CR.A/123/1994 1/11 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. CR.A/123/1994 2/11 JUDGMENT 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 CR.A/123/1994 3/11 JUDGMENT (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 CR.A/123/1994 4/11 JUDGMENT 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. CR.A/123/1994 5/11 JUDGMENT 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 CR.A/123/1994 6/11 JUDGMENT 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 CR.A/123/1994 7/11 JUDGMENT 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 CR.A/123/1994 8/11 JUDGMENT 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 CR.A/123/1994 9/11 JUDGMENT 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 “Why 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 CR.A/123/1994 10/11 JUDGMENT 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) CR.A/123/1994 11/11 JUDGMENT (10) of the Prevention of Atrocity Act. Fine, if any, paid by the appellant will be refunded to him. (M.D. Shah,J.) Umesh/-