JUDGMENT Kaushal Jayendra Thaker, J. 1.0. By way of this appeal the appellants are challenging the judgment and order of conviction dated 04.01.2006 recorded under sections 327, 323, 324, 504, 435 read with section 114 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Atrocities Act") by the learned Additional Sessions Judge, 3rd Fast Track Court, Palanpur (hereinafter referred to as "learned trial Judge") in Special Case No. 28/2001. 2.0. The accused, four in number came to be arraigned as accused as one First Information Report came to be filed with Tharad Police Station on 25.05.1999 being I-CR No. 61/1999. On investigation being completed, the police filed the charge-sheet before the competent Magistrate and arrested the accused. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of learned Special Judge (Atrocity), at Palanpur, District Banaskantha. 3.0. On accused being summoned they pleaded not guilty and wanted to be tried. The prosecution so as to prove its case have examined the following 18 witnesses. Sr. No. PW No. Name of the Witness Exh. No. 01. 1 Malabhai Vaktabhai – Complainant 26 02. 2 Narsinhbhai Hirabhai – injured 27 03 3 Punmabhai Javabhai – injured 31 04 4 Hejiben Malabhai – wife of complainant 33 05. 5 Sonabhai Jethabhai – eye witness 36 06. 6 Raymal Ratna – eyewitness 37 07. 7 Aambuden Pirabhai – witness 39 08. 8 Purabhai Talsabhai – witness 41 09 9 Kehrabhai Ambabhai – Panch witness 42 10. 10 Mansangbhai Amraji – Panch witness 43 11. 11 Karsanbhai Kalabhai Patel - Panch witness 45 12. 12 Rameshbhai Ghudaji Mali - Panch witness 47 13. 13 Kantibhai Rudabhai Suthar - Panch witness 52 14. 14 Bhurabhai Bhanabhai Patel - Panch witness 54 15. 15 Dr. Arjunbhai Ajubhai Chaudhary – M.O. 56 16. 16 Ganpatlal Bhikhabhai – P.S.O. 61 17. 17 Ratandan Chakudan Gadhvi – I.O. (ASI) 66 18. 18 MohammedAmirmiya Malek – I.O. (DySP) 72 The prosecution through the above witnesses have got the following documents exhibited. Sr. No. Particulars of documents Exh. No. 01. Panchnama of person of injured persons 46 02. Injury certificate of Punmabhai Javabhai 58 03. Injury certificate of Narsinhbhai Hirabhai 57 04. Panchnama of recovery of weapon 53 05. 18 MohammedAmirmiya Malek – I.O. (DySP) 72 The prosecution through the above witnesses have got the following documents exhibited. Sr. No. Particulars of documents Exh. No. 01. Panchnama of person of injured persons 46 02. Injury certificate of Punmabhai Javabhai 58 03. Injury certificate of Narsinhbhai Hirabhai 57 04. Panchnama of recovery of weapon 53 05. Injury certificate of accused Hajabhai Motibhai 59 06. Suchi Patrak 62 07. Complaint of complainant 63 08. Police yadi written to Medical Officer, Tharad 64, 68, 71 09. Panchnama of scene of offence 67 10. Order directing investigation of N.C. No.12/99 69 11. Complain of Hajabhai Motibhai 70 After the prosecution examined the said witnesses and filed the closing purshis, the accused were put to question under section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC"). A further reply by original accused No. 1 was also given indicating that there was enmity and he being the Deputy Sarpanch, they were falsely implicated. 3.1. That thereafter on appreciation of evidence the learned trial Judge has convicted the appellants herein - original accused Nos. 1 to 4 for the offence punishable under sections 327, 323, 324, 504, 435 read with section114 of the IPC and section 3(2)(v) of the Atrocities Act and by the impugned judgment and order the learned trial Judge has sentenced all the accused to undergo 10 years' RI with fine of Rs. 500/- and in default of payment of fine to undergo further 3 months' SI for the offence punishable under section 327 read with section 114 of the IPC. That the learned trial Judge has also sentenced all the accused to undergo 6 months' RI with fine of Rs. 200/- and in default of payment of fine to undergo 15 days' SI for the offence punishable under section 323 read with section114 of the IPC. That the learned trial Judge has also sentenced all the accused to undergo 1 year RI with fine of Rs. 500/- and in default of payment of fine to undergo 3 months' SI for the offence punishable under section 324read with section 114 of the IPC. That the learned trial Judge has also sentenced all the accused to undergo 1 year RI with fine of Rs. 500/- and in default of payment of fine to undergo 3 months' SI for the offence punishable under section 324read with section 114 of the IPC. That the learned trial Judge has also sentenced all the accused to undergo 1 year RI with fine of Rs. 200/- and in default of payment of fine to undergo 15 days' SI for the offence punishable under section 504 read with section 114 of the IPC. That the learned trial Judge has also sentenced all the accused to undergo 5 years' RI with fine of Rs. 300/- and in default of payment of fine to undergo 25 days' SI for the offence punishable under section 435 read with section 114 of the IPC. That the learned trial Judge has also sentenced all the accused to undergo life imprisonment with fine of Rs. 200/- and in default of payment of fine to undergo 15 days' SI for the offence punishable under section 3(2)(v) of the Atrocities Act. 3.2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Judge, appellants herein - original accused have preferred the present Criminal Appeal against the judgment and order of conviction and sentence. 4.0. Ms. Bhavini Jani, learned advocate for Mr. Bhadrish S. Raju, learned advocate has contended that the learned trial Judge has erred in holding that the prosecution has proved its case against the appellants herein beyond reasonable doubt. She has further contended that the learned trial Judge ought to have appreciated that there are material contradictions, omissions and inconsistencies in the FIR filed by the complainant and his deposition before the Court and similarly there are material contradictions and inconsistencies in the statements of injured witnesses Narsinhbhai and Punmabhai before the police and their respective depositions before the Court and therefore, the learned trial Judge erred in relying upon such contradictory evidence. 4.1. Ms. Jani, learned advocate has further contended that the learned trial Judge has failed to appreciate that the prosecution has not adduced the evidence as per the charge framed at Exh. 15 and the evidence adduced by the prosecution is totally contradictory, inconsistence and no ingredients of a single offence alleged against the appellants are satisfied by the evidence adduced by the prosecution. She has also contended that even the charge framed at Exh. 15 was defective charge. It is contended by Ms. 15 and the evidence adduced by the prosecution is totally contradictory, inconsistence and no ingredients of a single offence alleged against the appellants are satisfied by the evidence adduced by the prosecution. She has also contended that even the charge framed at Exh. 15 was defective charge. It is contended by Ms. Jani, learned advocate that the learned trial Judge framed a combined charge for the offences punishable under sections 327, 324, 323 & 504 of IPC. It is contended that allegations of sections 324 and 323 of IPC are distinct from the allegations of section 327 of IPC and not a single allegation is leveled against the appellants attracting charge under section 327 of the IPC and without there being any allegation attracting said charge, combined charge was framed. Ms. Jani, learned advocate has also contended that when there is no specific allegation attracting charge of offence punishable under section 327 of the IPC, the learned trial Judge erred in framing charge under section 3(2)(v) of the Atrocities Act. Ms. Jani, learned advocate has further contended that it is not the case of the prosecution right from filing of the FIR to framing of charge that the appellants caused hurt for the purpose of extorting any property or valuable security from the injured witnesses and that the appellants merely inquired as to why they were making encroachment in kharaba/gauchar land and, therefore, ingredients of section 327 of IPC are not satisfied at all and therefore, the learned trial Judge erred in convicting the appellants for offence punishable under section 327 of IPC. 4.2. Ms. Jani, learned advocate has further contended that no evidence is led by the prosecution to establish that the land was allotted to witnesses Narsinhbhai or Punmabhai and that they were putting up fence on the said land. 5.0. The present appeal is vehemently opposed by Mr. H.K. Patel, learned APP appearing on behalf of the State. 5.1. It is vehemently submitted by the learned APP that the finding recorded by the learned trial Judge are on appreciation of evidence. It is submitted that both the aforesaid witnesses who are eye witnesses have fully supported the case of the prosecution and they have narrated the manner in which the offences were committed by the accused persons. 5.1. It is vehemently submitted by the learned APP that the finding recorded by the learned trial Judge are on appreciation of evidence. It is submitted that both the aforesaid witnesses who are eye witnesses have fully supported the case of the prosecution and they have narrated the manner in which the offences were committed by the accused persons. It is submitted that both the aforesaid witnesses have narrated in detail how the incident had taken place and the role played by each accused. It is submitted that therefore in the facts and circumstances of the case, learned trial Judge has not committed any error in convicting the original accused. Mr. Patel, learned APP has also submitted that the accused had damaged the property knowing full well that the property belonged to the complainant and the injured. Making above submissions, Mr. Patel, learned APP has requested to dismiss the present appeal. 6.0. We have heard the learned advocates for the parties at length. The original complainant Malabhai Vaktabhai (PW-1) has deposed at Exh. 26. He has deposed in his deposition that on the date of incident he was present at his house and at that time, his wife brought his nephew Narsinhbhai who was bleeding profusely. The said witness has stated in his deposition that the said injured Narsinhbhai told him that Punma Bhema inflicted stick blow on his head and at that time he was accompanied by Haja Moti, Viha Moti, Raya Ajshi with sticks. He had also stated that Punma Java had been abducted by the accused and all the accused have beaten with stick. PW-1 has stated in his cross-examination that original accused No. 1 was elected Deputy Sarpanch and original accused No. 2 was elected as a member. From the cross-examination of PW-1 it appears that the complainant belongs to Harijan community, accused belong to Patel and Rabari community and that the other accused who were also having sticks were Punma Bhimaji, Haja Moti and Viha Moti i.e. original accused Nos. 1, 2 and 3 respectively. The said witness has admitted in his cross-examination that in their village there are 120 houses of Harijans and 70 houses of Patels and 80 to 90 houses of Rabaris and the house of the PW-1 is situated in Harijanwas. On appreciating the entire evidence more particularly the evidence of prosecution witness Nos. 1, 2 and 3 respectively. The said witness has admitted in his cross-examination that in their village there are 120 houses of Harijans and 70 houses of Patels and 80 to 90 houses of Rabaris and the house of the PW-1 is situated in Harijanwas. On appreciating the entire evidence more particularly the evidence of prosecution witness Nos. 1, 2, 3 and 4 and the medical evidence, the question which emerges is whether the case would fall within the purview of sections 327, 435, 504 read with section 114 of the IPC. On totality of the facts and circumstances, we are in agreement with the submission made by Ms. Jani, learned advocate that the land was a kharaba land and it did not belong to the complainant or the injured witnesses. At this stage provision of section 435 of the IPC is required to be considered and the same is reproduced hereinbelow "435. Mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees.-Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards 1[or (where the property is agricultural produce) ten rupees or upwards], shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." Therefore, bare perusal of the section quoted hereinabove makes it clear that the provisions of section 435 IPC cannot be invoked against the accused and they could not have been convicted under section 435 of the IPC for the following reasons. (1) Nobody testifies as to who had caused the mischief to the standing crop. (2) The only witness who testifies that there were standing crops could be got from the panchnama and PW-7 who has, on hearsay evidence stated that people from the village had come, she recognized the accused but did not know who had caused the damage to the property rather in her cross-examination she accepts that the complainant nor the other eye-witnesses owned the said land. Therefore, we cannot concur with the finding of facts of the learned trial Judge that the accused had committed offence under section 435 of the IPC. Therefore, we cannot concur with the finding of facts of the learned trial Judge that the accused had committed offence under section 435 of the IPC. Hence, conviction recorded under section 435 of the IPC is set aside. 6.1. This takes this Court to the offence under section 327 of the IPC. On the reasoning given above, it cannot be said that the property belonged to the complainant or the other injured and therefore, considering the provisions of section 327 of the IPC which are extracted herein below, it cannot be said that the accused ever tried to extort the property or constrained to an illegal act so as to cause hurt. "327. Voluntarily causing hurt to extort property, or to constrain to an illegal to an act.- Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything which is illegal or which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." The accused have not caused voluntary hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer any property or valuable security so as to do anything which is illegal or which may facilitate the commission of offence and therefore, the finding on this aspect and the conviction cannot stand. The accused could not have been convicted with the aid of section 327 as none of the ingredients of section 327 were not made out even from the FIR or from the ocular version of any of the witness as the property was never sought to be extorted or the complainant or other witnesses could not have been said to have committed any act which would be illegal. 6.2. This takes this Court to the conviction under section 504 read with section 114 of the IPC. Sections 504 and114 of IPC read as follows: "504. 6.2. This takes this Court to the conviction under section 504 read with section 114 of the IPC. Sections 504 and114 of IPC read as follows: "504. Intentional insult with intent to provoke breach of the peace.-Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 114. Abettor present when offence is committed.-Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence." The oral testimony of the complainant, Malabhai Vaktabhai (PW-1, Exh. 26) also does not say that the accused told such words so as to insult with an intent to provoke breach of peace. The said witness nowhere states that the accused had insulted. The version of Narsinhbhai Hirabhai (PW-2, Exh. 27), an injured witness also does not show that the ingredients of section 504 are made out, the reason being he states that they were in a field when four accused came with wooden sticks. He states that one accused was armed with an axe and that they were telling him not to encroach the kharaba land. The evidence of this witness nor the evidence of PW-3 and PW-4 show that there was any insulting words so as to provoke the complainant nor was he told by any of the persons present that the accused had used insulting words intentionally so that breach of peace would occasion. Hence, the conviction under section504 of the IPC cannot be sustained. 6.3. This takes this Court to section 3(2)(v) of the Atrocities Act. The FIR and the evidence nowhere suggest that any words or any act was done by the accused. Once we have held that the act of the accused does not fall within section 327 of the Indian Penal Code, 1860, can it be said that they had done any act which was against person or property on the ground that such person is a member of Scheduled Castes or Scheduled Tribe. Once we have held that the act of the accused does not fall within section 327 of the Indian Penal Code, 1860, can it be said that they had done any act which was against person or property on the ground that such person is a member of Scheduled Castes or Scheduled Tribe. The learned trial Judge has materially erred and we are unable to accept the submission of Mr. Patel, learned APP that the accused had damaged the property knowing full well that the property belonged to the complainant and the injured. It is not proved rather the converse is proved that the injured has admitted in his evidence that he did not have documentary evidence to show that the land was allotted to him by the Talati though he has stated that it was allotted to him by Talati. He has not produced any document before the investigating authority nor before the Court also. Therefore, the provisions of section 3(2)(v) of the Atrocities Act itself will not come in way as it cannot be said that any offence which would be termed as an atrocity can be said to have been committed by the accused and therefore, their conviction under section 3(2)(v) of the Atrocities Act and the reasoning thereof are against the record and are not sustainable. The reasonings at paras 32 and 33 itself are faulty as it is not proved by any of the witnesses more particularly by the evidence of PW-2 that the complainant and witnesses belonged to the scheduled caste. Just because the police officer had investigated it as an Atrocity case, would not take it within the purview of section 3(2)(v) of the Atrocities Act and hence, their conviction under section 3(2)(v) of the Atrocities Act is also quashed and set aside. 6.4. This takes this Court to the provision of section 323 read with section 324 of the Indian Penal Code, 1860. The following injuries are caused to the two eye witnesses viz. Narsinhbhai (PW-1) and Punmaji (PW-2). Injuries sustained by Narsinhbhai "1. CLW on parieto-occipital region on middle of jault, oblique in direction, scalp deep 3 1/2 x 1/2 cm in size 2. CLW on parieto-occipital region crisscross to above injury obliquely, 3 1/2 x 1/2 cm in size, scalp deep. 3. Narsinhbhai (PW-1) and Punmaji (PW-2). Injuries sustained by Narsinhbhai "1. CLW on parieto-occipital region on middle of jault, oblique in direction, scalp deep 3 1/2 x 1/2 cm in size 2. CLW on parieto-occipital region crisscross to above injury obliquely, 3 1/2 x 1/2 cm in size, scalp deep. 3. Contusion on back with swelling and difficult movement extend from tip of inferior angle of right scapular to 2 cm below tip of inferior angle of left scapular - oblique in direction, 14 x 2 x 1/2 cm in size. 4. Contusion on back with swelling from medial border of left scapular to upper border of right scapular to upper border of right scapular oblique in direction 10 x 2 1/2 cm in size 5. Swelling and tenderness on left side on neck ovoid in shape, 3 x 2 1/2 cm in size" Injuries of Punmaji Javaji "1. CLW and abrasion on lateral aspect of left thigh 10 1/2 cm below anti rear - I line - spine, oblique in direction muscle deep, 2 1/2 x 1/2 cm in size 2. Contusion and swelling on right forearm near elbow joint on posts-lateral aspect, no restricted movement found 3. Contusion on ventro-lateral aspect of left forearm and redness, oblique in direction, 4 1/2 x 2 1/2 cm in size 4. Contusion and swelling on right shoulder and scapular region and tenderness and restricted movement of abolvetion and overlapping border, oblique in direction, 2 x 3 1/2 cm in size X-ray plate No. 1210 shows # of right scapular bone. 5. Contusion on left scapular region extend from external upper end of scapular to lower down obliquely upto T11 level - 13 x 2 1/2 cm in size. 6. Contusion on right side of back, 5 cm below right inferior angle of scapular extend obliquely from mid-axillary line to L2 level, 15 x 2 1/2 cm in size 7. Contusion on right side of chest at Rib 5-7 level, oblique, 3 x 2 1/2 cm in size, no clinical # found." That the evidence of Dr. 6. Contusion on right side of back, 5 cm below right inferior angle of scapular extend obliquely from mid-axillary line to L2 level, 15 x 2 1/2 cm in size 7. Contusion on right side of chest at Rib 5-7 level, oblique, 3 x 2 1/2 cm in size, no clinical # found." That the evidence of Dr. Arjunbhai Ajubhai Chaudhary (PW-15) corroborates the above said injuries sustained by the injured witnesses and relying on the deposition of the said evidence of medical officer, the learned trial Judge held the accused guilty for the offence punishable under section 324 read with section 323 read with section 114 of the IPC and therefore, the conviction of the accused under section 324 read with section 323 read with section114 of the IPC cannot be found fault with and we concur with the learned trial Judge. 6.5. This takes us to the punishment part. As far as Punmabhai (original accused No. 1) is concerned, as he has caused the injury on Narsinhbhai (PW-2) - injured eye witness on the head i.e. vital part of the body and so far as Rahaji (original accused No. 4) is concerned, he inflicted injury on the thigh of Punmaji (PW-3) - injured eye witness by axe, they are sentenced to undergo 6 months' RI as awarded by the learned trial Judge, however the sentence under section 324 IPC is reduced to 6 months' RI, however the fine is enhanced to Rs. 1700/-. Now, so far as Hejabhai (original accused No. 2) is concerned, even as per the deposition of Narsinhbhai (PW-2) - injured eye witness, he caused the injury by fist and kicks and so far as Vihabhai (original accused No. 3) is concerned, he caused the simple injury by stick on Narsinhbhai (PW-2) and Vihabhai (PW-3) - injured eye witnesses. We deem it fit to impose the punishment of 3 months' RI already under gone. 6.6. We deem it fit to impose the punishment of 3 months' RI already under gone. 6.6. In view of the above and for the reasons stated above, present Criminal Appeal is partly allowed and the impugned judgment and order dated 04.01.2006 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, at Palanpur, District Banaskantha in Special Case No. 28/2001 is modified and it is held that original accused No. 1 - Punmabhai Bhimaji Anjana, original accused No. 2 - Hajabhai Motibhai Rabari, original accused No. 3 - Vihabhai Motibhai Rabari and original accused No. 4 - Rahaji Ajesinhji Rabari are acquitted for the offences punishable under section 327 read with section 114, section 435 read with section 114 and section 504 read with section 114 of the Indian Penal Code, 1860 and for the offence punishable under section 3(2)(v) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is further held that the conviction under section 323 read with section 114 and under section 324 read with section 114 of the Indian Penal Code, 1860 against all the accused is confirmed and the sentence of six months' imprisonment awarded by the learned Additional Sessions Judge, 3rd Fast Track Court, Palanpur is upheld. That the original accused No. 1 - Punmabhai Bhimaji Anjana and original accused No. 4 - Rahaji Ajesinhji Rabari are directed to undergo 6 months' RI with fine of Rs. 1700/- each and default sentence is maintained. The original accused No. 2 - Hajabhai Motibhai Rabari and original accused No. 3 - Vihabhai Motibhai Rabari have already undergone sentence of 3 months and 12 days and therefore, their sentence is restricted to the sentence already undergone, however they are directed to pay the fine of Rs. 1700/- each and default sentence is maintained. As it is reported that all the accused are on bail, their Bail Bonds stand cancelled. All the accused to surrender to Jail Authorities within a period of four weeks from today. It goes without saying that all the accused shall be entitled to the set off and if original accused Nos. 2 and 3 are not required to surrender, the Jail Authorities may intimate to them regarding the same as they have already suffered incarceration for 3 months and 12 days and we have awarded them with punishment of 3 months each. 2 and 3 are not required to surrender, the Jail Authorities may intimate to them regarding the same as they have already suffered incarceration for 3 months and 12 days and we have awarded them with punishment of 3 months each. All the sentences to run concurrently. Appeal Partly Allowed