Gujarat High CourtNitesh Veersingh Dayma Through ... vs State Of Gujarat on 29 November, 2018Author:A. S. SupehiaBench:A.S. SupehiaR/SCR.A/6698/2017                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 6698 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE A.S. SUPEHIA                       Sd/-

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1     Whether Reporters of Local Papers may be allowed to              No
      see the judgment ?

2     To be referred to the Reporter or not ?                          No

3     Whether their Lordships wish to see the fair copy of the         No
      judgment ?

4     Whether this case involves a substantial question of law         No
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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    NITESH VEERSINGH DAYMA THROUGH VEERSINGH KISHAN DAYMA
                             Versus
                       STATE OF GUJARAT
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Appearance:
HARSHESH R KAKKAD(7813) for the PETITIONER(s) No. 1
MR RC KAKKAD(389) for the PETITIONER(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,3,4
PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 1
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    CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA

                               Date : 29/11/2018

                               ORAL JUDGMENT1.0 By way of the present petition, the petitioner -
original complainant has prayed, inter alia, that:­Page 1 of 8R/SCR.A/6698/2017                                          JUDGMENT



  "24(A) Your Lordships may be pleased to admit and
  allow the present petition.(B) Your Lordships may b pleased to issue writ of
  mandamus or writ in the nature of mandamus or any
  appropriate writ, order or direction by ordering
  to take action and register a complaint pursuant
  to     statement          which     is       at    Annexure­B        of    the
  petitioner as well as the written complaint of
  the father of the petitioner dated 03.02.2018 and
  investigating             of     the     complaint           which   is     at
  Annexure­A be carried out by CID Crime for proper
  and thorough investigation of the case for proper
  and     through          investigation            of   the   case    or    any
  other independent agency and they may be further
  directed         that      to   initiate          actions     against      the
  accused without any delay.Rule. Mr.H.K.Patel, learned APP waives service
of Rule for the respondent­State.2.0 The brief facts giving rise to filing of present
petition are as under:­

2.1 On 29.09.2015, the father of the petitioner and
his mother went to Indore (Madhya Pradesh) to perform
the last rites of the Grandfather of the petitioner
and both the petitioner and his brother were sent to
the    house      of       the    Aunt    of       the   petitioner         namely
Lakshmi Gorelal residing at Lal Tambu, Bharthana.Page 2 of 8R/SCR.A/6698/2017                                                JUDGMENT




2.2 On        10/10/2015           nephew        of        the    father        of     thepetitioner viz. Arjun Gorelal called and told him
that at around 4:00 our neighbour namely Rahul Prabhu
Chavda came and took Nitesh i.e. petitioner with him
and between 7:00 to 7:30 Rahul called me and told me
that Nitesh has met with accident so he is been taken
to    Jeevan       Jyot       Hospital         Amroli.           Accordingly,          the
father of the petitioner left his father's ritual
after death at Indore (M.P.) and was on the way back
and when he reached at Surat he came to know that
petitioner          was       hospitalized             at     Nirmal       Hospital,
Majura instead of Jeevan Jyot Hospital, and it was
stated in the complaint that the father was able to
see serious injuries on petitioner's body and was
lying      unconscious            and      the        petitioner          was        undertreatment and the father of the petitioner lodged a
complaint         on        the   basis      information            given       by    his
nephew      and      Police       registered               complaint      under        the
same.2.3 Further,                the   contents            of    the    writ      petition
reveals that the father of the petitioner couldn't
afford the treatment at the Nirmal Hospital so the
Doctor referred the petitioner to another hospital.He was admitted in Jivan Jyot Hospital and at that
time also, the petitioner was unconscious, after long
treatment at Jivan Jyot Hospital, he was able to ask
for food and water. Ultimately he was discharged from
the   Hospital.             During   the       treatment           the    petitioner
started speaking and one resident of Bharthana namelyPage 3 of 8R/SCR.A/6698/2017                                              JUDGMENT



Jagdishbhai, who is an social worker and his wife who
is Sarpanch visited house of the petitioner to know
well being of petitioner and inquired about the cause
of his injuries. The petitioner told him that on the
day of incident Rupu Marvadi took him out and bought
him    a    shirt      and   shorts       to       wear    at    night     and     he
dropped him at his aunt's home at Lal Tambu. After
about 4:00 p.m., Rupa Marvadi came again at aunt's
house of the petitioner and he again took petitioner
on     motor      cycle      and     near          Hanuman       temple          Rahul
Prabhubhai was standing and he also came along with
on bike, from there they took road to Bharthana near
to    cremation        ground      towards         Chikoo       plantation         and
they started beating the petitioner and they consumed
4    quarters       of     English      liquor        and       the    petitioner
begged them please don't beat him, Rupa Marwadi gave
him Rs.10/­ and told him to get 17­2 chickpeas and
groundnut as they consumed all the 4 liquor bottles
and they were talking to beat the petitioner again
and the petitioner begged them not to beat and after
that Rahul started abusing with foul language and
told       the   petitioner        that       if     the    petitioner            will
disclose about his love affair with Kajal to Kajal's
parents so they have to kill the petitioner by saying
that Rupa Marwadi hit the petitioner on backside of
his    head      wearing     an     iron       punch       on    her     hand      and
because of that blow, the petitioner fell down, and
thereafter, Rahul started beating him up by rod, to
avoid being hit on the head the petitioner kept his
hand on his head, so he got serious injuries on his
hands and afterwards Rupa Marwadi started bike andPage 4 of 8R/SCR.A/6698/2017                                                JUDGMENT



Rahul      seated           on    the     pillion         seat     and     held     the
petitioner by his short on his waist lifted him and
they started driving bike into farm with my face on
the road by that the petitioner got injured on his
face     and      on        his    body      after       that     they     took      the
petitioner at the place where he was beaten by them
earlier and they pushed him and threw him from the
bike on the roadside, as he was lying there when a
four wheeler. The present facts were narrated                                  by the
petitioner in the presence of Jagdishbhai.                                        It is
also stated that both                       Nalin Parmar and Gohil were
present there and on questioning the petitioner about
the incident recorded it in writing and informed us
and gave assurance that legal action will be taken
against both the accused. It is also stated that
Rahul      and      Rupa          Marwadi       both      tried     to     kill     the
petitioner and tried to convert it into an accident
case.2.4 It         is      the         case       of        the     petitioner          that
investigation may be handed over to the independent
authority        i.e.        CID     (Crime),           and    thereby,      to     take
actions        against             the     accused            mentioned      in      the
complaint           which         was      sent         through     R.P.A.D.          to
respondent no.3 and 4 along with various authorities
naming two persons who had brutally assaulted the
petitioner.3.0 Mr.Kakkad, learned advocate for the petitioner
has submitted that earlier, the petitioner had filed
Special Criminal Application (Direction - To LodgePage 5 of 8R/SCR.A/6698/2017                                              JUDGMENT



FIR/Complaint)            No.6679    of     of     2016      and     vide        order
dated 22.11.2016, this Court had directed the Police
Commissioner, Surat, to look into the matter at the
earliest and to take an appropriate decision in this
regard in accordance with law.3.1 Learned         advocate        Mr.Kakkad          has     submitted         that
despite     best      efforts,       no     action        is      taken     by    the
Police     Commissioner,            Surat         in    the        investigation
whether the alleged offence underSection 307of the
Indian Penal Code is made out or not. In this view of
the   matter,         he    has     submitted          that        present        writ
petition may be allowed and the investigation may be
transferred to CID (Crime).4.0 Per contra, Mr.H.K.Patel, learned APP for the
respondent­State has submitted that pursuant to the
direction       issued       by     his     Court         vide      order        dated
22.11.2016 passed in                 Special Criminal Application
(Direction - To Lodge FIR/Complaint) No.6679 of 2016,
appropriate investigation was done and statement of
various Doctors as well as witnesses were taken vide
order dated 03.08.2017. The Additional Director of
Police had taken a decision that no offence underSection 307is made out.4.1 Learned APP Mr.Patel has submitted that in the
statement       dated       09.12.2015            given      by    the      present
petitioner,         he     himself        has      stated         that    he       had
suffered      injuries        in     the      accident            while     he     was
travelling on the motorcycle.Page 6 of 8R/SCR.A/6698/2017                                                  JUDGMENT



4.2 Learned APP has submitted that all the factors
have      been         taken     into            consideration                by      the
Investigating              Officer     including               under       which       the
accused has suffered the injuries and ultimately, it
has been found that no offence underSection 307has
been made out. Lastly, he has submitted that the
charge­sheet has been filed on 12.12.2016 and at this
stage,     investigation             cannot         be    transferred          to      the
other agency. He has submitted that underSection 216of the Code of Criminal Procedure, 1973, the Court
has power to alter or add to any charge at any time
before judgment is pronounced.5.0 Heard          learned      advocates                for        the    respective
parties.6.0 The       undisputed        fact        is      that       pursuant        to     the
order dated 22.11.2016 passed in                                Special Criminal
Application          (Direction         -     To         Lodge       FIR/Complaint)
No.6679 of 2016, further investigation was carried
out and after taking the statements of three doctors
as well as Sarpanch of the village, it was opined in
the    order      dated      03.08.2017             that       no    offence         underSection 307of the Indian Penal Code is made out. It
is also not in dispute that charge­sheet has been
filed on 12.12.2016 in the present case. This Court
has also perused the statement made by the present
petitioner        on       09.12.2015       which         indicates          that      the
present petitioner had sustained injuries during the
accident. Even otherwise, if any grievance is left
out to the present petitioner, underSection 216ofPage 7 of 8R/SCR.A/6698/2017                                       JUDGMENT



theCode of Criminal Procedure, the Court can always
add      or    alter         the   charge     at    any   time   before     the
judgment is pronounced.7.0 In the bedrock of the aforesaid observations and
analysis, the present petition fails and the same is
hereby rejected. Rule is discharged.Sd/-(A. S. SUPEHIA, J)
GIRISHPage 8 of 8