Court No. - 61
Case :- CRIMINAL APPEAL No. - 59 of 2009 Appellant :- Mahendra Singh Respondent :- State Of U.P.
Counsel for Appellant :- Alok Sharma Counsel for Respondent :- Govt. Advocate
Hon'ble Rang Nath Pandey,J.
Heard learned counsel for the appellants and learned A.G.A. appearing for the State.
The instant appeal under Section 374 (2) Cr.P.C. has been preferred by appellant, namely, Mahendra Singh against the judgment and order dated 12.12.2008 passed by learned Additional Sessions Judge, Court No. 2, Mathura in Special Case No. 35 of 2001, convicting and sentencing the appellant under Section 323 of the Indian Penal Code for a period of two months' rigorous imprisonment; sentencing him under Section 504 of the Indian Penal Code for a period of one month rigorous imprisonment and sentencing him under Section 3 (1) (10) of the S.C./S.T. Act for a period of six months' rigorous imprisonment along with a fine of Rs. 5,00/- with default stipulation.
The prosecution version in brief is that on 02.03.1999, at about 6 o' clock in the evening, accused appellant Mahendra said to the complainant's wife that, "Sali Chamariya bahar nikal" and forcibly pulled her; in this scuffling he got the blouse of Smt. Rajan Devi torn and broken her bangles and necklace. On hearing her hue & cry when the complainant Kshetrapal tried to save her then Mahendra, Chadrapal and Chhiddi, all the three started to beat him too and said abusively that, "you were trying to equalise yourself, now we shall not let you remain in the village and kill you. On hearing hue and cry, Bhagwan Singh, Gajendra came there and tried to stop them then they abused them also and said that they shall also be ejected from the village; then dragged the complainant Kshetrapal and beat him by shoes-slippers.
The complainant gave the information of the aforesaid incident to the Sr. Superintendent of Police, Mathura on the basis of which, a case had been lodged and during the investigation, statements of witnesses had been recorded by the Investigating Officer. Site Plan had also been prepared and after due process, the accused appellant Mahendra Singh charged under Sections 323, 504 of the Indian Penal Code and under Section 3 (I) (X) of the S.C./S.T. Act.
The accused appellant was charged under Sections 323,504 of the Indian Penal Code and 3 (I) (X) of the S.C./S.T. Act by the learned trial court. The accused pleaded not guilty to the charges and claimed to be tried.
The prosecution in order to prove the charges, examined PW-1- Chetrapal, PW-2 Gajendra, PW-3 Bedram, PW-4-Chinto, PW-5- Wasir Khan,PW-6-Smt. Rajan Devi, PW-7- Bhagwan Singh, PW-8-Dr. R.B. Sharma and PW-9-Ram Pal Gautam.
Statements of accused appellant was recorded under section 313 of Cr.P.C. wherein he stated that he had been falsely implicated in the present case with malafide intention and demanded for fair trial.
After considering the evidence led by the prosecution, the trial court came to the conclusion that offences under Sections 323,504 of the Indian Penal Code and 3 (I) (X) of the S.C./S.T. Act were made out, and, therefore, proceeded to convict the appellant.
Learned counsel appearing on behalf of the appellant submitted that offences under section 323,504 of the Indian Penal Code and 3 (I) (X) of the S.C./S.T. Act are not made out against the appellant and the findings recorded by the trial court are illegal, perverse and against the evidence on record. It was further submitted that motive assigned to the appellant to commit the said offence was also not sufficient. Learned counsel for the appellant referring to the statement of witnesses argued that there are major contradictions on material point in the statement of witnesses itself. Trial court illegally without appreciating the evidence in right perspective convicted and sentenced the appellant.
Counsel for the appellant further stated that in the instant case all the witnesses except the complainant and his wife were declared hostile. It was the Holi occasion at the time of occurrence. Entire prosecution story is unbelievable. Statement of other prosecution witnesses also did not inspire confidence. In such circumstances, charge under Section 323,504 of the Indian Penal Code and 3 (I) (X) of the S.C./S.T. Act framed by the trial court are not made out.
Per contra, learned A.G.A. has submitted that charges have rightly been framed by the trial court against the appellant and no interference is called for.
On close scrutiny of the entire evidence available on record in consonance with the submissions raised by the learned counsel for the parties along with the findings recorded by the trial court, no substance is found in the submission made by the learned counsel for the appellant as far as offences punishable under Section 323 and 504 of the Indian Penal Code is concerned as there is a Medical Report of Chetrapal wherein it was recorded that one injury was found near the ear of Chetrapal. Further, PW-8 Dr. R.B. Sharma had stated in his deposition that on 15.03.1999 he examined Chetrapal and found two injuries on his body and opined that the said injuries were likely to be caused on 02.03.1999 at about 6.00 P.M. The aforesaid facts proved that on 02.03.1999 a quarrel had been erupted between the respective parties and accused appellant inflicted injuries to the complainant Chetrapal. Hence, in view of the aforesaid, the conviction of the appellant under Section 323 and 504 of the Indian Penal Code are hereby confirmed.
Further, as far as conviction of the appellant under Section 3 (I) (X) of the S.C./S.T Act is concerned, there is no direct evidence against the accused appellant which corroborates the conviction of the accused appellant under Section 3 (I) (X) of the S.C./S.T. Act. A perusal of the record reveals that all the witnesses except the complainant himself and his wife were declared hostile during the trial. PW-3 Bedram, PW-4 Chinto, PW-5 Wasir Khan and PW-7 Bhagwan Singh did not support the entire prosecution version. Further, PW-2- and PW-3 had deposed that they had not even seen the incident. Most of the witnesses, were deposed that they did not hear any whisper of caste related words during the quarrel between the respective parties. Considering the facts and circumstances of the case and also the statements of the prosecution witnesses, it is not clear that the accused appellant gave any abuse in respect of her caste. Therefore, judgment of conviction and order of sentence awarded to the appellant under Section 3(I)(X) of the S.C/S.T. Act is hereby set aside.
At this juncture, learned counsel for the appellants has stated at the bar that the appellant is a first offender and simply prays that the benefit of Section 4 of the Probation of Offenders Act and/or Section 360 of the Cr.P.C. may be extended to him under Section 323 and 504 of the Indian Penal Code, as he is not previous convict.
Now, coming to the order of sentence under Section 323 and 504 of the Indian Penal Code, it is admitted position that the punishment provided under Section 323 of the Indian Penal Code is imprisonment for one year, or fine, or both, and punishment provided under Section 504 of the Indian Penal Code is imprisonment for two year or fine, or both. Thus, the punishments for offences under the aforesaid Sections, under which the accused-appellant was convicted, are one year imprisonment and two years' imprisonment.
As the appellant is not the previous convict, the Probation of Offender Act and/ or Section 360 of the Cr.P.C. applies in the case of the appellant.
1. In Chandreshwar Sharma v. State of Bihar reported in 2000(9) SCC 245, it was observed as follows:
"The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 kg of nonferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable. Pursuant to the said notice, Mr. Singh, the learned Standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the court of appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of the Code of Criminal Procedure. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the Code of Criminal Procedure. As such, the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case, we see no reason not to apply the provisions of Section 360 of the Code of Criminal Procedure. We accordingly, while maintaining the conviction of the appellant, direct that he will be dealt with under Section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly."
Considering the facts and circumstances of the case as also the judgment rendered by the Hon'ble Supreme Court in the case of Chandreshwar Sharma (supra), I am of the opinion that in the interest of justice, the appellant deserves the benefit of Section 4 of the Probation of Offender Act. Instead of sentencing him under Sections 323,504 of the Indian Penal Code, he shall file one personal bond with one surety each in the like amount to the satisfaction of the court concerned for a period of one year to keep peace in the society and shall not commit any such offence in future. In case of breach of any such condition, the accused-appellant will subject himself to undergo the sentences before the Trial Court as per law. The appellant is also directed to deposit Rs.1,000/- within a period of one month from today before the court concerned. In default to execute the bonds and the said fine within the stipulated time-period, the appellant would serve out the sentence as imposed by the Court below.
Thus, the appeal is partly allowed.
Let a certified copy of this order be sent to the Court concerned for compliance.
Let lower court's record also be sent back to the court concerned forthwith.
Order Date :- 30.3.2018 Ashish