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Judgment
1.Criminal Appeal No.798 of 2004 is preferred by Vallabhbhai Popatbhai Thumar â€" original accused against the judgment and order
dated 7.5.2004 passed by learned 2nd Joint District Judge, 2nd Fast Track Court, Amreli in Special Case No.40 of 1992 whereby the appellant
accused has been convicted for the offence under section 330 of IPC and was ordered to pay fine of Rs.3000/-, in default, to undergo rigorous
imprisonment for 15 days, whereas Criminal Appeal No.1785 of 2004 has been preferred by the State for enhancement of sentence against original
accused No.1 and whereas Criminal Appeal No.1786 of 2004 has been preferred by the State against the acquittal of the accused vide the aforesaid
impugned judgment and order.
As all the aforesaid three appeals are arising out of the impugned judgment and order passed by learned trial Court and with the consent of learned
advocates for the parties, all the aforesaid three appeals are being disposed of by this common judgment and order.
The complaint came to be lodged against the accused for the offences under sections 504, 506(2), 330, 201 and 114 of Indian Penal Code and
section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (“the Act†for short).
In pursuance  of  the  complaint,  the InvestigatingOfficercarriedoutthe investigation and filed the chargesheet against the
accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.
In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences.
At the end of the trial, after recording the statements of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the
arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.
So far as Criminal Appeal No.798 of 2004 is concerned, the appellant â€" original accused has mainly contended that learned trial Court has failed
to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated
the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order
of conviction is required to be reversed, as such.
Mr.Jay Manubhai Thakkar, learned advocate for the appellant â€" original accused has taken this Court through the entire judgment and record and
argued that in the present case, there are three FIRs, one is came to be lodged before learned Judicial Magistrate, First Class, Dhari when the
complainant came to be produced in connection with theft of four nails of lion alleged to have been committed by him, another complaint he himself
lodged before the police while he was taken for treatment at Amreli on the subsequent day and the third complaint was filed by the son of the
complainant before learned Judicial Magistrate, First Class as regards the same incident which are at Exhs.129, 128 and 32 respectively. He submitted
that there appears no uniformity in evidence of the victim as well as his son who lodged the complaints and though the son of the complainant claims
to be eye witness to the incident and also narrated for about six other eye witnesses to the incident, the prosecution has not examined all the six
witnesses who have been cited in the complaint though the affidavits were filed, but since they have not been examined, defence had got no
opportunity of cross examining them. He submitted that the present appellant as well as seven other persons came to be chargesheeted and learned
trial Judge convicted only the present appellant as he was Investigating Officer against the complainant who alleged to have committed theft of four
nails of lion. He submitted that the incident in question is alleged to have happened in the year 1992 i.e. for about 27 years back and the appellant had
retired in the year 2013 and suffering from various ailments and being RFO, it was his duty to count for missing nails and the present victim was
entrusted dead body of lion for extracting nails and out of 18 nails, 4 nails were not handed over and therefore, at the behest of the present appellant,
his subordinate has also lodged the complaint on 14.5.1992 against victim Kalabhai for commission of theft of nails and as a counter blast to the
aforesaid complaint lodged by the present appellant, the victim subsequently lodged the complaint wherein he mainly alleged against the present
appellant that the present appellant was higher official and in his subordination various officials were working and as the offence of theft of nails was
noticed, he was investigating the said offence and wrongly implicated in the crime in question. He further submitted that learned trial Court based its
finding on the presumptions and conjectures and not on merits.
9. On the other-hand, Ms.Monali Bhatt, learned APP has supported the judgment rendered by learned trial Court so far as it relates to conviction of
the appellant - original accused of Criminal Appeal No.798 of 2004. She submitted that this is a fit case wherein learned trial Court has considered
voluminous evidence in its proper perspective and rightly convicted the accused. She submitted that finding recorded by learned trial Court is based
upon the concrete and clinching evidence and therefore, punishment inflicted upon the accused does not call for any interference.
10. So far as Criminal Appeal No.1785 of 2004 is concerned, learned APP argued that punishment imposed upon the appellant accused is not
sufficient and the same is required to be enhanced taking into consideration the nature of injuries received by the victim in crime in question.
11. So far as Criminal Appeal No.1786 of 2004 is concerned, learned APP argued that accused Babubhai Nagabhai Bambhaniya and Rukhadbhai
Kanabhai Der have been wrongly acquitted as their participation and overt act is clearly revealing from the evidence of the victim and his son.
12. This Court has heard Mr.Jay Thakkar, learned advocate for the appellant - accused and Ms.Bhatt, learned APP for the State.
13. This Court has also gone through the Record and Proceedings. Perused the impugned judgment and oral as well as documentary evidence on
record. As per the prosecution, appellant â€" Mr.Thummar and seven other persons called victim â€" Kalabhai Bhikhabhai at the forest office and
thereafter, he was taken into jeep at Dhari, Lakhada and various other places and it is alleged that he was beaten by the said persons for extracting
confession as regards to theft of four nails of dead lion and thereby committed offence punishable under section 330 of IPC.
14. Record and Proceedings indicates that present appellant and seven other persons were charged for various offences, but learned trial Court
found that the present appellant accused guilty for the offence punishable under section 330Â of IPC.
15. This Court has gone through the aforesaid three complaints. In the first complaint filed before the learned Magistrate by the complainant, the
complainant himself has, inter alia, stated that on 13.5.1992 Beat Guard Dhirubhai, Haiderbhai and Bachubhai called him in the office of RFO
Mr.Thummar and from there, he was taken to Dhari and Sarsiya where he was beaten for commission of theft of nails. It is further stated in the said
complaint that when he was beaten, at that time, Dhirubhai and Haiderbhai were not there, but the personnels who were working under Mr.Thummar
were there and he did not know names of them and he also shown 4 to 5Â injuries over his person and even Mr.Thummar facilitated him for
changing his shirt. Whereas in the complaint lodged by the victim himself before the police at Amreli on 16.5.1992, he inter alia alleged that on
13.5.1992 for about eight personnels from the forest department arrived at his home and he was taken to office of Mr.Thummar in their jeep and
thereafter he was taken to Dhari. Thereafter, he was taken at Lapada, Borada and Bhaniya and Beat Guards of Bhaniya were repeatedly asking for
nails from him. At that time, both the Beat Guards abused him concerning his caste and community and also gave kick and fist blow over his person
and tried to extract confession. Thereafter, he was taken to Division Office at Dhari where other personnels were also present and they were beating
him with stick on various parts of his body and he was taken around on various places and Mr.Thummar allowed him to change his shirt and
thereafter one official from Junagadh beaten him and he was kept for about two days at Dhari and thereafter he was produced before the learned
Magistrate at Dhari and he was threatened not to disclose regarding beating to anybody. He also narrated that on 12.5.1992, personnels from forest
visited his house and he was entrusted dead body of lion for skinning as well as for taking out 18 nails from body of lion and thereafter they also asked
him that four nails are less, to which the complainant stated that after skinning, it might have drowned with water and thereafter, on making search,
the same were found out. The third complaint came to be filed by the son of the victim at page 172 of the compilation on 15.5.1992 before the learned
Magistrate wherein he impleaded DFO and other four persons as accused. In the said complaint, the son of the victim has, inter alia, stated that as
four nails were missing, due to which, official of the forest apprehended his father on 12.5.1995 as his father was entrusted to extract nails from dead
lion and thereafter they took his father to the RFO office where along with him villagers i.e. Ugabhai, Jivanbhai, Amrabhai, Khodabhai and Verabhai
were also accompanied and he seen that his father was being beaten by Dhirubhai, Haiderbhai and Babubhai by stick and belt and also abusing for
extracting confession as regards to theft alleged to have been committed by his father.
16. This Court has gone through the oral evidence of the victim Kalabhai as well as son of the complainant i.e. Ramjibhai Kalabhai. There appears
no uniformity in their evidence so far as the present appellant accused is concerned. Neither the complainant nor his son has clearly mentioned as
regards to beating by the present appellant though in both the complaints, in the cause title the present appellant has been shown as accused. On the
aspect of corroborative evidence on record, MLC certificate issued by the Civil Hospital, Amreli clearly discloses that victim received multiple bruice
marks along with hematoma at both buttocks. Similarly, on back side of right thigh and on back side of left thigh. In all, five bruices were found and
the victim came to be discharged on 18.5.1992 and hence, he underwent treatment for about three days as indoor patient.
17. On making overall evaluation of the evidence on record, indisputably, the victim was also facing the proceedings Special Case No.19 of 1999 for
commission of theft of four nails of dead lion and that complaint came to be lodged on 14.5.1992 and thereafter as a counter-blast as Mr.Thummar,
RFO was Investigating Officer and just to involve him in the complaint, the victim lodged the complaint before the learned Judicial Magistrate, First
Class and thereafter before the police as well as his son also lodged the complaint, but on making conjoint reading of the aforesaid three complaints,
nothing is clearly emerging out that the present appellant had beaten the complainant â€" victim, but on the contrary, it is revealing that the present
appellant facilitated the victim while he was taken to his office for changing his shirt and allowed him to go to home. It is required to be noted that the
son of the victim is involving three other Beat Guards and not the RFO and the victim has alleged beating on the part of two Beat Guards of Bhania.
18. In view of the aforesaid nature of evidence, this Court is of the considered opinion that learned trial Court has wrongfully convicted the present
appellant as he was holding the post of RFO and it was stated althroughout that the appellant called for the complainant for extracting confessional
statement.
19. For the reasons recorded above, Criminal Appeal No.798 of 2004 succeeds and the same is allowed. The impugned judgment and order dated
7.5.2004 passed by learned 2nd Joint District Judge, 2nd Fast Track Court, Amreli in Special Case No.40 of 1992 is quashed and set aside. The
appellant accused is acquitted of the charges levelled against him. The appellant accused be set at liberty if not required in any other offence. Bail
bond, if any, stands cancelled.
20. So far as Criminal Appeal No.1785 of 2004 filed by the State is concerned, in view of the above, the same stands disposed of.
21. So far as Criminal Appeal No.1786 of 2004 filed by the State against the acquittal of Babubhai Nagabhai Bambhaniya and Rukhadbhai
Kanabhai Der is concerned, on going through the complaint, it is noticed that the victim has stated that two Beat Guards of Bhania had beaten him and
abused and also extracted confessional statement, and in the complaint, the victim described two Beat Guards of Bhania and in his deposition, he
named but the Record and Proceedings is not indicating that the victim was unaware and he was not knowing by names to them and as to whether he
was put to test identification parade or not. In that view of the matter, learned trial Court has rightly extended benefit of doubt which calls for no
interference. Hence, Criminal Appeal No.1786 of 2004 also stands disposed of. Record & Proceedings, if any, be sent back to the trial Court
concerned forthwith.