JUDGMENT : 1. Judgment and order of acquittal rendered in Atrocity Case No.19 of 2006 by the learned Presiding Officer, Fast Track Court No.9, Vadodara on 14/08/2007 recording acquittal for the opponents for the offences punishable under Sections 323, 504, 506(2), 354 and 114 of the Indian Penal Code (for short IPC) and under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is sought to be assailed in this appeal under Sections 378 of the Code of Criminal Procedure. 2. Though served, the opponents–accused have failed to appear. 3. An FIR came to be lodged alleging interalia, the above referred offences against the opponents (Exh.18). It appears there from that complainant wanted to hire a loading three-wheeler for the purpose of transporting goods from one place to another. For that, he negotiated with accused– Naniya @ Rajendrakumar Gunvantrai Rajgor, who quoted Rs.100/- and the complainant countered it at Rs.60/- and eventually at the intervention of Balvant, the deal was settled at Rs.70/-. For the purpose of carrying goods, accused–Naniya accompanied the complainant to a certain place where the goods were lying. There accused-Naniya refused to load certain goods stained with mud. The complainant assured accused-Naniya that those goods would be cleaned and offered him Rs.100/for transpiration of all the goods, including the un-cleaned goods, after clearing them. When rest of the goods reached the destination, the complainant reiterated his offer that if accused agrees to bring the left out goods within two days, he would pay him Rs.100/right now. This infuriated accused-Naniya who started abusing him and also derogated him by his caste name and insisted for the fare of Rs.70/and assaulted him by fist and kicks. On the screams of the complainant, his wife–Dhani came there. Bholabhai Gunvatray Rajgor, Bhimabhai Narendrabhai Rajgor and Kailashben Gunvantray Rajgor also came there and started beating his wife and daughters viz., Arunaben, Savitaben, Hemaben and Anjana. They allegedly tore the saree and blouse of his wife and dress of daughters and intimidated them with death. 4. The case was investigated and eventually report under Section 173 of the Cr.PC was filed against the opponents. The complainant, his wife and four daughters amongst other witnesses were examined. Several documentary evidences were also produced. They allegedly tore the saree and blouse of his wife and dress of daughters and intimidated them with death. 4. The case was investigated and eventually report under Section 173 of the Cr.PC was filed against the opponents. The complainant, his wife and four daughters amongst other witnesses were examined. Several documentary evidences were also produced. The evidence, however, could not convince the trial Court to convict the accused and therefore, upon their acquittal, this appeal is preferred as pointed out herein above. 5. There are as many as six eyewitnesses to the incident in question. 5.1 PW–Danabhai Keshavbhai (Exh.17) is the complainant. He has reiterated the version given by him in the FIR in his oral testimony. He has attributed the derogatory words like “Sala Dheda” to accused-Naniya. The informant, however, testified that accused-Bholiyo and Naniyo molested his daughter by putting their hands on her chest and tearing her clothes of. She was saved by her mother. It is further deposed by him that on his screams, his wife came out and inquired about the dispute with the complainant and upon learning that the fare was the cause of the dispute, she tried to pacify accused-Naniyo telling him that they were not interested in quarrel and would pay fare of Rs.100/-. She went inside and came out with Rs.100/and gave it to the mother of accused-Naniyo who was also present there but the complainant has quoted accused-Naniyo as saying that he does not want the money and he would beat these “Dhedas”. It is borne out from his evidence that accused-Bhima and his mother held hands of his wife and assaulted on her chest. Nothing noteworthy favourable to the accused is borne out from the cross-examination of this witness except that he was not asked by the Police Station Officer to produce the torn clothes of the ladies. 5.2 The version similar to the informant with regard to the quarrel and molestation of her daughter by accused–Naniyo and Bholiyo and tearing of her clothes has been given by PW–Dhaniben Danabhai (Exh.20) and in the cross-examination she has adhered to her version with the addition that the accused persons dragged her daughter from Otla to a station post. Nothing fruitful to the accused is borne out from her cross-examination except the fact that the policeman did not ask her to produce the torn clothes. Nothing fruitful to the accused is borne out from her cross-examination except the fact that the policeman did not ask her to produce the torn clothes. 5.3 The corroborative version to the above referred witnesses is given by victim PW–Arunaben Danabhai (Exh.22). She has explained that accused-Naniyo and Bholiyo held her by shoulders and each one of them placed one hand on her chest. She was saved by her parents and before that she was dragged to the stand post where she was given slaps by accused–Naniyo and Bholiyo and thereafter tore her dress and she was stripped of. She has also testified that accused-Naniyo and Bholiyo had beaten her mother and tore her Saree and blouse. It is also stated that those people derogated them by stating “Sala Dheda, if you make a complaint, you will be done to death.” In the cross-examination, the witness has disputed the suggestion that her clothes got torn because of scuffle. There is nothing fruitful in favour of the accused in her cross-examination. 5.4 PW–Savitaben Danabhai (Exh.23), another daughter of the informant has deposed in her testimony on the similar lines as the other witnesses. In the cross-examination, she admits that during the scuffle and free-fight, her blouse and dress got torn off but has disputed the suggestion that clothes of her sister-Aruna got torn in a free-fight. She has however admitted that in her police statement she has stated that there was a free-fight and clothes of Aruna got torn; the clothes were shown to the Police but the Police did not recover the same from her. 5.5 PW–Dahiben Somabhai (Exh.24) has also given the similar evidence as other witnesses. 5.6 Dr.Swayamprakash Pande has been examined at Exh.32 who has issued the injury certificate to the injured witnesses and did not find any noticeable external / internal injuries on their person. 5.7 Dharmendrasinh Bhagvatsinh Zala has been examined at Exh.35 who is investigator and his testimony is not of much relevance except that he claims to have learnt that opponents were the members of the upper caste, without however placing any cogent material on record in that regard. 5.8 It can be noticed from the testimony of witnesses above referred that the consistent version has been given in corroboration with each other and nothing substantial in favour of accused-Naniyo and Bholiyo could be brought out in their cross-examination. 5.8 It can be noticed from the testimony of witnesses above referred that the consistent version has been given in corroboration with each other and nothing substantial in favour of accused-Naniyo and Bholiyo could be brought out in their cross-examination. No contradictions, omissions, exaggeration or improvements could be noticed in their evidences; or in the evidence of the Investigator. There are specific allegations by all the witnesses implicating accused-Naniyo and Bholiyo in the incident in question. The informant in his testimony names other accused as well; but attributes nothing to them and does not get corroboration from other eyewitnesses / injured witnesses in that regard. 5.9 Furthermore, injured witnesses have not complained about grievous injuries and therefore there may not be noticeable external injuries. Their case is that they were given kick and fist blows by the accused named above. Internal injuries would depend upon the extent of the force used by accused and if the force is less, there may not be noticeable internal injuries as well. It is not as if that in all cases of assault, the medical corroboration is necessary. Corroboration would be required only to confirm the version of the witnesses and if their version is credible and reliable and if they are found to be adhering to in the cross-examination, the medical corroboration may not be necessary. As indicated above, all the eyewitnesses and injured witnesses are consistent and adhered to their respective version in their respective cross-examination. There is nothing on record to discard their evidence as untrustworthy and therefore their version implicating the accused–Naniyo and Bholiyo is required to be accepted. The trial Court has, however, unnecessarily dismissed their evidence on surmises and conjectures. It has found that the FIR did not find the mention of the fact that accused had put their hands on the chest of victim-Aruna. The defence did not confront the informant with the said omission. When the version of the witnesses is consistent and trustworthy, such an omission, in the opinion of this Court was inconsequential. 5.10 The trial Court also seems to have misconceived the factual position. It is apparent from the evidence of the eyewitnesses that victim Aruna was rescued by her parents and therefore the observations of the trial Court that if their daughter was really molested, the parents would not have been mute spectator, is an inaccurate and perverse finding. 5.10 The trial Court also seems to have misconceived the factual position. It is apparent from the evidence of the eyewitnesses that victim Aruna was rescued by her parents and therefore the observations of the trial Court that if their daughter was really molested, the parents would not have been mute spectator, is an inaccurate and perverse finding. Moreover, the omission in the FIR that victim-Aruna was dragged to stand-post being an insignificant omission, ought not to have persuaded the trial Court to discard the evidence of the witnesses. 5.11 The trial Court fell in serious error in reading the statement of the witnesses made under Section 161 of Cr.PC, in ignorance of the settled legal position that such statement cannot be used for any purpose other than the one permissible under proviso to Section 162. Such statement can be used to contradict the witness in the manner provided under Section 145 of the Evidence Act and also for the purpose of reexamination if the statement was used for contradiction; but only for the purpose of explaining the matter referred to in the cross-examination of the witness. 5.12 After taking into consideration the said statement, the trial Court proceeded to compare it with the testimony of the witnesses, to find that discrepancy in the names of the assailants. The trial Court found that while in the testimony, Bhupendra Rajgor and Kailash Rajgor i.e. Bholiyo and Bhimo are the two accused referred to, in the evidence, Naniyo and Bholiyo are referred to. 5.13 The trial Court has also unnecessarily ventured into finding the insignificant contradictions by picking up some isolated statement of the witnesses in their examination-in-chief and cross-examination. All the witnesses are consistent in their say that saree and blouse of Dhaniben were torn by the above two accused; except the isolated statement of one of the witnesses that her clothes got torn off in a free fight. The Court ought to read the evidence as a whole and not the isolated statements. 5.14 The trial Court also was labouring under misconception that in absence of the recovery of the torn clothes by Police, the credible version of the witnesses should be discarded. As indicated above, that even in absence of corroboration, cogent and credible version cannot be discarded. 5.14 The trial Court also was labouring under misconception that in absence of the recovery of the torn clothes by Police, the credible version of the witnesses should be discarded. As indicated above, that even in absence of corroboration, cogent and credible version cannot be discarded. 5.15 Having regard to the overall facts and circumstances discussed above, in the opinion of this Court, the case against accused–Naniyo and Bholiyo under Section 323 of the IPC is made out. 6. So far as the charge under Section 504 of the IPC is concerned, the provocation with intention/knowledge to the victim so that he breaks the public peace or commits any other offence, as indicated in Section 504 of IPC is lacking in evidence. It is not pointed out as to what was the provocation was intended by the accused, for the victim to break the public peace or commit other offence. 7. So far as the charge under Section 506 of the IPC is concerned, this Court has elaborately explained in Criminal Appeal No.2213 of 2006, the distinction between 1st and 2nd part of Section 506 of IPC. Briefly stated, for making out an offence under Section 506 of IPC, the ingredients of Section 503 must be proved. The intention of the accused to cause alarm to a person or to cause that person to do the act which he is not legally bound to do, or to compel him to omit the doing of the act which he is legally entitled to do, as the means of avoiding the execution of threat, must be shown to exist. In the first part of the provision, punishment may extend to two years with or without fine. In the second part, depending upon the gravity of threat, the punishment may extend to seven years and if un-chastity to a woman is made out, it may also extend to seven years with or without fine. Therefore, appropriate evidence would categorize the case either enter to 1st or 2nd part of Section 506 of the IPC. In the second part, depending upon the gravity of threat, the punishment may extend to seven years and if un-chastity to a woman is made out, it may also extend to seven years with or without fine. Therefore, appropriate evidence would categorize the case either enter to 1st or 2nd part of Section 506 of the IPC. In the instant case, Section 506(2) is invoked; but no evidence, for the punishment under said provision is noticed; except attributing certain utterances indicated herein above to accused and except saying that accused will do the victim to death, there is nothing on record wherefrom intention to cause alarm by the accused to the witnesses with an object indicated in Section 503 can be inferred. 8. So far as the charge under Section 354 of the IPC is concerned, as indicated above, witnesses consistently and without any omission, improvement and exaggeration testified and conformed that victim-Aruna and Dhaniben were molested. Therefore, offence under Section 354 of the IPC is made out. In short, accused–Naniyo and Bholiyo have jointly committed the above referred offence in aid of each other as detailed evidence would show. Therefore, the offence under Section 114 of the IPC is also made out. 9. However, so far as the offence under Section 3(1)(x) of the Atrocities Act is concerned, though the evidence indicates that derogatory utterances in relation to the caste of the informant and the witnesses were made, by accused–Naniyo and Bholiyo, one of the crucial and basic ingredient of Section 3(1) of the Atrocities Act is found lacking in the prosecution case. The person not being a member of SC & ST can only be prosecuted under Section 3 of the Act. It was therefore incumbent upon the prosecution to establish that the accused are not the members of the ST & SC. Except halfhearted and general statement by the Investigator that he came to know that the accused were the members of the upper caste, no cogent evidence establishing that fact was brought on record of the case. Even at this stage, no evidence is pointed out and thus no case against the accused is made out under the said provision. In absence of such evidence, the accused could not have been tried for the offence punishable under Section 3(1)(x) of the Atrocities Act. 10. In the result, the appeal partly succeeds. Even at this stage, no evidence is pointed out and thus no case against the accused is made out under the said provision. In absence of such evidence, the accused could not have been tried for the offence punishable under Section 3(1)(x) of the Atrocities Act. 10. In the result, the appeal partly succeeds. The judgment and order of acquittal rendered in Atrocity Case No.19 of 2006 by the learned Presiding Officer, Fast Track Court No.9, Vadodara on 14/08/2007 is confirmed for all the accused persons qua offences punishable under Sections 504 and 506(2) of the Indian Penal Code and for the offence punishable under Section 3 (1)(x) of the Atrocities Act. 10.1 Insofar as, the judgment and order of acquittal qua offences punishable under Sections 323, 354 and 114 of the Indian Penal Code against original accused No.1–Naniya @ Rajendrakumar Gunvantrai Rajgor and original accused No.2–Bholabhai @ Bhupendra Gunvantrai Rajgor are concerned, it cannot be sustained. Both these original accused No.1–Naniya @ Rajendrakumar Gunvantrai Rajgor and original accused No.2–Bholabhai @ Bhupendra Gunvantrai Rajgor are convicted for the offence punishable under Section 323 of the IPC and sentenced to undergo rigorous imprisonment for three months with fine of Rs.1,000/( Rupees One Thousand Only) each and in default of fine, they shall suffer further sentence of one month simple imprisonment. 10.2 The original accused No.1–Naniya @ Rajendrakumar Gunvantrai Rajgor and original accused No.2–Bholabhai @ Bhupendra Gunvantrai Rajgor are also convicted for the offence punishable under Section 354 of the IPC and ordered to undergo rigorous imprisonment for six months with fine of Rs.1,000/- ( Rupees One Thousand Only) each and in default of fine, they shall suffer further sentence of three months simple imprisonment. 10.3 No separate sentence is necessary for the offence punishable under Section 114 of the Indian Penal Code. All the sentences shall run concurrently. 10.4 Both these original accused No.1–Naniya @ Rajendrakumar Gunvantrai Rajgor and original accused No.2–Bholabhai @ Bhupendra Gunvantrai Rajgor shall be arrested for the purpose of incarceration as ordered above.