SONI KIRIT JIVAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned Advocate Mr. K.B. Anandjiwala for appellant, learned APP Mr. P.D. Bhate for the State of Gujarat. Through this appeal, appellant " original accused No.1 in Special Case No. 34 of 1991 has challenged the order of conviction dated 27.5.1993 passed by the Special Judge, Surendranagar in Special Case No. 34 of 1993 wherein the appellant was convicted for the offence under section 332, 504 and 506 (Ist Part) and was ordered to undergo eight days SI and fine of Rs.2000.00, in default, one month's SI and all the sentences were ordered to run concurrently.

(2.) Short facts of the case of prosecution are to the effect that the complainant Mansukhbhai Virjibhai Rathod belongs to scheduled caste i.e. of Harijan community; he 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. Appellant and other accused persons who are the wife and sons of appellant are residing in the neighborhood of the said office and the building in which the office is situated belongs to present appellant. Ownership of said building was of the wife of the appellant 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 upto 31.3.1991. The appellant 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 of the petitioner. It is further alleged that for vacating the said premises, present appellant 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 appellant, 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 ("Atrocity Act" for short) 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 section 147, 149, 332, 504, 506 (1), 447 of the Indian Penal Code ("IPC" for short) and section 10(3) 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 the accused no.1,3 and 5 are guilty for the offence under section 332, 504, IPC and thereafter, trial court granted benefit of Probation of Offenders Act to accused No.3 and 5 and convicted appellant herein and sentenced to suffer RI 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(10) of the Atrocity Act and acquitted accused persons of 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 accused no. 2 and 4 to show their presence at the relevant time.

(3.) It was the defence of the accused that at the time of incident, appellant was called by complainant as he is residing just in the neighbourhood of the complainant's office. Thereupon the appellant and his wife went to the office. At that time, the accused no.2 stood out side the chamber of the complainant and the appellant went inside the office of the complainant. It was told by the complainant to the appellant that if he want to get said premises vacated, then, he would have to understand some thing, due to which, appellant felt that the complainant is demanding some money for the purpose of vacating the house, thereupon, he informed complainant that before about one year, notice was given, even then, you are demanding money as illegal gratification for the same which is not proper. He also told that this unhealthy practice should be deprecated and it should be brought to the light and also told that he would inform head office about the same. Thereafter, appellant left office and thereafter, present complaint was lodged by complainant which is absolutely false and incorrect.