Appellants HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKAR.. J Criminal Appeal No. 43 of 2003 Fakhruddin Solanki Respondent Vs. The State of Chhattisgarh. POST FOR PRONOUNCEMENT OF JUDGMENT Sd/- JUDGE J^9-2009 Sd/- R.N. Chandrakar Judge '*•*': t'.'fe 'A HIGH COURT OF CHHARTTISGARH AT BILASPUR S.B:- Hon'ble Shri Justice R.N.^handrakar ^ Appellant Criminal Appeal No. 43 of2003 Fakhruddin Solanki, S/o Bashiruddin Solanki, aged 25 years, R/o Ganjline, Ward No.26, Rajnandgaon, Infront of Purani Ganj Mandi, Rajnandgaon (CG) ?-., Respondent Versus State of Chhattisgarh (Appeal under Section 374 (2) of Code of Criminal Procedure, 1973) Present: Shri V.C. Ottalwar, counsel for the appellant. Shri Sameer Behar, Panel Lawyer for the State. JUDGMENT (Delivered on this2^idayofSeptember, 2009) This appeal is directed against the judgment of conviction and order of sentence dated 10.12.2002 passed by the learned Special Judge, — Rajnandgaon (CG) [constituted under Scheduled Castes and Scheduled Tribes ^ (Prevention of Atrocities Act, 1989)] (hereinafter referred to as the 'Act') in special case No.51/2002, whereby the appellant has been convicted under Sections 294 and 323 of IPC and seritenced to undergo R.l. for three months on each count. Both the sentences are directed to run concurrently. (2) The case of the prosecution, in brief, is that on 05.05.2002, at 4 o'clock in the evening, complainant Milind Kumar, PW-1 along with Samlu had gone to purchase chicken in Dongargaon bazaar in the shop ofManoj, PW-2 where — accused/appellant Fakhruddin came to the complainant Milind Kumar, PW-1 and demanded previous balance of Rs.60/- on which, comptainant Milind @ Kumar told him that he would pay the money later on. On this, the appellant- Fakhruddin abused the complainant Milind Kumar by using filthy language and assaulted him by fist blows. Milind Kumar sustained injuries on hisface, right hand and right leg. The incident was seen by the eye witnesses namely ^ Manoj (PW-2), Suresh Kumar Dewangan (PW-3) and Shyam Sunder Lautre (PW-5). F.I.R. was lodged at PoliceStation Dongargaon, Distt. Rajnandgaon vide Ex.P-1. The complainant Milind Kumarwasexamined by Dr. Ram Teke, PW-6. Spot map was prepared and caste certificate was seized vide Ex.P/4. (3) After completion of investigation, learned Special Judge framed charges against the accused/appellant under Sections 294 , 323 , 506 (part-11) of the IPC and under section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989. After recording the evidence of witnesses, the statement of the accused/appellant was recorded under Section 313 of Cr.P.C in which, he denied the circumstances appearing against him and pleaded innocence and false implication. The learned Special Judge, after due trial, convicted and sentenced the accused/appellant as aforementioned in para-1 ofthejudgment. (4) At the outset, learned counsel for the appellant submits that he does not want to press on the point of conviction under Section 323 of IPC. However, he prays that the appellant was detained in jail for three days and the sentence _ of three months awarded under section 323 may be modified to the extent of fine amount in view of the facts and circumstances of the case. So far as the conviction under Section 294 is concerned, he submits that the learned trial Court has failed to appreciate theevidence in its proper legal perspective. The conviction recorded and sentence awarded bythe learned Special Judge under Section 294 of the IPC is contrary to the facts available on record. Therefore, the accused/appellant beacquitted ofthe charge under Section 294ofthe IPC by setting aside the conviction. (5) Per contra, learned Panel Lawyer for the State argued in support of the impugned judgment. (6) Having heard learned counsel for the parties, 1 have perused the record ^ofthe Special Court as also the impugned judgment. (7) The prosecution in order to prove the guilt against the accused, examined six witnesses. (8) Complainant Milind Kumar (PW/1) stated in his deposition that on 05.05.2002, when he had gone to purchase chicken from the shop of Manoj (PW-2), at that time, the accused/appellant reached there and demanded previousbalance of Rs.60/- on which he told that he would pay the money later on. The accused abused and assaulted him by hand. Manoj (PW-2) and Suresh Kumar Dewangan ( PW-3) also corroborated the statement of Milind Kumar (PW-1) , the complainant. Dr. Ram Teke (PW-6) also corroborated the statement of Milind Kumar (PW-1) and stated that he examined Milind vide Ex.P-5 and found some simple injuries over his body. — 9) So far as the offence under Section 294 of the IPC is concerned, it is admitted fact that the dispute between the complainant and the appellant arose as there was previous balance amount of Rs.60/- lying with the ^ ' complainant and this fact was admitted by all the witnesses. The allegation that the appellant hurled filthy abuses to the complainant is not corroborated by v any of the witnesses as is apparent from the statement of PW/2 Manoj who turned hostile and changed his version twice before the Court. It is also apparent that he is the material witness of the incident as the incident took —placein his shop. PW/3 Suresh Kumar Dewangan has also not corroborated the version of complainant and denied to hear any filthy language used by the appellant. PW/4 Durgesh Kumar Sonteke is the real brother of the complainant who was not present on the spot. Thus, in view of the statement of the aforesaid witnesses, it is found that the testimony of the complainant is not corroborated by the material witness PW/2 and anotherwitness Samlu with R ^^ whom the complainant had gone to purchase chicken in the shop of PW/2 Manoj, was not examined by the prosecution. 10) Thus, in view of the aforesaid, l am of the opinion that the prosecution failed to establish the offence under Section 294 of the IPC against the appellant but succeeded toprove the offence under Section 323 of the IPC. Considering all the facts and circumstancesof the case, the ends of justice would be served if the sentence of Rl for three months imposed on the appellant under Section 323 of the IPC is modified to the extent that the appellantshall deposit fine of Rs.2000/-,in default of payment of fine to undergo Sl for three months, while maintaining the conviction. Ordered accordingly. 11) Accordingly, the appeal is partly allowed to the extent indicated above. The impugned judgment is set aside and the appellant is acquitted of the charge under Section 294 ofthe IPC. His bail bonds shall stand discharged. Raju Sd/- R.N. Chandrakar Judge