
impugned. Therefore, the case qua him was treated to have been
dropped. The Court convicted the accused No.3 and acquitted the
accused Nos.2 and 4. While convicting the accused No.3, the Court
afforded him an opportunity of being heard on a sentence and ordered
that he was deserving benefit of probation under Section 360 of the
Cod of Criminal Procedure, 1973 as well as Sections 4 and 5 of the
Probation of Offenders Act and was ordered to execute a bond in terms
of Rs.2000/- for his release on probation and ordered Rs.200/- as
compensation to be paid to the complainant.
5. Ms.
Menu Kumar, learned advocate for the appellant-applicant contended
that the accused Nos. 2 and 4 could not have been acquitted as even
their application which had been preferred by them for bringing about
punishment contained defamatory statement and had damaging effect
upon the complainant’s reputation. She, while submiting Revision
Application stated that looking to the dire offence and conviction of
accused No.3, he could not have been given the benefit of probation.
The Court passed the appropriate order thereupon.
6. This
Court has heard learned advocates as stated hereinabove and perused
the record and proceedings.
7. The
entire controversy with regard to defamation revolves around three
documents, namely, accused No.2 at Exh.61, accused No.4 at Exh.101
and accused No.3 at Exh.102.
8. By
and large, it could be seen that the hand writing expert’s opinion
has weighed with the Court.
9. The
Court sent specimen signature and thumb impression in respect of
accused Nos.2,3 and 4 marking the same to be Exhibit Nos.113,114 and
115 respectively which is in respect of accused nos.2,3 and 4 by
letter dated 14.12.1987 which is at Exhibit No.122. The examiner has
given for his convenience and referred to these documents as B,C and
D respectively.
10. Apart
from the aforesaid documents, the documents containing signature in
natural course or thumb impression of the accused are as under:-
Accused
No.2.-Exhibit No.7 is the Vakalatnama which sought to have borne the
signature of accused No.2, is encircled with red pencil.
Exhibit
No.16 is supposed to have been signed by Amrutlal Patel accused No.2
while recording his plea of non-guilty, i.e. marked as A1.
Likewise
marked Exhibit No.17 is recording of not guilty in respect of Jaswant
K. Patel accused No.3 and the hand writing examiner has referred to
it by showing as Y-2.
Accused
No.2’s documents have been referred as A1 to A10, whereas in respect
of accused No.3, examiner has referred them as natural documents as
Y1 to Y6.
Accused
No.4 who has given his thumb impression in natural course while
recording plea of not guilty is referred by the examiner as Z1 to Z2
and referred to as 2-4.
11. In
view of this, when the Court has heavily relied upon this evidence
with the benefit of observing demeanor of the deponent, then this
Court under Section 378 of the Code of Criminal Procedure,1973 would
not like to interfere with the same unless and until it is
established by the appellant that the acquittal has resulted into
miscarriage of justice. In the instant case, looking to the attending
facts and circumstances of the case narrated by the trial court, it
cannot be said that the order of acquittal has resulted into
miscarriage of justice so as to call for any interference.
12. This
brings the Court to discuss the revision application. The grant of
probation is a discretionary power vested in the trial Court in a
given situation. The law, in this behalf, has now become crystallized
that when the discretion is granted and the offence is that of
defamation in the given circumstances, the probation cannot be said
to be unjustified. The fact, at this stage, is also required to be
noted that the appellant-applicant did move appeal being Criminal
Appeal No.812 of 1994 challenging this order and, therefore, this
revision also would not be maintainable on that ground that the Court
has independently come to the conclusion that the granting of
probation cannot be said to be unjustified in any manner as could be
seen from the discretion of the trial Court in granting probation. In
view of this, revision application also would not survive and is
accordingly disposed of.
13. In
view of the aforesaid discussion, the order of acquittal passed by
the trial Court on 29.2.1992 in Criminal Case No. 3098 of 1982 of
acquitting the original accused Nos.2 and 4 needs no interference and
hence the appeal fails and is hereby rejected.
The
Revision Application is also rejected for reasons stated hereinabove.
Orders accordingly. Bail bonds, if any, stand cancelled.
(S.R.
Brahmbhatt, J.)
sudhir
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