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2016 DIGILAW 884 (RAJ)

Sev Nath v. State of Rajasthan

2016-06-17

SANDEEP MEHTA

body2016
JUDGMENT : Sandeep Mehta, J. The appellants herein have approached this Court by way of this appeal challenging the judgment dated 24.6.1994 passed by the learned Sessions Judge, Churu in Sessions Case No. 52/1992, convicting and sentencing the appellants as below:- Sev Nath Under Section 323 I.P.C. 4 months' S.I. Under Section 3(1) SC/ST (Prevention of Atrocities) Act 6 months' S.I. and fine of Rs. 500/-, in default to further undergo 2 months' S.I. Kumbh Nath Under Section 325 I.P.C. 6 months' S.I. and fine of Rs. 500/-, in default to further undergo 2 months' S.I. 2. Shri S.G. Ojha, learned Counsel for the appellants vehemently contended that the conviction of the appellants as recorded by the Trial Court is totally illegal and was passed without proper appreciation of evidence available on record. He contended that the First Information Report of the incident was lodged after significant delay. The testimony of the prosecution eye-witnesses is wavering and highly contradictory. He thus urged that the appeal deserves to be accepted and the appellants herein are entitled to be acquitted of the charges. 3. Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the learned Counsel for the appellants. He contended that the appellants herein were raising illegal construction by encroaching on a public lane. The complainant Khushala Ram objected to the same upon which, Sev Nath the appellant herein hurled caste based abuses towards him. Khushala Ram inflicted a grievous injury on his thumb by a blunt weapon. The evidence of the prosecution witnesses in firm and unimpeachable. Thus, he urged that the appeal being devoid of any merit should be rejected. 4. I have heard the arguments advanced by the learned Counsel for the parties and have gone through the material available on record. 5. The report of the incident, which took place on 26.5.1992 at about 10 O'clock in the morning was lodged by Khushala Ram, first informant PW-3 on the very same day, at the Police Station Sri Doongargarh at about 9.30 in the evening. Thus, the report cannot be said to be belated by any stretch of imagination. It is clearly stated in the report that the appellants herein were encroaching upon a public lane and were trying to raise construction thereupon. The complainant requested them not to do so on which, the accused persons started assaulting him. Thus, the report cannot be said to be belated by any stretch of imagination. It is clearly stated in the report that the appellants herein were encroaching upon a public lane and were trying to raise construction thereupon. The complainant requested them not to do so on which, the accused persons started assaulting him. There is a specific allegation against the accused Kumbh Nath and accused Sev Nath of causing injuries to the complainant by lathi's and also of hurling caste based abuses towards him. The complainant Khushala Ram, in his evidence, gave crystal clear and convincing testimony that Sev Nath intentionally hurled caste based abuses towards him. The testimony of Khushala Ram is duly corroborated by the evidence of remaining prosecution eye-witnesses viz. Lalu Ram PW-1, Binja Ram PW-2, Koju Ram PW-5 and by the medical evidence of Dr. A.B.L. Mathur PW-4. The fact that the accused Sev Nath was raising a construction and the complainant requested him to not to encroach upon the public lane, is admitted even in the statement of Bhadar Nath DW-1. 6. In view of the above position, this Court is of the opinion that the prosecution, led convincing and clinching evidence to prove that the accused tried to encroach upon a public lane by raising a construction thereupon. The complainant rightly objected to the encroachment whereupon, he was assaulted and abused. There is a specific allegation against the appellant Sev Nath of hurling caste based abuses to the complainant and also of assaulting him. There is also convincing evidence against the appellant Kumbh Nath that the inflicted a grievous injury on the hand of Khushala Ram by a lathi. 7. In this background, this Court is of the opinion that the Trial Court was perfectly justified in convicting the appellants as above. The impugned judgment does not suffer from any infirmity, illegality or shout coming whatsoever so as to call for any interference whatsoever. 8. Now coming to the question of sentences. The offence under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act carries a minimum sentence of 6 months and thus, the same cannot be reduced. Sev Nath was 40 years of age at the time of the incident and thus, the benefit of Probation of Offenders Act can also not be extended to him in view of the bar contained in Section 19 of the SC/ST (Prevention of Atrocities) Act. Sev Nath was 40 years of age at the time of the incident and thus, the benefit of Probation of Offenders Act can also not be extended to him in view of the bar contained in Section 19 of the SC/ST (Prevention of Atrocities) Act. Kumbh Nath appellant No. 2 was acquitted of the charge under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act and was instead, convicted for the offence under Section 325 of the I.P.C. only, The said offence carries a maximum punishment of 7 years. Therefore, the provisions of the Probation of Offenders Act apply to the case of the accused Kumbh Nath and he deserves to be granted the benefit of probation instead of immediately sentencing him for the said offence. 9. Consequently, the appeal preferred by the appellant Sev Nath is devoid of any merit and is hereby dismissed. The conviction and sentences awarded to him for the offence under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act and Section 323 I.P.C. are confirmed. He is on bail. His bail bonds are cancelled. He shall be taken back in custody to serve out the sentences. 10. The appeal preferred by the appellant Kumbh Nath deserves to be and is accepted in part. While affirming his conviction as recorded by the Trial Court for the offence under Section 325 I.P.C.; instead of sentencing him immediately, he is directed to be released on probation by giving him the benefit of Section 4 of the Probation of Offenders Act upon furnishing personal and surety bonds to the satisfaction of the Trial Court to keep peace and be of good behaviour for a period of two years. Record of the Trial Court be sent back forthwith.