CR.A/597/2007 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 597 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ? ========================================================= THE STATE OF GUJARAT - Appellant(s) Versus MAHOBATSINH JETHUBHA JADEJA & 1 - Opponent(s) ========================================================= Appearance : MR MUKESH PATEL, APP for Appellant(s) : 1, None for Opponent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 06/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. The present Appeal is preferred by the appellant - State of Gujarat challenging the Judgment and CR.A/597/2007 2/9 JUDGMENT order dated 2.1.2007 rendered in Special Criminal Case No.35 of 2005 (Exh.38) by the learned Special Judge, Jamnagar. By the said Judgment and order the learned Special Judge has acquitted the respondents – accused. 2. The present respondents – accused in Special Criminal Case No.35 of 2005 were charged for the offences punishable under Sections 504, 506(2), 448 and 452 I.P. Code, under Section 3(1)(10) of the Atrocities Act and under Section 135(1) of the Bombay Police Act and tried by learned Special Judge, Jamnagar and thereafter the respondents – accused were acquitted for the offences charged against them by aforesaid Judgment and order dated 2.1.2007. 3. The facts of the prosecution in nutshell are as under : On 7.9.2005 when Dhana Kana Bhambhi, resident of Sim of Sarmat Gam was present in Vadi, respondent – accused No.1 Mahobatsinh was going on motor cycle by blowing the horn. The complainant Dhanabhai told him that why you are always blowing the horn when the ladies are present in the Vadi? He also said that this is not proper. Thereupon accused No.1 Mahobatsinh got excited and got down from the motor cycle and started to give foul abuses and thereafter took out a wooden log and attempted to assault CR.A/597/2007 3/9 JUDGMENT the complainant, but, the complainant went inside the house. The accused No.1 tried to enter the house, but he could not succeed. Though the accused knew that the complainant belongs to Scheduled Caste/scheduled tribe, he gave filthy abuses and insulted him about his caste. The wife of the complainant and children requested the accused No.1 and so he went away. Thereafter, at about 9.30 hours respondent – accused No.2 Jethubha came there and has also gave abuses and threats to the complainant as also to his wife in public place and insulted them. 4. Thereafter, Dhanabhai has lodged the complaint before Panchkoshi “B” Division Police Station, Jamnagar. The said complaint was registered as CR No.I-92 of 2005 for the offences punishable under Sections 448, 452, 504, 506(2) I.P. Code, Section 135(1) of the B.P. Act and also for the offence under Section 3(1)(10) of the Atrocities Act. The investigation was done by Shri Desai, Dy. S.P. After recording the statement of witnesses and after completion of investigation the charge-sheet was filed in the Court of 5th Additional Senior Civil Judge & J.M.F.C., Jamnagar, which was registered as Criminal Case No.5704 of 2005. 5. As the offence under Sections 3(1)(1) of Atrocities was exclusively triable by the CR.A/597/2007 4/9 JUDGMENT learned Special Judge, the learned 5th Joint Civil Judge & J.M.F.C., committed the case to the Court of learned Special Judge, Jamnagar, where it was numbered as Sp.Case No.35 of 2005. 6. Thereafter, the charge (Ex.10) was framed against the present respondents – accused. The accused pleaded not guilty to the charge and claimed to be tried. 7. In order to bring home the charge levelled against the accused the prosecution has examined the witnesses. After examining the witnesses, further statement of accused under Section 313 Cr.P.C. was recorded in which the accused have denied the case of the prosecution in toto. 8. On conclusion of the trial the learned Special Judge acquitted all the accused from the charge levelled against them vide Judgment and order dated 2.1.2007. 9. Being aggrieved and dissatisfied with the Judgment and order dated 2.1.2007 rendered in Special Case No.35 of 2005 by the learned Special Judge, Jamnagar, the appellant – State Government has filed this Appeal. 10.Heard learned A.P.P. Mr. Mukesh Patel for the appellant – State of Gujarat. Mr. Patel contended that the order of acquittal is CR.A/597/2007 5/9 JUDGMENT contrary to law and evidence on record and committed an error in acquitting the appellant – accused. He contended that the learned Judge has not considered the documentary as well as oral evidence produced by the prosecution. He contended that the learned Judge ought to have appreciated the version of prosecution witness No.1 Bhanuben Ghanabhai, wife of the complainant, examined at Exh.15. No doubt this witness was declared hostile by the prosecution, but, in her chief-examination she has stated that she was not at home when the incident occurred. When she came her husband talked about the dispute with accused No.1. Mr. Patel contended that though prosecution witnesses Nos.1 to 4 have not supported the case of the prosecution, yet, the evidence of P.W.7 – Amrutbhai Lalubhai Desai, Dy. Superintendent of Police, Ex.35, cannot be discarded. The said witness has deposed that he had visited the place of offence and panchnama of place of incident was drawn in presence of panch witness, statements of witnesses were recorded and accused were arrested, wooden log used in commission of offence was recovered by drawing the panchnama, the caste certificate of the complainant was obtained from the Social Welfare Department. This witness has also identified the accused and also the muddamal log before the Court and in cross examination nothing adverse could be elicited. This witness has CR.A/597/2007 6/9 JUDGMENT categorically stated about the narration of incident before him while recording the statement of witnesses. Mr. Patel contended that there is no reason to disbelieve the evidence of Police witness. He further contended that the caste certificate of complainant clearly proves that the complainant belonged to the Scheduled caste community. He has also read the panchnama of place of offence, Ex.18 and the complaint Ex.28 and contended that the panchnama of arrest Ex.36 of the respondents – accused is required to be considered. He contended that the learned Special Judge has failed to appreciate the documentary evidence as well as oral evidence available on the record of the case. He further contended that the learned Judge has erroneously came to the conclusion that the prosecution has failed to prove the corroborative piece of evidence to connect the accused with the crime. He also contended that the learned Judge has erroneously come to the conclusion that in absence of any material the accused cannot be convicted. He contended that the learned Judge ought to have appreciated that there are possibility of giving threats to the prosecution witnesses by the accused persons, because the complainant has expired prior to nine months. Mr. Patel, therefore, prayed that the prosecution has proved its case beyond reasonable doubt and the Judgment and order passed by the learned Special Judge is required CR.A/597/2007 7/9 JUDGMENT to be quashed and set aside and the leave to file Appeal is required to be granted and the Appeal may be admitted by this Hon'ble Court. 12.We have fully heard the learned APP Mr.Mukesh Patel. We have also gone through the Judgment and order passed by the trial Court as well as the documents produced on record of the case. It is true that the complaint can be exhibited in absence of the complainant by Investigating Officer in whose presence that was registered, which was given Exh.28. It is also true that the panchnama of scene of offence Exh.18 and the arrest panchnama of respondent Ex.36 were proved through the evidence of P.W.6 – Dy. S.P. and P.W.5 at Exh.27 and 35. We have also considered the ingredients of the provisions of Sections 448, 452, 504, 506(2) I.P.Code and Section 135(1) of the Bombay Police Act as well as Section 3(1)(10) of Atrocities Act. 13.From the oral evidence led by the prosecution it clearly appears that all the prosecution witnesses Nos.1 to 4 have not supported the prosecution case. They did not utter a single word regarding the allegations which are made against the present respondents – accused. We have also considered the charge framed. We are of the opinion that when the star and material witnesses have not supported the prosecution, the learned Special Judge has rightly acquitted CR.A/597/2007 8/9 JUDGMENT the respondents. 14.The Hon'ble Apex Court in a number of decisions held that “it is not the duty of the appellate Court when it agrees with the view of the trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial Court”. The said law is laid down by the Hon'ble Apex Court in the case of GIRIJANANDINI DEVI & ORS. v/s. BIJENDRA NARAIN CHOUDHARY, reported in AIR 1967 SC 1124, and in (2) in the case of STATE OF KARNATAKA v/s. HEMAREDDY & ANR., reported in AIR 1981 SC 1417. 15.As observed and discussed herein above, in our opinion, the prosecution could not establish its case beyond reasonable doubt. The learned Judge has rightly acquitted the accused and we are of the opinion that no other conclusion except the one reached by the learned Special Judge. Therefore, there is no valid reason or justifiable ground to interfere with the impugned Judgment and order of acquittal. 16.In the result, the leave to Appeal refused. Appeal is accordingly dismissed. The Judgment and order dated 2.1.2007 rendered by the learned Special Judge in Special Case No.35 of 2005 is confirmed. Appeal is dismissed accordingly. CR.A/597/2007 9/9 JUDGMENT (A.M.KAPADIA,J.) (Z.K.SAIYED, J.) sas