CR.A/2092/2006 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2092 of 2006 With CRIMINAL APPEAL No. 2093 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. 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 ? Yes [Amongst Sessions Judges and Addl. S.Js.] ========================================= THE STATE OF GUJARAT Versus MAHENDRASINH PRITHVISINH VAGHELA ========================================= Appearance : MR A.J. DESAI,APP for Appellant MR KANAK K VAGHELA for Respondents ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 14/03/2008 CR.A/2092/2006 2/9 JUDGMENT ORAL COMMON JUDGMENT: (Per : HONOURABLE MR.JUSTICE J.R.VORA) 1. Both the Appeals have been preferred by the State under Section 378(1)(3) of the Code of Criminal Procedure, against the common judgment and order delivered by Presiding Officer, 6th Fast Track Court, Palanpur (Mr. V.K. Pujara), on 17th of July, 2006, in Special Case No.76 of 2005 and in Special Case No.77 of 2005. 2. It is the prosecution case that on 1st of April, 2004, at about 21.30 hours, PW-3 Balubhai Dhanabhai, met complainant at village Bhanpur. At that time, PW-2 Chandubhai Gadarbhai was also present. Complainant, PW-2 and PW-3 were talking amongst themselves. At that time, accused No.1 Premsinh Joravarsinh Vaghela and accused No.2 Mahendrasinh Prithvisinh Vaghela came near them and snatched a purse of PW-3 from the hood of motor bike of PW-3. Both the accused ran away from that place. Complainant, accompanying PW-2 and PW-3, chaised both the accused and caught hold of them. Complainant stated that why the purse of PW-3 was taken away by them. Both the accused thereby provoked and started abusing complainant and assaulted him and caused injury by stick blows on his head and right hand. In this respect, complainant preferred his complaint before Ambaji Police Station on 2nd of April, 2004 at about 8.30 a.m. before CR.A/2092/2006 3/9 JUDGMENT Bijesinh Umedsinh Solanki - PW-6, who was at the relevant time PSI of the said Police Station. He registered the offence vide Crime Register No. II-32 of 2004. This being the offence under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Dy. S.P. of Special Cell, was informed and it appears that, for the time being, PW-7 Dharmendrasinh Girvansinh Gohil, was In- charge of the investigation. Thereafter the investigation was handed over to Division of Police Department, where PW-9 Divisional Police Officer Mohanbhai Haribhai Parmar, took over the investigation on 2nd of April, 2004 and had submitted charge sheet through PW-8 Chandrakant Lalluram Vora, Dy. S.P., Special Cell. A charge sheet was submitted in the Court of learned Judicial Magistrate, First Class, at first instance against accused No.2 Mahendrasinh Prithvisinh Vaghela, wherein accused No.1 Premsinh Joravarsinh Vaghela was shown as absconding. The said case was committed to the Court of Sessions, which was numbered as Special Case No. 76 of 2005 and it appears that thereafter accused No.1 Premsinh Joravarsinh Vaghela might have been arrested and was committed to the Court of Sessions and the said Special Case was numbered as Special Case No. 77 of 2005. The learned Trial Judge tried both the cases together and recording evidence in Special Case No. 76 of 2005, acquitted both the accused by common judgment and order of all the charges levelled against them under CR.A/2092/2006 4/9 JUDGMENT Sections 323, 504 and 114 of the Indian Penal Code; under Section 3(1) (10) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 135 of the Bombay Police Act. The State filed Criminal Appeal No. 2092 of 2006 against the original accused No.2 Mahendrasinh Prithvisinh Vaghela and Criminal Case No. 2093 of 2006 against the original accused No.1 Premsinh Joravarsinh Vaghela, as afore stated. Vide Order dated 27th of December, 2007, we Admitted the Appeals and having regard to the facts and circumstances of the case, the matters were directed to be heard finally after preparing the paper book. 3. Learned APP Mr. A.J. Desai on behalf of the State in both the Appeals and learned Advocate Mr. Kanak K.Vaghela on behalf of learned Advocate Mr. Jay Prakash Umot, in both the Appeals for the respondents accused were heard at length. While going through the record and proceedings of the case and judgment and order of the learned Trial Judge, we felt that we have come across a case wherein failure of justice has occasioned. 4. We are constrained to observe that a criminal trial is a judicial scrutiny of very important aspects placed before a trial judge, and only purpose of which is to arrive at a reasoned judgment after CR.A/2092/2006 5/9 JUDGMENT appreciating the fact in issue and relevant fact which prosecution as well as defence might have pleaded. The only object of the criminal trial is to mete out justice to convict the guilty and protect the innocent. The criminal trial, therefore, is a search for the truth and truth only and not a bout over trivialities in race of disposal of case and must be conducted under settled judicial discipline and according to law which would protect the innocent and punish the guilty. Criminal Courts are very effective instrument in dispensation of justice and, therefore, it is expected that Presiding Judge must not be a spectator and a mute machine, at least not a perfunctory component of criminal trial. What is expected from trial court judge is alertness, sensitivity, becoming participant in the trial and with intelligence, taking active interest in dispensation of justice and eliciting of relevant materials necessary to reach at the truth, which might have been veiled behind so many screens. Crimes are public wrong and breach of violation of public rights and duties which consequently affects the whole community and are harmful to the society in general. Right from the day, the police hand over the criminal and his case to the prosecution to the day he is finally delivered to the prison cell or back to society, the judiciary handles that part of the criminal justice system which is most crucial, critical, sensitive and decisive and, therefore, the people have faith in judiciary. If the court acts perfunctory and not fulfilling the important task, it is CR.A/2092/2006 6/9 JUDGMENT undoubtedly that people for whose benefit courts exist shall start doubting the efficacy of the system. If the court acts contrary to the role it is expected to play, it will be destruction of fundamental edifice on which the justice delivery system stands. 5. What we have noticed in the present case to our dismay and disappointment that in few lines the whole trial is finished by the Trial Judge. We do not know in what hurry. Necessary it is to observe that in short paras from paras 1 to 5 common introductory facts are depicted by learned Trial Judge; in para-6, issues are raised and in para-7 reply of the issues are narrated; in para-8 arguments of defence lawyer is noted; in para-9 arguments of APP is noted, in para-10 in some lines evidence of complainant and two eye witnesses are appreciated in very light casual and perfunctory manner. The learned Trial Judge has referred to very trivial contradictions in discarding the evidence of these witnesses. 6. Height of the thing is, in para-11 the learned Trial Judge has observed that in breach of rules framed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the investigation was carried out by below rank officer i.e. Police Inspector and not by Dy. S.P. and, therefore, the trial was vitiated. No medical evidence has CR.A/2092/2006 7/9 JUDGMENT been taken into consideration by the learned Trial Judge in his judgment so as to appreciate the evidence recorded during the trial. When we referred to para-4 of the judgment, we find that the learned Trial Judge has narrated the witness list of 08 witnesses only. When we scrutinized the record, we found that, in this case, nine witnesses have been examined and 9 th witness i.e PW-9 Mohanbhai Haribhai Parmar has been examined, who was Dy. S.P., and on 2nd of April, 2004, he had taken over the investigation of this crime, while as aforesaid, the learned Trial Judge totally ignored this fact as if PW-9 has not at all been examined and this reveals that how this important task of dispensation of justice has been dealt with by trial court! This escaped from the purview of the learned Trial Judge that PW-9, who was authorized officer, has conducted the investigation in the matter and thereafter the charge sheet was preferred by PW-8 Chandrakant Lalluram Vora, the then Dy. S.P. , SC & ST Cell. What we experienced is that this criminal trial is reduced to be a mock trial or shadow boxing or fixed trial in the sense that decision is made up to acquit the accused and then perfunctorily reasons are tailored out. As aforesaid, very heavy responsibility lies upon the shoulder of the judiciary to do justice, but tremendous task of dispensation of justice has to be performed with alacrity and sensitivity. Judicial criminal administration system must be kept clean and beyond any even spot of inaction, lethargy and CR.A/2092/2006 8/9 JUDGMENT perfunctoriness. What we have felt is that the learned Trial Judge tiptoed over the record and proceedings instead of leaving foot prints of judicial examination and scrutiny during trial. 8 Result is failure of justice on two grounds (i) there is no appreciation of evidence at all which can be termed as judicial scrutiny for search of truth and (ii) the learned Trial Judge excluded altogether in consideration that PW-9 Mohanbhai Haribhai Parmar, who was authorized Officer under law was examined in the matter who had investigated the crime. 9 In the result, we do not have any other alternative, except to set aside the judgment and order impugned in both these Appeals. Accordingly, both these appeals are allowed. While setting aside the judgment and order impugned in both the Special Cases, we may refer here the decision of the Apex Court in the matter of V. SRINIVASA REDDY vs. STATE OF AP, as reported in (1998) 9 SCC 331, wherein the Apex Court upheld the view taken by the High Court to remand the trial to the Trial Court as the same was perfunctorily dealt with by the Trial Court. Both the Special Cases are remanded to the Trial Court to try the same afresh from the stage of the hearing of the arguments of the prosecution and defence and to conclude both the cases according to CR.A/2092/2006 9/9 JUDGMENT law. The Trial Court is further directed to conclude the trial within six months from the date of receipt of the Writ of this court. Office is directed to transmit the Record and Proceedings to the Trial Court along with the writ of these Appeals forthwith. (J. R. VORA, J.) (M. R. SHAH, J.) pnnair