Gujarat High Court
State Of Gujarat vs Rameshbhai Chhaganbhai Mistri on 23 June, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 997 of 2010
With
R/CRIMINAL REVISION APPLICATION NO. 369 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
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Approved for Reporting Yes No
No
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STATE OF GUJARAT
Versus
RAMESHBHAI CHHAGANBHAI MISTRI
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Appearance:
CRIMINAL APPEAL NO. 997 of 2010
MS. MEGHA CHITALIA, APP for the Appellant(s) No. 1
MR TANMAY B KARIA(6833) for the Opponent(s)/Respondent(s) No. 1
CRIMINAL REVISION APPLICATION NO. 369 of 2010
MR JV JAPEE(358) for the Applicant(s) No. 1
MS. MEGHA CHITALIA, APP for the Opponent(s)/Respondent(s) No. 1
MR TANMAY B KARIA(6833) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 23/06/2025
ORAL JUDGMENT
1. This appeal under Section 378 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the
Code") came to be filed by the State of Gujarat challenging the
judgment and order of acquittal recorded by the learned
Sessions Judge, Sabarkantha at Himmatnagar dated
19.03.2010 in Atrocity Case No. 33 of 2007, whereby
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respondent - accused came to be acquitted of the charges
punishable under Sections 323, 504 and 506(2) of the Indian
Penal Code (hereinafter referred to as "IPC") as also under
Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989 (hereinafter referred to as
"the Act").
2. However, while recording an order of acquittal,
learned Sessions Judge observed that complainant himself is
negligent in his duty and in habit of remaining absent from
duty, without leave being sanctioned. Since learned Judge was,
prima-facie, of the opinion that with a view to pressurize the
accused to sanction his unauthorized 118 days' leave and
order, whereby his salary for the said unauthorized leave was
not paid, may be paid, present prosecution appears to have
been filed. Therefore, he, while acquitting the accused, issued
a Notice under Section 250 of "the Code" upon the original
complainant - Jivaji Laluji Asari.
2.1 On notice being issued and having heard him as
also considering his written reply to the notice under sub-
section (2) of Section 250 of "the Code", learned Judge
directed the first-informant - Jivaji Laluji Asari to pay Rs. 2,000/-
to the accused as compensation. For the purpose, he was
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directed to deposit the same before the Court and in default of
depositing the same, he was ordered to undergo 7 days simple
imprisonment.
2.2 As endorsed below the order dated 09.04.2010,
directing original complainant to pay compensation, there is an
endorsement that the complainant has deposited Rs. 2,000/-,
as ordered by the Court on the very day. The said report of
Nazir is signed by the Superintendent as also Nazir of the
Court. However, original complainant - Jivaji Laluji Asari has
filed aforesaid Criminal Revision Application specifically
challenging the order dated 09.04.2010, whereby he was
directed to deposit the sum of Rs. 2,000/- to be paid as
compensation to the accused passed under sub-section (2) of
Section 250 of "the Code" in Atrocity Case No. 33 of 2007.
2.3 The said revision application was affirmed by the
first-informant on 14.07.2010 and it appears to have been filed
on that day before this Court. When it came up for hearing
before the Court on 10.12.2010, learned advocate for the
original complainant perhaps pointed out that Criminal Appeal
challenging an order of acquittal is also filed by the State, and
therefore, revision application is admitted and it was ordered
to be heard together with Criminal Appeal No. 997 of 2010. In
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short, original first-informant was aware about passing of the
order acquitting the accused in a case filed by him. Still
however, he did not think it fit to challenge the order of
acquittal passed in favor of the respondent - accused.
2.4 Be that as it may, at the time of hearing of both
these cases together, Mr. J.V. Japee, learned advocate, who
represents original first-informant, was asked whether he
participates in the appeal or not, to which he replied that he
will file an appearance note in that appeal.
2.5 However, appeal is not the miscellaneous
proceedings, where Mr. J.V. Japee appears for first-informant so
as to file an appearance note. However, he assisted the Court
in determining the appeal against the order of acquittal passed
by the learned Judge preferred by the State. He pointed out
that the first-informant is not in his contact. Be that as it may,
when first-informant has already challenged an order imposing
compensation to be paid to the accused by him and he is
aware about filing of the appeal against an order of acquittal
by the State, if at all he is interested, he would have filed the
substantive appeal, if at all he wanted or he could have
instructed his Advocate to file his appearance in appeal as
well.
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2.6 However, learned advocate representing the first-
informant has participated and supported the submissions
made by the learned APP for challenging the order of acquittal
and has also further made submissions in his own revision
application as well.
3. As per the case of the prosecution, first-informant -
Jivaji Laluji Asari, serving as Forest Guard, Vijaynagar Extension
Range Office, Vijaynagar. He had, since the last 4 months to
the date of FIR, not reported for duty on the ground of his
sickness. According to him, on 19.02.2007, at about 1:30 to
2:00 p.m., he went to Division Office, Himmatnagar to report
for duty and went to the chamber of respondent - accused -
Deputy Conservator of Forest informing him that he has come
to report for the duty and he is now alright. Therefore, he
requested him to permit him to report for duty. According to
the case of the first-informant, on hearing this, accused got
enraged and abused him of his caste asking him 'where were
he?'. He also said that, at no cost would he be permitted to
report for duty telling him to go wherever he wants. It is
further the case of the complainant that he caught hold of him,
slapped him frequently and he pushed first-informant out of his
chamber and started giving kick and fist blows. Therefore,
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Head Clerk - Babubhai Patel intervened and he was saved.
According to the case of the first-informant, Range Forest
Officer of Modasa Taluka, Shri P.D. Patel, Range Forest Officer
of Dhansura Taluka, Shri N.C. Pancholi, and Range Forest
Officer of Bayad Taluka, Shri K.B. Ninama were present. In
presence of all those Officers, according to the case of the
first-informant, accused uttered aforesaid words and acted
against the law beating him. Therefore, he filed a written
complaint in the Office of the District Superintendent of Police,
Sabarkantha.
3.1 Based on the same, Himmatnagar Town Police
station had investigated into it and filed a charge-sheet against
the accused for the aforesaid offence in the Court of learned
Chief Judicial Magistrate, First Class, Himmatnagar. Since the
case was exclusively triable by the Court of Sessions/Special
Court, it was committed to the Sessions Court, Sabarkantha at
Himmatnagar.
3.2 On completing the formalities under "the Code" and
ascertaining copies having been received by the accused of
the charge-sheet, a charge came to be framed against the
accused. The accused denied the charge and claimed to be
tried.
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3.3 To prove the case against the accused, prosecution
examined 13 witnesses, produced and proved several
documentary evidences.
3.4 However, on conclusion of trial and hearing the
learned APP as also learned advocate for the accused, on
appreciation of evidence led before it, aforesaid order of
acquittal came to be passed by the learned Judge.
3.5 Ms. Megha Chitalia, learned APP for the appellant -
State, vehemently submitted that complainant as also other
witnesses, who are eye-witnesses to the incident, have
supported the case of prosecution so far as offence under "the
Act" and witnesses to the physical assault over the
complainant is concerned, and therefore, there was no scope
for the learned Judge to acquit the accused.
3.6 She has further submitted that there is no denial
that the incident occurred in the office of respondent -
accused, more particularly, in his chamber as also outside the
office chamber. Even inside the chamber, since accused was
insulting the first-informant of his caste very loudly, which
could be heard by the witnesses sitting outside of the
chamber, may not be by all, they also deposed to before the
Court about the same. Therefore, she has submitted that first-
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informant was insulted about his caste in a public office within
public view. Though it may be in his chamber, nonetheless it is
a public office. Therefore, she has submitted that an order of
acquittal recorded by the learned Judge for an offence
punishable under Section 3(1)(x) of "the Act" is required to be
quashed and set aside and accused be suitably punished.
3.7 So far as offences under the "IPC" are concerned, it
is submitted that not only the assault on first-informant was
noticed by the witnesses and deposed to before the Court,
even threat administered to him of dire consequences is also
deposed to before the Court. Therefore, for those offences as
well, respondent - accused is required to be convicted,
quashing and setting aside the order of acquittal.
4. Mr. J.V. Japee, learned advocate for the first-
informant, who assisted the Court, though no independent
appeal is filed by the first-informant, when he has filed the
revision application challenging the order directing him to pay
the compensation to the accused, vehemently submitted that
respondent being higher level Officer has no license to abuse
Officer of a lower rank and beat him, that too, in his chamber
and in his office.
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4.1 He has further submitted that all the witnesses
have consistently supported the case of first-informant so far
as offence under "the Act" is concerned, and therefore, there
was no other go but to convict the respondent - accused.
4.2 He has further submitted that so far as the
presence of the Range Forest Officers of different ranges of the
District is concerned, is also not even countered by the
respondent - accused. Those officers were the eye-witnesses
to the incident. They have also supported the case of
prosecution, and therefore, case against the accused is proved
beyond reasonable doubt, and therefore, he could not have
been acquitted. Therefore, he has requested that judgment
and order of acquittal be quashed and set aside and accused
be convicted for the offence alleged against him.
4.3 So far as his own revision application is concerned,
it is vehemently submitted that imposing compensation upon
the accused directing the complainant to pay is nothing but a
very harsh action by the learned Judge. As such, case may not
be proved against the accused but it cannot be said that a
false case is filed against the accused intentionally so as to
order compensation to be paid by the first-informant to the
accused is concerned.
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4.4 He has further submitted that in obedience of the
order passed by the learned Judge, though it is challenged
before this Court, first-informant has already deposited the
said amount of compensation on that very day before the
Court. Therefore, he has submitted that if judgment and order
of acquittal is quashed and set aside by the Court in the appeal
preferred by the State, as a necessary corollary, the order
impugned in the revision application directing the complainant
to pay compensation has to be quashed and amount deposited
by him may be ordered to be returned to him. If at all acquittal
appeal is not entertained by this Court, at least taking a lenient
view, compensation ordered to be paid by the first-informant
be quashed and set aside and he be let go with admonition.
5. As against that, Mr. Tanmay B. Karia, learned
advocate representing the respondent - accused, appears
through legal aid. As such, while noticing from the cause-list,
respondent - accused being served, that too, in an offence
under "the Act" and unrepresented, without noticing his status
as a District Conservator of Forest of a District, this Court, vide
order dated 11.06.2025, which reads as under:-
" Endorsement on the cause-list shows that rule is
served to the accused in an appeal filed by the State as
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also in Revision Application preferred by the first-
informant.
Registry is hereby directed to provide services of an
advocate from the High Court Legal Services Committee to
respondent in both the matters.
Stand over to 20th June, 2025."
Hence, Mr. Tanmay B. Karia, learned advocate,
appears for the respondent - accused to assist the Court.
5.1 Mr. Tanmay B. Karia, learned advocate, who
represents the respondent - accused, submitted that being
Head of the entire District in the Forest Department and a
strict disciplinarian, he started taking prompt action against
lethargic attitude of all his subordinates.
5.2 He has further submitted that since almost against
all witnesses herein, who claim to be eye-witnesses, either
memo or a communication is issued by the respondent -
accused for their lethargic attitude, all have an axe to grind
against him since the day of his taking over the charge,
somewhere nearly a year or less than a year before the
incident they have projected the first-informant, who is of
Scheduled Tribe, to file a case against the accused, whereas
rest of the witnesses would stand as eye-witnesses.
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5.3 He has further submitted that no offence, as
claimed by the first-informant, is ever committed.
As such, first-informant is habitually remaining
absent from duty without leave being sanctioned. On the day
of the incident, he remained on leave without leave being
sanctioned for nearly 118 days. Though first-informant claimed
it to be on the ground of his own sickness, the said stand was
not supported by any medical evidence. As such, his salary
was cut because of unauthorized absence all throughout and
he had never questioned it to be unauthorized ever on the
ground of his illness. With a view to see that he gets his salary
for the period of unauthorized absence and to bring pressure
upon the accused for that, a false case is created against him,
that too, under the provisions of "the Act".
5.4 He has further submitted that though verbal
altercation cannot be denied to have taken place, utterance
with respect to insulting the caste of the first-informant is
nothing but a creation of him.
5.5 He has further submitted that if at all the incident,
as alleged, has occurred instead of going to the
Superintendent of Police with written complaint, he could have
informed the local jurisdiction Police station about the incident
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and he might have taken treatment with the Doctor, if at all he
has received any injuries out of the incident.
5.6 He has further submitted that though alleged
incident has occurred, as per the case of the prosecution
between 1:30 to 2:00 p.m., even written complaint to the
Office of Superintendent of Police has come to be filed in the
late evening by the first-informant. Not only that, if at all there
are any injuries because of the incident on his person, he
would have even requested anyone in the Office of the
Superintendent of Police, who accepted his written complaint,
to give Yaadi for the treatment by the Doctor.
5.7 He has further submitted that, from the deposition
of the Doctor, who is examined as also the record produced, he
went to the hospital for the purpose of treatment without any
Police Yaadi. Not only that, according to his submission, no
history for the injuries received is disclosed to the Doctor
before whom he took treatment.
5.8 According to his submission, as admitted by almost
all the eye-witnesses, they have been issued warning letter,
memos as also strict actions were initiated against all for due
performance of their duties towards which they have been
very casual and lethargic. It appears to be, according to his
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submission, an outcome of being witnesses in the present case
to take revenge against the accused for those memos, etc.
5.9 Therefore, he has submitted that in view of the fact
that learned Sessions Judge has, in detail, appreciated the
evidence and recorded an order of acquittal with well-reasoned
order, it may not be interfered with in this acquittal appeal by
this Court. He has further submitted that even if two views are
possible from the evidence, the view, which is favorable to the
accused, is to be accepted and the learned Trial Judge has also
accepted that view on appreciation of evidence, and therefore,
this Court may not interfere in this appeal.
5.10 He has further submitted that innocence of an
accused is strengthened by the order of acquittal recorded by
the learned Judge. Therefore, he has submitted that this
appeal be dismissed.
6. Having heard the learned advocates for the
appearing parties and going through the impugned judgment
as also depositions of witnesses and the documents produced
and proved, let me re-appreciate the evidence in this acquittal
appeal, where original first-informant has also filed revision
application challenging the order, ordering compensation to be
paid by him to the accused.
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6.1 Starting with the deposition of the first-informant
PW-1, which is at page 230 recorded at Exhibit-38. In his
examination-in-chief, he has submitted his case as per his FIR.
He claimed that he was on a long leave because of his illness.
On the date of the incident, as he had fully recovered, he went
to the office of the accused at about 1:30 - 2:00 p.m. reporting
for duty. He claimed that he straight entered the chamber of
the accused and informed him that he has come to report for
duty. Though, initial conversation is not material so far as the
incident is concerned, soon thereafter accused got enraged
and, according to the case of the first-informant - PW-1 Jivaji
Laluji Asari, accused insulted his caste as also deposed to
before the Court that he was caught hold from his collar and he
was brought out of the chamber while getting beaten.
6.2 Again, according to him, outside the chamber also,
accused insulted him of his caste. Therefore, witness -
Babubhai Patel saved him from further beating. Witness -
Babubhai Patel is serving as Head Clerk in that office, whereas
three other witnesses, who are referred with name in
examination-in-chief at different places were also claimed to
be present. However, he has deposed to before the Court that
respondent - accused may kill him, and therefore, he went to
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the Police station. He gave a complaint in respect of the
incident in the Police station. In the next breadth, he has
stated that he gave a typed copy of the complaint. He was
shown the original complaint signed by him and it came to be
exhibited at Exhibit-39. He identified the accused before the
Court.
6.3 He has further claimed that after giving the
complaint, he went to Civil Hospital, Himmatnagar for the
purpose of treatment. Though he claimed that he had not
given any history to the Doctor and he has also not stated to
the Doctor how he received the injury.
6.4 He has further stated that since he was feeling
dizziness, it was informed to the Doctor and up to 9:00 p.m.,
he was given medicines and thereafter he was discharged. He
claimed to be of the Scheduled Tribes, as mentioned by him in
his examination-in-chief and he produced a certificate about
his caste considered to be Scheduled Tribes. Since there is no
dispute with regard to his caste, nothing further is required to
be appreciated. He claimed that since 20 th September, 2006,
he was physically sick, so he went on leave. He claimed that
before proceeding on leave, he gave a written report to his
local office through his Uncle - Kaksinh Roopsinh Asari. He got
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that report written by some person and he signed the same.
He was shown that leave report and claimed that what is
stated in it is correct and it contains his signature. The said
leave report was given Exhibit-41. The said report would be
dealt with at the relevant time, suffice it to say that, prima-
facie, it appears to be an afterthought.
6.5 He also produced at Exhibit-42 his joining report,
addressed to the accused. As claimed by him, when he went
there for the purpose of reporting for duty and writing the
report, accused called him. However, he had to report to the
Range Office but since accused called him, he had gone there
in his office. He stated that, on 19.02.2007, he gave a written
application reporting for duty to the Office Superintendent of
the accused. He claimed that along with the joining duty
report, he annexed medical certificate/fitness certificate
obtained from Primary Health Centre, village Sarsav. He
produced xerox copy thereof, which he claimed to be certified,
which was given Exhibit-43.
6.6 According to him, despite treatment at Primary
Health Centre, it did not yield anything, he took treatment at
Shraddha Hospital, Idar. From there also, he obtained a
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certificate claimed to be issued by it dated 18.02.2007, which
is exhibited at Exhibit-44.
6.7 If certificate Exhibit-43 is seen, he was having
hypertension and treated on OPD basis. There again, instead of
what treatment was given to him, certificate Exhibit-43 is
issued only for the purpose of advising rest for a month from
21.09.2006 to 20.10.2006.
6.8 Be that as it may, the said certificate bears
correction for the year mentioned in it, though it is initialed by
the Medical Officer. So far as Certificate Exhibit-44 is
concerned, there also, he was advised to rest at home from
22.10.2006 to 18.02.2007. Except these two certificates for his
disease, no any documentary evidence, either in the form of
discharge summary or treatment papers are issued by both
the Doctors, produced by the first-informant in his deposition
or even mentioned in the said certificates by the respective
Doctors.
6.9 At best, it can be said that he was advised rest at
home and it is in the form of fitness certificate rather than
treatment certificate. If at all the first-informant was really sick,
the certificate issued by Doctor would have referred about
whether illness requires any medication or not, whether it is
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prescribed or not and whether any laboratory reports are
required or not for the same. If at all he was treated by two
Doctors, no prescription issued by any of the Doctors is
attempted to be produced by the first-informant.
6.10 Not only that, despite his unauthorized absence,
when first-informant was given notices, he has never
attempted to respond to the same.
6.11 During the course of cross-examining the witnesses,
it was brought on record that, under the accused, there are
nearly 13 range offices and the same have 10 persons each,
which includes employees of different castes, including
Scheduled Caste and Scheduled Tribes.
6.12 Though first-informant denied to remember that
accused reported for duty on 19.06.2006, it is a fact that he
assumed charge as Deputy Conservator of Forest,
Himmatnagar Division, Himmatnagar on that day. He has
admitted in his cross-examination that, in the year 2001-2002,
he was leader of various Forest Guard Unions. He claimed that
he was President of that Union.
6.13 He was also president of Utkarsh Mandal,
Sabarkantha Unit in the year 2002-2003. He has denied to
have provided visiting card as President of Utkarsh Mandal. He
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has further denied that address in the said visiting card as
President of Utkarsh Mandal with telephone number. However,
he had to admit in his cross-examination that the address and
telephone number are correct. He claimed that his permanent
residence is at village Sarsav, Taluka: Vijayanagar, whereas at
the address reflected in the visiting card, he was staying on
rent and that phone number was of his neighbor. He has
denied that he is continuously serving for 29 years at
Vijaynagar range.
6.14 Though he has denied having any departmental
proceedings against him. He had to admit in his cross-
examination that, against him, there was one application
containing false allegations about misbehavior with one Shri
Sinha. He has also alleged that there is a charge against him
that he is not maintaining his diary regularly as also there is a
charge that he has more than one living spouse.
6.15 He claimed ignorance about summons post
returning back with an endorsement found that, ''owner is not
found' while he was on sick-leave, which reveals that he was
not at his home. He had to admit that despite accused was to
visit Vijayanagar range where complainant was working, and
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his tour program was informed to him by his immediate
superior - Mr. P.K. Raval, when accused reached there, he was
not found on duty.
6.16 As such, he claimed that, on that day, he was on
sick leave. As such, he had denied the suggestion that he has
flatly refused to obey the instructions issued by his superior
officer. Though witness first-informant has denied the
suggestion with respect to accused being a strict disciplinarian,
issued several circulars as also memos having been issued to
Range Forest Officers K.B. Ninama, P.D. Patel, N.C. Pancholi,
except Head Clerk B.D. Patel etc., all these persons are the so-
called eyewitnesses to the incident, present in the office of the
accused as claimed by them. The report resuming duty,
Exhibit-41 doesn't contain endorsement by Office
Superintendent Chauhan.
6.17 He had to admit that generally, the report
proceeding for leave or even resuming the duty has to be
given to the Office Superintendent. He had to admit that
Exhibit-41 report is a xerox copy without any endorsement of
original copy being given to anyone or signed by the person to
whom it is given. Therefore, a possibility cannot be ruled out
that it has been created subsequently.
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6.18 He claimed that the medical certificate, Exhibit-43,
issued by PHC Sarsav was produced along with the report
before Office Superintendent. However, it doesn't bear any
endorsement to that effect. He claimed that he obtained
Exhibit-43 certificate on 22.09.2006, as endorsed in that said
certificate and despite that, it was never sent to the Range
Forest Officer, Vijayanagar where he was serving, as admitted
by him in his cross-examination. Though he has denied the
suggestion that since it was created subsequently, it was not
sent to him. Even certificate Exhibit-44, which is produced by
the complainant, is claimed to be issued by Shraddha Hospital,
Idar, is also a xerox copy. There also, there is no endorsement
of any Office of the Forest Department.
6.19 He pleaded ignorance about in whose custody the
original certificate is there. Exhibit-43 caste certificate bears
the date of issuance to be 22.08.2007 and he does not
remember when he produced the same before the Police and
under a statement of which date. Though he denied to have
been issued any notice for his long unauthorized absence from
duty, he claimed that he did not receive salary for those 118
days of his absence. As such, in the year 2004 also, first-
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informant was on leave for 8 days without any permission.
Though he has denied that his unauthorized leave for 118
days, to be considered as 'unauthorized' and it is to be treated
as 'absence from duty without salary', he did not receive the
said communication. However, from 20.09.2006 to 15.01.2007,
he denied that it was ever informed that it was treated as
'unauthorized leave without pay' being a total of 118 days.
However, he had to admit that he has never
complained about his deduction of salary for unauthorized
leave anywhere, anytime even after reporting for duty or filing
the complaint. Though he claimed that for deduction of that
salary, he has filed the appeal, which is pending before the
Government. He claimed that if any document in support
thereof is there, he will produce it. However, it appears that he
has not produced the same. A show cause notice dated
25.01.2007 which was earlier denied to have been issued to
him for unauthorized leave, when a copy thereof is produced
with a list mark-46/1, he claimed that he received the same.
Therefore, it was given Exhibit-47. The said show cause notice
is issued by the respondent - accused.
6.20 He was further shown a letter dated 03.02.2007
addressed to him by the accused, whereby his leave from
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11.10.2004 to 18.10.2004 for 8 days, which was without any
permission and not resuming it within time, was treated to be
unauthorized and without any pay. Though in earlier paragraph
he has denied the same, when said document is produced on
record, he had to admit that he received the same.
6.21 In his cross-examination, he has further admitted
that he came at Division Office, Himmatnagar at about 10:30
am and at that time, he met Office Superintendent Shri
Chauhan. Though he claims Virchanbhai Lakshmanbhai, Peon,
was present, he pleaded ignorance about presence of other
employees Ramanbhai Nathabhai, Vanpal Manpur, Amrutbhai
Dhulabhai, etc.
6.22 In his cross-examination, he has further stated that
to meet accused, he had between 1:00-1:30 p.m. wrote a chit,
denying the suggestion that since he reached the office at that
time, he wrote that chit at that time. He claims that he sent
the chit through Peon - Virchanbhai inside the chamber of the
accused. He denied the suggestion that, in the chamber, he
misbehaved with the accused and insisted that his 118 days
leave should be sanctioned and he should be immediately
permitted to resume duty. He has also denied the suggestion
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that he insisted first to resume the duty and disposal of the
leave, otherwise he is not going outside the office.
6.23 He has further denied the suggestion that, at that
time, first-informant said that he is an Adivasi and don't scare
Adivasi. He has denied the suggestion that accused, at that
time, informed that all employees are equal for him and if
leave is to be sanctioned or not, is within his power, there is no
reasonable explanation for this many days where were he.
6.24 He denied further suggestion that accused called
other employees B.S. Chauhan as also Vasant Raval and
informed him that whatever he wants to represent, he may do
so in their presence and despite that, he continued his
insistence to first permit him to resume duty and disposal of
his leave, and to withdraw the words, why he has been
addressed as an Adivasi. However, he further denied the
suggestion that accused told him that he has never addressed
him as Adivasi and sanctioning leave is within his powers.
6.25 Further suggestion is denied that accused asked
him to be within the limit and whatever he wants to represent
be represented in writing. So, entire case of the defense that
he, being Union Leader, used to go on unauthorized leave and
drawing salary without leave being sanctioned, when his leave
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was refused by disciplined superior officer, i.e. the accused, he
did not like the same.
6.26 As admitted by him in his cross-examination,
paragraph 22, from the place of incident i.e. the Division Office
of the accused, Police station is situated at a distance of 10
minutes walk. Since incident occurred at 1:00 to 1:30 p.m., he
could have filed the complaint within no time. However, he
volunteered that time was consumed getting it typed. Though,
a suggestion is denied that with other witnesses, he consulted
and created a case against the accused, and therefore, that
much time is taken. Since, while giving even a written
application to the Office of the Superintendent of Police, no
caste certificate is produced for invoking provisions of "the
Act" and registering a cognizable offense, it was required but it
was not immediately recorded. However, as admitted by him in
his cross-examination, after giving complaint to the Police
station, he straight went to the Doctor, where he was treated
up to 9:00 p.m. and then, discharged. The said assertion by
the witness is in contradiction with the deposition at Exhibit-93
of PW-9 - Dr. Rita Maheshwariprasad Sinha, whereas she has
stated that, at the very same day, though he was admitted as
an indoor patient, discharged at the request of patient. The
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certificate to that effect is issued by PW-9 - Dr. Rita Sinha,
which is at Exhibit-94, reflecting the same. Though first-
informant went to the Police station, he did not ask for any
police yaadi for the purpose of treatment as he claimed that he
was beaten by the accused. Surprisingly, the first-informant,
when he went to the Doctor without police yaadi, he did not
give any history having been beaten by the accused or he
being insulted of his caste, which was the first available
opportunity for him before the independent Doctor, who states
so while getting treatment.
6.27 As such, he complained of dizziness, he complained
that he was unconscious. However, Doctor found him fully
conscious. Doctor agreed with the suggestion that because of
hypertension, a person may feel dizziness and he may fall
down. Considering the medical certificate, it is clear that there
was no sign of beating corroborating the oral assertion of the
first-informant while giving a complaint in writing, that too, to
the Office of the Superintendent of Police and not the nearest
Police station, if at all any offense insulting his caste is
committed. Though straight going to the Doctor without Police
yaadi and complaining before the Doctor about dizziness, not
giving any history about beating or even any insulting words
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stated by the accused, creates doubts about the genuineness
of the efforts of the first-informant. Coupled with the fact that,
he being Union Leader, appears to be in the habit of
proceeding on leave without leave being sanctioned, at the
same time, this is not the first time when he proceeded on
leave, maybe sick-leave, without it being sanctioned. Even on
resuming duty, he has not shown that any medical certificate
is being produced with the Office or his immediate superior.
At the same time, deducting his salary for the
unauthorized absence, which is claimed to be on the ground of
his sickness, his salary was cut and notice thereof was given to
him, which was received, not taking any action against that he
claims that incident has occurred because of that reason.
Initially, he denied even issuance of notice/memos issued by
the accused for his unauthorized absence and communicating
even the cause why his salary should not be deducted for
unauthorized absence; however, when copies were produced,
he had to admit that he received the same. Such is the nature
of the first-informant, having no regard for the truth. Coupled
with the fact that, other witnesses, such as Babubhai
Bhaichandbhai Patel, Narendrabhai Chandrakant Pancholi,
Parshottam Dhanjibhai Patel, Bhanwarlal Shivaji Chauhan, it
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appears that the said witnesses, who have supported the case
of first-informant, have also been dealt with by the respondent
- accused and several memos have been issued to them, as
admitted by them in their depositions. Therefore, all have, in
concert, an axe to grind against the accused, a possibility
cannot be ruled out that a false case might have been foisted
upon the respondent - accused, as stated hereinabove.
7. PW-7 - Bhanwarlal Shivaji Chauhan, who is the
Office Superintendent in the office of the accused, though
confirmed that there were verbal altercations in between the
accused and the first-informant, but he could not hear the
conversation. In the examination-in-chief, PW-7 has admitted
that, in his presence, the accused has never abused first-
informant or even beaten him. He has admitted in his cross-
examination that first-informant has never written any report
to resume duty in his presence on 19.02.2007.
7.1 He has also admitted that, it is true that, it has not
happened while first-informant was writing report and accused
called him in his chamber. This is in direct contradiction with
the deposition of the first-informant himself, who claimed that
while he was writing report for resuming duty before Office
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Superintendent Chauhan, he was called by the accused. In his
cross-examination, he has further admitted that resuming
report addressed to the accused having been shown and he
denied that it has ever been given through him.
7.2 He has also admitted that, neither the report nor
fitness or un-fitness certificate along with the report is
produced by the first-informant ever. He has admitted that in
respect of that very incident, there was an inquiry by the
Department through the Head Office on 07.05.2007 in
presence of Secretaries and statements were recorded.
7.3 He has further admitted that he has not given any
statement in the departmental proceedings confirming the
incident, as mentioned in the complaint.
7.4 He has further admitted that, in departmental
inquiry, he has stated before them that the first-informant
insisted the accused to sanction the leave and till then, he is
not going to leave the chamber. To the same, when accused
informed that he will call the Deputy Superintendent of Police
and file a complaint against him, the first-informant went
outside the chamber. During the tenure of the accused,
witness has admitted that, there are several circulars issued by
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him insisting each employee to remain present at their
Headquarter, performing their duty diligently, verifying the
work executed by the persons for whom there are payment
vouchers and then report, etc., which were not liked by the
employees and there was dissatisfaction amongst them, more
particularly, the persons like first-informant, who habituated
not to get leave sanctioned and proceeded on leave.
8. Even the Peon, to send the chit for the visit of the
first-informant with the accused, has also claimed that there
was verbal altercation between them but he could not hear
what was that conversation. Therefore, it is clear that
independent witnesses from the office itself have stated that
no conversation, like what is complained by the first-informant,
has ever occurred in their presence. There are three other
witnesses, against whom even the accused has taken actions
for their lapses and issued memos, have attempted to support
the first-informant in respect of the offence under "Atrocities
Act". Therefore, three of the witnesses, who have admitted in
their cross-examination that they have been sternly dealt with
by the accused, who issued memos for their lapses and
insisted for disciplined behaviour in the office, timely reporting
for the duty and to improve their performance, appears to
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have supported the first-informant out of vengeance. As such,
first-informant himself is not believable at all, as stated
hereinabove. Therefore, deposition of such interested
witnesses also cannot be believed.
9. Proceeding on leave, maybe sick-leave, has to be
reported to the office. If in any emergency, prior sanction is not
obtained, while resuming the duty, it must be justified with the
certificate duly issued by the Doctor and supported by the
documents of treatment. Not only the first-informant has not
produced any certificate of treatment, he has produced Two
certificates, which only reflect rest for a particular period,
dehors any papers of treatment or scientific examination of a
person of the first-informant or any reports to justify the same.
Not only that, when notices were issued for resuming duty or
to show cause why period spent on leave without getting it
sanctioned be treated as 'unauthorized' and salary be
deducted, there was no response at all stating that he is sick
and advised rest, and therefore, he cannot resume duty. Not
only that, in office, no such sick report is ever found or
produced by the first-informant.
9.1 Therefore, detailed reasons assigned by the learned
Judge for recording an order of acquittal, on re-appreciation
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also, appears to be just, requiring no interference by this Court
in an acquittal appeal. Hence, this appeal is hereby dismissed.
9.2 At the same time, when several reasons are
assigned showing that, out of vengeance, with the help of
other office witnesses, first-informant, who is the Union Leader,
has created a false case against the accused, as concluded by
the learned Judge ordering compensation of Rs. 2000/- only to
be paid to the accused, which is already deposited by him,
cannot be said to be unjust, and therefore, revision application
preferred by the first-informant is also hereby rejected.
Record and Proceedings be sent back to the trial
Court forthwith.
Sd/-
(UMESH A. TRIVEDI, J.)
Raj
