The prosecution's case in short is that the complainant Rajjulal Choudhary (PW-1) was resident of village Saleha.On 7.11.2000 at about 3:30 p.m., he was going to Nagod to see his ailing mother, who was admitted in the Hospital at Nagod.When he was going on the road, the appellant, who was sitting on a flour mill detained him and abused the complainant with obscene words.Also he abused him with words relating to his caste and gave him slaps etc. He threw him on the ground and sat on his chest and thereafter, he gave so many fists to the victim.The witnesses intervened and thereafter, the appellant ran away from the spot.The complainant went to see his ailing mother and at about 9:00 p.m. he came back to village Saleha and lodged the FIR Ex.P/1 at Police Station, Saleha.(Delivered on 10th day of March, 2015) The appellant has preferred the present appeal against the judgment dated 20.9.2002 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Panna in Special Case No.48/2001, whereby the appellant has been convicted of offence under Sections 341, 323, 506(Part-II), 294 of the IPC and Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act (hereinafter it would be referred as 'the Special Act') and sentenced to six months S.I. with fine of Rs.500/-, six months R.I. with fine of Rs.500/-, one year's R.I. with fine of Rs.1,000/-, two months R.I. with fine of Rs.500/- and one year's R.I. with 2 Criminal Appeal No.1521/2002 fine of Rs.2,000/- respectively.All the sentences to run concurrently, whereas the default sentence was also imposed in lieu of payment of fine.He was sent for his medico legal examination and after due investigation, the charge sheet was filed before the JMFC Panna, who committed the case to the Special Court.The appellant abjured his guilt.He took a plea 3 Criminal Appeal No.1521/2002 that he was falsely implicated in the matter due to enmity.Also he took a plea that a compromise took place between the parties and the complainant took a sum of Rs.2500/- to do the compromise.However, thereafter, the complainant did not accept the compromise.In defence, Bahori (DW-1) was examined.The Special Judge after considering the evidence adduced by the parties, convicted and sentenced the appellant as mentioned above.I have heard the learned counsel for the parties.In the present case, Rajjulal Choudhary (PW-1), Nanni Bai (PW-2) and Ghaseeta (PW-3) have stated that they were the eyewitnesses.Lakhanbai (PW-4) and Dayaram (PW-5) were examined as eyewitnesses but they turned hostile.Lapaiya (PW-7) was also examined as eyewitness and he has partly turned hostile.Rajjulal (PW-1) has stated that the appellant was abusing him with the words related to his caste.His testimony is supported by Nanni Bai wife of the complainant and Ghaseeta father of the complainant.However, if the evidence of Nanni Bai and Ghaseeta is considered then, it would be clear that they were not present at the spot from the very beginning.4 Criminal Appeal No.1521/2002 They were informed that the appellant was assaulting the victim then, they went to the spot and hence, they were not the witnesses of portion of crime when the appellant abused the victim with the words related to his caste.Nanni Bai and Ghaseeta have stated that during the assault, the appellant was abusing the victim on the basis of his caste but according to the victim Rajjulal, the appellant abused him with the words relating to his caste in the beginning of the crime and during the assault, he did not state such words.In the FIR Ex.P/1, it is not mentioned that the appellant repeated such words during the assault.Hence, the testimony of Nanni Bai and Ghaseeta cannot be believed.The appellant would have told such words to the victim Rajjulal, where these witnesses come to the spot with delay.Rajjulal has accepted that there was no annoyance between the appellant and him in the past and unexpectedly, the appellant abused and assaulted him.He had filed the FIR Ex.P/1, which was a written report.It was strange that the incident was caused with the victim Rajjulal and thereafter, he did not take care to lodge the FIR or to get his treatment.On the contrary, he went to 5 Criminal Appeal No.1521/2002 see his ailing mother, who was admitted in the Hospital at Nagod and therefore, the FIR was lodged with the delay of 18 hours.According to the document Ex.P/6, the incident took place on 7.11.2000 at about 3:30 p.m., whereas the FIR was lodged on 8.11.2000 at about 9:30 a.m. The reasons relating to the delay in the FIR shown by the complainant Rajjulal appears to be unacceptable.A written report has been given at Police Station, Saleha and therefore, Rajjulal had an opportunity to cook a case against the appellant.As the witnesses Nanni Bai and Ghaseeta were telling a falsehood that the appellant had abused the victim Rajjulal with the words related to his caste, whereas such allegations are not true then, the possibility cannot be ruled out that the complainant Rajjulal while lodging the FIR had mentioned about the fact that the appellant abused him with the words relating to his caste and therefore, a doubt is created as to whether the appellant had abused the complainant on the basis of words related to his caste or the complainant on the basis of his caste had lodged the FIR of offence under Section 3(1)(x) of the Special Act to get the advantage of his caste.Hence, it is not proved beyond doubt that the appellant 6 Criminal Appeal No.1521/2002 abused the victim with the words relating to the caste of the complainant.Learned counsel for the appellant has submitted that the complainant has given a proof that he was a member of scheduled caste.The complainant and his witnesses have stated that the complainant was "Chaudhary" by caste and in the certificate Ex.P/9, Tahsildar concerned has issued the caste certificate that the complainant belongs to the community of Chaudhary, and "Chaudhary" falls within the category of scheduled caste.It is also submitted by learned counsel for the appellant that according to the list of scheduled caste prevailed in the Madhya Pradesh, there is no such caste "Chaudhary" which falls in the scheduled caste.On the contrary, if the complainant would have claimed in the certificate that he was "Chamar" by caste then, that certificate could specify that he was a member of scheduled caste.The submissions made by the learned counsel for the appellant can be accepted because Tahsildar concerned has issued such a certificate, which has no legal value.It is expected from an officer to verify and inquire about the caste of a particular person and to 7 Criminal Appeal No.1521/2002 issue the certificate.On the contrary, Tahsildar issued the certificate that being "Chaudhary" by caste, the complainant was a member of scheduled caste, whereas no such caste is declared to be a scheduled caste for Madhya Pradesh in the schedule appended in the Constitution.Hence, the complainant could not prove that he was a member of scheduled caste.Hence, the appellant could not be convicted of offence under Section 3(1)(x) of the Special Act.So far as the other offences are concerned, the complainant and his witnesses did not tell the specific words, told by the appellant so that those words could be considered that whether those would have fallen within the category of obscene words.He did not state before the trial Court that the appellant executed his threatening as told on the date of incident or not.If any threatening was given by the appellant on the date of incident, even then it does not fall in the category of criminal intimidation and therefore, the appellant cannot be convicted of offence under Section 506 of the IPC.The trial Court has committed an error of law in convicting the appellant for the offence under Section 506(Part-II) of the IPC.Similarly, it was alleged by the complainant Rajjulal that he was going to Nagod and in the way, the appellant started uttering obscene words to him and words on the basis of his caste by detaining him.However, technically it can be said that due to overt act of the appellant, he was restrained to go further but no intention 9 Criminal Appeal No.1521/2002 of the appellant to restrain the complainant to go further is proved and therefore in absence of any intention, no offence under Section 341 of the IPC is made out against the appellant.However, Rajjulal (PW-1), Nanni Bai (PW-2) and Ghaseeta (PW-3) have stated that the appellant assaulted the victim by kicks and fists and also by slaps.The defence witness Bahori (DW-1) has admitted that the quarrel took place between the appellant and the complainant.Though, he has stated that the complainant fell down on the earth due to his drunken condition but it is accepted by the witnesses that in the incident, the complainant fell down on the earth.If the complainant was in a drunken condition then, it was not possible for him to visit the village Nagod to see his ailing mother and thereafter, to come back.Therefore, that fact cannot be accepted that the complainant Rajjulal was in drunken 10 Criminal Appeal No.1521/2002 condition.Looking to the evidence of defence witness Bahori (DW-1), the testimony of Rajjulal, Nanni Bai and Ghaseeta appears to be acceptable that the appellant assaulted the victim Rajjulal.It is not necessary to prove the physical injury for the offence under Section 323 of the IPC.If any bodily pain was caused to the victim then, offence under Section 323 of the IPC is made out.It is for the appellant to prove that he was given any grave or sudden provocation or he had a right of private defence.In alternate, the appellant could not prove such fact.The incident took place when the complainant was going on a way and therefore, no overt act of the complainant was proved that he gave sudden or grave provocation to the appellant and any right of private defence was accrued to the appellant.The appellant gave more than one assault and therefore after the result of his first assault, he continued to assault the victim and hence, the trial Court has rightly found that the appellant had voluntarily caused hurt to the victim Rajjulal.Therefore, the appellant was rightly convicted for the offence under Section 323 of the IPC.So far as the sentence is concerned, the 11 Criminal Appeal No.1521/2002 appellant was the first offender, who was a youth of 23 years of age at the time of incident.Since he was above 21 years of age, it is not a case in which, he may be released on probation but looking to his first offence and the fact that he did not use any weapon, his offence under Section 323 of the IPC, it would be proper that a maximum fine may be imposed upon the appellant for that offence.On the basis of aforesaid discussion, the appeal filed by the appellant is hereby partly allowed.The conviction and sentence imposed by the trial Court for the offences under Sections 341, 294, 506 (Part-II) of the IPC and Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act are hereby set aside.The appellant is acquitted from the aforesaid charges.It is informed that the appellant has deposited the fine more than of Rs.1,000/- before the trial Court for other offences, therefore, he would be entitled to get the remaining fine amount back from the trial Court and hence, no default sentence is required to be provided.The appellant is on bail.Copy of the order be sent to the trial Court alongwith its record for information.(N.K. GUPTA) JUDGE 10.03.2015 pnkj

Sections cited: Section 323 in The Indian Penal Code, Section 341 in The Indian Penal Code, Section 506 in The Indian Penal Code, Section 294 in The Indian Penal Code