Dudhram and Others vs State of M.P.

N.K. Gupta, J.—The appellants have preferred the present appeal against the judgment dated 30.9.2002 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act Seoni in Special Case No. 45/2001 whereby each of the appellant has been convicted of offence under Sections 452, 323/34 (5 counts), 506(II) of IPC and Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act (hereinafter referred to as "Special Act") and sentenced to one year''s RI with fine of Rs. 100, one year''s RI, one year''s RI and one year''s RI with fine of Rs. 500/- respectively.

The prosecution''s case, in short, is that on 29.8.2001 at about 9:00 AM Sakaram (PW-12) was present in his house at Village Chikhli (Police Station Amarwada District Chhindwara). The appellants along with so many persons came to the spot in search of Sukhram (PW-4). However, Sukhram was not present in his house, and therefore on shouting of the appellants, Sakaram came out of the house and then the appellants assaulted him. When various victims like Sudama Bai, Jethu, Narayanwati Bai and Jay Kumkar had intervened, the appellants had also assaulted them. The appellants had also given a threat to them. Sakaram went to the Police Station Chhapara and lodged an FIR Ex.P-17. He had also mentioned in the FIR that the appellants were abusing the victims with the words relating to their caste. The victims were sent for their medico legal examination. Dr. D. Banerjee (PW-7) examined Sudama Bai, Jethu and Narayanwati Bai and gave his report Ex.P-3 to P-5. He found simple injuries to them. Dr. R.K. Vishwakarma (PW-14) examined Sakaram and Jay Kumar and gave his report Ex.P-18 and 19. He also found simple injuries to these two persons. After due investigation, a charge sheet was filed before the JMFC Seoni, who committed the case to the Special Court.

The appellants-accused abjured their guilt. They took a plea that they were falsely implicated in the matter. On the previous day of the incident, Sukhram and Dhyani assaulted one Dudhram and to counter that case, a false report was lodged against the appellants. In defence Barati (DW-1) and Head Constable Ganaram (DW-2) were examined.

The trial Court after considering the evidence adduced by the parties, convicted and sentenced the appellants as mentioned above.

I have heard the learned counsel for the parties.

Witnesses Jay Kumar (PW-1), Sudama Bai (PW-2), Narayanwati Bai (PW-3), Balram (PW-5), Hirpa (PW-6), Jethu (PW-10) and Sakaram (PW-12) were examined as eye-witnesses. Out of them, Balram has turned hostile. All the witnesses have stated that the appellants along with 200 persons were searching Sukhram (PW-4). Sakaram went out of his house on hearing the noise and thereafter the appellants started assaulting the victims. None of these witnesses have stated that those 6-7 victims were assaulted by the appellants in the house. If the spot map Ex.P-16 is perused, in which it is mentioned that except Sakaram, all other victims had sustained injuries at place "F" in the map Ex.P-16, which is an open place, whereas Sakaram has admitted that on hearing shouting, he came outside. It was not possible for 200 persons to go inside of the room of Sakaram, therefore there is no evidence that the appellants entered in the house of either Sakaram or Sukhram. The trial Court has committed an error in convicting the appellants of offence under Section 452 of IPC.

Similarly, the witnesses who sustained the injuries have stated about the incident. They did not say that the appellants gave any threat after the incident. If it is presumed that the appellants gave any threat for future, then these witnesses who were examined before the trial Court after approximately 4-6 months of the incident, did not say that the appellants executed their threat thereafter. Hence, the prosecution could not prove that any threat was given by the appellants and if it is presumed that it was given, then it does not fall within the purview of criminal intimidation. Hence, the appellants could not be convicted of offence under Section 506(II) of IPC. The trial Court has committed an error in convicting the appellants for such offence.

Similarly, Sakaram (PW-12) has stated that the appellants were abusing him with the words related to his caste, but Jethu (PW-10) has stated that the appellants were abusing with filthy language. He did not say that they abused Sakaram with the words related to his caste. Similarly, Sudama Bai, Narayanwati Bai, Hirpa etc. did not state that the appellants uttered any word relating to the caste of Sakaram, and therefore in absence of any corroboration, the testimony of Sakaram cannot be accepted that he was being abused with the words relating to his caste. If the entire defence case as well as the prosecution story along with admission done by the various witnesses is considered, it appears that the appellants were searching one Sukhram (PW-4), who was the culprit of crime committed by him in the previous evening with one Dudhram, and therefore the present quarrel took place in revenge of previous incident. The quarrel did not take place on the basis of caste of the complainant. Hence, the prosecution could not prove beyond doubt that the appellants had caused any insult of the victim Sakaram on the basis of his caste. The trial Court has committed an error in convicting the appellants of offence under Section 3(1)(x) of the Special Act.

After considering the evidence of Jethu, Narayanwati Bai, Sudama Bai and Sakaram along with timely lodged FIR Ex.P-17 and the medical reports Ex.P-3 to P-5 proved by Dr. D. Banerjee (PW-7) and the medical reports Ex.P-18 and P-19 proved by Dr. R.K. Vishwakarma (PW-14), the testimony of the complainant is acceptable that the appellants had assaulted the victims by sticks causing them injuries.

It is true that the previous incident was done by Sukhram in the previous evening and the appellants were in search of Sukhram. However, due to that previous incident, they did not have any right of private defence nor any sudden or grave provocation was there so that the appellants could have assaulted the victims specially when Sukhram was not present in the house. The appellants assaulted the victims without any right of private defence and without any sudden or grave provocation. After one assault, they could know the result of that overt-act, but they continued in beating the various victims, and therefore it is established by the evidence that the appellants have voluntarily caused hurt to five victims, and therefore the trial Court has rightly convicted the appellants for five count charges under Section 323 of IPC.

So far as the sentence is concerned, each of the appellant was the first offender, who remained in the custody for ten days during the trial. They have faced the trial and appeal for last 13 years. Under such circumstances, the submission made by the learned counsel for the appellants may be accepted that the appellants may not be sent back to the jail again, but it would be proper that an appropriate fine be imposed upon the appellants for each count charge under Section 323 of IPC.

On the basis of the aforesaid discussion, the present appeal filed by the appellants is hereby partly allowed. The conviction and sentence imposed by the trial Court against the appellants for the offence under Sections 452, 506(II) of IPC and Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act are hereby set aside. They are acquitted from the aforesaid charges. However, their conviction of offence under Section 323 of IPC (5 counts) is hereby maintained, but their jail sentence is reduced to the period for which they remained in the custody by imposing fine of Rs. 400/- upon each of the appellant for each count charge of Section 323 of IPC. Hence each of the appellant has to deposit a sum of Rs. 2000/- before the trial Court. It appears that each of the appellant has deposited a fine of Rs. 600/- before the trial Court, and therefore it is directed that a sum of Rs. 1400/- be deposited before the trial Court within two months from today, failing which each of the appellant shall suffer for three months'' RI. If fine is deposited, then each of the injured like Sudama Bai, Narayanwati Bai, Jethu, Sakaram and Jay Kumar shall receive a sum of Rs. 1000/- as compensation.

At present the appellants is on bail, and their presence is no more required, therefore it is directed that their bail bonds shall stand discharged.

A copy of this judgment be sent to the trial Court along with its record with a direction that if fine is not deposited within the stipulated period, then recovery be done as per the provisions of Section 68 of IPC.