State of Gujarat vs Vyom Atulbhai Bhatt

Harsha Devani, J.—By this application under sections 378(1) and 378(3) of the Code of Criminal Procedure, 1973, the applicant-State of Gujarat seeks leave to appeal against the judgment and order of acquittal dated 30th April, 2012 passed by the learned 2nd Additional District & Sessions Judge, Vadodara in Atrocity Case No. 35 of 2011. Mr. H.K. Patel, learned Additional Public Prosecutor invited the attention of the court to the record and proceedings of the case to submit that the prosecution has duly established the injuries sustained by the first informant by way of a certificate issued by the hospital where the first informant was given treatment, as well as the fact that the first informant belongs to a scheduled caste was also duly proved by producing the necessary certificates in this regard. However, the learned Judge has ignored the said evidence and has held that the prosecution has not duly established that the first informant had sustained injuries during the incident in question. It was further submitted that the learned Judge has erred in holding that in the first information report neither the name nor any description of the accused has been disclosed. Referring to the said first information report, it was pointed out that the accused has been named as the son of Atulbhai Bhatt, which description is sufficient as the same clearly discloses the identity of the accused. Under the circumstances, the impugned judgment and order suffers from various serious infirmities and, as such, the appeal deserves to be examined on merits. Hence, leave as prayed for may kindly be granted.

A perusal of the record and proceedings of the case reveals that the case of the prosecution is that on 2nd December, 2008 at 9:30 in the morning, the complainant went to the house of the accused which is located in Giriraj Society and asked the accused as to where his father was, saying that he was unduly instigating his wife and children and lodging false cases against them, in respect of which, he wants to talk to him. That upon his saying so, the accused got instigated and came with a bat from the house and inflicted a blow on the left hand of the first informant and also uttered insulting words derogatory to his caste and hurled filthy abuses at him. The first informant Jayantkumar @ Jayantibhai Ramjibhai Contractor lodged the aforesaid first information report before the Fatehganj Police Station against the accused alleging commission of the offences punishable under sections 325 and 504 of the Indian Penal Code, section 135 of the Bombay Police Act and section 3(1) (x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocity) Act, 1989, which came to be registered as I-C.R. No. 336 of 2008. Pursuant to the lodging of the above-referred first information report, investigation came to be carried out and upon conclusion of the investigation a charge-sheet came to be submitted in the Court of the learned Judicial Magistrate, First Class, Vadodara. The case being triable by the Court of Sessions, the learned Judicial Magistrate committed the same to the Sessions Court, where it came to be registered as Atrocity Case No. 35 of 2011.

A perusal of the evidence on record reveals that the prosecution has examined as many as twelve witnesses. The first informant-Jayantkumar Ramjibhai Contractor has deposed to the effect that the incident had taken place in the year 2008 in the morning between 9:00 to 9:30 near the house of Atulbhai Bhatt. He had called Atulbhai who was taking a bath, hence, his son had come and told him that his father was in the bathroom and, thereafter, he had taken a bat and started beating him and told him that he belonged to a lower caste and asked him as to why he had come there. That he had inflicted a blow on his left hand with the bat, as a result of which, he had sustained a fracture. Thereafter, he had gone to the Shriji Hospital for the purpose of taking treatment. The certificate issued by the said hospital has been produced at exhibit-24.

A perusal of the vardhi given by the Shriji Hospital & Trauma Center (exhibit-25), where the first informant had taken treatment, reveals that the first informant was admitted there as he had sustained a fracture on his right hand. However, the medical certificate issued by the said hospital indicates that he had sustained a fracture on his left hand. Thus, there appears to be a discrepancy in the nature of the injuries sustained by the first informant as stated in the vardhi given by the hospital as compared to the certificate issued by it.

The prosecution has also examined P.W. 10-P.S.O. Govindbhai Dhanjibhai, who has deposed that he was discharging duties between 8:00 to 14:00 hours at Fatehganj Police Station on 2nd December, 2008 when he received a vardhi on a letter pad of Shriji Hospital and Trauma Center regard an assault that had taken place near the house of a person named Jayantibhai Ramjibhai Contractor, who had sustained a fracture on his right hand on account of the assault.

Niruben Jayantkumar, the wife of the first informant has also been examined by the prosecution. She had stated that they were residing near the house of Shri Bhatt and that her husband had gone to the house of Shri Bhatt and asked him as to why he was causing quarrels in their family, whereupon Shri Bhatt had told him that there was no reason for him to cause any quarrels in his house. Thereafter, her husband had left and gone to her sister-in-law''s house. She has also deposed that nothing had happened to her husband on account of the altercation. The said witness has been declared to be hostile to the prosecution case.

Shri Pankajbhai Jayantibhai Contractor, the son of the first informant has also been examined by the prosecution. He has deposed that at the time when the incident took place, he was sleeping and later on he had come to know that his father had a fight and someone had beaten him.

Witness Darpanbhai Mahasukhlal Panchal has deposed that on the date of alleged incident he had heard loud voices near his apartment, hence, he had gone to see what was happened and had found that the first informant was abusing Atulbhai Bhatt''s son of and upon his (Atul Bhai''s son) asking him not to hurl abuses, the first informant started abusing him even more, whereupon Atul Bhai''s son got infuriated and brought out a cricket bat and hit the first informant. In his cross-examination, he has stated that he had heard loud voices and come down to see what had happened and had found that there was an exchange of words and quarrel going on, but he was not aware as to between whom the quarrel had taken place. He has also admitted that the first informant, time and again, used to consume liquor and abuse everyone and that he also used to abuse the residents of the flat and fight with them. That two days prior to the incident, he (the first informant) had closed the door of his flat due to which the police and the fire-brigade was called and the door of his house was broken and the police had arrested him.

One Narendrakumar Shantilal Trivedi has been examined as a panch of the scene of offence panchnama. He has stated that he had heard sounds of a quarrel going on and had come to inquire about the same, whereupon the police had taken his signature on a prepared panchnama. In his cross-examination, he has stated that the first informant Jayantkumar was habituated to drinking liquor and used to abuse people residing in the flat after consuming liquor. That six to eight complaints had been lodged against him with the Fatehganj Police Station and twice the police had come and broken the door of his house and taken him away in an inebriated condition. That two days prior to the incident, the first informant had threatened that he would shut down all the connections of the flat and would set the parking lot on fire and would burn down all the vehicles, on account of which, the police and the fire-brigade had come to his house. He has also deposed that the residents of the flat had also made a representation to the Railway Department where the first informant was serving. He has further deposed that the first informant was a notorious person.

P.W. Kalubhai Ramjibhai Prajapati also does not support the case of the prosecution. In his cross-examination, it has come out that the first informant used to consume liquor and beat his wife and kids and abuse them and that five to six complaints had been lodged against him with the Fatehganj Police Station and two days prior thereto, personnel from the police department as well as the fire-brigade had broken up the door of his house and arrested him.

It may also be pertinent to note that the Investigating Officer, despite repeated summons having been issued to him, had not remained present during the course of the trial and, as such, had not been examined by the prosecution.

Having regard to the evidence which has come on record, it is apparent that there is a basic inconsistency as regards the nature of the injuries sustained by the first informant, as to whether he has sustained a fracture on his right hand or the left hand. Under the circumstances, the learned Judge was justified in holding that it would not be safe to place reliance upon the certificate issued by the Shriji hospital. Moreover, having regard to the depositions of the witnesses, it appears that the first informant had gone to the house of the accused and had abused him and provoked him.

The evidence on record reveals that there are conflicting versions coming on record as regards the manner, in which, the incident took place, viz., in the first information report, the first informant has given a version different from that stated in his testimony before the court. Having regard to the overall evidence on record, including the fact that the wife of the complainant has not supported the prosecution case and more particularly having regard to the character of the first informant as revealed from the testimonies of the neighbours, this court is of the view that it would not be safe to base a conviction solely on the basis of his" testimony. In the aforesaid premises, it is evident that the prosecution has not established the charges levelled against the respondent beyond reasonable doubt.

In view of the above discussion, this court is in agreement with the view adopted by the learned Sessions Judge and does not find any reason to take a different view For the foregoing reasons, no prima facie case has been made out so as to warrant a deeper scrutiny of the record of the case. Leave is, therefore, refused and the application is rejected.