CR.A/23/1992 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 23 of 1992 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SABBIRMIYA @ SAJIDMIYA A MALEK & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR BHARTI S RANA FOR MR ANIL S DAVE for Appellant(s) : 1 - 2. MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 09/01/2008 ORAL JUDGMENT 1. In the present appeal the original accused have challenged judgement and order dated 30.11.1991 rendered by learned Sessions Judge, Nadiad in CR.A/23/1992 2/7 JUDGMENT Special Case No.28/1991. 2. The appellants were charged for offences punishable under Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act(here-in-after referred to as “the Atrocities Act”) as well as under Sections 323, 426, 506(2) read with Section 114 of the Indian Penal Code. Learned Sessions Judge convicted the appellants and sentenced them to six months of simple imprisonment for offence punishable under Section 3(1)(10) of the Atrocities Act and for offences punishable under Sections 323, 426 and 506(2) of the Indian Penal Code, they were sentenced to five days and seven days respectively of simple imprisonment. 3. Broadly stated, the charge against the appellants was that on 10.6.1991, at about 7:30 in the evening when the complainant Ranchodbhai was working as a Peon in a Cooperative Dairy at village Bhalej, accused No.1- appellant No.1 gave a slap to the complainant and also beaten up his son. Appellant No.2 accused No.2 also gave blows with his hands to the complainant on his chest. They had further abused and humiliated the complainant and his son in the name of their community knowing fully well that they belong to Schedule Caste community. 4. The complainant Ranchodbhai-PW2 was examined at CR.A/23/1992 3/7 JUDGMENT exh.13. He stated that on the date of incident at about 7:30 in the evening, he was at the dairy. He was instructed to keep the door closed and not to let anybody enter. Appellant No.1 came and tried to enter the Dairy. The complainant therefore, prevented him. Appellant No.1 got excited. He therefore, started threatening and abusing the complainant and gave him slaps on his face and dragged him out. Appellant No.2 thereupon came there. He also gave blows to the complainant on his chest. When this was going on both the accused threatened him upon which son of the complainant came there and intervened. Both the accused started beating him. At this time, the accused used derogatory language against the complainant referring to his Caste and told him that he cannot harm them. According to the complainant both the accused used these words. 5. Son of the complainant, Vitthalbhai Ranchodbhai- PW3 was examined at exh.14. He stated that his father was instructed not to allow anybody to enter the dairy. Appellant No.1 tried to enter. His father therefore, ordered him to leave. Appellant No.1 abused his father referring to his Caste and gave him a slap when he tried to intervene. He was also beaten up. 6. Arvindbhai Harmanbhai Patel-PW4 was examined at exh.15. He was also present when incident took CR.A/23/1992 4/7 JUDGMENT place. He also narrated the incident of accused assaulting the complainant and his son. He however, did not attribute the accused using any specific bad words in the name of community of the complainant. He further only stated that appellant No.1 had used foul language. 7. Prafulbhai Taljabhai Patel-PW6 was examined at exh.18. He was also supposedly present when the incident took place. He however, turned hostile and did not support the prosecution version. 8. Prosecution also examined Dr. Harivadan Kantilal Bhatt-PW1 at exh. 8. He had treated the complainant and his son a day after the incident and had found some bruises and swelling on their bodies 9. On the said evidence, prosecution case rests. 10.Insofar as involvement of the accused in assaulting and beating up the complainant and his son is concerned, there appears to be no genuine doubt. The incident was proved with reliable eyewitnesses account of the complainant Ranchodbhai-PW2 as well as his son Vitthalbhai Ranchodbhai-PW3. This was also supported by an independent witness Arvindbhai Harmanbhai Patel- PW4. He was present at the time when the incident took place. He was the Milk collector employed by the dairy. His presence was thus CR.A/23/1992 5/7 JUDGMENT obvious. He also narrated the incident in very similar fashion to that described by the complainant and his son. Thus prosecution led sufficient evidence to establish that the accused had given slaps and fist blows to the complainant and his son and thereby caused simple injuries. Despite minor contradictions in the oral evidence compared to medical evidence, version of the eyewitnesses cannot be discarded. It is true that the Doctor stated that the swelling on the left cheek of the complainant could not have been caused by a slap but could have been caused by a fist blow, but that cannot be fatal to the prosecution. 11.The other question however, is whether the appellants committed offence punishable under Section 3(1)(10) of the Atrocities Act. In this regard, I find that there are contradictions in the different versions narrated by different witnesses before the Court. The complainant Ranchodbhai-PW2 in his deposition stated that derogatory words demeaning community of the complainant were used by both the accused. This happened after they started bearing his son who had intervened in the quarrel. On the other hand, son of the complainant Vitthalbhai-PW3 gave a slightly different chronology of the events. According to him, the appellant No.1 when asked to leave the dairy premises, used such derogatory words. Thereafter, the quarrel CR.A/23/1992 6/7 JUDGMENT between him and the complainant ensued pursuant to which he started beating the complainant. Thus according to this witness, appellant No.2 did not use any such words. The issue gets further complicated when Arvindbhai-PW4 in his deposition does not attribute any such words to either of the accused. He also stated that the appellant No.1 upon being prevented from entering the dairy got excited and started using foul language. Thus this witness does not attribute any language used by the accused person humiliating the complainant and his son in the name of their community. Thus there are noticeable contradictions in the words said to have been used by the accused. As noted, the complainant attributes such foul language having slur on the community of the complainant used by both the accused. According to him such words were used after the fight broke out. According to the son of the complainant such words were used only by appellant No.1 and that too before the beating actually started. According to Arvindbhai-PW4, no specific words were used by either of the accused and foul language without any reference to the Caste of the complainant were used only by Appellant No.1. Thus I find that there is a clear attempt to improvise and to involve the accused in offence punishable under the Atrocities Act. It would be unsafe to base the conviction of the accused under such provision under such circumstances. Their CR.A/23/1992 7/7 JUDGMENT conviction under Section 3(10(10) of the Atrocities Act is thus set aside. 12.Insofar as conviction under Sections 323, 426, 506(2) of the Indian Penal Code is concerned, punishment imposed is only of five days and seven days respectively. The incident took place in the year 1990. The appellants are not stated to be hard-core criminals. They are not stated to have been involved in any other offences. Thus they deserve benefit of doubt. 13.In the result, following order is passed : 1) Conviction of the appellants under Section 3(1)(10) of the Atrocities Act is set aside. 2) Conviction under Sections 323, 426, 506(2) read with Section 114 of the Indian Penal Code is confirmed. They are however, given benefit of probation and they will not have to actually serve out the sentence imposed. 14.With these directions, the appeal is disposed of. (Akil Kureshi,J.) (raghu)