JUDGMENT : K.M. Thaker, J. 1. Both these appeals are preferred against the judgment and order dated 30.12.2009 passed by learned Special Magistrate, Fast Track Court No. 3, at Nadiad in Special (S.T.S.T) Case No. 42 of 2009 whereby the learned trial court acquitted accused No. 1 and accused No. 2 from charge of offence punishable under Section 504 and 114 of Indian Penal Code and Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Act"). 1.1 The learned trial Court has acquitted the accused No. 1 from offence punishable under Section 323 also. 1.2 However, the learned trial Court convicted, accused No. 2 for offence punishable under Section 323 and sentenced him to undergo SI imprisonment for 4 months and to pay fine of Rs. 300 and in default to undergo sentence for 15 days. 1.3 The convict original accused has preferred Criminal Appeal No. 203 of 2010 against the decision - judgment recording conviction for offence under Section 323 of Indian Penal Code. 1.4 Whereas the State has challenged the decision acquitting original accused No. 1 from offence under Section 323, 504 and 114 of Cr. P.C. and Section 3(1)(x) of the Act also acquitting accused No. 2 from the offence under Section 504 and 114 of Cr. P.C. and Section 3(1)(x) of the Act. 2. Bereft of other details and relevant facts in backdrop of which the appellant herein came to be charged for the offence mentioned above are, according to the case of the prosecution, that after the daughter of the complainant cleared the front/open area - steps outside their house, the accused No. 1 passed by and while passing through he spit at the cleaned area and therefore the complainant admonished him and asked that why he spit at the area which daughter had just cleaned. According to the prosecution accused No. 1 started abusing the complainant and also mentioned his caste and then called his son-in-law who, after knowing that quarrel took place between the complainant and his father-in-law i.e. accused No. 1 brought wooden pestle and hit the complainant near forehead. He also abused the complainant mentioning his caste. In this background the complainant lodged complaint against accused Nos. 1 and 2. After investigation, chargesheet was filed. He also abused the complainant mentioning his caste. In this background the complainant lodged complaint against accused Nos. 1 and 2. After investigation, chargesheet was filed. Since charge of offence punishable under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Act") was mentioned in the chargesheet against the 2 accused persons, the case was committed/transferred to the Special Court and was registered as Special (S.T.S.T) Case No. 42 of 2009. The Court recorded statement of the 2 accused persons who pleaded not guilty and claimed to be tried. After evidence was recorded the Court completed procedure of recording further statement under Section 313 and brought on impeding facts, evidence and circumstances to the notice of the accused persons. Thereafter, upon considering the submission by learned Counsel for the accused persons and learned PP, learned Court passed above mentioned judgment recording conviction against accused No. 2 for offence punishable under Section 323 however learned Court acquitted accused No. 1 from offence punishable under Section 323 and also acquitted accused No. 2 from the offence under Section 3(1)(x) of the Act. 2.1 Aggrieved by the judgment accused No. 2 has taken out Criminal Appeal No. 203 of 2010. As mentioned earlier the State has also preferred appeal i.e. Criminal Appeal No. 664 of 2010 and challenged the acquittal. 3. After referring to some part of the evidence recorded by the learned trial Court, learned Counsel for the appellant in Criminal Appeal No. 203 of 2010 submitted that in light of the fact that this is first offence against the appellant the learned trial Court ought to have granted benefit of probation under Probation of Offenders' Act. The learned Counsel for the appellant in Criminal Appeal No. 203 of 2010 also urged that this Court may kindly consider the request and grant benefit of probation to the appellant. 3.1 So as to support his request for benefit of probation, learned advocate for the appellant also submitted that the appellant is ready to pay some reasonable amount of compensation, as the Court may consider appropriate in the facts of the case and considering the financial position of the appellant, may be granted but appellant may be allowed benefit of probation. 4. 4. With reference to the State's Appeal i.e. Criminal Appeal No. 664 of 2010 learned APP submitted that so far as charge of offence under Section 323 is concerned, the prosecution has established commission of offence and learned trial Court has rightly recorded conviction against present appellant under Section 323 of IPC. However, so far as the decision recording acquittal qua original accused No. 1 in respect of the charge of offence under Section 323, 504and 114 of Indian Penal Code is concerned, learned Court has committed error in acquitting accused No. 1 and likewise learned Court also committed error in acquitting accused No. 2 from the charge of commission of offence under Section 504 and therefore the said decision may be set aside and both the accused persons may be convicted for the said charge. So far as the charge of commission of offence under Section 3(1)(x) of Atrocity Act is concerned, learned APP submitted that the learned Court has committed error in acquitting accused No. 1 from the said offence and therefore the decision to that extent also may be set aside and accused No. 1 may be held guilty of the said offence and may be convicted and sentenced accordingly. 5. Considered the submissions by learned Counsel for the convict and learned APP. 6. With reference to the above mentioned request by learned Counsel for the appellant i.e. for the benefit of probation, the learned APP submitted that the Court may consider the request and pass appropriate order. 7. In view of the submission by learned Counsel for the appellant and learned APP, report of Probation Officer was called for by the Court. As mentioned earlier and recorded in the separate order dated 15.10.2015, a sealed cover whereby the probation officer forwarded the report was opened in the Court. This Court has read and considered the report of the probation officer. Briefly stated the probation officer has reported that record of the appellant i.e. original accused No. 2 is clear and he does not have any antecedent and there is no complaint or offence registered against him and even during period of trial and after conviction and during bail period, behavior and conduct of the appellant have remained clear. The probation officer has recommended his case for relief and benefit of probation. 8. The probation officer has recommended his case for relief and benefit of probation. 8. In this background when the judgment impugned in Criminal Appeal No. 203 of 2010 (which is filed by the original accused No. 2) and in the Criminal Appeal No. 664 of 2010 is examined, it emerges that the incident occurred on 18.1.2009 at about two p.m. when the complainant was sleeping in Varandha and his 3 sons had gone to their works. At that time the accused No. 1 defaced, by spitting, the cleaned place at front of the house of the complainant. The complainant told the accused No. 1 that the place was just cleaned and why did you spit. The said remark resulted in or led to altercation. During the said quarrel the accused No. 1 used derogatory and humiliating words and addressed the complainant by mentioning his caste the son-in-law of the appellant came at the place of incident and saw the altercation so he (i.e. son-in-law) also used similar language and he went to the house of accused No. 1 and brought wooden pestle and hit the complainant. The complainant was injured at forehead. Therefore he went to the police station and lodged the complaint against accused Nos. 1 and 2 which is registered at Nadiad Rural Police Station. Thereafter the complainant filed the complaint against the accuse Nos. 1 and 2. 8.1 After investigation charge-sheet was filed and matter was referred to Special Court in view of the fact that the accused persons were also charged with offence punishable under Section 3(1)(x) of the Act and the case was registered as Special (S.T.S.T.) No. 42 of 2009. 8.2 On 16.11.2009 the learned trial Court framed charge at exhibit 4. The statement of the accused - appellant was recorded. Upon being asked by the learned trial court the accused - appellant pleaded not guilty and claimed to be tried. 8.3 The trial was conducted and on conclusion of the trial learned trial Court rendered judgment which is impugned in these two appeals. On examination of the judgment it comes out that the learned trial Court has considered and evaluated entire set of evidence. On evaluation of the evidence learned trial Court has recorded the conclusion that daughter of the complainant came on the scene of the incident after the incident occurred and she is not eyewitness of the incident. On examination of the judgment it comes out that the learned trial Court has considered and evaluated entire set of evidence. On evaluation of the evidence learned trial Court has recorded the conclusion that daughter of the complainant came on the scene of the incident after the incident occurred and she is not eyewitness of the incident. She did not hear the alleged abuses by the accused persons to her father nor did she witness the incident where the accused No. 2 hit the complainant. 8.4 The learned trial Court has also taken into account that the other witness examined by the prosecution viz. Rajeshbhai Laljibhai (Exh. 25) was also not present at the time when the incident occurred. Learned trial Court has recorded that the said witness Rajeshbhai Laljibhai mentioned in his deposition that when he reached the place of incident, he heard the accused abusing the complainant, however, according to the deposition by the daughter of the complainant, when she came out from her house, said Rajeshbhai Laljibhai was not present and even according to the deposition by said Shri Rajeshbhai when he reached the place of incident he saw that the complainant was injured. In light of the deposition by daughter of the complainant and also considering the contradiction in the deposition of said Rajeshbhai Laljibhai, learned trial Court has recorded that said Rajeshbhai Laljibhai was not present at the time when the incident occurred. When evidence of said Rajeshbhai Laljibhai is examined, it becomes clear that the conclusion of the learned trial Court does not warrant any interference and the said conclusion cannot be faulted. 8.5 The learned trial Court has also taken into account deposition by PW No. 4 i.e. Dr. Dipakkumar V. Modi, who examined the complainant and also treated him. In his deposition, the PW No. 4 - Doctor mentioned that the complainant had received CLW of 7 cm x 1 cm. In light of the medical certificate issued by the Doctor (PW No. 4) and in light of his deposition, the learned trial Court has reached to the conclusion that the appellant - original accused No. 2 voluntarily caused the injury to the complainant. Accordingly, learned trial Court has recorded conclusion that prosecution has established commission of offence punishable under section 323 and the charge for offence under Section 323 is proved beyond doubt against the appellant. Accordingly, learned trial Court has recorded conclusion that prosecution has established commission of offence punishable under section 323 and the charge for offence under Section 323 is proved beyond doubt against the appellant. Learned trial Court has, in light of the said evidence, also recorded that the prosecution has failed to establish that the accused No. 1 caused any injury to the complainant. 8.6 The said findings and conclusion by the learned trial Court are based on deposition of the witness and physical evidence available on record, including the medical certificate of injury issued by PW No. 4 - Doctor. 9. Now so far as offence under Section 3(1)(x) of Atrocity Act is concerned, the learned trial Court has taken into account the school leaving certificate of the appellant - accused. In view of the details recorded in the school leaving certificate (Exh. 31), the Court noticed that the appellant himself is Hindu - Vankar i.e. he belongs to Scheduled Caste. 9.1 In light of such fact learned trial Court has recorded that since the accused is member of schedule caste in present case the said Section 3(1)(x) of the Atrocity Act is not attracted and is not applicable. The learned Court has recorded that any offence under Section 3(1)(x) cannot be said to have been made out in view of the provisions contained under Section 3 of the Act which, postulates that the accused should not be belonging to Scheduled Caste or Scheduled Tribe. 9.2 With regard to the offence punishable under Section 3(1)(x) of the Atrocity Act, learned trial Court has also found, on appreciation and analysis of the evidence, that the prosecution failed to establish that the accused - appellant had spoken or uttered insulting words or had addressed the complainant by calling his caste in presence of any one. On the said two counts, learned trial Court has held that the prosecution has failed to establish offence under section 3(1)(x) of the Atrocity Act against the accused No. 2 i.e. present appellant. 9.3 With regard to offence under section 3(1)(x), learned trial Court has also taken into account the deposition by the daughter of the complainant who accepted in her deposition that until she reached the place of incident and went near her father, she did not know anything about what had happened earlier. 9.3 With regard to offence under section 3(1)(x), learned trial Court has also taken into account the deposition by the daughter of the complainant who accepted in her deposition that until she reached the place of incident and went near her father, she did not know anything about what had happened earlier. Learned trial Court also considered that the witness Vinubhai and Rajeshbhai had reached the place of incident subsequently and were not present at the time when the incident occurred. 9.4 In this view of the matter, as mentioned earlier, learned trial Court recorded the conclusion that the prosecution failed to prove the charge of offence under section 3(1)(x) of the Act in view of the fact that, (a) the accused himself belongs to Scheduled Caste; and (b) none of the witness or any other person, including the daughter of the complainant, was present when the accused persons allegedly used derogatory words and insultingly mentioned the complainant's caste with intent to humiliate the complainant and allegedly insulted him. 10. For the foregoing reasons, the appeal preferred by the State against the decision recording acquittal in respect of offence punishable under sections 323, 504 and 114 of Indian Penal Code and section 135 of the Bombay Police Act with regard to accused No. 1 has no merits and deserves to be rejected and is, accordingly, dismissed. 10.1 Likewise, so far as the State's appeal against the decision recording acquittal qua accused No. 2 in respect of the offence punishable under sections 504 and 114 of Indian Penal Code and section 135 of the Bombay Police Act and section 3(1)(x) of the Atrocity Act is concerned, the appeal has no merits and the reasons and conclusions recorded by the learned trial Court cannot be faulted and do not warrant any interference. The State's appeal, therefore deserves to be rejected and is, accordingly, dismissed. 11. Now the appeal by the accused and his request for benefit of probation. In light of this Court's decision in respect of State's appeal the appeal by the accused against his conviction under Section 323 of Indian Penal Code also deserves to be rejected. 12. The State's appeal, therefore deserves to be rejected and is, accordingly, dismissed. 11. Now the appeal by the accused and his request for benefit of probation. In light of this Court's decision in respect of State's appeal the appeal by the accused against his conviction under Section 323 of Indian Penal Code also deserves to be rejected. 12. However, having regard to the submissions and request by learned Counsel for the convict and learned APP and the report by the probation officer and considering the nature of injury and the affidavit submitted by the convict to the probation officer declaring that any proceeding is not pending against him, the appellant's request deserves to be considered. In view of the above, appellant's appeal i.e. Criminal Appeal No. 203 of 2010 is hereby partly allowed. The judgment and order of conviction dated 30.12.2009 passed by learned Special Magistrate, Fast Track Court No. 3, at Nadiad in Special (S.T.S.T) Case No. 42 of 2009 is not disturbed and is hereby confirmed. However, instead of immediately directing the appellant to undergo sentence of imprisonment, the appellant is given the benefit of probation under the provisions of Probation of Offenders' Act. The appellant is directed to execute, within 3 days, a bond of Rs. 10,000/- (Rupees Ten Thousand only) under Section 4 of the Probation of Offenders' Act read with Section 361of the Code of Criminal Procedure, 1973, with one surety of the like amount for a period of 6 months and if the appellant fails to execute the bond as aforesaid, the learned trial Court shall issue a non-bailable warrant of arrest against the appellant to serve the sentence imposed by the learned trial Court. The order of substantive sentence imposed shall remain under suspension till the period of bond i.e. for 6 months after execution of Bond, and it shall become inoperative on completion of such period of 6 months. If there is breach of any of the conditions of bond to be executed under Section 4 of the Probation of Offenders' Act read with Section 361 of the Code of Criminal Procedure, 1973, by the appellant-original convict, the learned trial Court shall be at liberty to issue a non-bailable warrant of arrest against the appellant-original convict to serve the sentence imposed by the learned trial Court. The terms of the above mentioned bond to be executed by the appellant shall be settled by the learned trial Court. Rule is made absolute to the aforesaid extent in respect of Criminal Misc. Application No. 203 of 2010. The appeal being Criminal Appeal No. 664 of 2010 filed by the State of Gujarat is, for the foregoing reasons, hereby dismissed. The Record and proceedings of both the appeals be sent back to the concerned trial Court forthwith.