Allahabad High Court
Chhotkau & Another. vs The State Of U.P. on 13 December, 2017
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. - 31
Case :- CRIMINAL APPEAL No. - 264 of 2002
Appellant :- Chhotkau & Another.
Respondent :- The State Of U.P.
Counsel for Appellant :- Shiv Pal Singh
Counsel for Respondent :- Govt.Advocate
Hon'ble Dinesh Kumar Singh,J.
1. Shri Rajiv Kumar Misra, Advocate has filed his Vakalatnama on behalf of appellant No.2 today in Court, which is taken on record.
2. In this appeal, the appellant No.1 Chhotkau had died, and therefore, his appeal gets abated as is clear from the earlier order dated 12.12.2017 passed by this Court.
3. The present appeal has been preferred against the judgment and order dated 11.2.2002 passed by learned Sessions Judge, Shrawasti in Sessions Trial No.31 of 2000, Police Station Gilaula, District Shrawasti, convicting the appellant-Bairagi under section 323/34, 427 and 506 IPC and Section 3 (1) (x) of the SC/ST (Prevention of Atrocities), Act, 1989.
4. Learned counsel for the accused-appellant submits that he is not challenging the order of conviction with respect to offences under Sections 323/34, 427 and 506 IPC. The accused-appellant was sentenced to undergo three months rigorous imprisonment under section 323/34 IPC with fine of Rs.300/- and in case of non-payment of fine, one month additional rigorous imprisonment. The accused-appellant was further sentenced under Section 427 IPC and 504 IPC for six months rigorous imprisonment under each section. He was sentenced under Section 3 (1) (x) SC/ST Act to undergo one year rigorous imprisonment with fine of Rs.1000/- and in the default of payment of fine, six months additional imprisonment. It was directed that all these sentences would run concurrently. The incident was of the year 1999. Since then 18 years have passed by the time this appeal has come up for hearing.
5. Learned counsel for accused-appellant submits that if the statement of P.W.1-complainant is examined, it would be clear that during cross examination he did not say that he was abused by the accused-appellant. The accused-appellant did not insulted or intimidated the victims with intent to humiliate them as a member of Scheduled Caste. He further submits that prosecution case itself was that there was an existing enmity between the complainant and the accused which is evident from the deposition of P.W.-1.
6. Learned counsel for the accused-appellants also submits that when P.W.1 in his statement particularly in cross examination did not allege insult or intimidation with intention to humiliate the victims as a member of Scheduled Caste, an offence under section 3 (1)(x) of the Act could not be said to have been committed by the accused-appellant. Learned counsel contends that assuming without admitting that utterances were made to insult the victims, these utterances or insult or intimidation were not in a public place and therefore, the provision of Section 3(1)(x) of the Act were not attracted in the present case.
7. Shri Abhayveer Singh, learned AGA referring to the statement of P.W.-2 submits that offence under section 3(1)(x) is clearly made out against the accused-appellant inasmuch as the statement of P.W.-2 is categorical and specific on this point that the accused-appellant hurled abuses with an intention to humiliate the victim as a member of SC community. He further submits that when the testimony of this witness remained un-impeached, it cannot be said that offence under section 3(1)(x) SC/ST Act is not made out against the accused-appellant and therefore, his conviction under Section 3 (1) (x) of SC/ST Act was justified.
8. It is an admitted case of the prosecution that there was prior enmity between the accused-appellant and the complainant's side. The witnesses were close relatives of the complainant and they could not be said to be the public witnesses. The utterances of insult or intimidation against the victims as a member of SC community were not made within public view particularly when no other person other than family members of the victims was present at the place of incident. The essential ingredient to attract the provisions of Section 3(1)(x) of the Act is that intentional insult or intimidation with an intention to humiliate a member of SC/ST should be made at a place within public view. Once this fundamental ingredient is absent in the case, Section 3(1) (x) of the SC/ST Act cannot be invoked.
9. In the present case, in view of the aforesaid discussion, it is clear that this basic ingredient of the offence is absent and, therefore, the appellant could not have been convicted under section 3(1)(x) of the Act. The conviction and sentence of the accused appellant under section 3(1)(x) of the Act is thus, set aside.
10. The conviction of accused-appellant under other sections of IPC entail a sentence up to two years. Learned counsel further submits that the accused-appellant is entitled to the benefit of the provisions of Section 360 of Cr.P.C. read with Section 3 of The Probation of Offenders Act, 1958. Once it has been found that the accused appellant is not guilty under Section 3 (1)(x) of the Act, and other offences entail a sentence up to two years, the accused-appellant is entitled to the beneficial provisions of Section 3 of The Probation of Offenders Act, 1958.
11. The accused-appellant is the First time offender. The incident is of the year 1999 and in the meantime, 18 years have passed by and one of the accused-appellants has already died during the pendency of this appeal. There has been no incident thereafter. The old enmity would have died.
12. Considering the nature of the offence, the character of the accused-appellant and the peculiar facts and circumstances particularly that 18 years have passed by, the accused-appellant is not being sentenced but he is being released on probation of good conduct. The conduct of the accused is deprecated and he is warned for committing any such offence or any other offence in future.
13. In view of the aforesaid, the appeal is partly allowed. The judgment and order dated 11.2.2002 passed by the learned Sessions Judge, Shrawasti, in S.T. No. 31 of 2000, is hereby, modified to the extent.
Order Date :- 13.12.2017
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