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2006 DIGILAW 496 (UTT)

MOHARRAM ALI v. STATE OF UTTRANCHAL

2006-09-04

PRAFULLA C.PANT

body2006
PRAFULLA C. PANT, J. ( 1 ) THIS appeal, preferred under Section 374 (2) of the code of Criminal Procedure, 1973 (hereinafter referred as Cr. P. C.), is directed against the judgment and order dated 06. 01. 1994, passed in Special Sessions trial No. 07 of 1992, by learned II Addl. Sessions Judge, Dehradun whereby, the appellant has been convicted under Sections 323/325 of the Indian Penal Code, 1860 (hereinafter referred as I. P. C.) and under Section 3 (1) (v) of the Scheduled castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as The S. C. S. T. (Prevention of Atrocities Act, 1989) and sentenced the appellant under Section 323 of I. P. C. for six months imprisonment and under Section 325 of I. P. C. rigorous imprisonment of one year and a fine of Rs. 500/-, in default of payment of which six months imprisonment is directed to be served out. The appellant is further sentenced under Section 3 (i) (v) of the S. C. S. T. (Prevention of Atrocities) Act, 1989 to undergo six months rigorous imprisonment. ( 2 ) HEARD learned counsel for the appellant and the learned Assistant Government Advocate for the State and perused the entire record. ( 3 ) PROSECUTION story, in brief, is that P. W. 1 Laxman Das is a member of scheduled Caste and is resident of Village Laxmipur, Police Station Sahaspur, dehradun. In the intervening night of 9/ 10 March, 1992, at about 1:00 A. M. , laxman Das (P. W. 1) was irrigating his field through the irrigation channel. At the same time, appellant Moharram Ali went to irrigate his field and diverted the channel of water towards his field. Complainant Laxman Das objected to it, on which appellant Moharram Ali hurled abuses at the complainant (Laxman Das)for being member of Scheduled Caste and gave him beating. Laxman Das lodged the first Information Report (Ext. A-1) on that very day i. e. 10. 03. 1992, at about 9:30 a. M. , with Police Station Sahaspur, which was registered as case crime No. 58 of 1992 under Section 323/325/504 of I. P. C. and under Section 3 (1 ) (v) of the s. C. S. T. (Prevention of Atrocities) Act, 1989. The said crime was investigated by P. W. 5 Hajari Prasad (Sub Inspector ). 1992, at about 9:30 a. M. , with Police Station Sahaspur, which was registered as case crime No. 58 of 1992 under Section 323/325/504 of I. P. C. and under Section 3 (1 ) (v) of the s. C. S. T. (Prevention of Atrocities) Act, 1989. The said crime was investigated by P. W. 5 Hajari Prasad (Sub Inspector ). Meanwhile, injuries of the complainant luxman Das were got examined on that very day by the Medical Officer Dr. G. P. Dimri (P. W. 3) and following injuries were found on the person of the complainant luxman Das: 1. Contusion over the middle portion of left upper arm 2 cm X1 cm in size, reddish in colour with tenderness and abnormal movements at the side of the injuries with swelling on whole of upper arm. 2. Abrasion on back of right forearm 2 cm X1 cm in size, dark red in colour, 9 cms below the back of right elbow joint 3. Contusion reddish in colour 6 cm x 2 cm in size, in front of right thigh, 24 cms above the frontal aspect of right knee joint. 4. Injuries No. 2 and 3 werefound simple. X-ray was advised in respect of injury No. 1. ( 4 ) P. W. 4 Dr. Suresh Mehta, Radiologist got X-rayed upper half of shaft of left humerus of the complainant and found that there was a fracture. After recording the statement of the witnesses, preparing site plan (Ext. A-4) and on completion of the investigation, charge sheet (Ext. A-5) was submitted against the accused /appellant. ( 5 ) THE trial court framed charge of offences punishable under Section 323/ 325/504 of I. P. C. and charge under Section 3 (l) (v) of the S. C. S. T. (Prevention of atrocities) Act, 1989. The accused pleaded not guilty and claimed to be tried. ( 6 ) P. W. 1 Luxman Das (complainant); P. W. 2 Jaipal Singh (eye witness); p. W. 3 Dr. G. P. Dimri (who examined the injuries of Luxman Das); P. W. 4 Dr. Suresh Mehta (Radiologist) and P. W. 5 hajari Prasad (Investigating Officer) were got examined by the prosecution. The entire oral and documentary evidence was put to the accused, under Section 313 of Cr. G. P. Dimri (who examined the injuries of Luxman Das); P. W. 4 Dr. Suresh Mehta (Radiologist) and P. W. 5 hajari Prasad (Investigating Officer) were got examined by the prosecution. The entire oral and documentary evidence was put to the accused, under Section 313 of Cr. P. C. , regarding which the accused alleged that the same is false and that he was falsely implicated in the crime due to enmity. In the defence D. W. 1 Rambali, D. W. 2 Shamshad Ali and D. W. 3 Yaad Ram (son of the complainant) were got examined. ( 7 ) AFTER hearing the parties, trial court found the appellant guilty of the charge of the offences punishable under section 323/325 of I. P. C. and that of charge punishable under Section 3 (1) (v)the S. C. S. T. (Prevention of Atrocities) Act, 1989, and sentenced the convict, as mentioned earlier. Aggrieved by which the convict/appellant Moharram Ali preferred this appeal before the Allahabad high Court, from where it has been received by transfer to this Court under section 35 of the U. P. Reorganization Act, 2000, for its disposal. ( 8 ) AS far as the offences punishable under Section 323 and 325 of I. P. C. are concerned, the prosecution has been successful in proving the same, as the statement of P. W. 1 Luxman Das regarding the fact that appellant gave him beating with Lathi and Danda, gets corroboration not only from the statement of P. W. 2 Jaipal Singh, but also from the injury report (Ext. A-3) and X-ray film (Ext. 1 ). This Court has no reason to disbelieve the evidence of the eye-witnesses, complainant himself and P. W. 2 Jaipal Singh, to disbelieve the same in the above circumstances. ( 9 ) NOW, this Court has to examine as to whether charge of offence punishable under Section 3 (l) (v) the S. C. S. T. (Prevention of Atrocities) Act is made out against the appellant or not? Section 3 (l) (v) of the S. C. S. T. (Prevention of atrocities) Act 1989, reads as under: "3. Punishments for offences of atrocities: (1) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe: (i ). . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii ). Punishments for offences of atrocities: (1) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe: (i ). . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iii ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iv ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (v) Wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water: shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. " ( 10 ) THE prosecution should have proved the fact that complainant was entitled to water of channel and the accused was not entitled to water, only than it could have been said that the appellant wrongfully deprived the complainant of enjoyment of water. P. W. 1 Luxman Das has admitted in his cross-examination that where the water channel was diverted the appellant's field is adjoining to said point. The prosecution should have produced the PATROLL (Official of irrigation department) who could have said, it is whose turn to irrigate the field on that day. No evidence was adduced on this point. Not only this, as to the altercation and beating, it can be said that the complainant could recognize Moharram ali, but it has not been established who actually diverted the channel and under what light the witness saw appellant diverting the channel. P. W. 2 Jaipal Singh is not even witness of this fact as he has reached the spot after complainant luxman Das had already been beaten by moharram Ali. P. W. 2 Jaipal Singh is not even witness of this fact as he has reached the spot after complainant luxman Das had already been beaten by moharram Ali. In the circumstances, it cannot be said that charge of offence punishable under Section 3 (l) (v) of the s. C. S. T. (Prevention of Atrocities) Act, 1989 is proved against the appellant. Therefore, the conviction and sentence passed in respect of the said charge is liable to be set aside. ( 11 ) AS to the sentence passed in respect of the charge of offences punishable under Sections 323 and 325 of I. P. C. , since, the appellant is at present in jail since 12. 08. 2006. He had been in jail earlier after conviction from 06. 01. 1994 to 08. 02. 1994. Since, the appellant is an old man, this Court finds the period undergone by the appellant would meet the ends of justice, in this case. Accordingly, the appeal is partly allowed. The conviction of the appellant under Section 323 and 325 of I. P. C. is maintained. However, his conviction and sentence under Section 3 (l) (v) of the S. C. S. T. (Prevention of atrocities) Act, 1989, is set aside. Sentence awarded to the appellant Moharram ali under Section 323 and 325 of I. P. C is reduced to the period already undergone. In default of payment of the fine (if not, already deposited) the appellant shall further undergo the period of sentence as directed by the trial court. The Appeal stands disposed of. (All pending applications in this Appeal stand disposed of ). Appeal partly allowed. --- *** --- .