Decided on February 11,2016

Mahendra Sinh Amba Sinh Rathod And 1 Ors Appellant


- (1.) All these appeals are preferred against the common judgment and orders dated 30.9.2008 & 11.12.2008 passed by learned Special Judge, Fast Track Court, Banaskantha, Palanpur, in Special Atrocity Case Nos.68 and 72 of 2008. By the impugned judgment, the accused were held guilty for offence punishable under Section 3 (2) (V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "Atrocity Act") and ordered to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- each and, in default of payment of fine, the accused were ordered to undergo further simple imprisonment of one year. All the accused were also held guilty for the offece punishable under Section 332 read with Section 114 of the Indian Penal Code (for short, "IPC") and ordered to undergo two years' rigorous imprisonment and to pay fine of Rs.1,000/- each, and, in default of payment of fine, the accused were ordered to undergo three months' simple imprisonment. By the impugned judgment, the accused were also convicted for the offence punishable under Section 333 read with Section 114 of IPC and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.3,000/- each, and in default of payment of fine, the accused were ordered to undergo further simple imprisonment of one year. Being aggrieved by the impugned judgment, the accused have preferred present appeals before this Court.
(2.) The facts in brief giving rise to the filing of present appeals are as under:- 2.1 It is the case of the prosecution that on 31.10.2006 at about 11.30, when accused no.4 was discharging the duty of Medical Officer, at that time, one Pareshbhai, brother of accused no.4 was brought to General Hospital, Palanpur for treatment. Upon examination, one Mr.B.K.Solanki, Medical Officer, declared him dead, therefore, all the accused asked the complainant to declare it before the media. All the accused alleged that Pareshbhai has died due to negligence of the doctor and got angry and assaulted the complainant and gave him kick and fist blows. Due to this, the complainant got fracture in his chest and he was dragged by the accused, accordingly, the accused caused grievous hurt. During this incident, the accused also used abusive language and insulted the complainant with regard to his caste. With these allegations, the complaint was filed against the accused. 2.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses:-
(3.) At the time of hearing of these appeals, Mr.Raxit Dholakia, Mr.M.B.Rana and Mr.S.S.Trivedi, learned advocates appearing for the appellants-original accused have taken us through the evidence on record and tried to establish that the prosecution has miserably failed to prove its case against the appellants. It is submitted that from the evidence on record, it is clear that the accused were not knowing that the complainant was belonging to the Scheduled Caste or Schedule Tribe and they have not used alleged abusive language against the complainant. It is further submitted that brother of accused no.4 died at a very young age and the accused were under the impression that he died due to negligence on the part of the doctors. It is further submitted that due to such situation, in the heat of the moment, the incident in question had occurred. It is further submitted that the mob present there at the place of incident had participated in the incident and the accused have not committed the offence alleged against them. Learned advocates have also taken us through the medical evidence and submitted that it cannot be said that the accused are guilty of offences punishable under Sections 332 and 333 of IPC, as ingredients of these Sections are not fulfilled. It is submitted that the complainant had not treated the patient who expired and the complainant was not hurt with an intent to deter him from discharging his duty. It is further submitted that the incident had happened on 31.10.2006, while the complainant was discharged from the hospital on 14.11.2006. It is further submitted that considering the medical certificate of the injured, even if the case of the prosecution is taken as it is, the accused cannot be held guilty for offence under Section 333 of IPC and at the most the accused can be held guilty for offence under Section 332 of IPC, as the injuries in question cannot be said to be grievous hurt. In view of all these, it is prayed that these appeals may be allowed by substituting the sentence imposed upon the accused persons.;

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