Mohd. Azad & Another vs State Of Madhya Pradesh

This criminal appeal has been preferred against the impugned judgment dated 13/02/2009 passed by Special Judge, Shahdol in Special Case No. 46/2006 whereby appellant no.1 Mohd. Azad has been convicted under Sections 327, 323, 294 read with section 34 of the IPC and under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentenced to 6 months R.I with fine of Rs.500/-, 3 months R.I with fine of Rs.250/-, 3 months R.I with fine of Rs.250/- and 6 months R.I with fine of Rs.500/- respectively with default stipulations and appellant no.2 Smt. Mamta Soni has been convicted under sections 327, 323, 294 read with section 34 of the IPC and under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentenced to 3 months R.I with fine of Rs.250/-, 1 months R.I with fine of Rs.150/-, 1 months R.I with fine of Rs.150/- and 6 months R.I with fine of Rs.500/- respectively with default stipulations with direction that all sentences shall run concurrently.

The prosecution case, in short, is that on 15/03/2006 near about 7 PM in front of Banarasi hotel situated in village Basantpur, police station Amlai, District Shahdol, complainant Pawan Kol (PW-1) and his brother Lalit (PW-2) went to meet their familiar person on the occasion of holi, where accused persons were present and demanded money for purchasing of liquor. When Lalit said that he had no money, the accused person abused them and quarrel were taken place, in which appellant no.2 Smt. Mamta went to her home and brought a sword and handed over to appellant no.1 Mohd Azad stating that the complainant belong to Kolwa caste and pose himself as "dabang", so teach the lesson, then appellant no.1 Mohd Azad assaulted the complainant with sword on his head and he fell down and his brother Lalit came to intervene to save him, then appellant no.1 Mohd Azad also assaulted him and using filthy language threatened them that if they come in future he will cut them into pieces and also asked that they belong to Kol caste, they should live like a Kol. Accordingly humiliated on the basis of caste they belong. About the incident FIR Ex.P-1 was registered at crime No.69/2006 against the appellants and after medical examination of the injured persons and completing other formalities of investigation, the charge sheet was filed before the JMFC, Shahdol and case was committed to the Special Judge (Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and learned Trial Court on the basis of statements of complainant Pawan (PW-1) and his brother Lalit (PW-2) and other eye witnesses Sunder Bega (PW-3) and Lala Gupta (PW-4) and Dr. K.K Gautam (PW-8), who examined Pawan (PW-1) and Dr. D.J Mohanti (PW-5), who examined Lalit (PW-2), convicted and sentenced the appellants / accused persons as mentioned above.

The findings of the learned trial court have been challenged on the ground that learned trial court has not appreciated the evidence in right prospective. Eye witnesses Sunder Bega (PW-3) and Lala Gupta (PW-4) has not stated that the incident was taken place on account of demand of money for purchasing liquor. Therefore conviction under section 327 of the IPC can't be said to be proved beyond the reasonable doubt. It also appears from the evidence that on the eve of Holi, the complainant party and accused Mohd Azad were under the influence of liquor and quarrel has taken place because complainant party were creating nuisance and violence. Therefore appellant no.2 Mamta assisted appellant no.1 Mohd Azad providing him sword. Accordingly, her intention was not to cause injury voluntarily to the complainant party, therefore, appellant no.2 Mamta can't be convicted for any offence. Further submitted that the conviction under section 3(1)(x) of the SC/ST Act is concerned, the prosecution has failed to prove the fact beyond the reasonable doubt that the accused persons intentionally insulted or intimidated with intent to humiliate the complainant who belong to Scheduled Tribe community.

Learned counsel for the appellant further submitted that in this case appellant no.1 Mohd Azad had served the complete period of sentence and released from the jail on 02/08/2017. So far appellant no.2 Smt. Mamta is concerned, she is lady and hardly she can be punished under section 324 read with section 34 of the IPC for which jail sentence is not mandatory and she is facing this prosecution since 2006 and it is her first offence, hence she be released on probation.

Learned GA refuted the aforesaid contention and submitted that the prosecution has established the charges beyond the reasonable doubt, hence the appeal be dismissed.

Having considered the contention of learned counsel for the parties and on perusal of the record, it is found that in the incident complainant Pawan Kol (PW-1) and his brother Lalit (PW-2) have sustained simple injuries at the time of incident as proved by the statements of Dr. K.K Gautam (PW-8) and Dr. D.J Mohanti (PW-5). The testimony of the complainant Pawan Kol (PW-1) and his brother Lalit (PW-2) corroborated by other eye witnesses Sunder Bega (PW-3) and Lala Gupta (PW-4). The aforesaid injuries were caused by appellant no.1 Mohd. Azad and he also assaulted complainant Pawan with sword and caused incise wound on him. Therefore appellant no.1 Mohd Azad is prima facie responsible for causing the incise wound to complainant Pawan (PW-1) with sword and also responsible to cause injury to Lalit (PW-2). Pawan (PW-1) and Lalit (PW-2) have also stated that they were beaten because they refused to pay the amount, which was demanded by appellant no.1 Mohd. Azad for purchasing the liquor but this statement is not trustworthy as eye witness Sunder Bega (PW-3) who claimed to be present at the time of incident and Lala Gupta (PW-4), who was also present, have not stated that before them appellant no.1 Mohd. Azad demanded money for purchasing liquor, hence it can't be held that appellant no.1 Mohd Azad beaten the complainant and his brother for extracting the money and his conviction should have been modified under section 323 and 324 of IPC.

So far involvement of appellant no.2 Smt. Mamta in the aforesaid incident is concerned, Pawan (PW-1), Lalit (PW-2), Sunder Bega (PW-3) and Lala Gupta (PW-4) have categorically stated that during the incident co-accused Mamta brought sword from her house and handed over to accused Mohd. Azad to facilitate him to cause injury with the weapon. Therefore, it is established that appellant no.2 Mamta share common intention with appellant no.1 Mohd. Azad to cause injury with sword to the complainant, hence with the aid of section 34 of the IPC she is also liable for commission of offence punishable under section 324 of the IPC.

So far injury caused to Lalit (PW-2) by appellant no.1 Mohd Azad is concerned, no role has been assigned to appellant no.2 Mamta, therefore, she can't be convicted under section 323 read with section 34 of the IPC.

All the aforesaid witnesses have stated that the appellant/accused persons abused the injured persons by using filthy language at the public place, which annoyed them. Therefore, both the appellants have committed offence punishable under section 294 of the IPC and their conviction can be upheld.

So far conviction under section 3(1)(x) of the SC/ST Act is concerned, the prosecution has proved that complainant Pawan and Lalit belong to the scheduled tribe community. In this regard certificate Ex.P-11 and Ex.P-12 issued by competent authority have been proved and it is admitted fact that the appellant/accused persons are not the member of SC/ST community. Pawan (PW-1) and Lalit (PW-2) have stated that when they were being abused their caste was also uttered by the accused persons, but the statement of witnesses also disclose the fact that on the eve of Holi, Pawan (PW-1) and Lalit (PW-2) were also under the influence of liquor and on account of some un-established reason the quarrel has taken place and appellant no.1 Mohd. Azad have used many times the caste of the complainant during the uttering filthy language but so far appellant no.2 Mamta is concerned, it is said that when she handed over sword to accused Mohd. Azad, she said that teach the lesson to Kol, which is the caste of the complainant. Uttering this word in the fashion it can't be said that co-accused Mamta uttered this word intentionally insult or intimidate with a view to humiliate the complainant and his brother because they belong to scheduled tribe community. In the circumstance, under section 3(1)(x) of the SC/ST Act only conviction of appellant no.1 Mohd. Azad is upheld and conviction of appellant no.2 Mamta cannot be sustained.

In view of the aforesaid discussion, appellant no.1 Mohd. Azad conviction and sentence under section 294, 323 of the IPC and under section 3(1)(x) of the SC/ST Act is upheld and his conviction under section 327 of the IPC is modified under section 324 of the IPC and sentence to six months R.I and fine of Rs.500/-. As per jail report dated 30/07/2018, he has undergone the whole period of sentence and released thereafter. Therefore, no further direction is required.

So far appellant no.2 Smt. Mamta conviction and sentence under section 323 of IPC and under section 3(1)(x) of the SC/ST Act is set aside and her conviction under section 294 of the IPC is upheld and her conviction under 327 of IPC is modified under section 324 read with section 34 of the IPC.

So far her sentence for offence under section 294 and 324 read with section 34 of the IPC is concerned, she is a lady and incident taken place 13 years before and circumstance in which the incident taken place and role assigned to her, no sentence of imprisonment is warranted. She is first offender, hence it is directed that if within 1 month bail bond of Rs.10,000/- is furnished before the trial court for maintaining peace for 2 years, she should be released on probation. In case of non-furnishing of bail bond, she shall undergo S.I of 1 month under section 294 of the IPC and S.I of 3 months under section 324 of the IPC. Accordingly, this appeal is partly allowed.

A copy of this judgment be sent to the concerned trial court for information and necessary action.