Bhagelu & Another vs State Of U.P.
2021 Latest Caselaw 10897 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on: 04.08.2021
 
Delivered on: 26.08.2021
 
Court No. - 30
 

 
Case :- CRIMINAL APPEAL No. - 1747 of 2011
 

 
Appellant :- Bhagelu & Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Anil Kumar Misra,Ramakar Shukla
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Suresh Kumar Gupta,J.

1. This criminal appeal has been filed against the judgment and order dated 27.09.2011 passed by Special Judge SC/ST Act, Court No.8, Sultanpur in Special Session Trial No.7 of 2008, relating to Case Crime No.220 of 2001, under Sections 452, 323, 504, 506 IPC and Section 3(1)(X) S.C./S.T. Act, Police Station Kadipur, District Sultanpur whereby the appellants have been convicted and sentenced as under:

(a) Under Section : 452/34 I.P.C. - One year's rigorous imprisonment with fine of Rs.500/- each with default stipulation.

(b) Under Section 323/34 IPC : Six months' imprisonment with fine of Rs.500/-each with default stipulation.

(c) Under Section 504 IPC : Three months' imprisonment to each.

(d) Under Section 506 IPC : Three months' imprisonment to each.

(e) Under Section 3 (1) (X) S.C./S.T. Act : Six month's rigorous imprisonment with fine of Rs.500/- each with default stipulation.

2. Brief fact of the case emerges as such that on 09.07.2001 at around 02.30 pm, the complainant lodged the F.I.R. against the accused-appellants with an allegation that he belongs to Scheduled Caste and permanent resident of Village- Kadipur Khurd, P.S. Kadipur, District Sultanpur. The complainant alleged that his dispute was with Bhagelu Nishad regarding allotment of Indra Awas. On 08.07.2001 at about 7.00 pm, the accused-appellant Bhagelu, Sardar, Mitthu and Ram Badan gathered at the door of the complainant and started abusing. When the complainant objected to it, then, the accused-appellants inflicted injury to the complainant with club and stick. On shouting the complainant, they also inflicted injury to Rammu, Smt. Chhabbi, Aaji, Kalpu and Om Prakash with club and stick. When the complainant and other injured witnesses entered into house to save themselves, then the accused-appellants entered into house of the complainant and inflicted injury to them inside the house. Meanwhile, Chhote Lal, Ram Shukh and other persons rushed to the spot. Afterwards, they threatened the complainant using caste abusive words.

3. On this allegation, the F.I.R. was lodged in P.S. Kadipur, District- Sultanpur as Case Crime No. 220 of 2001, under Sections 452, 323, 504, 506 IPC and Section 3(1)(X) of SC/ST Act.

4. On pointing out of the complainant, the investigating officer prepared the site plan and also recorded the statement of the injured and complainant. The injury of the injured was examined in PHC, Kadipur. Shyam Bahadur- Complainant, Rammu, Smt. Chhabbi, Kalpu and Om Prakash got simple injury. All the injuries were fresh and caused by hard and blunt object.

5. After completion of the formalities of the investigation, charge-sheet was filed before Judicial Magistrate, Sultanpur. Learned Magistrate took cognizance and afterwards the case was committed to the Special Court on 08.01.2008 where it was registered as Special S.T. No.7/08. On 27.02.2008, charge was framed by Special Judge, SC/ST Act against all the appellants under Sections 452/34, 323/34, 504, 506 and 3(1)(10) of SC/ST Act. Charge was read over to the appellants and they denied the charge levelled against them and claimed to be tried.

6. In order to substantiate his case, the prosecution examined PW-1 Shyam Bahadur/complainant, PW-2 Om Prakash, PW-3 Smt. Chhabbi Devi, PW-4 Ram Shukh, PW-5 Dr. Dushyant Kumar Singh and PW-6 Devi Prasad Tripathi and in this matter, written report was proved as Ex-Ka-1, injury report as Ex-Ka-2 to Ex-Ka-6, chik F.I.R. as Ex-Ka-7, certificate of litigation as Ex-Ka-8, G.D. Rapat as Ex-Ka-9, injury letter as Ex-Ka-10 to Ex-Ka-14, site plan as Ex-Ka-15, charge-sheet as Ex-Ka-16. Thus, the prosecution relied on the oral evidence of PW-1 to PW-6 and also relied on as documentary evidence Ex-Ka-1 to Ex-Ka-16.

7. Subsequent to closure of prosecution evidence, statement of the accused-appellants under Section 313 Cr.P.C. was recorded by the trial court explaining the entire evidence and other incriminating circumstantial, in which the accused-appellants denied prosecution story and they stated that the informant and the injured falsely implicated them. The accused-appellants further stated that on the basis of counterblast, the F.I.R. was lodged by them. In their defence, the accused-appellants examined DW-1 Jagai, DW-2 Sugreev, DW-3 Ram Bahadur, DW-4 Tulsiram and also submitted a photo copy of N.C.R. No.81/01 and injury report of Bahadur and Ram Badan.

8. After hearing both the parties and appreciating the entire evidence oral and documentary available on record, the trial court convicted the accused-appellants as aforesaid.

9. Being aggrieved and dissatisfied with the judgement of the trial court, the appellants have preferred this appeal.

10. I have heard Shri Ramakar Shukla, learned counsel for the appellants as well as Shri Veer Raghav Chaubey, learned AGA and perused the material available on record.

11. Submission of the learned counsel for the appellants is that in the instant case the incident has not taken place because of caste discrimination but it took place on the spur of the moment. It is submitted that no offence under Section 3 (1) (X) S.C./S.T. Act can be said to have been made out against the appellants. Learned counsel for the appellants has submitted that the other offences, alleged to have been committed, were petty in nature and the appellants are facing prosecution since 2001.

12. Learned Additional Government Advocate has submitted that the trial court has considered all the aspects of the case and by a reasoned and detailed judgment has convicted the appellants as above. The judgment of the trial court does not suffer from any illegality. Hence, the judgment of the trial court needs no interference.

13. The first point to be considered is that on the admitted facts whether the offence under Section 3 (1) (X) S.C./S.T. Act can be said to have been proved against the appellants.

14. Hon'ble Apex Court in the case of Gorige Pentaiah Vs. State of A.P. & Ors. reported in [2008 (3) JIC 306 (SC)] has observed in para 8 which is reproduced as under:-

"In the instant case, the allegation of respondent No.3 in the entire complaint is that on 27.05.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3 (1) (X) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No.3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within, public view in the entire complaint, nowhere it is mentioned that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No.3 in a place within the public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse to process of law."

15. Hon'ble Apex Court in the case of Pappu Singh Vs. State of U.P. reported in 2001 (3) A.Cr.R. 2702 has observed in para 5, which is reproduced as under:-

"Thus, the offence under said section is made out if a person not being a member of Scheduled Caste or Scheduled Tribe intentionally insults or intimidates with intent to humiliate a member of Scheduled Caste and Scheduled Tribe in any place within public way."

16. In the instant case, the incident of alleged offence took place inside the house of the complainant on the spur of the moment and it is not a case where appellants intentionally insulted or intimidated the member of Scheduled Caste and Scheduled Tribe in any place within the public way.

17. In view of the above, this Court is of the view that some lenient view should be taken on the point of sentence for the reasons that the case is very old. The perusal of evidence and fact shows that the offence under Section 3 (1) (x) SC/ST Act is not found proved. It was a simple quarrel between parties.

18. With regard to the other offences, the counsel for the appellants has submitted that the appellants are not previous convicts and therefore, they are entitled to get the benefit of Section 4 of the Probation of Offender's Act, 1958.

19. Accordingly, this appeal deserves to be partly allowed and is hereby partly allowed. The conviction of the appellants for the offence under Section 3 (1) (X) S.C./S.T. Act is hereby set aside and they are acquitted of the charge under Section 3 (1) (X) S.C./S.T. Act. The conviction of the appellants for the remaining offences is hereby confirmed but instead of sending them to jail to serve out their remaining sentence. They shall be released on probation for a period of one year to maintain peace and good behaviour. The appellants shall have to file their personal bonds with two sureties before the court concerned within a period of one month from today. The appellants are also directed to deposit fine of Rs.5,000/-each within a period of one month from today before the court concerned. In default to execute the bonds and fine, as above within the stipulated time, the appellants would serve out the sentence as imposed by the Court below.

20. During this period of one year, they shall not involve in any criminal activities and shall remain under the Supervision of the concerned District Probation Officer. In case of breach, appellants shall appear and receive sentence when called upon during the above period.

21. Let a copy of the judgment along with lower court record be sent to the learned Sessions Judge concerned for its onward transmission to the court concerned for information and further action in the matter.

Order Date :- 26.08.2021

SK/-