^ & Upendra Suigh Thakirr, s/o Paltan Siagh, 'aged about 19 years, R/o viUage Bhaiso, Police Station Paisgarh, Distdct Jaajgir Cham.pa (CG) State of Chhattisgarh, Through : The Police Station Paingarh, District Jaxygir Champa (CG) Suresh Pandey,. son of Gopal Pandey, aged about 24 years, resident of Viilage Bhaisda, Police Station Paiagai'h, District Janjgir Champa(CG) ': State of ChIiatti.sgarh,,';F}trough ; The Police Station : Patngarh, District Jaiygir Cham.pa (CG) LA¥A£l,^E^^LrS'S'VLfVu'S^WS^ELt, A7 •' Shri P. P. Sahu, Advocate appears for the appeUant iu Cr. AppealNo.692/2009, ' SIiri Suiaeet Sin.gh, Advocate appears for tlie appellant in Cr. AppealNo. 40/2010. • Shri Saiideep Yaday, Dy. GovemiTient Advocate appears for fhe State ia both the Crimiaal Appeals. , Shn T.P. Sharma & Hoa'ble Sbri R.L.Jhaawar.JJ Per T.P.Sharma. J. $17.03.2010$ 1. Crimmal Appeal No. 692/2009 has been filed on behatf of appeUaat- Upendra Siagh Thakur and Criminal Appeal No. 40/2010 has been filed on behalf of appeUant-Suresh Pandey. These two crunin.al appeals are beiag disposed ofby fhis couiinon judgiuent as bofh. flie appeals arise out of fb.e sam.e judgtnent, passed by the Special Judge. Scheduled Castes aad Scheduled Tribes (Preventioa of Ata-ocitiesj Act, 1989, BUaspur is. Special Crimiual Case No. 128/2004 on 3.12.2005. • 2. Challenge ia fhese tivo cruaiaal appeals is to the judginent •ofconviction aad order ofsentence dated 3.12.2005, passed by fhe Special Judge, Scheduled Castes aud SchedlUed Tribes (Prevention of Atrocities) Act, 1989, Bilaspur ia S.T. No. 128/2004, whereby and whereunder, at'ter holding the appeUants guilty- for culpable hoinicide not aiaounting to inurd.er of Chhatram on fhe grouitd that he was a ineinber of Scheduled Tiibe, convicted fhe appeUaats under Section. 304 Part II of fhe IPC and Section 3 (2) (v) of fhe Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short fhe Act) and sentenced to undergo R.I. for 10 years and imprisoniueat for life aud to pay a fine of Rs. 1000/-, ia default of paym.ent of fine to furfher -uiidergo S.I. for 6 monfhs respectively to each of the appeUaiit. 3. The conviction is impugned on fh.e ground thatwifhout aay iota of evidence for causiag culpable hoBiicide, not amoiiating to uiurder of Chliatram, beiag a lueinber of Scheduled Tribe, Court below has convicted aad sentenced the appellants as atbrenientioned and thereby conuiutted ulegality. 4. The case of fhe prosecution in brief is fhat the deceased - Chhatram., a meinber of SchediUed Tribe was preseat ia his house on 6.7.2004. He was a disabled person. The present appeUaiits took bim. from. his house to the place of uicident. The appeUant Suresh Paadey assaulted hita by kait'e and Upendra Singli assaulted Tiim by Chappal and kicks and ftiey also fhrew his tricycle over hitu, wlio was lyuig in iujured condition aiid thereafter ftiey went away. Soiae persons took Chhati'am to the Police Station, where he lodged the F.I.R. vide Ex. P/ 19. He was taken to the Hospital for treatinent, where he was admitted from. 7.7.2004 to 31.7.2004 aud on 31.7.2004, he was discharged fiom fhe hospital vide Ex. P/21. During fhe course of ta^atm.ent, he was examined by fhe Doctor aud Iracture of 5th &jid 6th ribs ofleft side was found vide Ex. P/22 and P/23. After his discharge, he died as a result of injiuy aiid its coinpUcation. Merg was recorded vide Ex. P/20. After suiauioning fhe witaesses, iaquest over fhe. dead body of the deceased was prepared vide Ex. P/8. The dead body was sent for autopsy to P.H.C. Pamgarh. Dr. Dunichand Choudhat'y (PW-2), who has earlier examined fhe iajured- Chhatraia, conducted the autopsy vide Ex. P/2 and found healed iajury, includiag rupture of huigs. He opiaed fhat deafh was due to cai-dio respiratoiy failure as a result of injuiy aad its coinplication and death was hoiaicidal ia nature. Statenients of tlie witnesses were recorded under Section 161 of fhe Code of Criminal Procedure, 1973 (for short fhe Code). 5. After coinpletion of uivestigation, charge sheet was lUed before the Court of Chief Judicial Magistra.te, Janjgir, who m. tum, committed ftie case to the Special Judge, Biiaspur for trial. 6. !n order to prove fhe guilt of fhe accused/appeUants prosecution has examined as inaay as 18 wituesses. Accused/apepUaats were exammed under Section 313 of the Code, where tliey denied the circuinstaiices appearmg agaiast tlieiu aiid pleaded uin.ocence aad false implication. They have exainined Harad Lal (DW-1), who has deposed that ia fhe iaten?eniug night of alleged incident, fhe injured Chliatrain was present near Baiidliawa Talab, he was driving his tricycle aad uo other person was present there. 7. Al'ter aflbrdiiig opport.unity of bearuig to fhe parties, leamed Special Judge has convicted aad sentenced fhe appeUants as aforenientioned. 8. We have Iieard Shri Shri P. P. Sahu, learaed counsel for the appeUaut- Upendra Siagh and Shri SvLmeet Siu.gh, leained counsel the appellant- Suresh Paudey axid Shri Sandeep Yadav, leamed Dy. Goveram.ent Advocate for ttie State, perused tlie judgiaent impugned aud record of the Court 'oelow. 9. At fhe outset, leamed counsel for the appeUauts fraiLkly subinitted that in the light of evidence of prosecution witnesses, fhey are uot disputing fhe conviction of the appeUaats under Section 304 Part II of fhe IPC, fhey are only disputing the conviction iinder Section 3 (2) (v) of the Act aad ftie sentence awarded to the appeflaiits. 10. On fhe ofher hand, evidence of Dr. Diuiichand Choudhary (PW-2) and autopsy report Ex. P/2 are sullicient to estabUsh fhe fact fhat deafh. of Cbliati~am was horuicidal m. nature. Evidence of other wituesses examined on behalf of the prosecution is sufiicient to estabUsh the fact fhat fhe accused/appeUaiits are the persons, who had caused injuiy to Chltatram, resulting tato his death. On account of fhe nature of uijiuy, proxunily of deatti of the deceased, tune between ca'asing uijury aitd death of fhe deceased, leamed Special Judge has convicted fhe appeUaats under Section 304 Part II of the IPC. The conviction of the appeUan.ts under Section 304 Part II of fhe IPC is based on credlble, clinchia.g aad legal evidence, sustauiable uader the law. 11. As regards fhe conviction ofthe appeUants under Section 3 (2) (v) of the Act is conceraed, the record, especialty, fhe caste certilicate Ex. P/6 revealed that Chhatraitt was the nieinber of Scbeduled Tribe. The appeUants have been convicted under Section 3 (2) (v) oftbe Act aad sentenced for imprisonment for life aud fine ofRs.1000/-. Section 3 (2) (v) offhe Act reads as under : Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe- oormniis any ojfence under ihe Indian Pencd Code (45 of 1860) punishable with iTnprisonment for a term of ten years or more against a person or property on the ground that such person is a tnember of a Scheduled Casie or a Scheduled Tribe or sudi property belongs to such mejnber, shall be punishable with ijnprisoranenf for life catd with fine. In order to couvict fhe accused/appeUaats under Sectioa 3 (2) (v) of the Act, prosecution is required to prove fhe fact fhat fhe oflence punishable under the Indiaa Peual Code for punishiaent for 10 years or inore has been coTnmitted by fh.e accused against €he person beloagiag to Scheduled Caste or Scheduled Tribe on the ground that such person is a niember of such caste or tribe. 12. Adinittedly, Chhatram. was a lueinber of Scbeduled Tri.be, but flie evidence adduced on behalf of tlie prosecution, especiatly fhe evidence of Chliatu Rain (PW-8), brottier of fhe deceased, clearly revealed ftiat tlie iucident took place on account of dispute relatiiig to nioney and has not coBiruitted on the ground that the deceased was a DieDiber of Scheduled Tiibe. 13. In the absence of the atbresaid iagredients of the offence, fh.e conviction aad sentence of fhe appeUants under Section 3 (2) (v) of tiie Act is not sustamable under tlie law. Whfle convictuig and sentenciag the appellaats for the aforesaid offence, Court below has not considered fhe provisions of Sectioa 3 (2) (v) of tbe Act and fhereby couiiliitted fllegality, As regards fhe question of sentence is coiiceraed, appeUajut Suresh Paadey is iu custody siiice 7.7.2005 and appeUai.it Upendra Sin.gh is iii custody since 7.7.2004 to 27.1.2005 aad from 3.12.2005 tiU today. 14. Accorduig to fhe case of prosecution, on account of deniaad of nioney, appellants took the disabled pei~son froni liis house to fhe loaely place with his tricycle and caused aforesaid tajuries to him., Considering the above fact and passion, under which, ftie appeUants have caused iajuries to the deceased, fhe appeUauts, iustead of R.I. for 10 years, under Section 304 Part II of flie IPC, are sentenced fo'r R.I. for seven years. The appeUants are in custody. They are eatifled for the set ofi' period as per law. The appeUants Suresh Pandey aad Upendra Stn.gh are acquitted of the charge under Section 3 (2) (v) of the Act. They be set at liberly forfh.wifh., if not required in any ofh.er case.' Sd/- T-P.Sharma Judge Sd/- R.L. Jhanwar Judge