,."^ -f 'r'.^; HIGH COURT OF CHHATTISGARH AT BILASPUi RESPONDENT [S&Hon' Ir.T.P.Sharma.J.I 2- VERSUS Bansi Laf Kewat son of Perdesi Kewat. -F^/ta'*a/4 -^^^/^i ^4a ^^S s.?^*t-^^^ uycu eiwwui. ^,»rf y<;^j^, Javnandan Kewat son of Lakhan Ram i^<^°.<^'"^* •^i.rsi^i^ -^i^/^a s^ '5^ ^. f.," »ia'*.?- »\.<;uv&tt, atyCr'hi <M)i^'^utt, A,*^ YCr«i»», Saniav Kunar son of Madan Lal Kewat. *-a-n"/^-"l ^-a^/»s'4 "^r^ i i.—. •rS"" ciy^su aw</u>. ^^/ yt;ciiD, All residents of viilaae Pakariva. Po'ice G.^^-i%'s^y> •il^lfctdlUI i .L'^tt-ir^ ts\&«iu.iic* r^^^E'E,"*' l^i^u 'i'^i •i^G*i ij^l] ChamDa, uu State of Chhattisgarh through Potics •S.^''~i^i,^yt si,.'^a3liUi) &l-'?>!^r^ r^1^:*Irli^f !:^i"-i/ui r'-.r^&iiLsAit.i, i-;i>Sj.i iauii. usi:ijyi cnampa (UU] Mr. M-K. Baea counse! forthe aoDeiiants. ft^" D^^L-^S ^|i>s'Si3'-p~4-3a-t-; C3! -?/ir +ha y^i-ls~^n--^^^^.f^;^-2'i's ivii. r'tdiiivsaj Oiiit'v'ciofcdvd f~L- i^i U io i ^.^WUs ]Us;i'^^tcat.'o. CRIM'NAL APPEAL SECTION 37412S OF T CODE OF CRIM1NAL @@f^^isrt! IOES r"r\.;<-rWE;i^uli"\.£-. /-54 -i^ '>-"niS\ \s.. 's . iu.A.Wj-^/ The aDDeliants have oreferrsd this aDpesi aaainst the judgment of conviction and order of sentencs dated 18.8.2006 oassed bv the Speciai Judae. BiiasDur. in Special Case No. K-23/2006 convicting eac'n of them for the offences ounishabie under Sections 294 and 325/34 of the Indian Penal Code and 3 flVIOt ofthe Scheduied Caste and Scheduled Tribe (Prevention of Atrocities) Act. 1989 (for short the "Act") and sentencina to undergo riaorous imDrisonmsnt for three months u/s 294 and rigorous imprisonment for one vsar and fine of Rs. 500.00, m defauit Rl for one month u/s 325 IPC and rigorous imprisonment for six months with fine of Rs. 500.00, in defauit Rl for one month u/s 3 f.i} (10) ofthe Act. 5 ^ S-idSg^SBS. 2. Judament is chalSenaed on the around that in the absence of anv evidence aaainstthe accused/aDDeliants reaardina commission ofthe offence Dunishabie under the Act and also for causina injuries to the comDJainant. the trial Court has committed an ilSeaaiitv in convictina and sentencjna them as mentioned above. 3- Case of the Drosecution in brief is that on 7.11.2005 at about 8 D.m. the accused oersons came near the house of comDlainant Jaadish Gond belonging to scheduled tribe communitv, started huriing abuses and used the word "Mather Chod Sale Goncf and assauited him with c.'ub. Thereafte* written re.oort was lodaed bv the comDla'nant and based on that F!R Ex- P-1 was recorded. Caste certificats was seized vide Ex. P-2: s"ot mao Ex. P-3 was oreDared. ComDia'nant was medicaltv examined bv Dr. (Smt.) Lalita TODDO fPW-8) who vjde reoort Ex. P-8 found one lacerated wound in the size of 3 x % c.m. over frontal reaion. multiDle bruise on the left thiah and muitirie bruises on knee. Swellina and tenderness was also oresent. On radiobaical examination. fracture of left fibuia was also notlced vide Ex. P-7. One club was seized from accused Bansi vide Ex. P-S. 4. After recQrdina the statements of the witnesses under sectlon 161 of the Code of Criminal Procedure and after comDietion of investiaation. charge sheet was filed in the Court of Special Judge, Biiaspur where the triat began. 5. In order to establish the auilt ofthe accused/aDpellants the Drosecution has examlned as manv as 11 witnesses. Statements of the accused/aDDellants were a!so recorded under section 313 of the Code of Criminal Procedure in which thev denied the materia! aDDearina aqainst them in the Drosecution case and o.1eaded their innocence and false implication in the case. Thev also examined one witness Mano' (DW-1) in their defence vho has stated that brother of the comDlainant had soid one cycle to the father of accused/aDDGllants and after 3-4 months therefrom, when he tried to c^ -3 take back the cycte forciblv. father of accused stooised him from doina so and then some quarrel between them eruoted. On the next dav comDlainant havina lathi went to ths house of accused Dersons in a drunken state and started abusina them. While wife of the comDiainant was takina him home. he felt down on the wav and received iniuries. 6. After qivina opportunitv of hearina to the Darties. leamed trial Court convicted and sentenced the accused/aDDeilants as mentioned above 7. Heard counsel for the Darties and oerused the materia! avaiiabte on record inciudina the iudament imDuaned. 8. Learned counsel for ths accused/aDDellants submlts that the Drosecution has not adduced anv evidence to the effect that the accused/aDDellants assauited the comDlainant and caused simDte or arievous iniuries to h'm. and committed the offence Dunishable under section 3 f1)f101 of the Act- He also araued that on account of inimical relation between the accused and the comDta'nant. thev have been falselv imDiicated in the case. Thouah the inluries sustained bv the comDiainant are not disDuted vet !t is submitted that thev have been caused due to fall while beina taken home bv his wife. 9. ComDiainant - Jaadish (PW-1) has stated in his evidence that on the date of incident. he received iniuries over his head and iea as a result of which he became unconsclous- Wife of comolainant Uttra Bai (PW-2) has also suoDorted the sta+ement ofcomDialnant. Dr. ?Smt.) Laiita Toppo (PW-6) who medicallv sxamined the compiajnant on 7.11.2005 has stated in her evidence that she notlced one lacerated vi'ound in the size of 3 x % c.m- over frontal reaion. multiD'e bruise on the ieft thiah and knee. Swelling snd tenderness was atso Dresent. Dr. Sanjav Kumar (PW-5) has stated in his evidence that on 8.11 .2005 he took X-rav of Jaadish and vide report Ex. P-7 -4 'eafsiSsgli^ 'S^c^Tyi^''" noticed the fracture of left fibula. Thus from the aforesaid evidence it 's established that the complainant had received simDle and arievous iniuries at the time of incident. 10. As far as compiicity of the accused persons in the crime in question is concerned. ocular and medica' evidence has been adducsd bv the Drosecution. Jaadish Gond fPW-11 has stated in his evidence that on the date of incident at about 6-30 D.m. alt the accused oersons were usina abusive lanauaae in front of his house and thev used the word "Matherchod Gondwa". Comolainant belonas to Scheduled Caste cateqorv. Accused oersons assaulted him with club over his head, lea and as a result of that he became unconscious. Thereafter. he was shifted to the Dolice station on the motorcvcle of one OmDrakash. The evidence ofthe comDlainant is suDDorted by his wife (PW-2) Uttara Bai who stated that the accused persogs used the filthv lanauaae in the name of "mother and sister". she asked the them not to do so. and when her husband came out. all ofthem assaulted him with ciub. hands and fists. Padma Bai (PW-3) and Netram Ganae (PW-4) have not suDDorted the case of the Drosecution and have been declared hostile. ComDlainant has not stated in his evidence that whv the accused picked UD auarrel and assaulted him. He has stated that the accused persons insulted him on the around of his belonaina to the scheduled tribe categon/ and used the word "Matherchod Gond" 11. In order to establish the charge of using obscene ianguage, the Drosecution is reauired to orove that the accused/aDDellants did any obscene act in the Dublic place with a view to cause annovance of others- In the absence of anv literarv meanina of the aforesaid word. it is difficult to hold that the aDDellants used anv filthv or obscene language at the time of incident By adducina the evidence of Manoi (DW-1) the aDDel!ants have tried to show that the comDlainant came in a drunken state. he fell down on the wav and -~0 - sustained injuries. However, the complainant has not admitted this suaaest'on made to him bv the apDe!lants. Moreover. he denied the consumDtion of liauor at the time of incident. 12. The incident took place on 7.11.2005 at about 8 D.m. and the doctor examined the comD!ainant on the same dav at 10.30 D.m. i e. within two and haff hours of the incident but nothina is mentioned in the reoort of the doctor whether the comDlainant had consumed liauor which couid neaative the defence of the accused oersons. Statement of the comDiainant is suDDorted bv the wife of the complainant Uttara Bal fPW-2) who was an evewitness to the incident. Doctor examinina the comolainant has found simDle and arievous iniuries on his bodv- Thus ths statement of the comDtainant suDDOrted bv the ocular and medical evidence insoires confidence After aDDreciatina the evidence available on record !earned trial Court has convicted the accused/aDDellants under section 294. 325/34 IPC and section 3(1)(10)oftheAct- 13. As reaards conviction under section 294 IPC and 3 (1WO) of the Act. the Drosecution has not adduced anv evidence to show that the aDDellants used the abusive lanauaae at a Dublic olace and committed the offence aaainst the member of the Scheduled Tribe communitv on the ground of caste. tn the absence of anv such material the conviction and sentence under section 294 IPC and section 3 f1) (10) ofthe Act. is not sustainable in the eve of !aw. 14. Material col!ected bv the Drosecution aaainst the accused/aDDetlant Is sufficient to draw an inference that in sharina common intention the accused/aDDeltants caused simDle and arievous iniuries to the comDlainant at the time of incident and committed an offence Dunishable under section 325/34 IPC. Thus the conviction under section 325/34 IPC does not call for anv interference by this Court. BF?'iTTr""T'?Trw'T'TTT' \v£Ks^ywi- ' c- 15. It is submitted by the counse! for the apDellants that one arievous iniurv is said to be caused bv the three accused oersons and Ihat thev were in custodv during trial for 1 1 davs. ADDellants No. 1 and 2 are in custodv since 9.9.2008 i.e. for about one month and 24 davs and aaain sendlna them to jaii would not serve any useful purpose, therefore, the sentence already underqone bv them with the enhancement of fine would meet the ends of iustice. 16. Prosecution has not adduced anv evidence reaardina their Drevious conviction. All the apDellants are in their twenties and at this staae no usefu! ouroose would be served in again sendina them to iail. Accordinaly. the aDDeal 's Dartlv allowed. Conviction and sentence under sectlons 294 !PC and section 3 f1) f10) of the Act are set aside. Convjction under section 325/34 IPC is however mainiained- ADDellants are sentenced to the oeriod alreadv underaone bv them. Thev are directed to pav fme of Rs. 3000.00 each. in default. thev shall R! for six months. The fine amount of Rs. 500.00 Daid bv each of the aDDellants shall be adjusted towards the fine amount for the offence under section 325/34 IPC. Remainina amount shali be oaid bv the aDDellantswithin 10 davs from todav. 17. ADDeat is thus Dartlv allowed. Sd/. T-fiSAaro,a Judge