Vishwanath Sen vs The State of M.P.

Tarun Kumar Kaushal, J.—Case is heard finally with the consent of the parties.

Record perused.

Present appeal has been preferred against the judgment dated 23/09/1998 passed by Special Judge in Special Case No. 142/1997 convicting and sentencing the appellants as below:-

According to prosecution, on 09/10/1997 appellant No. 1 made quarrel with Pappu (PW-5) on the point of taking water from public hand pump. While mother of PW-5, i.e. Kalabai (PW-1) came to intervene appellant No. 1 assaulted her also and caused grievous injury on her hand. In aforesaid quarrel appellant No. 2 also came and assaulted PW-1 and PW-5. Appellants insulted the complaints PW-1 and PW-5 by saying them "Chamar" the abuse in the name of caste at a public place.

Kalabai (PW-1) lodged FIR Ex. P-1 at police station Bina and case was registered against both appellants. Injured PW-1 and PW-5 were sent for their medical examination and PW-1 was subjected to X-ray examination also and according to Ex. P-10 X-ray report fracture in her left hand.

After completion of investigation, charge sheet was preferred in Court. Trial court framed charge u/s 325 IPC and u/s 3(1)(x) of SC/ST Act against the appellant No. 1 and against appellant No. 2 u/s 323 IPC and u/s 3(1)(x) of SC/ST Act. Appellants abjured guilt and defence of appellants was that PW-5 started consuming water from bucket directly. Appellant asked him not to do so and quarrel arose all of sudden and FIR has been lodged with exaggerated allegations.

Considering the evidence of prosecution, trial court convicted and sentenced the appellants as above.

On careful perusal of evidence of PW-1 and PW-5, it is revealed that prosecution did not collect and submit the case certificate of PW-1 and PW-5 both to prove that they belong to SC/ST caste. At the same time, no caste certificate of appellant also have been procured and produced. Possibility of quarrel on the point of consuming water by PW-5 directly from the bucket at hand pump also cannot be ruled out. Hence, it can be safely presumed that prosecution has failed to prove the ingredients of section 3(1)(x) of SC/ST Act, hence conviction and sentence awarded by trial court for aforesaid offence is not sustainable.

On careful perusal of record it has become clear that trial court framed charge against appellant No. 1 only u/s 325 IPC for causing grievous injury to PW-1 and framed charges against appellant No. 2 u/s 323 IPC for causing injuries to PW-5.

Learned counsel for appellants submits that on perusal of evidence of PW-1 in para 9 it becomes clear that she did not knew the name of appellant but she knew the name and identity of his wife. Further submits that PW-1 said that all injuries have been caused to her after her fall on the ground and appellants have challenged the veracity of evidence of PW-1.

On careful perusal of evidence of PW-1, medical evidence, statement of PW-1 and X-ray report etc, there appears no rhyme and reason to question the conviction of the appellants. Medical evidence has ruled out the theory that fracture of PW-1 was old one. Therefore, I hereby affirm the conviction of appellant No. 1 u/s 325 IPC for causing injury to Kalabai (PW-1) and conviction of appellant No. 2 u/s 323 IPC for causing simple injuries to PW-5.

At this stage, learned counsel for appellants submits for the incident which took place about 15-16 years ago no useful purpose would be served in sending the appellant husband and wife back to jail for aforesaid offences.

Conviction u/s 3(1)(x) SC/ST is set aside. Hence, in view of facts and circumstance of the case for remaining offences, I deem it proper to award only fine sentence for both the appellants for their respective offences u/s 325 and 323 IPC. For offence u/s 325 IPC appellant No. 1 was arrested during investigation and was released on bail after his arrest. Hence formal jail sentence has already been suffered by him. Appellant No. 1 is sentenced to fine of Rs. 2,000/- and in default appellant No. 1 shall undergo simple imprisonment of 1 month. For offence u/s 323 IPC appellant No. 2 is sentenced to fine of Rs. 1000/- and in default, she shall undergo simple imprisonment of 1 month. Their jail sentences are set aside.

Appellants are directed to remain present in trial court on or before 11 August, 2014 to deposit the balance fine amount or to undergo the default sentence as the case may be.

Appeal is allowed in part as indicated above.

Certified copy as per rules.