CRIMINAL APPEAL 23/2005 on 8 August 2005

JUDGMENT

This Criminal Appeal has been filed under Section 374(2) of theCr.P.C. being aggrieved by judgement dated 08.08.2005 passed bySpecial Judge, SC & ST (POA) Act, 1989 Mandla District-Mandla(M.P.) in Special Case No.23/2005 whereby the appellant-accused hasbeen convicted under Sections 294 of I.P.C. and sentenced to undergoR.I. for 1 months, Section 325 of the I.P.C. and sentenced to undergoR.I. for 9 months and Section 3(1)(X) of SC and ST (POA) Act andsentenced to undergo R.I. for 6 months and fine of Rs.500/- withdefault stipulations of 1-1/2 months additional rigorous imprisonment.

2. The facts in brief are that appellant-accused was prosecuted underSection 325, 447, 294, 506-B of I.P.C. and Section 3(1)(X) of SC andST (POA) Act, 1989 regarding the incident towards victim GomtibaiPandru (PW-5) on 06.05.2005 at 6 pm in village Raigaon, P.S.Mohgaon, District - Mandla in which appellant-accused hurledobscene words in public place which caused annoyance to the victimby threatening to kill her caused voluntary grievous injuries and notbelonging to SC or ST category insulted or intimidated the victimbelonging to Scheduled Tribes category committing criminal trespassregarding which an F.I.R. of crime No.1/05 was registered at PoliceStation AJAKMandla.

3. Appellant-accused abjured guilt and prosecution examined thevictim Gomitbai (PW-5), witness Munni Bai (PW-1), Bhaiya Lal (PW-2), witness Amola Bai (PW-3), Sahaj Kumar (PW-4) Dy. S.P. I.R.Aazmi (PW-6), Medical Officer Dr. A. Hussain (PW-7), Dr. KarunaMaskole (PW-8), witness Lalta Prasad (PW-9) and Inspector G.P.Dubey (PW-10). Defence examined Kamod Prasad (DW-1), Ghanshyam (DW-2) and advanced the defence that victim (PW-5)sustained injury when she was handling her goat and falsely implicatedthe appellant-accused only to get compensation under SC and ST Act,1989.

4. Appreciating the prosecution witnesses, Trial Court acquittedthe appellant-accused from the charges of Sections 447, 506-B ofI.P.C. and convicted under Sections 294 and 325 of I.P.C. and Section3(1)(X) of SC and ST (POA) Act, 1989 recording the finding that it isproved that appellant-accused does not belong to SC or ST categoryand victim (PW-5) belongs to the Scheduled Tribes category andappellant-accused caused voluntary grievance injury to her andaddressed her with caste to insult or humiliate her.

5. Challenging the conviction and sentence, this appeal has beenpreferred on the ground that the testimony of prosecution witness isfull of contradictions, omissions and improvement and is notcorroborated with the medical evidence. Trial Court has convicted theappellant-accused holding the victim belonging to caste Gond whereasshe does not belong to Gond. Such serious sentence is not warranted inthis case.

6. Heard learned counsel for the parties.

7. Learned public prosecutor has supported the conviction andsentence.

8. Perused the record.

9. Para-12 of the judgment discloses that the victim PW-5 ismarried to Brahman Mishra (PW-4) and para-13 of the judgment

discloses the circumstance of incident that victim (PW-5) run a groceryshop in the village and appellant-accused demanded 100 gram oil andBidi match box on credit. Victim (PW-5) denied to give that items oncredit to appellant-accused. Addressing the victim (PW-5) Godaniyauttered abusive words and pushed the victim due to which injury wascaused in the right leg of PW-5 and slapped her on chest regardingwhich a report was lodged with husband. Husband of victim is PW-4which admits in para-8 of his testimony that his wife has lodged anFIR against him under Section 376 of I.P.C. also and that report waslodged after his marriage with the victim (PW-4) and on this basis it isargued that elements of caste has been added falsely only to get thecompensation because the victim has received the amount ofcompensation even in the rape case that she had lodged against herhusband.

10. Trial Court in paras-8, 13, 14, 15, 16, 19, 20, 21, 23 and 24has discussed the evidence regarding the words used at the time ofincident but did not discuss the above evidence. When we consider thematter from facts mentioned in paras-8, 13, 14, 15, 16, 19, 20, 21, 23and 24 then it is not proved that the incident of this case was happenedto insult or intimidate the victim (PW-5) or appellant-accused utteredthe words that caused annoyance to the victim (PW-5) or any personpresent at that place. Findings of Trial Court convicting the appellant-accused under Section 294 of I.P.C. and Section 3(1)(X) of SC and ST(POA) Act, 1989 cannot be sustained.

11. Testimony of victim (PW-5), Medical Officer Dr. A. Hussain(PW-7) and Dr. Karuna Maskole (PW-8) proved that victim sustainedfracture in the lower part of fibula bone of her right leg and testimony of Bhaiyalal (PW-2), Smt. Amola Bai (PW-3), Lalta Prasad (PW-9)proved that the injury of PW-5 was caused when appellant-accusedpushed the victim (PW-5) on 06.01.2005 at 6 pm. The finding of TrialCourt recorded in para-54 regarding causing voluntary grievousinjuries to victim are on proper appreciation of the prosecutionevidence.

12. In this case, appellant-accused has suffered a period ofcustody of 28 days. Appellant-accused has no criminal antecedents andcircumstances in which the incident happened taken together entitleshim to extend the benefit of Section 4 of Probation of Offenders Act,1958 for the offence under Section 325 of I.P.C.

13. Looking to the nature of the incident, having regard to thefacts and circumstances of the case and the character ofappellant/accused, it is expedient to release him on probation of goodconduct under section 4 of the Probation of Offenders Act, 1958.

14. This appeal is partly allowed and appellant-accused isacquitted from the charges of Section 294 of I.P.C. and Section 3(1)(X)of SC and ST (POA) Act, 1989 and his conviction under Section 325of I.P.C. for causing grievous injury voluntarily to victim (PW-5) bypushing on 06.01.2005 is affirmed. The finding of the trial courtregarding the sentence is modified and instead of sentencing theappellant-accused at once it is directed that appellant-accused bereleased on bail entering into bond with surety of Rs.20,000/- (RupeesTwenty Thousand Only)to the satisfaction of the trial court within aperiod of 90 days to appear and receive sentence when called upon by HK

the trial Court during a period of 3 years and in the meantime to keepthe peace and be of good behavior.

15. Under Section 5 of Probation Of Offenders Act, 1958appellant-accused shall also pay Rs.5,000/-(Rupees Five ThousandOnly) to Gomtibai (PW-5) as compensation for the injury suffered forthe commission of offence. The appellant-accused shall deposit thecompensation amount within 90 days failing which the said amountshall be recovered from appellant-accused in accordance with law. Theamount of fine deposited by the appellants-accused before the trialcourt shall be adjusted towards in amount of compensation.

16. With the aforesaid, the criminal appeal is disposed off.

(GAJENDRA SINGH)JUDGE