yowisoBSsr'i JTCDISAIIIBE •w-t^ es" CEIMHA1 AEPS&I ©anesteaB years, Ba'tiraB sos Yadav, aged WPSiMSV eultivat@r, Teslde&f of villgge ®i^EAa,^P©lleeQiiavki ^ljsaka., Pallee Statitan Ss.swKca&a.f Sistrie't; BilasFar(a0W ^aajgir ; Ibe State of Ijfcic'"^- HI6H COURT OF CHH^TTESeARH AT BILASPUR Sing'e Bench : Hon'ble Mr. Justice Pritinker Diwaker Criminal Aweai No. 1535^of 1999 APPELLANT RESPONDENT Rotirom, son of Ganeshram Yadav Versus State of AAadhya Pradesh (now CG} ShriShrayan Kumar Chande!, counsel for the appellant. Shri Vaibhav A. 6oyerdh.an, PIJ for the State/respondent. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE JUDeEMENT (13.04.2011) This appeal is directed against the impugned judgment and order dated 17.5.1999 passed by Speciai Judge, Bitaspur in Special Criminal Case No. 15/98 convicting the accused/appeliant for the offences punishable under Sections 294, 506-B & 323 of the Indian Penal Code and Section 3(15(x) of the Scheduled Castes <& Scheduled Tribe (Prevention of Atrocities) Act (for short "the Act") and sentencing him to undergo rigorous imprisonment for two months, u/S 294,' rigorous imprisonment for two years u/S 506-B, rigorous imprisonment for six months, u/S 323 IPC and rigorous imprisonment for six months and pay fine of Rs.50C^-, u/S 3 (l)(x) of the Act pfus default stijxilations. At! the sentences were ordered to run concurrently. 2. Facts of the case in hrief are thdt on 24.3.1998 at about 11.30 p.m. F.I.R. (Ex.P-1) was todged by Patiram (PW-2) alleging therein that on that dqy at about 11 a:m. he was informed by one Jyotinand Dubey (PW-4) that one well is being dug behind his house,and he requested him to.convene.the Panchayat to enquire about the digging of the said wejl.It is alieged^that pursuant to the request made by Jyotinand v^ s^ "•^. SSB^ % ss'a g s f.4 r^:;>. ^ ^~:><. Dubey (PW-4), complainan.T Patiram (PW-2) enquired from the iabourer as to who was digging the wsil and there he was informed that it is the accused/appellant ftatiram wh.o was digging the said well. It is also alleged that the complainant questioned the accused/appellmt in respect of the said well, upon which the appe!lant first abused h.im by using fitthy language and also assaulted him. Based on this F.I.R., offences under Sections 294, 506-B and 323 of the Indian Penal Code and Section 3 (l)(x) of the Act were registered against the accused/appellcnt. After completion of investigation, the challan wos filed on 14.4.1998 for the soid offences. 3. So as to hold the accused/appellant guiity, prosecution has examined as many as 9 witnesses in support of its case. Statement of the accused/appeltant was also rscorded under Section 313 of the Code of Criminal Procedure in which tfe denied the charges levetled against him and pieaded his innocence and fatse implication in the case, Apart- from th.is, witnesses namely Kalyando.s (DW-1), Puneeram (DW-2) and AAus. Budhnibai (DW-3) havs aiso been examined by the defencein support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appeilcmt ,for ths offences as mentioned above.Hence this appeal. J 5. Counsel for the appellant submits that he is not pressing this appea! o.s far as it retates to conviction for th.e offences under Sections 294, 506-B and 323 of the Indian Penal Code and would confine his argument to the sentence part thereof only. He submits that offence under Section 3(1)(x) of the Act is not made out against the.accused/appeilant because neither in the F.I.R. .nor in the case diwy -stite-ment recorde-d u/S 161 Cr.P.C. of the compiainant there is any allegation against the accused/appellant thst he abused the complainant in the name of his caste. H®further submits thatGS the appellant has aiready remained in jail for about 24 doys and the incident took place about 13 years back, no usefui purpose wouid be served in sending him to jo.it and it wouid be in the interest of justice if sentence imposed on h.im under Sections 294,506-B and 323 of the Indian Penal Code is reduced to the period already undergone by him. •/ 6. On the oth.er hond, supportfng the impugned judgment it has been argued by the State counsei that conviction of the accused/appeilant in aii the offences is in accordonce with law and the.re is no infirmity in the same. He however does not dispute that there is no attegation in the F.I.R. or in case diary stori'ement of the complainant tho.t h-e was abused in th.e name of h-is caste. 7. Heard counsei for the partie^ and perused the materiai available on record inciuding the judgment impugned. 8. Complainant Patiram (PW-2) has stated in his evidence that on the request of Jyotinojid Dubey (PW-4) when he made enquiry as to who had dug the wetl behind his house, accused/appellant abused him by using filthy ianguage and then totd him th.at "Adivasi you are trying to be oversmcrt"<s^A, thersafter, he assaulted him. Dr. A.N. KanwQr ^ (PW-1) is the witness who b.ad medically exomined the victim Patiram (PW-2) and given his report Ex.P-1 has found the following injury;- "One contusion in the size of 8 c.m. x 6 c.m. on the right palm and redness in the size of 3 c.m. x 2 c.m. in the neck. These injuries may be caused by 'hard and btunt object." Reshamlal Yadav (PW-3) is a seizure witness of pick-axe made under Ex.P-2. Jyotinand Dubey (PW-4) while supporting the statement of Patiram (PW-2) hais stated that after abusing the complainant in the name of his mother, accused/appellant called him that "Adivasi you are trying to be over smart". Danikchand Pawar (PW-5) has made almost simitor statement as has been made by Jyotinand Dubey (PW-4). Di!.eep Kumar (PW-13) is the Patwari who had prepared the spot map (Ex.P-3). Dy. S.P. Sonjeev Shukla is the Investigating Officer who has gupport'ed the case of the prosecution. •/ 9. Minute examination of the eyidence of the witnesses makes it cle-ar that in the F.I.R. complainant has not made any altegation agoinst the accused/appellcmt inrespect of abusing him in the name of his caste, however, whi!e making his case diary stort'ement he has deposed that he was called Adivasi and Was abused in the name of his caste as well as in the name of his mother. However, in the court statement he has stated that "Adivasi you are trying to be over smart". There appears to be material contradictions in the statement of the complainant and atso in the statement of Jyotinand Dubey (PW-4) and Danikchand Pawar (PW-5). Pposecution has utterly failed to file any document showing the caste of th.e complainant which is sine qua non for hoiding the accused/appellant guiity under the Special Act especiaily when the caste of the complainant has not been admitted by the accused/ap^llant. Thus the entire evidence adduced by the prosecution does-fiot inspire confidence of this court ond in th.ese circumstances it wiil not be safe for this Court' to convict the accused/appellant under Section 3 (l)(x) of the Act, accordmgly, he is acquitted of the said charge. The fine amount as regards this offence shall be refunded, if deposited by the accused/appe!!ant. 10. As regards conviction of the accused/appellant under Sections 294, 506-B and 323 of the Indian Penal Code isconcerned, the same is maintained as it has not been chalienged before this Court. 11. So far as sentence part- 1s concerned, counsel for the appeliont submits that the appellant has already remained in jaii for about 24 days and the incident took place about 13 years back, in the facts and circumstances of the case, the sentence is reduced to the period already undergone by him. However, in lieu thereof, appellant is directed to pay Rs. Rs.5,000/- as compensation to the complainant Patiram (PW-2) under Section 357 of the Code of Criminal Procedure before the trial Court within four months from the date of receipt of copy of this order which would be payable to the victim Patiram (PW- 2). Failure, if cuiy, in depositing the amount before the trial Court within the period stipulated, would mcke the appellant liable to be inside thejail for a period of two montKs rigorous imprisonment. 12. Appeal thus part-ly succeeds. Sd/- Pritmker Diwaker Judge ^ •p-