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2020 DIGILAW 245 (RAJ)

Mukhtiyar v. State of Rajasthan

2020-01-24

SANDEEP MEHTA

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JUDGMENT : SANDEEP MEHTA, J. 1. The instant appeal has been preferred by the appellant Mukhtiyar being aggrieved of the judgment dated 23.11.1994 passed by learned Special Judge SC/ST (Prevention of Atrocities) Act, Jodhpur in Sessions Case No. 90/94 by which, appellant herein was convicted and sentenced as below:- Convicted for offences under Sections Sentences Fine Default sentences 451 I.P.C. Six months' SI Rs. 500/- Two months' SI 323 I.P.C. -- Rs. 500/- Two months' SI 3(1)(x) of the SC/ST (Prevention of Atrocities) Act Six months' SI Rs. 500/- Two months' SI All the sentences were ordered to run concurrently. 2. The contention of Shri Abhishek Charan, learned Amicus Curiae, who was appointed by this Court to argue the appeal on behalf of the appellant vide order dated 23.05.2013 was that even if the prosecution allegations are accepted to be true on the face of record, the conviction of the appellant for the offence under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act cannot be sustained. He further urged that there is no evidence on the record of the case to even prima-facie establish that the complainant belonged to the Scheduled Caste community and hence, conviction of the appellant for the charge under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act cannot be sustained. Without prejudice to the above submission, he urged that none of the prosecution witnesses alleged in their evidence that the accused used the abusive language and words towards the complainant with the intention that he was doing so with the person belonging to the Scheduled Caste community. Shri Charan further submitted that as the accused has also been convicted for the charge under Section 451 IPC, for the incident which had taken place inside the house of the complainant which, cannot be termed to be a place within public view. Regarding the offences under Sections 451 and 323 IPC, the contention of Shri Charan was that the accused does not have any criminal antecedents and thus, he deserves to be extended benefit of probation on these counts. On these submissions, Shri Charan implored the Court to set aside the impugned judgment, acquit the accused-appellant or in the alternative, extend him the benefit of probation. 3. On these submissions, Shri Charan implored the Court to set aside the impugned judgment, acquit the accused-appellant or in the alternative, extend him the benefit of probation. 3. Learned Public Prosecutor, on the other hand vehemently and fervently opposed the submissions of Shri Abhishek Charan and urged that the complainant and other material prosecution witnesses have given positive evidence to the effect that the accused insulted/humiliated the complainant by abusing him on the ground of his caste while he was working outside his house. When the complainant resisted this high handed/illegal act of the accused, he got enraged and assaulted the complainant by a stick. He urged that there is no reason to discard the cogent and clinching evidence of the prosecution witnesses and hence, the appeal should be rejected. 4. I have given my thoughtful consideration to the submissions advanced at the Bar and have minutely reappreciated the evidence available on record. 5. There is merit in the contention of Shri Charan that none of the prosecution witnesses alleged in their evidence that the complainant or his companions belonged to the Schedule Caste community. The complainant has given out his caste to be 'Garg' in the written FIR (Ex. P/5). It is not alleged in this report that the complainant belonged to the Schedule Caste community. The precise abusive language used by the accused while making the assault has not been elaborated in the FIR Ex. P/5 which was lodged against the accused-appellant Mukhityar, Bhau Khan, Lal Khan, Ibrahim Khan and 20-25 other people. The complainant alleged in the report that he was working inside his shop, which is located in his residential premises. The accused persons who were armed tooth and nail, entered into his house hurling abuses at him. Mukhtiyar gave him a lathi blow and the others started beating him with the weapons held by them. The neighbors came out and tried to intervene, upon which, all the accused insinuated that they will kill the 'Dhedh's'. After some time, the assailants went away. It may be stated here that the allegation of the complainant that 20-25 assailants armed tooth and nail assaulted him brutally was not found established by the Investigating Officer during investigation. His allegation that he was brutally assaulted during the incident was also not corroborated but is rather contradicted by the medical report (Ex. It may be stated here that the allegation of the complainant that 20-25 assailants armed tooth and nail assaulted him brutally was not found established by the Investigating Officer during investigation. His allegation that he was brutally assaulted during the incident was also not corroborated but is rather contradicted by the medical report (Ex. P/8) as per which, a single swelling was noticed on the right hand of the complainant when he was medically examined. While deposing on oath, the complainant mentioned his caste to be 'Gurda'. Therefore, apparently, the complainant Surendra PW-1 made wholesale exaggerations while levelling the allegations against the accused persons. 6. Bhakta Ram PW-4, father of the complainant gave out his caste to be "Meghwal" in his evidence, which is a Scheduled Caste community in the State of Rajasthan. However, this witness also alleged that the incident took place inside the house. In cross examination, the witness generalized that accused were standing outside and persons from their caste were hurling abuses at the complainant party. Thus, there is a stark contradiction in the evidence of Surendra PW-1, the first informant and Bhaka Ram PW-4 regarding the manner in which and the place from which the abuses were hurled and regarding the identity of the accused who hurled such abuses at the complainant party. 7. Jitendra Deora PW-5 was portrayed to be an independent witness of the incident. He made a wavering deposition when examined as PW-5, initially claiming that he was sitting at his own shop which is at a distance of 100 ft. from the shop of the complainant Surendra. Later on, the witness changed his version and alleged that he was sitting at the shop of Sethu when four accused namely Mukhtiyar, Bhau Khan, Lal Khan and Ibrahim Khan came there. Ibrahim Khan kept standing outside whereas the other three came in and abused Surendra @ Sethu. Mukhityar gave him a lathi blow. Therefore, considered in light of the evidence of this independent witness, there is grave contradiction in the story set up by the complainant regarding the manner in which the incident took place. Three of the four charge sheeted accused namely Bhau Khan, Lal Khan and Ibrahim Khan against whom identical allegations were levelled by the prosecution witnesses were acquitted by the trial court by holding the evidence of prosecution witnesses to be unconvincing qua them. 8. Three of the four charge sheeted accused namely Bhau Khan, Lal Khan and Ibrahim Khan against whom identical allegations were levelled by the prosecution witnesses were acquitted by the trial court by holding the evidence of prosecution witnesses to be unconvincing qua them. 8. In this background, I am of the firm opinion that conviction of the appellant for the offence under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act cannot be sustained as the prosecution evidence on this charge is totally unconvincing and wavering. However, conviction of the appellant for the offence under Sections 451 and 323 IPC does not warrant any interference. 9. In wake of the discussion made hereinabove, the appeal deserves to be and is allowed in part. The conviction of the appellant for the charge under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act is hereby set aside and he is acquitted of the said offence. However, conviction of the appellant for the charge under Sections 451 and 323 IPC as recorded by the trial court does not call for any interference and is thus sustained. The maximum imprisonment provided for the offence under Section 451 IPC is of two years. It is not alleged that the accused-appellant has any criminal antecedents and thus, rather sentencing him immediately, it is considered just and proper and expedient in the interest of justice to extend benefit of probation to the accused-appellant under Section 4 of the Probation of Offenders Act. The accused shall furnish a personal bond in the sum of Rs. 20,000/- and a surety in the like amount to the satisfaction of the trial court with an undertaking to keep peace and be of good behavior for a period of two months with a consequence of receiving the sentences awarded to him by the trial court for these two offences in case, he breaches the condition of probation bonds. Since the accused is not represented by his appointed counsel, the trial court shall intimate the accused of this judgment. The accused shall furnish the probation bonds within a period of two months from today failing which, he shall be taken back into custody for serving out the sentences awarded to him by the trial court. 10. Record be sent back forthwith.