CR.A/773/1993 1/6 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 1. The appellant original accused has challenged a judgement and order dated 17.7.1993 rendered by learned Sessions Judge, Panchmahalas at Godhra CR.A/773/1993 2/6 JUDGMENT in Special Case No.2/92. 2. 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 “the 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. 3. 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. 4. 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 CR.A/773/1993 3/6 JUDGMENT 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. 5. 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 CR.A/773/1993 4/6 JUDGMENT 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. 6. 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. 7. 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. 8. It was on the basis of above evidence that prosecution sought to establish the charge against the appellant. 9. At the outset, it may be noted that in the cross examination of the complainant-PW4 and his wife CR.A/773/1993 5/6 JUDGMENT 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. 10.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. 11.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. CR.A/773/1993 6/6 JUDGMENT 12.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. 13. 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. 14.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)