Chandan Singh & Others vs State Of Uttarakhand

R.C. Khulbe, J

Since both the above-named appellants have been convicted by the same judgment and order, hence the present appeals have been taken up

together and are decided by this common judgment.

These appeals, preferred by the appellants u/s 374 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed

against the judgment and order dated 06.01.2010 passed by learned Special Judge, Uttarkashi in Sessions Trial Nos.4/2008 and 5/2008, whereby the

Court below has convicted both the appellants under Section 323 of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and

sentenced each of them for the period already undergone by them. Further, for the offence u/s 3(1)(x) of the SC/ST Act, they were to undergo six

months’ R.I. with fine of Rs.500/-each, along with default stipulation.

Facts, in nutshell, are that PW2 Hukum Lal submitted an application u/s 156(3) Cr.P.C. on 7.08.2007 in the Court of CJM, Uttarkashi, with the

averments that he is a member of scheduled caste and is posted as an In-charge in Govt. Fruit Conservation Center in Tourism Department. His wife

named Smt. Sangeeta runs a juice shop in Gyansu. On 6.8.2007 at 8:45 PM, his wife went home asking him to come back after closing the shop.

While he was in the shop, it began to rain. As soon as he moved for his house taking an umbrella, both the appellants reached there and demanded

umbrella from him. The complainant refused to give the umbrella; on this, both the appellants hurled caste indicative words to him and threatened him

that he and his wife would not be allowed to stay there and then both the accused bent upon to beat him. Appellant Babu @ Virendra Singh pressed

his neck while appellant Chandan Singh beaten him with fists and kicks by which the complainant suffered the injuries.

On that application, learned Magistrate directed for investigation of matter. Accordingly, the FIR was lodged on 8.8.2007 at P.S. Kotwali Uttarkashi

and matter was investigated and on completion of investigation, separate charge-sheets were submitted against the accused.

Learned Special Judge, Uttarakashi accordingly, framed the Charge against the appellants u/s 323 and 504 IPC r/w Sections 3(1)(x) of the SC/ST

Act. The charges were read over and explained to the appellants who pleaded not guilty and claimed to be tried.

To prove its case, the prosecution examined PW1 Dr. P.S. Pokhariyal, PW2 Hukum Lal, PW3 S.I. Madan Mohan, PW4 Jaiveer Lal and PW5

Pradeep Kr. Rai, Dy. S.P.

After completion of prosecution evidence, the statements of appellants were recorded u/s 313 of Cr.P.C. in which they denied the allegations made

by the prosecution.

After appreciating the evidence on record and hearing learned counsel for the parties, the Trial Court, vide the judgment, under challenge, has

convicted and sentenced the appellants, as afore-stated. Feeling aggrieved, the present appeals have been filed.

Heard learned Counsel for the parties and perused the entire evidence available on the record.

PW1 Dr. P.S. Pokhariyal conducted the medical examination on the body of injured and recorded as many as five injuries on his body. According

to him, all the injuries were simple in nature which were possible to have been caused by some hard and blunt object.

PW2 Hukam Lal is the complainant of the case. In his deposition, he has reiterated the version of FIR. According to him, on 6.8.2007 at 8:45 PM,

when he was going to his room after closing the shop, then the appellants reached there in drunken state and demanded umbrella from him. On his

refusal, they began to hurl abuses and caste indicative words to him; Babu pressed his neck while Chandan beaten him with fists and kicks. On the

alarm raised by him, Ranvir, Sunil and one other person, moving from there, came on the spot and intervened.

PW3 S.I. Madan Mohan Bhatt is a formal witness who registered the case and prepared the Chick FIR Ex.Ka-3.

PW4 Jaivir Lal has stated that on the relevant date and time, he reached on the spot after hearing the hue and cry. According to him, the

appellants were holding the collar of PW2 Hukam Lal; however nothing was stated by anyone. This witness was declared hostile.

PW5 Pradeep Kumar Rai, Dy. S.P. Laksar who conducted investigation of the case.

Thereafter, the statements of appellants/ accused were recorded u/s 313 Cr.P.C.

As far as the offence under Section 3(1)(xi) of the SC/ST Act is concerned, it is argued by learned Counsel for the appellants that there is no

evidence on record to convict the appellants under the said offence since at the time of occurrence, no public witness was available on the spot.

Before proceeding further, it needs to reproduce Section 3(1)(xi) of SC/ST Act which is as follows: -

“Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,â€

(i) …………..

(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her

modesty; shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and

with fine.â€​

As per the application given by the complainant u/s 156(3) Cr.P.C., the occurrence took place on 06.08.2007 at 8:45 PM, where both the

appellants hurled caste indicative words to the victim (PW2) and committed Marpit with him.

From the statement of informant PW2 Hukam, at the time of incident, he was raising the alarm and in the meantime, Ranvir Singh, Sunil and one

other person reached at the spot who saved the victim. The prosecution has failed to prove any independent witness, since neither Ranvir nor Sunil

were produced before the Court below. Although, the prosecution has produced PW4 Jaiveer Lal to be the eyewitness but he did not support the

prosecution story, as alleged in Ex.Ka-2. Moreover, the name of PW4 Jaiveer Lal was not disclosed in Ex.Ka-2. The FIR Ex.Ka-3 is also silent about

it.

From a perusal of the FIR, it is clear that at the relevant time, none of the public witnesses were present on the spot. If none was present at the

time of occurrence, then it cannot be said that it was within public view. The words used in sub-section (x) are not ‘in public place’ but

‘within public view’ which means the public must view the person being insulted for which he must be present and no offence on the allegations

under the said section gets attracted. The entire allegations contained in the FIR even if taken to be true do not make out any offence against the

appellants, herein. Thus, it cannot be said that the accused intentionally insulted or intimidated informant and caused aspersion in public place.

Thus, I have reached to the conclusion that the Trial Court did not assess the evidence properly as adduced by the prosecution. On a re-

assessment of entire evidence, I have reached to the conclusion that PW2 Hukum Singh was at all not humiliated in a public view, as is required to

attract the offence within the purview of Section 3(1)(x) of the SC/ST Act. There is no clinching evidence on record against the appellants to hold

them guilty for the offence under the SC/ST Act, and thus, they are liable to be acquitted for the said offence.

Now, insofar as the conviction part of the appellant under Section 323 IPC is concerned, learned Counsels appearing for the appellants fairly

submit that the conviction of the appellants, as recorded by the Court below under Sections 323 IPC is perfectly justified as per the evidence recorded

before the trial court and they also do not want to lay any challenge on the same; they only confined their prayer to the extent that the appellants may

be extended the benefit of being the first-offenders and may be released on probation by giving them the benefit of the Probation of Offenders Act,

1958, since one of them is a government servant who is soon approaching the age of retirement.

Learned State Counsel appearing for the State, admits that he has not received any report about the criminal antecedents of the appellants, and

admitted that appellants are the first-time offenders.

In this regard, the Hon’ble Apex Court in the case of “Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjolâa€ reported in 2001

SCC (Cri.) 2, 897, in paragraph no.7, has held as under:

“7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the

offenders as a useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the

Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or

imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act.â€​

Section 4 of the Probation of Offenders Act, 1958 read as under:

“4. Power of court to release certain offenders on probation of good conduct

When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the

person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the

offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in

force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without

sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime

to keep the peace and be of good behaviour: “Provided that the court shall not direct such release of an offender unless it is satisfied that the

offender or his surety, if 5 any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the

offender is likely to live during the period for which he enters into the bond.

Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in

relation to the case.

When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so

to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during

such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems

necessary for the due supervision of the offender.

The Court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without

sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any

other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or

a commission of other offences by the offender. 5. The court making a supervision order under sub-section (3) shall explain to the offender the terms

and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation

officer concerned.â€​

Section 4 of the Act would demonstrate that if a person is found guilty of having committed an offence not punishable with death or imprisonment

for life, in that event, considering the nature of the offence and the character of the offender, the Court, instead of sentencing him at once to any

punishment, may release such person on probation of good conduct, on his entering into a bond, with or without sureties, for a period not exceeding

three years. Before releasing the offender, on probation, the Court must satisfy itself that offender or his surety, if any, has a fixed place of abode or

regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he

enters into the bond. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court while

releasing on probation may also direct that accused shall remain under the supervision of Probation Officer for a period not less than one year.

A careful reading of Section 4 of the Act would reveal that if the offence is punishable for a period more than 2 years, but not punishable with

death or imprisonment for life, admonition of sentence shall not be required and if person, released on probation, is found involved in any offence

during the period of probation or otherwise, is found behaving in violation of condition of bond, he shall be directed to serve out the sentence awarded

by the court. In other words, while on probation, such person should not involve himself in subsequent offence or must honour the condition of his bond

/ surety bond and if he breaches the same, he has to serve out the sentence awarded by the Court.

In the present case the appellants are the first-time offenders; the incident seems to have taken place 12 years ago; and they are the sole bread

earners in their family.

Therefore, considering the provisions of the Probation of Offenders Act, 1958, in the opinion of the Court, the appellants should be released on

probation in order to reform themselves.

The present appeals, thus, stands disposed of. The conviction and sentence of the appellants u/s 3(1)(x) of the SC/ST Act, as recorded by the

Court below, is hereby set aside in view of the reasons recorded in the body of judgment. Now, as far as the conviction part of the appellants u/s 323

IPC is concerned, the same is maintained. However, as far the sentence part is concerned, it is directed that the appellants shall be released on

probation for a period of six months on furnishing a personal bond and one surety each to the satisfaction of the concerned Trial Court. The Judge

concerned shall be at liberty to impose such conditions while executing the bond which he feels fit in accordance with law. It goes without saying that

if accused/ appellants fail to observe good conduct and behaviour during probation, or are found violating any condition, to be imposed, the Court

concerned shall be at liberty to cancel the bond(s) after calling the accused-appellants and to proceed in the matter in accordance with law. The

appellants shall appear before the Trial Court on 3.01.2020 for compliance.

I further hold that the appellants shall also be entitled to the benefit of Section 12 of the Probation of Offenders Act, which provides that

“notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section

4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such lawâ€​.

Let a copy of this judgment be sent forthwith to the learned Trial Court for information/ compliance.