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Judgment
Tarlok Singh Chauhan, J
Aggrieved by the impugned judgment/order of conviction and sentence, dated 25/26.4.2013 passed by the learned Special Judge, Kangra, at Dharamshala in Sessions Case No. 23-N/VII-2009, whereby the appellants have been convicted and sentenced to undergo - (i) simple imprisonment for a period 3 months each under Sections 323/34 of the Indian Penal Code (for short “IPC”); (ii) rigorous imprisonment for a period of 3 years each and to pay a fine of Rs.2000/- each; in default of payment of fine, to further undergo simple imprisonment for a period of 6 months each under sections 325/34 IPC; (iii) simple imprisonment for a period of 6 months each under section 506/34; and (iv) simple imprisonment for a period of 3 years each and to pay a fine of Rs.1000/- each; in default of payment of fine to undergo simple imprisonment for a period of 3 months under section 3(i)(x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (for, short “Atrocities Act”) – the appellants have filed the instant appeal.
2 Brief facts of the case are that the PW-1, complainant, Om Dutt, lodged an FIR No. 152/2005 (Ext.PW1-A) on 13.5.2005 against the appellants with the allegations that the complainant along with his daughter and niece had come to market on 9.5.2005, where appellant No.1 Tara Chand was cutting chicken. Appellant No.2 Pal Singh also came to the spot. Later, appellant No.1 gave beatings to the complainant, resulting in injuries being caused to the person of the complainant and even his tooth was broken. However, without waiting for outcome of investigation, the complainant after few days i.e. on 20.5.2005 preferred a private complaint before the learned Additional Chief Judicial Magistrate, Nurpur, District Kangra with the allegations that both the appellants hurled filthy abuses to him, used derogatory words publically and gave beatings to him, which made them liable to be prosecuted and punished under the Atrocities Act.
3 The learned Additional Chief Judicial Magistrate after recording the evidence came to the conclusion that there was material against the appellants for the offence punishable under the Atrocities Act and accordingly, the complaint was referred to the police and was clubbed with the FIR of the complainant. The investigation was carried out and thereafter the challan was presented in the Court of Special Judge (trial court).
4 After framing the charges and recording the evidence, the learned trial court convicted and sentenced the appellants, as aforesaid, constraining them to file the instant appeal.
5 I have heard the learned counsel for the parties and have also gone through the records of the case.
6 In order to appreciate the controversy in question, it would be necessary to set out precise charge that was framed against the appellants, which reads as under:-
“Charge against appellant No.1
I, P.S. Rana, Sessions Judge Kangra at Dharamshala do hereby charge accused Tara Chand son of Sh. Khazana aged 45 years resident of Mohal Kopra Tehsil Nurpur, Distt. Kangra H.P. as follows:
That on dated 9.5.2005 at about 6.30 p.m (noon) at place Kopra Tehsil Nurpur District Kangra H.P you along with your co-accused in furtherance of common intention voluntarily caused simple hurt to injured Om Dutt thereby you have intentionally and voluntarily committed offence punishable U/S 323 IPC read with section 34 IPC and within my cognizance.
Secondly, on aforesaid date, time and place you along with your co-accused in furtherance common intention voluntarily caused grievous hurt to injured Om Dutt thereby you have intentionally and voluntarily committed offence punishable U/S 325 IPC read with section 34 IPC and within my cognizance.
Thirdly, on aforesaid date, time and place you along with your co-accused in furtherance common intention criminally intimidated injured and threatened that you would kill injured whenever you will get opportunity to do so and thereby you have intentionally and voluntarily committed offence punishable U/S 506 Part-II IPC read with section 34 and within my cognizance.
Lastly, on aforesaid date, time and place you being 'Rajput' caste intentionally insults or intimidates complainant with intention to humiliate complainant who is member of schedule caste in place within public view and thereby you have intentionally and voluntarily committed offence punishable U/S 3(i) (x) of SC & ST (Prevention of atrocities) Act and within my cognizance.
And I hereby direct that you be tried by this Court on said charge under Section 323, 325, 506-II IPC and 3(i)(x) of SC & ST (Prevention of Atrocities) Act.
Sd/-
Special Judge-cum-Sessions Judge,
Kangra at Dharamshala (HP)
“Charge against appellant No.2
I, P.S. Rana, Sessions Judge Kangra at Dharamshala do hereby charge accused Pal Singh son of Sh. Khazana Ram caste Rajput Aged 55 years resident of Mophal Kopra Tehsil Nurpur, District Kangra H.P. as follows:
That on dated 9.5.2005 at about 6.30 p.m (noon) at place Kopra Tehsil Nurpur District Kangra H.P you along with your co-accused in furtherance of common intention voluntarily caused simple hurt to injured Om Dutt thereby you have intentionally and voluntarily committed offence punishable U/S 323 IPC read with section 34 IPC and within my cognizance.
Secondly, on aforesaid date, time and place you along with your co-accused in furtherance common intention voluntarily caused grievous hurt to injured Om Dutt thereby you have intentionally and voluntarily committed offence punishable U/S 325 IPC read with section 34 IPC and within my cognizance.
Thirdly, on aforesaid date, time and place you along with your co-accused in furtherance common intention criminally intimidated injured and threatened that you would kill injured whenever you will get opportunity to do so and thereby you have intentionally and voluntarily committed offence punishable U/S 506 Part-II IPC read with section 34 and within my cognizance.
Lastly, on aforesaid date, time and place you being Rajput caste intentionally insults or intimidates complainant with intention to humiliate complainant who is member of schedule caste in place within public view and thereby you have intentionally and voluntarily committed offence punishable U/S 3(i) (x) of SC & ST (Prevention of Atrocities) Act and within my cognizance.
And I hereby direct that you be tried by this Court on said charge under Section 323, 325, 506-II IPC and 3(i)(x) of SC & ST (Prevention of Atrocities) Act.
Sd/-
Special Judge-cum-Sessions Judge,
Kangra at Dharamshala (HP)”
7 It would be noticed that one of the charges framed against the appellants were that they have intentionally insulted and intimated the complainant, who is the member of the scheduled caste.
8 It is not in dispute that as regards the FIR that was lodged at an earlier point of time on 13.5.2005 no allegations whatsoever attracting the provisions of the Atrocities Act had been levelled against the appellants. It was only later on that the provisions of the Atrocities Act were incorporated in private complaint filed on 20.5.2005.
9 However, version put-forth by the complainant in his private complaint and also while examining himself as PW-1 are at a complete variance with the statements of other witnesses examined by the prosecution.
10 Specific allegations regarding exact words used by the appellant No.1 against the complainant for attracting the provisions of Section 3(i)(x) of the Atrocities Act are contained in para 4 of the private complaint, which read as under:-
“O CHAMARON TUMHARI MAA KI SERI MAARI, AUR MEI TUMHARI LONDIYON KI SATH SAMBHOG KARUNGA AUR KARTA HUN. CHAMARON TUM MERA KUCH NAHI BIGAD SAKTEY MEI KATER RAJPUT HUN.”
11 Likewise, while appearing in the witness box, as PW-1, the complainant again stated “O CHAMARON, TUMHARI MAAKI SERI MAARI, AUR MEI TUMHARI LONDIYON KE SATH SAMBHOG KARUNGA AUR KARTA HUN. CHAMARON TUM MERA KUCH NAHI BIGAD SAKTEY MEI KATER RAJPUT HUN”.
12 Now, in case statement of the alleged eye-witness, PW- 10 Rajesh Kumar is adverted to, in his examination-in-chief, he deposed that the appellant No.1 Tara Chand openly called that
“CHAMARO TUMHARI MAKKI SERI MARI and MEI TUMHARI MAA BEHAN KO SAMBHOG KARTA HUN and CHAMARON TUM MERA KUCH NAHI BEGGAR SAKTAY”.
13 PW-11, Dharam Chand, who is stated to be one of the eye witnesses, deposed that appellant No.1 called the complainant that “CHAMARO MEI TUMHARI MAA RAGARTA HUN OR CHODTA BHI HUN” and abused in filthy language.
14 Whereas PW-12 Ashu, who is also claimed to be an eye witness, had entirely a different version and stated that appellant No.1 was abusing complainant and he publically called him “CHAMARON TUMHARI MARI MAKI SERI”.
15 Likewise, as per PW-13 Soma Devi, narration of the incident is that in his presence, appellant No.1 publically called and insulted the complainant by calling him “CHAMAR” and abused “TUMHARI MARI MAKI SERI”.
16 To the similar effect is statement of PW-14 Reena Devi, wife of the complainant, who in her examination in chiefvdeposed that the appellant Tara Chand publically asked “CHAMARO TUMHARI MARI MAKI SERI” and thereby insulted her husband in a public view. According to her, the appellant Tara Chand further stated that “CHAMARON TUM SAR PER CHAR GAYE HO. MEI TUMHARI GHARWALI SE SAMBHOG KARUNGA OR TUM MERA KUCH NAHI BEGAAR SAKATEY”.
17 Perusal of the aforesaid statements clearly goes to indicate that version put-forth by each of the so called eye-witnesses is different and at variance with each other, thus, it is clear that ingredients of offence punishable under Section 3(i)(x) of the Atrocities Act have not been established as alleged derogatory words deposed by complainant have not been corroborated by the other prosecution witnesses.
18 The burden of proof was strictly on the prosecution to establish that there was commission of such offence and the allegations that the appellants had used derogatory expressions with reference to the caste of the complainant publically with an intention to insult and humiliate him.
19 As discussed above, though other witnesses have deposed that derogatory words were stated by the appellant No.1, but the same were stated in a totally different manner and at variance with the case put up by the complainant. None of the witnesses has stated with degree of certainty as to the exact words used by the appellants.
20 Therefore, the prosecution has failed to prove beyond reasonable doubt that the appellants had committed the offence punishable under section 3(i)(x) of the Atrocities Act.
21 Now, adverting to the offences under IPC, it would be noticed that the appellants have been convicted and sentenced under Sections 323, 325 and 506-II read with section 34 IPC.
22 The complainant, who appeared as PW1, has fully supported his case by deposing that on 9.5.2005 at about 6.30 P.M., he along with his niece and daughter came to Kopra market to purchase cereal (dal). Appellant No.1, whom the witness indentified in the Court, was stated to be chopping chicken in front of shop of Khayal Singh. After some time, appellant No.2, Pal Singh, who too was indentified by this witness in the Court, was stated to have also come to the spot. The appellant No.1 then started hurling abuses to complainant and even threatened him with dire consequences and told that no one could do anything against him. Appellant No.1 thereafter gave fist blows to him, as a result whereof, the complainant received injuries on his person including his hands and one tooth was broken. Bir Singh and Surinder Kumar saved him from clutches of appellant No.1. The complainant thereafter lodged an FIR, Ext. PW1/A at Police Station Nurpur. He was medically examined vide MLC Ext. PW1/B. The police also took into possession the tooth. He further deposed that appellant No.1 used un-parliamentary language and when he was requested not to use such words, then the appellant No.1 gave beatings with fists, even sickle blow. Appellant No.2 Pal Singh was also stated to have given beatings to the complainant with fist blows on his chest. The complainant was cross-examined at length and he stated that he remained admitted in hospital for about 4- 5 days, but could be produce record of admission. He feigned ignorance regarding appellant No.1 having remained admitted in hospital on 9.5.2005 for treatment of the injuries that were alleged to have been caused by the complainant, his wife and his mother.
23 The medical records, exhibited with the statements of PW-4 Dr. Raman Sharma and PW-5 Dr. Bharti, duly corroborate and support claim of the petitioner.
24 PW-4, Dr. Raman Sharma, deposed that at the relevant time, he was posted as Medical Officer at Civil Hospital, Nurpur since 2001. On 10.5.2009, an application, Ext. PW4/A was moved by Investigating Officer, Police Station Nurpur, for medical examination of the complainant. He medically examined the complainant at about 2.45 P.M. for the alleged assault and found the following injuries on his person:-
Contusion on left side of face with missing of tooth size of wound of 3 X 2.5 cm. Socket was reddened and raw.
Lacerated wound on left forearm, lower half. Size was 2 cm x .5 cm. Blood clots were present.
Contusion on right hand near base of thumb. Size was 3 X 2 cm.
There was local tenderness in back. Skin was normal.
There was local tenderness in chest. Skin was normal.
25 He thereafter referred the complainant to Dental Surgeon, Civil Hospital, Nurpur for his dental examination. He deposed that injuries No. 2 to 5 were simple in nature and probable duration of these injuries was within 12 hours having been caused by blunt weapon. He issued MLC, Ext.PW1/B. While cross - examining this witness, he deposed that except injury No.1, all injuries were possible by fall. He denied the suggestion that injury No.1 was possible by fall, however self stated that since injury was localized one, therefore, the same was not possible by fall.
26 PW5, Dr. Bharti, stated that he was posted as Dental Surgeon at Civil Hospital Nurpur in the year 2005. On 10.5.2005 complainant was referred to him by PW4 Dr. Raman Sharma for dental opinion and at about 12.05 P.M., on medical examination, he found the following injuries:-
On External examination:
Tenderness mandibular anterior segment.
Tenderness maxillary left zyona with swelling on upper lip and left maxillary.
On Intraoral Examination:
Bruised upper lip mucosa and buccal mucosa opposing maxillary left first and second pre-molar and first molar region. Patient unable to open mouth completely.
Maxillary left first pre-molar missing with no bleeding on probing the socket. Patient carrying tooth with full root length and survical portion of tooth.
Maxillary left canine and second pre-molar tender on purcussion.
On palpating gingiva above maxillary left first pre-molar socket tenderness.
Oral Hygiene fair.
On examination of IOPA Radio-graph:-
Maxillary left first pre fracture evidence of maxillary left canine and second pre-molar.
On Examination AP view skull with mandible no evidence of fracture mandible.
27 In his cross-examination, this witness stated that the injury on outer part as well as inner part could not be ruled out with fist blows. However, he denied the suggestion that there was no tenderness while injecting a particular tooth. He admitted that during examination, he had not mentioned duration of injury in his opinion, however, he self explained that since the complainant was referred to him after mentioning duration, therefore, he did not mention duration of injuries. He further denied the suggestion that injury as noted by him was possible by fall.
28 PW-6 Ajay Kumar PW7 Surinder Kumar turned hostile, therefore their statements can conveniently be held to be irrelevant in the instant case.
29 PW-10 Rajesh Kumar, who is one of the eye-witness, stated that he had seen the appellants quarrelling with the complainant, as a result whereof, his tooth had broken. The appellants also gave blow of chopper to the complainant, which inflicted injuries on his person. He further stated that Bir Singh also came to the spot, who, along with this witness saved the complainant. This witness while being cross-examined admitted that appellant Tara Chand had received injuries on his person due to beatings given by the complainant and he also remained admitted in the hospital for treatment. He denied the suggestion that no quarrel had taken place in his presence.
30 It would be noticed here that only suggestion regarding there being quarrel was put to this witness, however no suggestion regarding actual beatings that were alleged to have been given to the complainant by the appellants was not put to him.
31 To the similar effect is statement of PW-11 Dharam Chand, who also claimed to be an eyewitness. In his examination-in-chief, he stated that on 9.5.2005, at about 6.30 P.M., the appellants were under the influence of liquor and appellant No.1 was cutting chicken at that time. Appellant No.1 was alleged to have used derogatory words against the complainant. No suggestion was put to this witness that the complainant also gave beatings to appellant No.1.
32 Niece of the complainant, Ashu appeared as PW-12 and stated that on 9.5.2005, she along with complainant, Palak and Priti had gone to Kopra Bazaar, where they saw appellant No.1 cutting chicken under the influence of liquor. Appellant No.1 started abusing the complainant and thereafter gave beatings to him with fists and chopper, as a result whereof, the complainant sustained injuries on his hands and mouth. Rajesh Kumar and Bir Singh saved the complainant on the spot from the beatings being given by appellants. In cross-examination, she denied suggestion that the complainant had received injuries and remained admitted in the hospital throughout that night.
33 PW-13 Soma Devi, stated that on 9.5.2005, at about 6.30 P.M., she heard noise indicating quarrel and immediately rushed to the spot, where she saw that the complainant had sustained injuries. On enquiry, she came to know that the appellants had caused injuries to the complainant and it was Rajesh Kumar and Bir Singh, who saved him. In cross- examination, this witness admitted that due to beatings given by the complainant, appellant No.1 remained admitted in the hospital throughout that night.
34 PW-14, Reena Devi, is wife of the complainant and stated that on 9.5.2005, her husband along with niece Palak and Ashu Devi had gone to shop at Kopra Bazaar for purchasing household articles. After some time, she heard noise of quarrel from the shop side and in the meantime, Ashu and Palak came to her and then she also went to the spot. She saw that the appellants were giving beatings to her husband (complainant) and when she reached there, her husband was separated from the appellants by Rajesh Kumar and Bir Singh. She further stated that her husband sustained injuries because of the beatings given by the appellants and even tooth of her husband was also broken by them. In cross-examination, she admitted that appellant no.1 had remained admitted in the hospital throughout that night as he had received injuries on his person that were caused by her husband.
35 Thus, the aforesaid narration of facts clearly goes to indicate that the version put-forth by the complainant regarding beatings given by the appellants has been fully corroborated and supported by other prosecution witnesses referred to above.
36 No doubt, it is also established on record that even appellant No.1 had himself sustained injuries in the same occurrence, but this by itself cannot be a ground to acquit appellant No.1 only because there is no explanation of the injuries sustained by him.
37 It is more than settled that the prosecution is not obliged to explain the injuries on the person of the accused in the same occurrence. Non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, however the court has to be satisfied of the existence of two conditions:
(i) that the injury on the person of the accused was of a serious nature; and
(ii) that such injuries must have been caused at the time of the occurrence in question.
38 Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. However, where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood, mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.
39 However, learned counsel for the appellants would vehemently argue that taking into account the fact that the appellants are the first offenders, therefore, they may be ordered to be released on probation.
40 Having regard to the overall facts and circumstances of the case, this contention to my mind has considerable force in case favourable report is given by the Probation Officer. After all, it cannot be disputed that object underlying the provisions of Probation of Offenders Act as also those contained in Sections 360 and 361 Cr.P.C. clearly provide for first offenders being not sent to jail for commission of less serious offence, on account of grave risk of their attitude to life to which they are likely to be exposed as a result their association with hardened and habitual criminal inmates in jail, their stay in jail in all probabilities would attract them towards life of crime instead of reforming them. This obviously would put more harm not only to the offenders but to the society as a whole.
41 Section 4 of the Probation of Offenders Act empowers the Court to release the convict on entering into a bond, with or without sureties, on probation when he is found guilty of committing any offences not punishable with death or imprisonment for life. Relevant portion of Section 4 is reproduced as under:-
“4.Power of court to release certain offenders on probation of good conduct.-(1) 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 behavior; Provided that the court shall not direct such release of an offender unless it is satisfied that the 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.”
42 For exercising the power which is discretionary, the Court has to consider various circumstances of the case, like the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim, the benefit available to the accused under this provision is subject to the limitation embodied in the provision as is evident from the use of the word “may” which clearly indicates that the discretion is vested with the Courts whether to release the offender in exercise of the power under Sections 3 or 4 of the Act having regard to the nature of the offence and character of the offender and over all circumstances of the case. The powers under Section 4 of the Act vest with the Court when any person is found guilty of the offence committed not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Courts come to a conclusion by considering the circumstances of the case including the nature of the offence and the character of the offender, benefit should be given to the accused. Obviously, this power is available and can be exercised by the Court even at the appellate stage.
43 As regards the rival contentions of the learned counsel for the parties, having gone through the circumstances emanating from the record and after in-depth consideration of the entire matter, I find no legal impediment for considering the case of the appellants for grant of probation, particularly, in light of the fact that the incident in this case (i) pertains to the year 2005 i.e. 9.5.2005; (ii) the appellants have already faced the pangs and suffered agony of protracted trial and appeal for the last 17 years.
44 Even the modern trend of penology also leads to the reformation of the offender so as to make him useful citizen of the society. Therefore, no useful purpose is otherwise going to be achieved by again sending the appellants to jail.
45 In view of aforesaid discussions, impugned judgment/order convicting and sentencing the appellants under Section 3(i)(x) of the Atrocities Act is quashed and set aside and consequently they are acquitted of the charge(s) framed under Section 3(i)(x) of the Atrocities Act .
46 As regards the other offences under IPC, let the Probation Officer of the area concerned where the appellants permanently reside place before this Court their reports qua their antecedents on or before next date of hearing.
List on 1.7.2022.