(Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) Misc.
Criminal Application No.13354 of 2011 is filed by the State under section 378(1)(3) of the Code of Criminal Procedure, 1973, praying for leave to appeal against the judgment and order dated 02.07.2011 in Special (SC/ST) Case No.24 of 2010 of the Special Judge, Fourth Additional Sessions Court, Nadiad, whereby the respondents are acquitted of the offences under Sections 504, 114 of Indian Penal Code, 1860 and the offence under Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1976 (for short 'the Act'). The application as well as the main Criminal Appeal No.1191 of 2011 are before us.
2. As learned APP made available the copies of evidence on record before the trial court, the main appeal itself was taken up for consideration. For that purpose, we heard learned APP in extenso, who took us through the evidence on record.
3. The prosecution case was based upon the complaint (Exh.17) dated 22.09.2009 filed by one Kanchanben, wife of Dayabhai Bavabhai, who was deputy Sarpanch of Valotri Gram Panchayat since 3 years. The Panchayat consisted of seven members and was 'Samras' Panchayat. She was discharging duties as Sarpanch also since 28.02.2009, as the original Sarpanch Natubhai Girdharbhai was suspended upon notice dated 28.02.2009 of the District Development Officer for his failure to remove encroachment in the village.
3.1 A written application to the District Superintendent of Police came to be filed by the complainant stating that a general body meeting of the Gram Panchayat was convened on 04.03.2009 at around 2.00 p.m. for discussing the issue of removal of encroachment in which (1) Bachubhai Ranabhai Bharwad (2) Mafatbhai Melabhai Gohel (3) Jamuben, wife of Bachubhai Vashrambhai Bharwad (respondents-accused), (4) Ganubhai Popatbhai Bharwad (5) Bhurabhai Dhanabhai Padhiyar were present. Talati-cum-Mantri Girishbhai Waghela was also present. In course of discussion in the meeting, when the complainant in her capacity as deputy Sarpanch proposed fixing of date for removal of encroachments including the encroachment on the Gauchar land, respondent Nos.1 and 2 became furious and insulted the complainant by using abusive and derogatory language about her caste. Thereafter, all the three accused left the meeting place, and subsequently returned back on being persuaded by the Talati-cum-Mantri, but again went away after giving threats and hurling abuses.
3.1.1 It was further sated that a complaint dated 05.03.2009 was given by her to the District Development Officer, Nadiad since the issue pertained to the Pachayat and it was thought appropriate at that time not to file a police complaint, which was later filed.
3.2 The complaint dated 22.09.2009 came to be registered as Second Crime Register No.20/2009 before the police station concerned and was investigated. The accused were charge sheeted for the offences under Sections 504, 114 of IPC and under Section 3(1)(10) of the Act. The case was committed to the Sessions Court under Section 209 of the Code of Criminal Procedure, 1973 as the offences were exclusively triable by the Sessions Court. In course of the trial, 9 witnesses were examined and documentary evidence was also adduced. The evidence recorded is listed in paragraph 5 and 6 of the impugned judgment.
4. The main witnesses examined by the prosecution included the complainant (PW-2 Exh.16), who in her evidence, while identifying her signature on the complaint (Exh.17), admitted that it was not in her handwriting but in the handwritng of her son Vijaybhai Dayabhai (PW-4). PW-2 admitted that application dated 05.03.2009 made by her to DDO (Exh.24) was also written by PW-4, but the signature was hers.
4.1 PW-2 stated that she made application dated 20.03.2009 (Exh.31) to the Taluka Development Officer in respect of same incident mentioned in application dated 05.03.2009 (Exh.24), and admitted that in her application Exh.24, she had not mentioned the exact derogatory words alleged to have been uttered by the accused persons. She admitted that in the resolution (Exh.29), which recorded the proceedings of the Panchayat meeting concerned, which she had read and thereupon signed, also did not refer to the use of casteist derogatory words.
4.1.1 She admitted that allegations were made before two years against her husband for cultivating the Panchayat land and the explanation of her husband was called for. She admitted, when she was shown TDO's report dated 25.03.2008 made to DDO (Exh.27) regarding encroachment on the Gauchar land, that therein the encroachment by her husband was indicated and she had submitted explanation that her husband would remove encroachment only if other encroachers were to do so.
4.2 PW-2, who was VIIth Std. pass, revealed in her evidence that previous to the incident in question also, she had filed Atrocity Case No.10 of 2009 against one Laljibhai Gagjibhai in which the derogatory words alleged by her were identical to those alleged in the present case. She admitted that she had deposed in that case, but did not mention such words in the deposition, she was declared hostile and all the accused therein was acquitted. This antecedent of PW-2 divests herself of trustworthiness, being pointer to her motive and consequentially reflects on her bona fide as a witness telling truth.
4.3 Vijay Dayabhai (PW-4 Exh.38), son of PW-2, was not an elected member of Panchayat but claimed to have remained present in the Panchayat meeting. He admitted in his evidence that, in his application made to DDO on the next day, there was no mention about the caste related derogatory words, nor was there mention of his presence in the meeting. He denied to have seen the resolution of the Panchayat. This witness is 12th Std. pass and being son of PW-2, he was obviously an interested witness, not worthy of credence because his presence in the Panchayat meeting was doubtful, not only for the reason that he was not a member or in any way connected with the Panchayat, but his claim of having been present was not corroborated by any other evidence and the other witnesses were silent on the aspect of his presence.
4.4 Girishbhai Waghela (PW-3 Exh.33), the Talati-cum-Mantri, deposed that the accused had addressed the complainant with castiest derogatory words. He admitted that the certificate dated 21.05.2009 (Exh.35) issued by him certifying about utterance of derogatory words was not upon anyone's application or demand and that there was no contemporaneous record in the Panchayat regarding Exh.35. He also admitted that the resolution passed in the meeting (Exh.29) did not contain any mention or reference about happening of the incident in question. He admitted that there was noting on official record to fortify allegation about the accused having spoken any derogatory words about caste of the complainant, and that he had stated so before the police. He further stated that husband of the complainant had earlier encroached upon the Gauchar land. The evidence of PW-3 read as a whole does not inspire confidence because of discrepancies and for the reason that he being of the same caste as the complainant, could be characterized as an interested witness.
4.5 The other witness Bhurabhai Padhiyar (PW-6 Exh.40), member of Panchayat, only deposed that, in the Panchayat meeting held on 04.03.2009 the altercation had taken place. He denied to have stated before the police about the derogatory words used by the accused. He was declared hostile. Ganubhai Bharwad (PW-5 Exh.39), a panch witness, was also declared hostile. Habibkhan Pathan (PW-8 Exh.44), recorded the complaint and transferred the investigation to the higher officer, whereas Rajeshkumar Pathak (PW-9 Exh.46), Dy. Police Superintendent, Anand was the investigating officer, who performed his duties of recording Panchnamas and statements. PW-9 stated that the complaint was received on 29.09.2009 which was in connection with the incident of 04.03.2009. He further stated that in the complaint filed to Dy.SP by PW-2, in the resolution (Exh.29) of the Panchayat, which was seized by him in course of investigation, no derogatory words alleged to have been used by the accused were mentioned.
5. The relevant evidence discussed and analyzed as above, when read and considered as a whole, did not make out the offences charged against the respondent accused. The complaint was filed after gap of nine months from the date of incident. This passage of time has not been satisfactorily explained and the delay raises doubts about the real intention of the complainant PW:2. PW:2 was a Deputy Sarpanch and political person having the history, as admitted by herself in her evidence, of filing similar atrocity case alleging identical derogatory words and then turning hostile. Her conduct in not mentioning the exact words of the alleged derogatory remarks about her caste in his application (Exh.24) and in the Panchayat Resolution (Exh.29) which recorded the proceeding of the meeting in which the incident was alleged and subsequently by stating the words in later complaint (Exh.31) clearly appeared to be by way of an afterthought. There was no reliable corroborative evidence except that of Talati-cum-Mantri (PW:14) who belonged to the same caste, and could not be relied upon as an independent witness. PW:4 could not be relied as his very presence in the Panchayat meeting had to be doubted. This witness was also an interested witness being son of PW:2.
6. In view of the above state of evidence on record, the offences for which the respondents were charged were not proved. The evidence on record in its totality created an impression that the whole incident and the complaint were product of rivalry in the Panchayat and motivated by Panchayat politics. When the credibility of evidence of the complainant (PW:2) itself became doubtful on its critical examination, the prosecution case stood weakened.
7. In view of the above discussion, the acquittal recorded by the trial court was reasonable and justified. The trial court is found to have not committed any error in appreciation of evidence. It has not overlooked, disregarded or misread any material evidence, nor has recorded any finding which can be said to be perverse. The impugned judgment and order is therefore not liable to be interfered with.
8. As a result, the appeal is not required to be entertained and admitted and hence prayer for leave to appeal is rejected. Miscellaneous Criminal Application No.13354 of 2011 is accordingly dismissed and Criminal Appeal No.1191 of 2011 also stands summarily dismissed.
[D. H. WAGHELA, J.] [N.
V. ANJARIA, J.] Amit Top