STATE OF GUJARAT Vs. SONI KIRIT JIVANBHAI

JUDGEMENT

(1.) BY way of Criminal Appeal No.793 of 1993 u/s.377 of the Code of Criminal Procedure,1973, the appellant - State of Gujarat has prayed to enhance the sentence imposed by learned Special Judge, Surendranagar vide judgement and order dated 27/05/1993 in Special Case No.34 of 1991, by which, the respondents have been convicted for the offence punishable under Sections 332, 504 and 506(1) of the Indian Penal Code and have been sentenced for 8 days SI and have been imposed fine of Rs.2,000/- and in default of payment of fine, they have to undergo simple imprisonment for one month. All the sentences were ordered to run concurrently. By way of Criminal Appeal No.794 of 1993 u/s.378 of the Code of Criminal Procedure,1973, the appellant - State of Gujarat has prayed to quash and set aside the judgement and order of acquittal passed by learned Special Judge, Surendranagar dated 27/05/1993 in Special Case No.34 of 1991, by which, the respondents have been acquitted from the charges levelled against them.

(2.) BRIEF facts, arise from the record of the case, are as under: The complainant - Mansukhbhai Virjibhai Rathod, who belongs to scheduled caste i.e. of Harijan community, was Deputy Executive Engineer in Water Supply Department of the State of Gujarat at Surendranagar. Incident in question took place on 3.7.1991 at about 9.00 p.m. in the Chamber of the complainant, which is situated in 4, Kiran Society, Surendranagar. Respondent No.1 and other accused persons, who are the wife and sons of respondent No.1 are residing in the neighborhood of the said office and the building in which the office is situated belongs to them. Ownership of said building was of the wife of the respondent No.1 i.e. Pravinaben. The Building was given on rental basis for a period of five years to the said office which was expiring on 31.3.1990. From the evidence on record, it appears that the time was extended up to 31.3.1991. The respondent No.1 wanted to get said office vacated, therefore, he had issued one notice to the department for vacating the said office. The predecessor of the complainant had made necessary correspondence with the Head Office prior to it. According to the complainant, on the date of the incident, he and his staff had gone for the inspection of well at Muli and Than and they returned at about 8.30 or so in the office of Surendranagar. On 7.7.1991, the Chief Officer of the department was to visit for inspection and, therefore, they had gone there. It is further alleged that at about 9.00 p.m., all the accused persons had come to the office and they came into the Chamber. It is further alleged that for vacating the said premises, respondent No.1 and others had come and while talking about the same, some quarrel took place between them and thereafter, the accused persons gave filthy abuses to the complainant. As alleged, some blows by means of kicks and fists were also given to the complainant. Regarding the injuries sustained by the complainant, the medical evidence is absolutely silent and the Doctor did not find any external marks of injuries. It is also alleged that at the relevant time, the complainant was sitting on his chair and also broken the call bell connection. On this aspect also, the scene of offence Panchanama is absolutely silent about the breaking of call bell connection. Therefore, complaint is contradicted by certain circumstantial evidence on record. It is further alleged that soon after the incident, the complainant contacted DSP on telephone and informed about the incident whether the information was conveyed by the complainant was recorded and necessary entries were made. According to the respondent No.1, in that information, it was not alleged by the complainant that the accused used abusive language and more particularly used word "Dhedha". Thereafter, the complainant also informed at the City Police Station telephonically. Thereupon, Head Constable Rahimkhan came at the spot and recorded FIR of the complainant wherein it was alleged by the complainant that the accused uttered insulting words like "Dhedha" and, therefore, offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act [hereinafter referred to as "Atrocity Act"] was registered against accused persons. That on the strength of the FIR, the Head Constable Rahimkhan registered the offence and started investigation on the next day by preparing the scene of offence panchanama. The statements of some of the witnesses from the office were recorded by him and thereafter, the charge sheet was submitted. Thereafter, charge was framed against the accused persons for the offences under Sections 147, 149, 332, 504, 506(1), 447 of the Indian Penal Code and Section 3(1)(10) of the Atrocity Act. Thereafter, as the accused pleaded not guilty of the charge levelled against them, and since claimed to be tried, evidence was recorded of about ten witnesses. After considering the evidence on record, trial court held that original accused Nos.1, 3 and 5 are guilty for the offence under Section 332 and 504 of the IPC and thereafter, trial court granted benefit of Probation of Offenders Act to original accused No.2 and 5 and convicted respondent No.1 and sentenced to suffer SI for eight days and to pay fine of Rs.2,000.00, in default, ordered to undergo further SI for one month. After considering the evidence, the trial court held that the accused persons are not guilty for the charge under section 3(1)(10) of the Atrocity Act and acquitted accused persons from the said charge. At the time of arguments, it was conceded by the PP appearing for the State before the Trial Court that the evidence is not sufficient against original accused No. 2 and 4 to show their presence at the relevant time.

(3.) THE present respondent No.1 had preferred Criminal Appeal No.738 of 1993 before this Court and challenged the impugned decision, by which, he was convicted for the aforesaid offence. The said Criminal Appeal preferred by respondent No.1 was heard by this Court (Coram: Hon'ble Mr.Justice H.K.Rathod) and by oral judgement dated 03/04/2006 confirmed the conviction, however, he was granted benefit under the Probation of Offenders Act,1958. A copy of the said judgement is part of record of the present case.