JUDGMENT : 1. The appellants – original accused have preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (“the Code” for short) to assail the judgment and order passed by the learned learned Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and Additional Sessions Judge, 5th Fast Track Court, Veraval, in Atrocity Sessions Case No.08 of 2002 dated 19.01.2005, where under the learned Special Judge has convicted the appellants under Sections 323 of Indian Penal Code (“I.P. Code” for short) and under Section 3(i)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (hereinafter referred to as “Atrocity Act”) and inflicted sentence as under: Nature of offence Sentence 3(i)(x) of Atrocity Act 1 year R.I. and fine of Rs.100/-, in default, to further undergo 3 months S.I. 323 of IPC 1 month S.I. and fine of Rs.100/-, in default, to further undergo 7 days S.I. Both the sentences shall run concurrently. 2. Case of the prosecution in nutshell as emerging from the impugned judgment and connected materials is that: 2.1 On 11.05.2001, the relief work was going on at village: Untwada, where the defecto complainant Babubhai Dahyabhai Sarvaiya (P.W.1) and Nanjibhai Tabhabhai Sarvaiya (P.W.3) had gone to do relief work. At that time, Dhudhabhai Hamabhai Gohil (Accused No.1), Rambhai Bhimbhai Gohil (Accused No.3) were digging pits in the field of P.W.1. P.W.1 asked them as to why they were digging pits in his field, whereupon he was told that it was Government land. In the meantime, Bachubhai Naranbhai Makwana (Accused No.2) and Shardul Naran Makwana (Accused No.4) came and started giving filthy language and fist blows. The accused No.1 was armed with spade and he inflicted a blow on the head of P.W.1 by blunt side of spade. Accused Nos.2 to 4 gave fist blows on the back of the P.W.1. Jivabhai Mithabhia and P.W.3, who were present there, had intervened and saved the P.W.1 from further beating. Thereafter, P.W.1 was taken to the Community Health Center, Una, for treatment. P.W.1 lodged the complaint in respect of this incident with Una Police Station, which registered vide C.R. II 3187/2001 for the offence punishable under Sections 323, 504 and 506(2) read with Section 114 of I.P. Code, Section 135 of the Bombay Police Act and Section 3(i)(x) of the Atrocity Act. P.W.1 lodged the complaint in respect of this incident with Una Police Station, which registered vide C.R. II 3187/2001 for the offence punishable under Sections 323, 504 and 506(2) read with Section 114 of I.P. Code, Section 135 of the Bombay Police Act and Section 3(i)(x) of the Atrocity Act. The prosecution against the accused culminated as Special Atrocity Case No.08 of 2002. 2.2 The Sessions Court framed charges against the accused vide Exhibit-4. The same was read over and explained to the accused - appellant, who pleaded not guilty and claimed to be tried. The prosecution, therefore, adduced following documentary and ocular evidence to prove the guilt of the accused. Oral Evidence: Sr. No. Name of the Witnesses Exhibit 1. P.W.1 Babubhai Dahyabhai 09 2. P.W. 2 Jesukhbhai Dahyabhai 13 3. P.W. 3 Nanjibhai Tabhabhai 14 4. P.W. 4 Mansukhgiri Kailasgiri 15 5. P.W. 5 Dr. Vasantkumar Amrutlal Abhani 16 6. P.W.6 Nathaji Suraji Rathod 18 7. P.W.7 Husainkhan Ibrahimkhan 21 8. P.W.8 Surendrasinh Umedsinh Jadeja 22 Documentary Evidence: Sr. No. Documents Exhibit 1. Complaint 10 2. Panchnama – recover of weapon i.e. spade 16 3. Injury Certificate 17 4. Wireless Message by PSO 19 5. Yadi 20 6. Panchnama 23 7. Caste Certificate 24 2.3 Upon conclusion of the trial, the statement under Section 313 of the Code of the accused-appellants came to be recorded. The trial Court, after considering the evidence on record and arguments of learned APP and learned advocate for the accused, convicted the appellants accused of the charges by the impugned judgment and order. 3. I have heard Mr. Dhaval D. Vyas, learned advocate, for the appellants and Mr. L.R. Pujari, learned APP for the State. I have also perused the record and proceedings of Atrocity Sessions Case No. 08 of 2002. 4. Mr. Vyas, learned advocate for the appellants vehemently submitted that the evidence of witnesses suffer from material contradictions and improvement. He submitted that the prosecution has not examined any independent witness and therefore, the offence under Section 3(i)(x) of the Atrocity Act cannot be said to have committed within public view. He further vehemently submitted that the none of the witnesses have stated in their respective testimonies before the Court that the appellants had uttered the offending words and therefore, the learned trial Judge ought not have convicted the appellants for the offence under the Atrocity Act. He further vehemently submitted that the none of the witnesses have stated in their respective testimonies before the Court that the appellants had uttered the offending words and therefore, the learned trial Judge ought not have convicted the appellants for the offence under the Atrocity Act. It is his further submission that the evidence of the witnesses as regard giving fists and kick blows is also not consistent and suffers from material contradictions and therefore, he urged that conviction may be set aside. In the alternative, it is his submission that as the prosecution has failed to prove the offence under Section 3(i)(x) of the Atrocities Act, the punishment for the offence under Section 323 of I.P. Code may be modified to already undergone. 5. Mr. Pujari, learned APP supported the impugned judgment. He submitted that Jesukhbhai (P.W.2) has clearly stated in his evidence that the appellants had spoken the offending words and threatened the P.W.1 with dire consequences. It is his further submission that the contradiction in the evidence is minor and does not go to the root of the case. Hence, he submitted that the impugned judgment and order does not warrant any interference in this appeal. 6. So far as the offence under Section 3(i)(x) of the Atrocities Act is concerned, it is clear from the provisions of the Section itself that the offending words must have been spoken by the accused persons with an intention to lower the image of the affected person of the specified category within a public view. 8. In the instant case, P.W.1, defecto complainant nowhere states in his evidence before the Court that the appellants had spoken the offending words about his caste likewise though P.W.2 states in his evidence that the appellants had spoken offending words and had threatened the P.W.1 with knife. It emerges from his cross-examination that he has not stated in his statement under Section 161 before the police that the appellants had spoken offending words. In that view of the matter, I am of the considered view that since the evidence of witnesses does not reflect that the appellants had spoken offending words about the caste of P.W.1, the learned trial Judge was not justified in convicting the appellants for the offence under Section 3(i)(x) of the Atrocities Act and therefore, the conviction under the said section needs to be set aside. 9. 9. So far as the conviction under Section 323 of I.P. Code is concerned, it emerges from the evidence of P.W.1 and 2 that when the P.W.1, defecto complainant asked the accused Nos.1 and 2 not to dig the pits in his field, he was assailed by them and the appellant No.1 gave blows on his head by blunt side of spade. However, Dr. Vasantkumar Amrutlal Abhani (P.W.5) has stated in his evidence that when P.W.1 was brought to CHC, Una, upon examination, he had complained about pain on left side back side of chest wall. It further emerges from his evidence that P.W.1 had not suffered any external injury. 10. It is thus, very clear from the evidence of P.W.1 and 2 that the appellants had assaulted on P.W.1 and therefore, I am of the view that the learned trial Judge has rightly convicted the appellants for the offence punishable under Section 323 of I.P. Code as the injuries suffered by P.W. 1 were simple. 11. Section 323 of the Code provided for the punishment of imprisonment upto 1 year or fine upto Rs.1000/- or both. It is thus very clear that Section itself gives discretion to the Court to either inflict sentence of imprisonment or fine or both. In my view, considering the circumstances in which the incident happened and that the fist and kick blows were given to the P.W.1 by the appellants, it would be in the interest of justice to modify the sentence of imprisonment of 1 month to already undergone and to raise fine of Rs.100/- to Rs.200/- for the offence under Section 323 of I.P. Code. 12. For the foregoing reasons, the present appeal succeeds in part. The impugned judgment and order of conviction and sentence passed by the learned Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and Additional Sessions Judge, 5th Fast Track Court, Veraval, in Atrocity Sessions Case No.08 of 2002 dated 19.01.2005 so far the offence under Section 3(i)(x) of the Atrocity Act is hereby quashed and set aside and the appellants are hereby acquitted for the said offence. But while upholding the conviction so for the offence under Section 323 of Indian Penal Code, the sentence is modified to already undergone by the appellants by raising the fine amount from Rs.100/- to Rs.200/-. But while upholding the conviction so for the offence under Section 323 of Indian Penal Code, the sentence is modified to already undergone by the appellants by raising the fine amount from Rs.100/- to Rs.200/-. Fine paid by the appellants so far the offence of Atrocity Act is concerned, the same shall be adjusted for the offence under Section 323 of Indian Penal Code imposed by the learned trial Court. Now, the appellants are not required to undergo further sentence in respect of the offence in question. The appellants are on bail and hence, their bail bonds stand cancelled and surety, if any, stands discharged. The rest of the judgment and order shall remain unaltered. R & P be transmitted to the concerned trial Court forthwith.