Babubhai Nathumal Hemrajani vs State of Gujarat

Z.K. Saiyed, J.—The present Appellant has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 13.3.2006 passed by the learned Addl. Sessions Judge, 9th Fast Track Court, Godhra, Dist. Panchmahals in Sessions Case No. 9/2004 (Atrocity), whereby, the learned Judge has convicted the Appellant for the offences u/s 323, 504, 506(2), 342, 384 and 201 of IPC and for all the offences, the Appellant accused was directed to pay a fine of Rs. 500/- for each of the offence, in default to undergo S/I for one month for each offence. However, the Appellant has been acquitted by the learned Judge for the offence u/s 3(1)(x) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocity) Act.

The brief facts of the prosecution case is as under:

As per the case of the prosecution, the complainant and his son were working with the Appellant in the manufacturing of bricks. When the complainant had gone to the Appellant for money of their labour work, the Appellant has abused about his caste and beaten him and after parking his bicycle near the office, the complainant was naked and put inside a small room for three days and torn out the labour card.

Therefore a complaint came to be filed by the Appellant before the Godhra Town Police Station for the aforesaid offence. The panchnama of the scene of offence was prepared in the presence of panch witness and statements of other witnesses were recorded and on completion of the investigation, charge-sheet was filed in the Court of learned JMFC, Godhra. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, which was given number as Sessions Case No. 9/2004 (Atro.).

Thereafter, the charge was framed at Ex. 2 against the Appellant. The Appellant - accused has pleaded not guilty and claimed to be tried.

In order to bring the home the charge levelled against the Appellant - accused, the prosecution has examined the witnesses and also produced documentary evidence before the trial Court.

Thereafter, after examining the witnesses, further statement of the Appellant-accused u/s 313 of Code of Criminal Procedure was recorded in which the Appellant-accused has denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned Judge vide impugned judgment and order dated 13.3.2006 held the Appellant - accused guilty to the charge levelled against him u/s 323, 504, 506(2), 342, 384 and 201 of IPC and convicted and imposed the fine upon the Appellant accused, as stated above.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Ahmedabad City, the present Appellant has preferred this appeal.

Heard Mr. Y.M. Thakkar learned advocate for the Appellant and Mr. H.L. Jani learned APP for the respondent-State.

Mr. Y.M. Thakkar has vehemently contended that from the oral evidence of the complainant as well as witnesses, the main ingredients of Section 342 of IPC are not proved. Mr Thakkar has also vehemently contended that police has filed the charge-sheet against the present Appellant, wherein Section 384 of IPC is shown. He has read the complaint and argued that definition of extortion is prescribed u/s 383 of IPC and for the purpose of said section, main ingredients of extortion is required to be proved beyond reasonable doubt. He has also contended that just to prove the allegation regarding voluntarily causing hurt, Section 321 of IPC is also required to be proved. He has further argued that voluntarily to cause hurt can be proved through oral as well as medical evidence, but in this case, the prosecution has never bothered to produce any evidence in support of the said allegation made by the complainant. He has also contended that for the allegation u/s 506(2) of IPC is concerned, the complainant has never bothered to state anything in his deposition. Mr. Thakkar has also vehemently argued that in cross-examination of PW-2-Gemabhai Savkunbhai Nayak Ex. 10, wherein, he has admitted the fact that only due to obtain more money, he has filed the said complaint against the Appellant. Mr. Thakkar has also argued that before the complaint Ex. 13, the complainant has made two applications Ex. 11 and 12, which are material documents and same are required to be considered. Application Ex. 11 was given to the DYSP, Godhra, wherein, certain allegations were made against the police. He has contended after reading the said application that it is established before the learned Judge that there was some dispute with regard to money transactions and an attempt was also made by the police to settle the dispute. Mr. Thakkar has also read the application Ex. 12 which was given by the complainant to the Collector and in that application also, name of the owner of that farm is not shown by the complainant. Thereafter, Mr. Thakkar has read the complaint Ex. 13 and argued that in the complaint the name of owner of the farm is mentioned as Sheth Kanaiyalal Nathumal Hemrajani and, therefore, it was the say of the complainant that one Sheth Kanaiyalal Nathumal Hemrajani is involved in the offence u/s 342 of IPC but the complainant has never explained it before the learned Judge that whether the present Appellant has committed any wrong. Mr Thakkar has also contended that name of the present Appellant is not shown in the complaint or in the oral evidence of the witnesses. Mr. Thakkar has further argued that it appears from the oral evidence of the complainant that he has admitted before the Ld. Judge that the said complaint was filed by him just to get more money from the Appellant and, therefore, the Ld. Judge has committed a grave error while convicting the Appellant and has not considered the case of the defence and, therefore, the impugned judgment and order of conviction and sentence requires to be quashed and set aside.

As against this, Mr. H.L. Jani learned APP has read the paper and oral as well as documentary evidence and argued that the learned Judge has convicted and sentenced the Appellant in a very lenient view and therefore, the impugned judgment and order of conviction and sentence requires to be confirmed.

I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the Appellant. I have found that the only intention and object of the complainant to file the complaint was to get more money from the Appellant and the complaint was also filed against one Sheth Kanaiyalal Nathumal Hemrajani and not against the present Appellant. I have also considered the reasons given by the learned Judge and I am of the opinion that when the name of the present Appellant is not shown in the complaint as well as in the oral evidence, then, how Investigating Officer has booked the present Appellant in the offence in place of Sheth Kanaiyalal Nathumal Hemrajani. Even from the cross-examination of I.O. PW-8 Mr T.R. Parmar Ex. 29, DYSP, Godhra, who has fairly admitted before the learned Judge that he never bothered to take any care during the investigation and has not collected any material. So, it appears that investigating agency is totally negligent and I.O. Has never bothered to find out the truth during the course of investigation. Therefore, in my opinion, the learned Judge has committed grave error in convicting and sentencing the Appellant accused and the impugned judgment and order of conviction and sentence requires to be quashed and set aside.

In the result, this appeal is allowed. The impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, 9th Fast Track Court, Godhra, Dist. Panchmahalas in Sessions Case No. 9/2004 (Atro.) is hereby quashed and set aside. The Appellant is hereby acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. R & P to be sent back to the trial court forthwith.

It is pertinent to note that Mr. Y.M. Thakkar has fairly submitted that the amount of fine, in all, Rs. 3000/- which was paid by the Appellant before the trial Court, if it is given to the Legal Aid Committee, Godhra, in that event, he has no objection. Accordingly, the amount of fine, in all, Rs. 3000/- paid by the present Appellant before the trial Court, is hereby ordered to be given to the Legal Aid Committee, Godhra.