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2019 DIGILAW 858 (GUJ)

Ilyas v. State of Gujarat

2019-10-04

ABDULLAH GULAMAHMED URAIZEE

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JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The appellant-original accused has 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 Additional Sessions Judge and Special Judge (Atrocity), F.T.C. No. 9, Bharuch in Special Atrocity Case No. 52 of 2003 dated 08.06.2004, whereby and where-under the learned Sessions Judge has convicted the appellant under Section 323 of the Indian Penal Code and under Section 3(1)(X) of the Prevention of Atrocity Act, 1989 and inflicted sentence as under: Nature of offence Sentence 323 of the Indian Penal Code S.I. for 1 month and fine of Rs. 500/-, in default, to further undergo 1 month S.I. 3(1)X) of the Atrocity Act, 1989 S.I. for 2 years and fine of Rs. 2000/-, in default, to further undergo 3 months S.I. All the sentences shall run concurrently. 2. The case of the prosecution in brief against the appellant as could be gathered from the impugned judgment and connected material is that, 2.1 On 15.10.2003, complainant was going with his tractor to cultivate field of Altafbhai Yusufbhai. Meanwhile, the accused Ilyasbhai stopped him on the way and asked him to cultivate his field first, so he told accused Ilyasbhai that as he had given promise to Altafbhai first, he will go their to cultivate his agricultural field. Therefore, accused Ilyasbhai pulled him from his tractor and beaten him. The accused having wooden stick, had given one punch on his face below left eye, wooden stick was hit on left hand. Father of the complainant-Somabhai and Thakorbhai Mohanbhai had rescued him from the accused then accused threatened him to beat him by abusing about the caste of the complainant. 3. PW-6-original complainant therefore, lodged a complaint in respect of the incident with Bharuch Rural Police Station, where it was registered vide II-C.R. No. 88 of 2003 for the offence punishable under Sections 323, 504, 506(2) of the Indian Penal Code, Section 135 of the Bombay Police Act and Section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act. 4. Upon conclusion of investigation, the charge-sheet was filed against the accused. As the offences were exclusively triable by the Court of Sessions, the learned Magistrate committed the case under Section 209 of the Code to the Court of Sessions. 5. The charge was framed at Exh. 4. Upon conclusion of investigation, the charge-sheet was filed against the accused. As the offences were exclusively triable by the Court of Sessions, the learned Magistrate committed the case under Section 209 of the Code to the Court of Sessions. 5. The charge was framed at Exh. 3 and the accused pleaded not guilty to the charge and came to be tried and so to substantiate the charges levelled against the accused person, the prosecution led oral as well as documentary evidence and after evaluating the evidence, the learned Trial Judge convicted and sentenced the accused as above. 6. The prosecution, adduced following documentary and ocular evidences to prove the guilt of the accused. Oral Evidences Sr. No. Name of Witnesses Exhibit No. 1 Pareshbhai Chimanlal Dave 7 2 Ismail Umarji Mansuri 8 3 Rajubhai Bhikhabhai Vasava 10 4 Manubhai Gopalbhai Vasava 11 5 Dilavar Musabhai Vadiwala 13 6 Maheshbhai Somabhai Solanki Complainant 14 7 Somabhai Kalidas 16 8 Thakorbhai Mohanbhai Parmar 17 9 Mohanbhai Shuklabhai 18 10 Dr. Vijaybhai Banarasibhai Parmar 20 11 Mohd. Aiyub Mohd. Sami 25 Documentary Evidences Sr. No. Particulars of Documents Exhibit No. 1 Panchnama of the scene of offence 9 2 Panchnama of the physical condition of the accused and Muddamal 12 3 Original Complaint of the Complainant 15 4 Caste Certificate of the Complainant 19 5 Yadi to get the Medical Certificate regarding treatment of the Complainant 21 6 Medical Certificate regarding treatment of the complainant 22 7. Upon conclusion of the trial, the statement under Section 313 of the Code of the accused-appellant 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 appellant accused of the charges by way of the impugned judgment and order. 8. I have heard Mr. Sohail Saiyed learned advocate for Mr. Y.N. Ravani, learned advocate for the appellant, Mr. Siddhant R. Shah, learned advocate for original complainant and Mr. K.L. Pandya, learned Additional Public Prosecutor for the respondent-State. I have also perused the record and proceedings of Special Atrocity Case No. 52 of 2003. Maheshbhai Somabhai Solanki-PW-6 original complainant is present in person in the Court. He tenders his affidavit wherein he has stated that all the misunderstanding between him and appellant have been cleared and now they are on good terms. I have also perused the record and proceedings of Special Atrocity Case No. 52 of 2003. Maheshbhai Somabhai Solanki-PW-6 original complainant is present in person in the Court. He tenders his affidavit wherein he has stated that all the misunderstanding between him and appellant have been cleared and now they are on good terms. He is, therefore, no objection, if the conviction recorded against him be set aside. 9. Mr. Sohail Saiyed, learned advocate for the appellant relying upon the Hon'ble Supreme Court in recent decision dated 27th August, 2019 in case of Khuman Singh Versus State of Madhya Pradesh rendered in Criminal Appeal No. 1283 of 2019, submitted that the learned Trial Judge has committed an error in convicting the appellant for the offence punishable under Section 3(1)(X) of the Atrocity Act. According to his submission, the incident had not been happened on the ground that PW-6 was a member of Scheduled Cast and Scheduled Tribes. So far the conviction for other offence is concerned, he submitted that the incident had happened in the year 2003, i.e. around 16 years ago. Hence, the sentence imposed on the appellant, be reduced to already undergone. 10. Mr. K.L. Pandya, learned APP could not controvert the ratio laid down by the Hon'ble Supreme Court in the case of Khuman Singh (Supra). However, he submitted that the conviction for other offence is concerned, the learned Trial Court has assigned cogent reasons and hence, does not warrant any interference. 11. The Supreme Court in the case of Khuman Singh (Supra), Supreme Court has held as under: "13. In Dinesh alias Buddha v. State of Rajasthan MANU/SC/8078/2006 : (2006) 3 SCC 771 , the Supreme Court held as under:- "15. Sine qua non for application of Section 3(2)(V) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(V) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(V) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(V) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to "Khangar"-Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2) (V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable. 14. Insofar as the conviction under Section 302 IPC is concerned, as discussed earlier, the conviction of the appellant under Section 302 IPC is modified as conviction under Section 304 Part II IPC. The appellant-accused has been serving the sentence in jail for more than twelve years. As per the jail certificate issued by the Superintendent, Central Jail, Gwalior, the appellant has served the actual sentence in jail for more than twelve years (as on 04.07.2018) and as on date, he has served the sentence of more than thirteen years. Considering the facts and circumstances of the case, for the conviction under Section 304 Part II IPC, the appellant is sentenced to undergo imprisonment to the period already undergone." 12. From the testimony of PW-6, defacto-complainant it emerges that the genesis of the incident was in respect of the tilling of the farm of the appellant. There is no iota of the evidence to indicate that PW-6 was abused by the appellant only on the ground that he was a member of Scheduled Caste and Schedule Tribe. I am, therefore, of the view that the conviction of the appellant under Section 3(1)(X) of the Atrocity Act cannot be sustained. 13. It is also emerging from the evidence of the witnesses that the appellant had given abuses and had slapped him. I am, therefore, of the view that the conviction of the appellant under Section 3(1)(X) of the Atrocity Act cannot be sustained. 13. It is also emerging from the evidence of the witnesses that the appellant had given abuses and had slapped him. I am, therefore, of the view that the conviction imposed upon the appellant for other Sections 323 of the Indian Penal Code, does not warrant any interference in this appeal. However, incident had happened around 16 years ago and thereafter, it is not brought to the notice of this Court that the appellant had acted in a manner prejudicial to law and order or that he had come into conflict with the police. I am, therefore, of the view that the end of justice would be served, if the substantive sentence if reduced to already undergone. 14. For the foregoing reasons, the appeal succeeds in part. The impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge and Special Judge(Atrocity), Fast Track Court No. 9, Bharuch, passed in Special Atrocity Case No. 52 of 2003 dated 08.06.2004 is quashed and set aside qua the offence punishable under Section 3(1)(X) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, so far the offence under Section 323 of the IPC is concerned, while upholding the conviction, the sentence for the said offence is modified to already undergone and payment of fine amount is enhanced to Rs. 2500/- from Rs. 500/-. Fine paid for offence under Section 3(1)(X) of Atrocity Act is ordered to be adjusted towards enhanced fine. 15. The appellant is on bail and hence, his bail bonds stands cancelled and surety, if any, stands discharged. 16. Record and proceedings is ordered to be transmitted to the concerned trial Court forthwith.