MOTIBHAI MEGHRAJBHAI DESAI v. DAHYABHAI NATHABHAI PARMAR

28th February, 1984 came to be challenged by respondent no. 1 in the Court of City Sessions Judge at Ahmedabad. The Addl. Sessions Judge, Court No.6 after hearing the appeal came to the conclusion that the prosecution has failed to prove offence u/S. 384 of the IPC against respondent no. 1 and hence the conviction recorded by the trial Court was erroneous. The Ld. Judge has also came to the conclusion that though the conviction recorded for offence u/S. 323 against respondent no. 1 by the trial Court was proper, he deserved grant of benefit under the Probation of Offenders Act. The Ld. Judge therefore, vide his judgment and order passed in Criminal Appeal No. 41/1984 set aside the conviction of respondent no. 1 u/S. 384 of the IPC and gave benefit of Probation of Offenders Act for offence u/S. 323 of the IPC to respondent no. 1.

7.(cid:9)The original complainant Motibhai Meghrajbhai Desai has therefore, approached this Court by challenging the judgment and order of acquittal passed in respect of offence u/S. 384 in Criminal Appeal No. 98/1986, whereas he has filed Criminal Appeal No. 1195/1985 for enhancement of imposition of substantive sentence for offence u/S. 323 of the IPC.

8.(cid:9)Mr. K.J. Shethna, learned counsel for the appellant in both these appeals, has submitted that the judgment and order of acquittal passed by the lower appellate Court are erroneous so far offence u/S. 384 of the IPC is concerned and further that looking to the facts and circumstances of the case, the said Court ought to have retained the order of sentence passed by the Ld. trial Court in respect of offence u/S. 323 of the IPC. He has further submitted that the prosecution has been successful enough to establish guilt of the case in respect of offence u/S. 384 and 323 of the IPC beyond reasonable doubt and, therefore, the lower appellate Court had committed grave error in disturbing the judgment and order of conviction and sentence passed by the Ld. Chief Metropolitan Magistrate. He has also submitted that the evidence of P.W. 3 Motibhai Meghrajbhai, P.W.4 Chmapaben Joitaram and P.W. 5 Joitaram Taljabhai clearly shows that respondent no. 1 on the day of incident had extorted an amount of Rs.225/from Joitaram and he had thereafter assaulted appellant Motibhai Meghrajbhai and caused him injuries. He has further submitted that looking to the fact that respondent no. 1 is supposed to protect the citizens of the State and he has instead made them as victims, hence he deserves no sympathy and he ought to be given substantive sentence of imprisonment for offence u/S. 323 of the IPC.

9.(cid:9)As against that, Mr. H.H. Patel, Ld. APP for the State and Ms. Banna Datta, Ld. counsel for respondent no. 1 have supported the judgment of the Ld. Addl. City Sessions Judge on the ground that considering the facts and circumstances appearing on record of the case, the same is proper and legal and requires no interference by this Hon'ble Court.

10.(cid:9)To appreciate the rival contentions, I must carefully scrutinise first the oral evidence and deal with the witnesses whose evidence has been mainly relied on by the prosecution for establishing its case. Motibhai Meghrajbhi P.W.3 Exh. 7 is the complainant of this case. He has stated that he was serving as Clerk in the office of the Director of Ayurved, Civil Hospital and he was staying near Amraiwadi Post office. According to him on 20/12/1981 he was standing near the water tank situated near his house, at that time he saw one rickshaw passing on the road. The said rickshaw was being followed by one lady who was running after it and was shouting to stop the rickshaw. She was also holding a child in her hand at that time. On hearing the shouts people got collected and an attempt by some one from the crowd to stop the rickshaw was made, but it did not stop. This witness, therefore, boarded another rickshaw and followed the first rickshaw. After chasing it upto some distance, he intercepted the first rickshaw near public lavatory. He saw two persons - one lady and one man sitting in the said rickshaw. He identified the accused sitting in the Court as the person who was sitting in rickshaw at the time of incident. He asked the male member whether the lady shouting and running behind the rickshaw was his relative and if that be so he should clear up the things with her. He has further stated that on hearing this, the occupant of rickshaw got excited and he told the witness not to interfere in the matter. He also threatened the witness that he himself was a policeman and that if anything went wrong, he would take the complainant to the police station and lock him behind the bars. He also took out a Rampuri knife from his pocket and showed it to him (the complainant) and then asked him (the complainant) to go with him to the police station. Thereafter he (the complainant) was forcibly made to sit in the rickshaw and the driver was instructed to drive it ahead. This witness has further stated that when they reached the temple of Khodiyar Mata he asked rickshaw driver to stop it and he got down and he requested the members of the public gathered there to persuade the person sitting in the rickshaw to sort out the things with the lady. He further stated that at that time in front of the members of the public respondent no. 1 gave him fist blow on his right side hand. According to the witness he was thereafter dragged inside the rickshaw and rickshaw driver was asked to start the same. In the rickshaw also this witness was beaten and was threatened by show of knife and he was asked to keep total mum. When they reached Amraiwadi Police Station, the witness thought that respondent no. 1 was an associate of the police and, therefore, he would be beaten by the police persons. The witness, therefore, started running towards the house of his acquaintance but he was immediately apprehended by respondent no. 1 and other police persons. He was thereafter taken to Amraiwadi Police Station and was made to sit. According to this witness, when he tried to persuade the police officer to record his complaint, he started abusing him and refused to do so. Respondent no. 1 and the lady accompanying him were asked to sit in a room and they were served with tea. He has further stated that when his relatives came to know about the incident, they came to the police station and after being persuaded by them, the police officer recorded his complaint. The officer also confined respondent no. 1 in the lock up. Since he was beaten a Yadi was given to enable him to get the treatment in the hospital and accordingly he went to L.G. Hospital and got himself treated. He was also advised to go to Nagari Hospital for getting his eye treated. When they returned to Amraiwadi Police Station, he saw that respondent no. 1 was already released and his complaint against the witness was recorded. He has further stated that Police Officer Mr. Parmar present there threatened him that since he had given complaint against the policeman, he would have to suffer for it. This witness was thereafter arrested and he was released on bail by the Court on the next day. The witness has further stated that his complaint was never read out to him and only his signature was obtained. Since the police did not inform him about what action had been taken on the complaint of this witness, he was ultimately constrained to file complaint in the Court. In the cross-examination by the defence he has stated that when he saw one lady running after the rickshaw shouting to stop it, a crowd of about 50 persons got collected. He has also stated that before he started chasing the rickshaw of respondent no. 1 he did not have any talk with the lady who was shouting to stop the rickshaw. He has further stated that he did not ask the lady to accompany him and that after chasing rickshaw of respondent no. 1 upto a distance of about half a kilometer he could intercept it. He has further stated that he did not ask anything to the driver of the rickshaw occupied by respondent no. 1 nor did he ask anything to the lady who accompanied respondent no. 1. He has further stated that the husband of the distressed lady was sitting in the rickshaw and respondent no. 1 told the witness that he had already explained the things to the husband of that lady. He has further stated that when respondent no. 1 took out his knife when he first sat in the rickshaw of respondent no. 1, no body tried to intervene and he also did not try to run away and he again sat in the rickshaw as respondent no. 1 told him to go with him to the police station. He has further stated that when the rickshaw again stopped near the Hatkesh temple, he got down from it and started explaining the things to a crowd of about 30 to 40 persons which had already collected there. He has stated that he did not know Champaben i.e. lady running after the rickshaw and her husband. However, he came to know name of Champaben within half an hour on that very day. He has denied the suggestion of the defence that he was a head strong person and that he had tried to extort money from respondent no. 1 at the point of knife. This witness was again cross-examined on 13/9/1983 after amendment of the charge and in the said cross-examination he has stated that when he lodged private complaint in the Court on 8/4/1982 he had not talked about the alleged extortion of money by respondent no. 1 from Joitaram. However, he also states that he had come to know on the day of incident at the police station that respondent no. 1 had extorted money from Joitaram. When this witness was asked that why he has not stated the fact regarding extortion of money in his own complaint, he has replied that since the matter did not pertain to him, he had not stated the same in his complaint. The prosecution has got his complaint recorded by the police on 20th December, 1981 on record at Exh. 8.

10.1.(cid:9)The second witness examined by prosecution is Champaben Joitaram P.W. 4 Exh.9. She has stated in her evidence that on the day of incident her husband had gone to see their house under construction. When he returned within 15 minutes, he opened the cupboard and took out money. She therefore asked where he wanted to take money, but he did not give any reply. She saw that his face was swollen and eyes were red and it appeared that some body had beaten him. She has further stated that after taking out the money he immediately ran out of the house and, therefore, she got suspicious and she also followed him immediately carrying her child with her. She saw one rickshaw parked near the post office and she also saw respondent no. 1 standing there. She, therefore, called her husband but he did not stop. She further saw that respondent no. 1 caught hold of her husband's hands and after making him run some distance he made him sit in the rickshaw and the rickshaw was then driven at a speed. She ran after rickshaw at some distance but she could not reach it and she came back home. However, before that she saw that one person appearing to be of Rabari community following the rickshaw. After she returned her husband came within short time and he lied down on the cot without speaking anything to her. At night they went to L.G. Hospital. She has further stated that when they went to police station for lodging the complaint, they were driven out by the police. On the following day of the incident at about 10 O'clock Police Officer Mr. Rathod recorded their statements. In the cross-examination she has stated that she tried very hard to stop her husband but he did not stop. She has also stated that respondent no. 1 was standing at some distance from rickshaw and there was no bicycle lying there. In the later part of the cross-examination she has stated that her husband did not sit in the rickshaw but he was running. She has admitted that she knew the complainant because they were purchasing milk from him. She has also stated that she could not talked Motibhai i.e. complainant on that day. Thereafter she had told Motibhai about the extortion of money by respondent no.1.

10.2.(cid:9)Joitaram Taljabhai P.W. 5 Exh.10 has stated that on 20/12/1981 he had gone to the site of his house under construction and from there he had started to go to his relatives and at that time he was called by respondent no. 1. Soon thereafter respondent no. 1 pointed at a lady sitting in rickshaw at some distance from the place they were standing and told this witness that she was a prostitute and further told him that if he wished the matter can be settled there otherwise he would have to come to police station. The witness told respondent no. 1 that since he had not committed any offence there was no question of his going to the police station. However, according to this witness, respondent no. 1 told him that if the matter went to the police station not only he would have to pay fine of Rs.1,000/- but he will loose his bicycle as well as he will have to suffer imprisonment for six months and that it was desirable that he should pay money to him so that he would let him off. The witness has further stated that since he had only Rs.5/with him at that time, he told respondent no. 1 that he would go home and bring about Rs.200/- to Rs.250/- and thereupon respondent no. 1 told him that he should pay him Rs.225/-. He also showed him a Rampuri knife and warned him that he should not say anything about this to any one. He has further stated that he was asked to keep his cycle near Bhaipura temple and was asked to lock it and the key of the cycle was retained by respondent no.1. He also told the witness that he would return the key only if the money is paid. He was thereafter made to sit in the rickshaw which was taken upto the post office and it was stopped thereafter to enable the witness to get down. When he returned after getting the money respondent no. 1 caught his hand and made him to sit in rickshaw and the rickshaw was taken to the place where the cycle was kept and there he was allowed to get down. The witness has further stated that at that time respondent no. 1 threatened him by showing knife that he should not talk about this to any one. In the rickshaw respondent no. 1 took money and returned the key of the cycle to the witness. The witness has further stated that after he reached home he slept on the cot, but soon thereafter Mr. Rathod from police station came to call him and, therefore, they went to the police station, where respondent no. 1 was sitting. He has further stated that at the police station he informed Mr. Rathod that respondent no. 1 had forcibly collected money from him and thereupon Mr. Rathod told him that police would not indulge into such activity and thereafter he was threatened by Mr. Rathod. When he went home he was not feeling well and, therefore, he went to L.G. Hospital and got the treatment. On the next day Mr. Rathod at about 10 to 11 O'clock recorded his complaint. In the cross-examination this witness has stated that he had never seen the respondent no. 1 before this incident. However, he had seen the complainant very often. He has stated that when respondent no. 1 first called him he immediately called the witness and showed him the lady and thereafter beat him. He, therefore, got scared and could not speak anything. He further admitted that he had not committed any offence but since he was threatened by respondent no. 1 he had settled the matter with him. He has further stated that since respondent no. 1 had threatened him, he did not tell anything about the threat given by respondent no. 1 to any one in the society. He also states that he did not want to go to lodge complaint because he was scared. He has further stated that he neither asked the name of respondent no. 1 nor requested respondent no. 1 to show his identity nor he not down the number of rickshaw. He has denied the suggestion that since a case was registered against the complainant with a view to help him, he was giving false evidence in the Court. In the further cross-examination he has stated that respondent no. 1 was standing on the footpath and there was hardly any movement on the road. He has further stated that when respondent no. 1 called him he was all alone on the road. He has further stated that when he was beaten by respondent no. 1 and threatened by him, he did not raise shouts. He has further stated that he did not know the complainant prior to the present incident, but they were purchasing milk from him and that fact he came to know only after the incident. He has further stated that when he gave money to respondent no. 1 he and respondent no. 1 were all alone.

10.3.(cid:9)Since the evidence of other witnesses is not very relevant for deciding these appeals, the same is not discussed here in detail.

11.(cid:9)Considering the evidence of these witnesses it appears that the prosecution's endeavor is to show that complainant Joitaram was accosted by respondent no. 1 and thereafter he was blackmailed with a view to extort money from him and thereafter he was taken to his residence for bringing money and after taking the money near Bhainath temple he was allowed to go from the rickshaw. It also appears that during the course of this happening wife of Joitaram followed him and ran after rickshaw and as she could not reach the rickshaw boarded by respondent no.1, Motibhai chased rickshaw of respondent no. 1 in a rickshaw that was parked near the side of the road and intercepted it after going about half a kilometer distance. He was thereafter forcibly taken by respondent no. 1 in his own rickshaw and after beating him and threatening him he was taken to police station where his complaint was not recorded. However, if the evidence of all the three witnesses is minutely examined, it does not inspire much confidence. It is hard to believe that in a broad day light on the main road respondent no. 1 who is the policeman would venture to call Joitaram and would try to extort money from him by blackmailing him that he was associated with a lady who was prostitute. It is also hard to believe that on the road he would have openly beaten and no one come to is rescue. It is also difficult to believe that when he was allowed to go home he would not talk anything to his wife nor he would try to seek any help from the neighbour or members of the society, but he would take out the money and again go with respondent no. 1 and sat in his rickshaw and gave him money in exchange of the key of the cycle. It may be noted that the incident has taken place not far from his own locality and in such circumstances the natural behaviour of a person sought to be victimized in this way would be to raise shouts or for immediate help and expose the policeman and his companion. However, nothing of the sort has been done.

11.1(cid:9)Even the evidence of Champaben wife of Joitaram does not inspire confidence. She has also not acted in a natural manner and has simply run after the rickshaw in which respondent no. 1 had made her husband to sit. She has categorically stated that she could not catch the rickshaw running ahead of her and she returned home, but in the meanwhile she had already seen the complainant chasing rickshaw of respondent no. 1. The witness does not say that she had made any attempt to find out from others as to actually what had happened. It also appears that she has not stated anything about the rickshaw having stopped near the temple with a view to enable her husband to get down there and to take the cycle. In fact her evidence shows that from the beginning she was running after the rickshaw and her husband was sitting inside the rickshaw and when she saw the present complainant chasing the rickshaw, she came back. The evidence of complainant Motibhai shows that when he heard the shouts of lady he immediately boarded another rickshaw and started following the rickshaw occupied by respondent no. 1. He also does not say that rickshaw was stopped near the temple and Joitaram was allowed to get down to collect his cycle and go home. Further it could be seen from the evidence of Motibhai that the chase of rickshaw had lasted for some time i.e. after covering about half kilometer distance it was intercepted. If conjoint evidence of all the three witnesses is read, it shows great variance between their respective version. The evidence of Champaben as well as Motibhai does not show that respondent no. 1 had made Joitaram to sit inside the rickshaw after he got money from home and he was allowed to go near the temple where his cycle was parked. This fact is only stated by Joitaram alone. Neither Champaben nor Motibhai speaks anything about the rickshaw being stopped near the temple. If that be so, the evidence of all the three witnesses is not at all consistent and it creates a great doubt about its truthfulness. Further if the evidence of complainant is also seen in isolation, it does not inspire confidence in as much as it is full of improbabilities. The complainant would not be beaten in the presence of about 40 to 50 persons and that he would not be forcibly made to sit in the rickshaw despite his protest. Moreover, near Hatkesh temple he would not be allowed to stop the rickshaw and allowed to get down with a view to address a crowd of about 30 to 40 persons. It would also be noted that he would not be beaten by the police in the presence of so many persons, more particularly so when he had tried to apprehend culprit. According to this witness, even when he intercepted rickshaw of respondent no. 1, husband of Champaben i.e. Joitaram was found present in the rickshaw of respondent no.1. One does not know how that could happen because it is the case of prosecution and also the version of Joitaram that he had got down near the temple and after returning of the key he had gone back home. This shows the grave discrepancy in the prosecution evidence and the story put forward by it cannot be accepted. It is also matter to be noted that though complainant was known to Joitaram and his wife, he came to know about the complainant only after the complaint was filed by him in the Court on 8th April, 1982. The entire evidence of these three witnesses also creates a great suspicion in the mind of the Court that initially it appears that either Joitaram or Motibhai was involved in some crime and with a view to avoid involvement in such crime they had cooked up the entire story and all throughout they have pretended that both were not known to each other. Be that as it may. In light of such fishy evidence it would not be safe to rely on it and disturb the order of acquittal. Sitting in appeal my jurisdiction is limited to disturb the order of acquittal passed by the lower Court if I find that the same is not perverse or against the evidence on record of the case. On the contrary, I find that the order dismissing the appeal passed by the Sessions Court is completely just and proper and it does not require any interference from this Court and this appeal therefore deserves to be dismissed.

12.(cid:9)So far offence u/S. 323 of the IPC is concerned, the Ld. Judge has found it to be true, but instead of allowing the substantive sentence to remain he has granted benefit under the provisions of Probation of Offenders Act to respondent no.1. After a lapse of about 18 years of the incident it would not be proper for me to alter the discretion exercised by the lower Court if I find that the same is not perverse and against the record of the case. The said appeal has, therefore, no merit and it is also required to be dismissed.

13.(cid:9)In the result, both these appeals are dismissed. Muddamal articles, if any, be disposed of in accordance with direction given by the trial Court. (cid:9) (cid:9) [ AKSHAY H. MEHTA, J.] * Pansala. (cid:9) (cid:9)