JUDGMENT 1. - Accused-appellants Chatura Ram and Kana Ram have assailed the validity of the impugned judgment of conviction and order of sentence dated 8.7.1993, passed by the learned Special Judge SC/ST (Prevention of Atrocities) Cases, Jodhpur in Sessions Case No. 22/1992 titled as State of Rajasthan v. Chatura Ram & Ors. , whereby the learned Special Judge SC/ST (Prevention of Atrocities) Cases, Jodhpur (hereinafter referred as the learned trial Court) acquitted the co-accused Ratan Lal for offence punishable under Section 3(1)(v) and (x) of SC/ST (Prevention of Atrocities Act, 1989 (hereinafter referred to as "the Act of 1989") and Section 427 of the I.P.C. and convicted the accused appellants Chatura Ram and Kana Ram for the offence under Section 3(1)(v) of the Act of 1989 and acquitted from Section 427 of the I.P.C. and Section 3(1)(x) of the Act of 1989 and each of them were sentenced for six months simple imprisonment along with fine of Rs. 200/- and in event of default in payment of fine one month simple imprisonment was awarded. Benefit of Provisions of Section 428 of the Cr.P.C. was also extended. 2. The appeal was admitted by this Court on 3.8.1993 and notice was issued to respondent and record of the trial Court was called for. 3. From the perusal of the record of the trial Court it reveals that Moola Ram PW-3, submitted a complaint on 8.2.1993 before the learned Judicial Magistrate, Bilara against the appellants accused and co-accused Ratan Lal stating therein that the complainant is a member of Scheduled Caste and on 5.2.1993 at about 12.00 noon, accused-appellants armed with Geti and Phawada came to his house and started to demolish the wall which was constructed towards the northeast side of his house. Complainant and his wife Smt. Narbda PW-4 requested the appellants accused but no heal was paid to their request and were started abusing and finally they demolished the wall which was of 3ft x 6ft size. One Manohar Lali was present at the place of occurrence. 4. Learned Judicial Magistrate, Bilara vide his order dated 8.2.1993 sent the complaint under Section 156(3) of the Cr.P.C. to Police Station Bilara for investigation. In compliance of order dated 8.2.1992, F.I.R. No. 52/1993 for offences punishable under Sections 447, 427, 353 I.P.C. and Section 3(1)(v)(x) of the Act of 1989, was registered and investigation was handed over to Circle Officer, Bilara. 5. In compliance of order dated 8.2.1992, F.I.R. No. 52/1993 for offences punishable under Sections 447, 427, 353 I.P.C. and Section 3(1)(v)(x) of the Act of 1989, was registered and investigation was handed over to Circle Officer, Bilara. 5. After due investigation, police filed charge-sheet on 27.2.1993 against the appellants accused and co-accused Ratan Lal for offences punishable under Sections 447 and 427 I.P.C. of Section 3(1)(v) and (x) of the Act of 1989, since the offences under Section 3(1)(v) and (x) of the Act of 1989 were exclusively triable by Special Court, SC/ST (Prevention of Atrocities) Cases, the case was committed to the Court of learned Special Judge SC/ST (Prevention of Atrocities) Cases, Jodhpur. 6. The learned trial Court after hearing the parties, framed the charges under Section 3(1)(v) and (x) of the Act of 1989 and 427 of the I.P.C. against the appellants accused and co-accused Ratan Lal, for which, they denied and claimed the trial. 7. To substantiate the charges against the accused appellants, prosecution examined as many as 9 witnesses. Thereafter, the accused were examined under Section 313 Cr.P.C. wherein they stated that the statements against the accused deposed by the prosecution witnesses are wrong, accused-appellant Chatura Ram stated that wall of his Chabutari was demolished by Moola Ram for which he made a complaint before the Panchayat thats why complainant lodged the false case against the accused-appellants. Even after availing the opportunity for producing the defence evidence, accused-appellants failed to do so. 8. Learned trial Court after hearing the Special Public Prosecutor and learned counsel for the accused-appellants acquitted the co-accused Ratan Lal for the offences charged for but convicted the accused-appellants for the offences under Section 3(1)(v) of the Act of 1989 and sentenced as above. 9. Felling aggrieved by the impugned judgment of conviction and order of sentence accused-appellants Chatura Ram and Kana Ram preferred this appeal before this Court. 10. Heard learned counsel Mr. Mahesh Thanvi appearing for the accused-appellants and Mr. K.K. Rawal, learned Public Prosecutor for the State and perused the impugned judgment of conviction and order of sentence and also perused the record of the trial Court. 11. Learned counsel Mr. 10. Heard learned counsel Mr. Mahesh Thanvi appearing for the accused-appellants and Mr. K.K. Rawal, learned Public Prosecutor for the State and perused the impugned judgment of conviction and order of sentence and also perused the record of the trial Court. 11. Learned counsel Mr. Mahesh Thanvi for the accused-appellants submitted that there is similar set of evidence against co-accused Ratan Lal whereas co-accused Ratan Lal was acquitted by the learned trial Court and this portion of judgment was not challenged by the State as such, it attained finality and on the same set of evidence, accused-appellants Chatura Ram and Kana Ram are wrongly convicted. He further submitted that as per prosecution witnesses the incident took place on 5.2.1993, at 12.00 noon, while the complaint was lodged directly in the Court on 8.2.1993 and no explanation of delay was given by the complainant. He further submitted that Investigating Officer inspected spot and prepared site plan Ex.P-6 wherein no symptoms regarding demolition of wall were found. He further submitted that accused-appellant Chatura Ram made a complaint regarding illegal construction against the complainant before Panchayat and Panchayat passed stay order in favour of accused-appellant Chatura Ram. Due to this enmity, complainant ldoged the false case against the accused-appellants. He further submitted that learned trial Court on the one hand acquitted the appellant-accused from offence under Section 427 I.P.C. and Section 3(1)(x) of the Act of 1989 and causing damage which has attained finality as prosecution has not challenged that finding and on the same set of evidence learned trial Court convicted the accused-appellants for the offences under Section 3(1)(v) of the Act of 1989 which is being contradictory hence is not sustainable. Lastly, he submitted that the learned trial Court has failed to appreciate the prosecution evidence in right perspective and in absence of evidence that the offence committed due to caste of Scheduled Caste the finding regarding conviction and sentence of appellants accused is erroneous and illegal. As such, the appeal may be allowed arid the judgment of conviction and order of sentence be set aside. 12. As such, the appeal may be allowed arid the judgment of conviction and order of sentence be set aside. 12. Per contra, learned Public Prosecutor has supported the impugned judgment of conviction and order of sentence but fairly considered that no symptoms of demolishing of wall were found at the place of occurrence and also contended that the offences punishable under Section 427 I.P.C. and Section 3(1)(v) of the Act of 1989 are similar so far as interference in right are concern. 13. I have considered the arguments. 14. PW-3 Moola Ram is complainant who stated in his statement that at about 12.30 noon Ratanji called Chatura Ram that "demolish the wall we are behind you". On it, Ratan Ram, Chatura Ram and Kana Ram demolished the wall by geti and phawada. Manohar Lai. Sohan Lal and Kelki were the eyewitness. He admitted in his cross-examination that Chatura Ram had lodged an F.I.R. against him. As such there was enmity between the complainant and accused-appellants Chatura Ram and Kana Ram S/o Chatura Ram. 15. PW-4 Narbda is the wife of complainant PW-3 Moola Ram who has stated in her statement that they were constructing the wall towards the house of Chatura Ram at about 12.00 noon then Ratan Ram, Kana Ram and Chatura Ram came there armed with geti and phawada and demolished the wall. 16. PW-3 Moola Ram in his statement has admitted that at about 10.00 A.M. on the fateful day Gram Sevak came to him and stated that Chatura Ram has obtained stay order over the construction still as per PW-4 Narbda the construction work of wall was going on at 12.00 noon between the Chabutari of Chatura Ram. 17. As per PW-3 Moola Ram, Keli PW-5 was the eye-witness but she did not support the prosecution case and turned hostile. 18. PW-6 Sohan Lai stated that on 12.00 noon on 5.2.1993, Chatura Ram and Kana Ram came there and demolished the wall of Moola Ram which was constructed on the Chabutari of Moola Ram but in cross-examination he admitted that when he reached at the spot, the wall was already demolished, as such this witness cannot be said to be seen the incident as he reached at spot after demolishing the wall. 19. 19. PW-7 Udai Singh stated in his statement that Moola Ram did not obtain permission to make construction over the wall, on 4.2.1993 Chatura Ram submitted as application for staying the construction work of Moola Ram regarding construction work of Chabutari for which the stay order was passed on the same day. 20. PW-8 Manohar Lal stated in his statement that Chatura Ram, Kana Ram and Ratna Ram all were demolished the wall of Moola Ram with the help of geti and phawada.This witness is the nephew of the complainant Moola Ram. 21. PW-9 Idan Singh. I.O. who conducted the investigation has stated regarding investigation. 22. Learned trial Court after appreciating the evidence, in Para No. 10 of the impugned judgment held that prosecution has failed to establish the charges for the offence under Section 427 of the I.P.C. but in Para No. 7 it was held that prosecution has proved the fact of demolishing the wall. In site plan Ex.P-6 which was proved by PW-9 Idari Ram, I.O., no symptoms of demolishing the wall were shown. If the wall had been demolished then there must be some bricks, stones, sand or cement pieces but PW-9 Idan Singh Investigating Officer did not speak a single word regarding demolishing of wall. 23. Though PW-3 Moola Ram stated that Manohar Lal, Sohan Lal and Kelki were the eye-witnesses of the incident but no independent witness has supported the prosecution case. Kelki has turned hostile and Manohar Lal is the nephew of complainant himself and PW-4 Narbda is the wife of complainant. 24. As per prosecution the incident took place at 12.00 noon on 5.2.1993 and the complaint Ex.P-1 was filed on 8.2.1993 and in complaint nothing has been explained for causing delay, this also creates doubt on the prosecution case.If the wall would have been demolished by the accused appellant then there must have been stones, bricks pieces of cement, concrete etc. in absence of these ingredients and in absence of explanation of delay and the fact that even after obtaining the stay order from Panchayat the construction of wall was being continued on 5.2.1993 as on 12.00 noon even after the service of stay order as perPW-4 Narbda creates doubt in prosecution story which have not been noticed by the learned trial Court. Further for the offence under Section 3(1)(v) of the Act of 1989 it is necessary for the prosecution to prove the fact that offence was committed due to being member of Scheduled Caste/Scheduled Tribe, prosecution failed to prove this fact also. Learned trial Court on same set of evidence acquitted co-accused Ratan Lal and acquitted the accused appellants for under Sections 427 I.P.C. and 3(1)(x) of the Act of 1989 now as discussed above. It is unsafe to maintain judgment of conviction and order of sentence of the accused-appellants and as such this appeal deserves to be accepted and it is hereby accepted. 25. Accordingly, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 8.7.1993 passed by the learned trial Court against accused-appellants Chatura Ram and Kana Ram is quashed and set aside after extending them the benefit of doubt. They are on bail, their bail bonds are discharged.Record of the learned trial Court be sent back with the copy of this judgment.Appeal allowed. *******