Birendra Tiwari vs State Of U.P.
2019 Latest Caselaw 2788 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 13.3.2019
 
Delivered on 11.4.2019
 
Court No. - 49
 

 
Case :- CRIMINAL APPEAL No. - 2057 of 2008 
 

 
Appellant :- Birendra Tiwari 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- Harsh Kumar Srivastava,Kaushal Kishore Mishra 
 
Counsel for Respondent :- Govt. Advocate 
 

 
Hon'ble Ram Krishna Gautam,J. 

This Criminal Appeal under Section 374(2) Cr.P.C. has been filed by convict appellant Birendra Tiwari against judgment and order dated 27.3.2008 passed by Special Judge (SC/ST Act), Fatehpur, in Special Sessions Trial No. 11 of 1999 (arising out of Case Crime No. 156 of 1996, u/s 323, 504, 506 I.P.C. and 3(1)(x) SC/ST Act, P.S. Khaga, District Fatehpur) whereby convict appellant Birendra Tiwari has been convicted for offences punishable u/s 323, 504 I.P.C. and 3(1)(x) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and has been sentenced with three months rigorous imprisonment for offence punishable u/s 323 I.P.C., three months rigorous imprisonment for offence punishable u/s 504 I.P.C. and six months rigorous imprisonment with fine of Rs. 1000/- and in case of default in payment of fine one and half months additional imprisonment for offence punishable u/s 3(1)(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. All the sentences were directed to run concurrently.

Heard Sri Kaushal Kishore Mishra, learned counsel for appellant, and Sri Ajit Ray, learned AGA for the State and perused the lower court's record.

The impugned judgment and order of conviction and sentence has been assailed on the ground that the trial court failed to appreciate the facts and law placed before it. Neither conviction nor acquittal for offence punishable u/s 506 I.P.C. was there in the judgment. There was no evidence on record to prove the charges levelled against the appellant but a severe sentence, as above, was passed against the evidence on record, hence this appeal for setting aside the impugned judgment and sentence made therein.

In brief the prosecution case was that F.I.R. (exhibit Ka1) scribed by informant Dhankesh Kumar, son of Nanaku Ram, resident Village Sarsai Bujurg, Police Station Khaga, District Fatehpur, dated 10.5.1996 was submitted at P.S. Khaga with this contention that informant is a member of Scheduled Caste (Chamar). His medical shop was situated at G.T. Road, village Brahman within the area of Gram Panchayat Iskuri adjacent to Dwivedi Aata Chakki. At about 8.30 A.M. his compounder was present at his medical shop when Birendra (the present convict appellant) and his brother came at above shop and asked for some medicines including Glucose bottle and injections but the compounder was not aware of medicines, hence he refused to give above things, but the same were forcibly taken away by the appellant and that was protested by compounder. He was slapped with abuse that whenever doctor comes, he be sent to his residence. When informant came at his shop things were apprised to him. He went to the house of Birendra and asked as to why he had beaten his compounder and taken his medicines? Birendra, Surendra, his younger brother Siddhu and wife of Birendra attacked over him. He was badly beaten by hands, fists, shoes and sticks. He fell down on the ground. Then after they abused him by taking name of the caste "Chamar Jaban Ladata Hai" and threat for closing shop in future, otherwise to face firearm shot, was extended. The informant became unconscious, someone of village brought him in front of his shop. He was taken by Tempo to police station by few villagers, where report was got lodged. Investigation resulted in submission of charge sheet (Ext. Ka-7) against Birendra Tiwari, the present appellant, for offences punishable u/s 323, 504, 506 I.P.C. read with section 3(1)(x) SC/ST Act. Cognizance over which was taken on 3.8.1996. Offence u/s 3(1)(x) SC/ST Act was exclusively triable by Special Court, hence this was committed to the above Court by the Magistrate concerned.

Special Court under SC/ST Act, Fatehpur, after hearing learned public prosecutor as well as learned counsel for accused -appellant levelled charges vide order dated 5.9.2000 against Birendra Tiwari for offences punishable u/s 323, 504, 506 I.P.C. read with section 3(1)(x) SC/ST Act as follows:

"I, Veer Bhadra Singh, II Addl. Sessions Judge, Fatehpur, do hereby charge you Virendra Tiwari as follows:-

Firstly, that you on 10.6.1996 at about 8.30 A.M. in the shop of the complainant Dhankesh Kumar on G.T. Road situated within the limits of village Iskuri, P.S. Khaga, District Fatehpur, voluntarily caused hurt to the complainant and thereby committed an offence punishable u/s 323 I.P.C. and within the cognizance of this court;

Secondly, that you on the aforesaid date, time and place intentionally insulted to the complainant and thereby gave provocation to him intending or knowing it to be likely that such provocation will cause him to break public piece or to commit any other offence and thereby committed an offence punishable u/s 504 I.P.C. and within the cognizance of this court;

Thirdly, that you on the aforesaid date, time and place committed the offence of criminal intimidation and threats to the complainant to cause his death or grievous hurt and thereby committed an offence punishable u/s 506 I.P.C. and within the cognizance of this court;

Fourthly, that you on the aforesaid date, time and place not being a member of Scheduled Caste intentionally insulted and intimidated with intent to humiliate the complainant, a member of Scheduled Caste in a place within public view and thereby committed an offence punishable u/s 3(1)(x) SC. St. Act and within the cognizance of this court.

And I hereby direct that you be tried by this court on the said charges.

(Veer Bhadra Singh)

II Addl. Sessions Judge,

Fatehpur.

5.9.2000"

The charges were read over and explained to the accused person in Hindi to which he pleaded not guilty and claimed to be tried.

Prosecution examined PW1-Informant Dhankesh Kumar, PW2- Ramanuj, PW3- Dr. K. L. Pandey, PW4- S.I. Chhatrapal Singh and PW5- Constable Sabhajeet Shukla. For having explanation, if any, over incriminating evidence led by prosecution and for obtaining version of accused, his statement u/s 313 Cr.P.C. was got recorded.

Appellant Birendra Tiwari admitted himself to be Brahman but he was not aware of the caste of the informant. Rest evidence were said to be wrong and a false concoction. He has said "Amrish Ke Dukan Ke Bagal Men Mere Bhai Surendra Ki Dukan Hai. Wadi Ka Wahan Baithna Rahna Hai. Amrish Ke Ranjish Ke Wajah Se Ranjishan Mere Khilaph Paisa Pane Ke Liye Doctor Se Mukadama Kayam Karaya Hai." In defence no evidence was led by appellant.

After hearing learned counsel for both sides impugned judgment of conviction was passed in which appellant Birendra Tiwari was sentenced as above.

Learned AGA appearing for the State argued that though charge punishable u/s 506 I.P.C. was framed along with section 323, 504 I.P.C. and 3(1)(x) SC/ST Act but the Trial Court has specifically held at page no. 7 of the judgment that offences punishable under section 323, 504 I.P.C. and 3(1)(x) SC/ST Act were proved beyond doubt against convict appellant and then after arguments were heard over quantum of sentence and the sentence, as above, was passed under above sections. Hence writing of acquittal for offence charged u/s 506 I.P.C. was not needed and learned Trial court has rightly done so.

Above argument of learned AGA is tenable. Writing about acquittal for charge u/s 506 I.P.C. was not needed, particularly when charges levelled and proved beyond doubt were written by the court.

PW3 Dr. K.L. Pandey in his testimony has said that while being posted at P.H.C. Khaga on 10.5.1996 he had done medico legal examination at 12.40 P.M. of Dhankesh Kumar, son of Nanaku Ram, resident of Village Sarasayi Bujurg, P.S. Khaga, District Fatehpur, and following injuries were found upon his person:

1. Contusion 3 cm x 2 cm over nose towards left side with bleeding.

2. Contusion 4 cm x 2 cm left forearm on the back side. 7 cm above left elbow. This was of radish in colour.

3. Complaint of pain over chest with no apparent external injury for which x-ray was advised.

4. Complaint of pain over abdomen with no apparent mark of injury for which x-ray was advised.

Injuries 3 and 4 were kept under observation and x-ray was advised. Injuries 1 and 2 were simple.

Medico legal examination report, in the handwriting of this witness, having thumb impression of injured, was prepared at time of examination, which is on record and proved as Exhibit Ka2. These injury may be of 8.30 A.M. of 10.5.1996 and they may be of hands, fists, shoes and sticks. In cross examination it has been said that injured has come himself to this Medical Officer, though this was with letter of police station. Injury nos. 1 and 2 were at one side and this may occur because of falling over hard substance. Possibility of those injuries which may occur due to fall over hard substance has been proved by medical expert by evidence but no x-ray report or supplementary report has been proved for showing nature of injury nos. 3 and 4, whereas injury nos. 1 and 2 were held to be simple and they were on one side, which may occur because of fall over hard substance.

PW4 is a formal witness, who has registered FIR and had entered this registration of case crime number in General Diary entry at report no. 16 at 12.10 P.M. on 10.5.1996. This witness has formally proved chick FIR (Ext. Ka2) and G.D. Entry (Ext. Ka4) for which there is no contradiction, exaggeration and embellishment. In cross-examination he has accepted that injured was having injury over his person. It was examined and entered in general diary entry but no police constable was sent along with this injured for getting medically examined and treated.

PW5 is constable and he has formally proved the investigation made by I.O. Dheeraj Singh as a secondary evidence. He has said that he is acquainted with handwriting and signature of Circle Officer Dheeraj Singh. Site plan paper no. 8/1 and 8/2 is in handwriting and signature of above Dheeraj Singh. The same has been proved and exhibited as Ext. Ka5 and Ext. Ka6. Charge sheet is in handwriting and signature of Dheeraj Singh, which was proved and exhibited as Ext. Ka7. Neither Dheeraj Singh was got examined nor he proved Ext. Ka5, Ka6 and Ka7. These papers were proved by prosecution by secondary evidence, whereas no evidence is there, as to why secondary evidence was taken. What was the reason because of which this Investigating Officer could not be examined? But as no cross-examination by learned counsel for defence was made, hence formal proof by secondary evidence is there.

PW1-Informant Dhankesh Kumar is victim and is witness of second occurrence, which was said to have occurred at the residence of accused Birendra Tiwari. The first one was at the shop of this witness when he was absent and his compounder PW2- Ramanuj was present but report of occurrence, which occurred at the shop, was not lodged and when second occurrence took place then this report was got lodged. Hence testimony of this witness is regarding second occurrence for which conviction and sentence of the appellant has been awarded. This witness has said in his examination in chief that shop of medical of this witness is situated behind G.T. Road in between village Panchayat Iskuri. But he is having no certificate of any registered medical practitioner, even then he was practicing in medical side. Seven years back at about 8.00 A.M., exact date and time is not under remembrance of this witness, when Ramanuj, his compounder, was present at medical shop of this witness, when accused Birendra Tiwari came at above shop and asked for Glucose, saline set, siring and injection. These were not given by the compounder. But he replied that when this witness would come above things would be given because he was not aware of those things. Then the accused had beaten above compounder and had taken away above medicines forcibly. For this occurrence, which was the first occurrence, there is variation of time. PW2 has said that it was about 5.30 A.M. when Surendra and his brother (present accused-appellant) had come to medical shop and asked for those medicines but the doctor was not available, hence the same was not given except a tablet Perinorm. He asked the compounder to be for treatment of his sister-in-law (Bhabhi) or to send doctor whenever he comes for treatment of his ailing sister-in-law (Bhabhi) (wife of accused Birendra Tiwari) but when neither compounder nor doctor went there then this accused Birendra Tiwari came at the shop and asked for those medical equipment, which were not given and he forcibly took them and when protested he gave assault by hands and fists. But nowhere this has been said by that witness that the above compounder was a member of Scheduled Caste community nor this case was lodged for first occurrence, rather this PW1 i.e. doctor, who was without any medical degree or license for medical practice, was doing medical practice as quake, came at his shop. He went at the house of accused at 8.30 A.M. and lodged protest regarding forceful taking of medicines then this accused Birendra Tiwari became furious and said "ITNE MEN MULJIM NE KAHA KI TUM CHAMAR HO KAR MERE DARWAJE PAR ULAHANA DENE AAYE HO. YAH KAH KAR MULJIM NE MUJHE MARNA SHURU KAR DIYA. MAIN GIR GAYA. USKE BAD AUR PHIR KIS KISNE MUJHE MARA NAHI BATA SAKTA HUN. ISKE BAD MUJHE WAHAN SE KOI AADMI MERE DUKAN KE PAAS CHHOD AAYA. MUJHE KAUN CHHOD AAYA NAHI MALOOM. PHIR KUCHH DER BAD MUJHE HOSH AA GAYA AUR GAON WA AASPAAS KE LOG AA GAYE TATHA MUJHE TEMPO DWARA PAHILE THANE LE GAYE. WAHIN MAINE F.I.R. KIYA." This report was exhibited as Ext. Ka1 and is under signature of this witness. Meaning thereby this assault was made by Birendra Tiwari alone under knowledge of this witness, whereas it has been written in the F.I.R. that all four persons had beaten him and persons, who had beaten him were Birendra Tiwari, Surendra, his younger brother Siddhu and wife of Birendra Tiwari. They all gave assault by hands, fists, shoes, and danda. He was fallen down on the earth and then after riding over his chest this was said by accused-appellant "SALE CHAMAR JAWAN LADATA HAI AUR AAJ KE BAD DUKAN KHOLA TO GOLI MAAR DUNGA." These two versions regarding abuse punishable u/s 3(1)(x) SC/ST Act are entirely different with material contradictions. Though, investigation resulted in filing of charge sheet against Birendra Tiwari only, who stood at trial but this witness got Exhibit Ka1 lodged and in his oral testimony before trial court he said that "ITNE MEN MULJIM NE KAHA KI TUM CHAMAR HO KAR MERE DARWAJE PAR ULAHANA DENE AAYE HO. YAH KAH KAR MULJIM NE MUJHE MARNA SHURU KAR DIYA. MAIN GIR GAYA. USKE BAD AUR PHIR KIS KISNE MUJHE MARA NAHI BATA SAKTA HUN." Meaning thereby who was accused and who did so has not been given in examination in chief.

At page 4 in paragraph no. 5 of examination in chief this witness has further said that he was beaten by hands and is not aware as to subsequently by which thing he was beaten. "MUJHE PAHLE GHUSON SE MARA PHIR KIS CHIJ SE MARA GAYA, NAHIN MALOOM HAI. MERA DAKTARI PARIKSHAN HUA THA." Meaning thereby it was an assault by hand i.e. entirely against contention of F.I.R. (Ext. Ka1).

In cross-examination he has admitted that he was having a license of Vaidhya Visharad but was not having license as a registered practitioner. He was having no register of entry of treatment of patient made by him. Under statement recorded u/s 164 Cr.P.C. he has said assault only by Birendra Tiwari, whereas in the F.I.R. (Ext. Ka1) assault by five persons has been said. This too is material contradiction. He has further developed story that it was under pressure of Circle Officer that he has given statement u/s 164 Cr.P.C. But he has admitted that no complaint about such pressure was made to Magistrate or any higher police officer. This has been specifically admitted by him that he has received Rs. 6250/- from the Government for this assault.

Upon over all appreciation of his testimony it appears that there are material contradictions in his testimony and he is not a wholly reliable witness.

PW2-Ramanuj, who in utter contradiction of contention of F.I.R. (Ext. Ka1) has stated on oath that first occurrence was of 5.30 A.M. of 10.5.1996 when he was present at the medical shop of Dhankesh and Dhankesh was not there. He was at shop when Surendra Tiwari came and asked for medicine for treatment of his sister-in-law (Bhabhi), (wife of Birendra Tiwari), who was ailing. He requested this witness to be with him for treatment but this witness refused as he had no knowledge of medicine and assured him that at the moment doctor would come, he would attend her. Surendra went from the shop, but when none reached, he again came and asked for medicine, injection, siring, etc. and requested this witness to be with him for treatment but again this was refused. He asked for Avil tablet but this witness gave perinorm. He again went. This witness then said that thereafter Birendra Tiwari came and asked that patient was dying but this compounder or doctor could not attend her then he slapped him and took Glucose, siring and injection set and went from the shop with a direction that whenever doctor comes he be sent to attend patient. This was first instance for which no case was lodged nor any medical examination was done nor with any specific accusation that as to which medicine was taken away by accused. Whatever was said was natural conduct of an attendant of a patient, who was ailing of acute disease, but the doctor or compounder was not paying any heed. When doctor (PW1) came he narrated the same to him then both of them went to some other person for lodging protest, who advised them to lodge protest with Birendra Tiwari then these two went at the door of Birendra Tiwari, where he was sitting on a cot and there the doctor asked "BHAI SAHAB KYA HUA. BIRENDRA NE KAHA KI SALE CHAMAR HO KAR TERA DIMAG KHARAB HO GAYA HAI. ISKE BAD VIREKDRA KUMAR, SURENDRA KUMAR AUR SIDDHU NE DOCTOR SAHAB KO MARNA SHURU KAR DIYA. BIRENDRA KI AURAT BHI MAUKE PAR MAUJOOD THI. DOCTOR SAHAB DHANKESH KO MAAR KAR MULJIMAN NE GIRA DIYA TO MAIN DAR KAR BHAG GAYA AUR KHAGA CHALA GAYA."

Medical report reveals injuries, as discussed above. Injured said that it was accused, who had assaulted. Charge sheet against Birendra Tiwari was filed but assault by three persons has been said by this witness and this witness was not beaten. Whereas Medical officer has proved that two injuries found on the person of injured were simple, situated at one side and may occur due to fall on land. Rest two were complaint of pain. Both of these witnesses have said that the informant had fallen on the ground. Meaning thereby both these injuries were caused by falling on land. In cross-examination this PW2 has said that he too was a quake to a job of compounder, without any training and certificate. There are material contradictions in the testimony of this witness. Only these two witnesses of fact are there and both of them are not reliable.

For punishment u/s 3(1)(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. Hence, insult or humiliation in any place within public view is condition precedent for punishment u/s 3(1)(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Both of these two witnesses i.e. informant-PW1 and PW2- Ramanuj have said in their testimonies that this occurrence was at the home of accused Birendra Tiwari where both of them had gone and Birendra was sitting over a cot at his home. Meaning thereby this was not a place of public view. Surendra Tiwari and Birendra Tiwari had gone to the medical shop of informant and had repeatedly requested for attending ailing wife of Birendra Tiwari and for giving medical help but they did not care for it then under anxiety and mental agony of ailment of his wife this Birendra Tiwari went and brought medicines from shop with a request for sending doctor for attending his ailing wife. Meaning thereby till then there was no intention to insult on the basis of caste, whereas for conviction u/s 3(1)(x) of SC/ST Act intentional insult or intimidation or humiliation of a member of a Scheduled Caste or a Scheduled Tribe at a place within public view is an essential ingredient.

In the impugned judgment conviction u/s 504 I.P.C. with a sentence of three months rigorous imprisonment has been awarded, whereas section 504 I.P.C. provides for intentional insult with intent to provoke breach of the peace i.e. whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Hence the essential ingredient for punishment u/s 504 I.P.C. is intentional insult with intent to provoke breach of the peace for which there is no cogent and sufficient evidence.

The alleged occurrence took place when informant went at the house of accused in the morning where his ailing wife was in need of treatment but no treatment was offered, rather protest was lodged. Then under above situation this occurrence took place, which was not an intentional insult with intent to provoke breach of the peace. Moreso, only two witnesses of fact are PW1 and PW2 and their testimonies are not consistent. There are material contradictions, exaggerations and embellishments. Hence the learned trial court failed to appreciate the facts and law and has wrongly passed the impugned judgment of conviction and sentence made therein. This appeal merits its allowance.

Accordingly, this appeal is allowed. The appellant is on bail. He need not surrender. His sureties are discharged.

Keeping in view the provisions of section 437-A Cr.P.C. the appellant is directed to forthwith furnish a personal bond in the sum of Rs. Ten Thousand and two reliable sureties each in the like amount before the trial court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before the Appellate forum.

Let a copy of this judgment along with lower court's record be sent back to the court concerned for immediate compliance and necessary action.

Order Date :- 11.4.2019

Pcl