Jharkhand High Court
Birendra Kumar @ Bablu Sao vs The State Of Jharkhand on 18 February, 2025
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1647 of 2006
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(Against the judgment of conviction and order of sentence both dated 27.11.2006
passed in SC/ST Case No. 07 of 2004 arising out of Balumath P.S. Case No. 28
of 2004 corresponding to G.R. No. 187 of 2004 by the Court of Learned 1st
Additional Sessions Judge, Latehar)
Birendra Kumar @ Bablu Sao, son of Sri Ram Lakhan Sao, resident of Village
Balumath, P.O. and P.S.-Balumath, Dist.-Latehar --- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
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CORAM : HON'BLE MR. JUSTICE NAVNEET KUMAR
------
For the Appellant : Mr. Rahul Kamlesh, Advocate, Legal Aid
Defence Counsel
For the State : Mr. Sanjay Kumar Srivastava, A.P.P.
JUDGMENT
18.02.2025 This appeal is directed against the judgment of conviction and
order of sentence both dated 27.11.2006 passed in SC/ST Case No. 07 of
2004 arising out of Balumath P.S. Case No. 28 of 2004 corresponding to
G.R. No. 187 of 2004 by the Court of Learned 1st Additional Sessions
Judge, Latehar whereby and where under the appellant has been
convicted for the offence punishable under Section 341, 323, 384 of IPC
and also under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act
and has been sentenced to undergo S.I for a period of 15 days for the
charge under Section 341 of IPC, further sentenced to undergo S.I. for a
period of six months along with a fine of Rs. 500/- for the offence under
section 323 of IPC, also sentenced to undergo R.I. for a period of six
months for the charge under Section 384 of IPC, further sentenced to
undergo R.I. for a period of six months along with a fine of Rs. 500/- for
the offence under Section 3(1)(x) of SC/ST (Prevention of Atrocities)
Act and in default of payment of fine, he was further directed to undergo
further S.I. for one month. All the sentences were directed to run
concurrently.
2. The prosecution case arose in the wake of the written report of the
informant (P.W.-1) Ram Karan Ram, the then B.D.O. Balumath P.S.
Balumath District Latehar dated 02.06.2004 to officer-in-charge P.S.
Balumath. It was stated therein that one Sri Jitu Uraon of village
Tasatwar was given the work of leveling of earth from Balumath Block
and he wanted to do that work but accused Birendra Kumar @ Bablu S/o
Lakhan Sao of village Balumath wanted that the said land leveling work
would be done by him and for that he committed Marpit with Jitu Uraon,
at the office premises of B.D.O. Balumath and due to the said assault,
Jitu Uraon became unconscious. It was further stated that the said Jitu
Uraon was sent to the Hospital in unconscious position. It was also
stated that Jitu Uraon was a member of "Adiwasi". The informant urged
that accused would be legally punished for his work of his assault and
also for his attitude of Rangdari.
3. On the basis of the aforesaid written report of the informant,
Balumath P.S. Case No. 28 of 2004 dated 02.06.2004 under Sections
341, 323 & 384 of I.P.C. and also, under Section 3/4 of SC/ST Act was
registered. After investigation the I.O., has submitted the charge-sheet in
the Court of C.J.M. Latehar on 08.07.2004 and accordingly cognizance
was taken for the said offences and was further pleased to transfer the
case record for disposal in the file of learned J.M. 1 st Class, Latehar and
this case was committed to the court of Special Sessions Judge, Latehar
for trial of this SC/ST Case on 24.08.2004.
4. Thereafter, charge against the accused (appellant) was framed on
14.12.2004 by the learned 1st Additional sessions Judge Latehar for the
offence punishable under Section 341,323,384 of IPC & under section
3(1)(x) of SC/ST Act.
5. The defence of the accused was complete denial of allegations
and it has further been asserted by the accused that this case is false and
he is innocent.
6. The learned court below after conducting the full-fledged trial
passed the impugned judgment of conviction and order of sentence,
which is under challenge in this appeal.
7. Heard learned Counsel for the appellant and the learned A.P.P. for
the State.
Arguments advanced on behalf of the Appellant:
8. The learned Legal Aid Defence Counsel-Mr. Rahul Kamlesh
appearing on behalf of the appellant submitted that although no D.W.s
2 Cr. Appeal (SJ) No. 1647 of 2006
has been examined on behalf of the appellant/accused in his defence but
also from prosecution side no independent witnesses has supported the
prosecution case. It is further submitted that he is an innocent person and
has not committed any offence and he has been falsely implicated in this
case due to previous enmity. It has further been submitted that learned
court below did not consider the fact that the medical evidence does not
support the prosecution case and it is clearly evident that statements
given in deposition of the PW-2 and PW-7 (victim & Doctor) are
contradictory to each other. It has further been submitted that as per
statement given in the deposition of PW-3 no case u/s 3(1)(x) of SC/ST
Act is made out and hence the judgment is not sustainable in the eye of
law and therefore the impugned judgment of conviction and order of
sentence is fit to be set aside.
Arguments advanced on behalf of the State.
9. On the other hand, the learned APP appearing on behalf of the
State has opposed the contentions raised on behalf of the Appellant and
stated that the learned trial Court has rightly passed the impugned
judgment of conviction and order of sentence on the basis of the
evidences adduced on behalf of the prosecution. It has further been
submitted that the victim PW-2 himself and the doctor PW-7 has
supported the prosecution case and there is no legal point to interfere in
the impugned judgment of conviction and order of sentence and this
appeal is fit to be dismissed.
Appraisal & Findings
10. Having heard the parties, perused the record of the case including
the impugned judgment, depositions of all the witnesses and other
materials available on record.
11. In order to prove its case, prosecution has been able to examine
altogether 7 witnesses who are as under:
1. P.W.1-Ram Karan Ram (Informant)
2. P.W.2-Jitu Uraon (Victim)
3. P.W.3-Baldeo Uraon
4. P.W.4- Sunil Uraon
3 Cr. Appeal (SJ) No. 1647 of 2006
5. P.W.5-Ramdeo Uraon
6. P.W.6-Sri Madhusudan (I.O.)
7. P.W.7-Doctor M.E. Haque
Apart from the oral evidences the prosecution has proved some
documentary evidences also which are as under: -
Exhibit-1- Written Report of the Informant.
Exhibit-1/1- Signature and endorsement of Sri Nanifuddin S.I.
Police Balumath on written report.
Exhibit-2- Formal FIR
Exhibit-3- Forwarding Police Report of Victim to Medical Officer,
Balumath P.H.C. for his medical examination.
Exhibit-4- Injury Report of Jitu Uraon given by the Doctor.
12. Now I proceed to appraise the depositions of witnesses examined
on behalf of the prosecution to determine the finding of the learned trial
Court vis-à-vis the statements of the witnesses recorded during the
course of the trial and other evidences available on record.
13. PW-1 Ramkaran Ram is the informant and was the then B.D.O.
Balumath. He has stated that on 02.06.2004 he was present at his Block
Office in his chamber and he heard some hot talks and when he came out
to know the facts from his office, he saw that Jitu Uraon was lying
unconscious at there. He was informed by his son Ramdeo Uraon and
others that Bablu Gupta had assaulted him. During course of enquiry, he
came to know that accused Bablu Gupta has assaulted Jitu Uraon
because Jitu Uraon had obtained a cheque of Rs. 7,500/- and Bablu
Gupta was demanding money and he was saying that he would do that
work. He proved the written report given by him to O/C P.S. Balumath
as Ext.1. but he in cross examination asserted that Marpit (assault) was
not done in his presence and no money was demanded in his presence.
14. P.W.2-Jitu Uraon (Victim) had stated that on the date of
occurrence at about 12:00 O' clock he was present at B.D.O. office
Balumath and accused Bablu Gupta came to him and told that "you
Adivasi has become so emboldened that you will take the contract"
thereafter he assaulted him by fists and then he fell down, thereafter the
accused got on his chest and assaulted him badly. He became
unconscious and after that he was taken to the Hospital where he was
4 Cr. Appeal (SJ) No. 1647 of 2006
admitted for about three months.
15. P.W.-3 Baldevo Uraon who was son of the informant. He
asserted that when he heard his father was being assaulted, he went to
hospital to see him where his father disclosed that Bablu had assaulted
him by means of fist and also climbed on his chest and pressed and thus
his ribs and chest were broken. He further asserted that his father also
told that accused was saying "Sala Adiwasi Bahut Bolta hai" (abusing by
taking name of his caste "Adiwasi").
16. P.W.-4, Sunil Uraon who is also the son of the informant. He was
informed by Baldeo Uraon (P.W.-3) that his father Jitu Uraon was
assaulted by Bablu Sao at Balumath Block thereafter he went to
Balumath Hospital to see his father. He further asserted that his father
said that Bablu Sao had assaulted by fist on his face and had also abused
him saying "Adiwasi Sala Bahut Harami Hai" (abusing by taking name
of his caste "Adiwasi") and he also pressed his chest of his father due to
which 3 ribs of his father were broken and he became unconscious and
was taken to hospital.
17. P.W.-5 Ramdeo Uraon who is eye witness and has stated that he
along with his father Jitu Uraon had gone at Balumath Block where his
father had to obtain a cheque for the earth levelling work, where Bablu
Sao (appellant) came and he wanted to grab the said contract of earth
levelling and because of this, he assaulted by fist on the face of his
father, thereafter his father fell down, then Bablu Sao got climbed on the
chest of his father. This witness has also stated that Bablu Sao abused to
his father saying "Addiwasi Sala Muh Ladate Ho" (abusing him by
taking name of his caste "Adiwasi"). After the occurrence, his father was
taken to the Hospital.
18. P.W.-6 Sri Madhusudan who is the Deputy S.P. of the Police and
I.O. of this case. This witness has described the place of occurrence
which is at the block office Balumath. He also proved the formal FIR
marked as Exhibit-2 which is in the writing and signature of Md.
Janifuddin S.I. O/C P.S. Balumath. I.O. has also proved the forwarding
of injury report by O/C P.S. Balumath to the Medical Officer P.H.C.
Balumath as Exhibit-3. In para 14 he has stated that in his re-statement
the victim Jitu Uraon had not stated that he was abused by accused
5 Cr. Appeal (SJ) No. 1647 of 2006
saying him "Aadiwasi".
19. P.W.-7, Dr. M.E. Haque had examined the Jitu Uraon on
02.06.2004 at P.H.C. Balumath and found one injury which was
tenderness on left second to forth inter coastal region of chest. He also
advised for its x-ray but he found no any boney injury after seeing the x-
ray. The Dr. has stated that the injury was within six hours and its nature
was simple caused by hard and blunt substance. He has proved injury
report as Exhibit-4.
20. In view of the discussions of the testimonies of the witnesses
examined on behalf of the prosecution in the foregoing paragraphs, it is
well founded that all the witnesses have supported the case to the extent
that the victim, P.W.-2 Jitu Uraon and his son P.W.-5 Ramdeo Uraon
were in the B.D.O. Office, Balumath then the appellant Birendra Kumar
@ Bablu Sao reached there and he assaulted to Jitu Uroan who became
unconscious.
21. It is also proved by the depositions of the witnesses that the
appellant had inflicted assault upon the injured victim-P.W.-2, Jitu Uroan
who had gone to B.D.O. Office to obtain cheque of Rs. 7,500/- and
appellant wanted to take that cheque amount in order to get the assigned
work of Jitu Uraon to be done by him and not by the victim and for that,
the appellant had been threatening continuously to the victim, Jitu
Uroan, P.W.-2. It is also clear from the written report of the B.D.O. i.e.
Exhibit-1 which has been proved by the P.W.-1 that the case was
registered and investigated and therefore the charges of assault and
causing simple injury to the appellant for want of snatching the contract
work forcibly of Rs. 7,500/- by the appellant is substantiated and thus
the offence under Section 323, 341 and 384 of the IPC are proved.
22. The Learned trial court has rightly appreciated the depositions and
testimonies and other evidences during the course of the trial and came
to a finding that the appellant is guilty for the offence punishable under
Sections 323, 341 and 384 of the IPC.
23. So far as offence under Section 3(1)(x) is concerned, it is found
that neither the victim, P.W.-2, Jitu Uroan nor his son P.W.-5 Ramdeo
Uraon who are eye witnesses have stated occurrence, of insulting and
humiliating to the victim P.W.-2, had taken place in the public view
6 Cr. Appeal (SJ) No. 1647 of 2006
within the meaning of Section 3(1)(x) of the Scheduled Caste and
Scheduled Tribe (prevention of atrocities act) 1989 (hereinafter referred
to as SC/ST Act, for the sake of brevity) in order to attract the offence
under Section 3(1)(x) of the said Act. The provision of Section 3(1)(x) is
reproduced as under:
3. Punishment for offences of atrocities
1. Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe -
i. ................................................................
ii. ...............................................................
iii. ................................................................
iv. ................................................................
v. ..................................................................
vi. ..................................................................
vii. ..................................................................
viii. .................................................................
ix. ..................................................................
x. 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.
24. As the Learned legal aid defence counsel relying upon the
judgment of Hon'ble Supreme Court as reported in 2025 SCC OnLine
SC 215 in the matter of "Karuppudayar Vs. State represented by the Dy.
Superintendent of Police, Lalgudi Trichy & Ors." Where the Hon'ble
Apex Court has observed as under at para 11 and 15 -
11. It could thus be seen that, to be a place 'within public view', the place should
be open where the members of the public can witness or hear the utterance
made by the accused to the victim. If the alleged offence takes place within the
four corners of the wall where members of the public are not present, then it
cannot be said that it has taken place at a place within public view.
15. We are, therefore, of the considered view that since the incident has not
taken place at a place which can be termed to be a place within public view, the
offence would not come under the provisions of either Section 3(1)(r) or Section
3(1)(s) of the SC-ST Act.
The Hon'ble Apex Court in Hitesh Verma v. State of Uttarakhand,
(2020) 10 SCC 710 in para 14 has observed as under-
7 Cr. Appeal (SJ) No. 1647 of 2006
14. Another key ingredient of the provision is insult or intimidation in "any place
within public view". What is to be regarded as "place in public view" had come up for
consideration before this Court in the judgment reported as Swaran
Singh v. State [Swaran Singh v. State, (2008) 8 SCC 435 : (2008) 3 SCC (Cri) 527] .
The Court had drawn distinction between the expression "public place" and "in any
place within public view". It was held that if an offence is committed outside the
building e.g. in a lawn outside a house, and the lawn can be seen by someone from
the road or lane outside the boundary wall, then the lawn would certainly be a place
within the public view. On the contrary, if the remark is made inside a building, but
some members of the public are there (not merely relatives or friends) then it would
not be an offence since it is not in the public view (sic) [Ed. : This sentence appears
to be contrary to what is stated below in the extract from Swaran Singh, (2008) 8
SCC 435, at p. 736d-e, and in the application of this principle in para 15, below:"Also,
even if the remark is made inside a building, but some members of the public are
there (not merely relatives or friends) then also it would be an offence since it is in the
public view."] . The Court held as under : (SCC pp. 443-44, para 28)
"28. It has been alleged in the FIR that Vinod Nagar, the first informant, was
insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near
the car which was parked at the gate of the premises. In our opinion, this was
certainly a place within public view, since the gate of a house is certainly a place
within public view. It could have been a different matter had the alleged offence
been committed inside a building, and also was not in the public view. However,
if the offence is committed outside the building e.g. in a lawn outside a house,
and the lawn can be seen by someone from the road or lane outside the
boundary wall, the lawn would certainly be a place within the public view. Also,
even if the remark is made inside a building, but some members of the public are
there (not merely relatives or friends) then also it would be an offence since it is
in the public view. We must, therefore, not confuse the expression "place within
public view" with the expression "public place". A place can be a private place
but yet within the public view. On the other hand, a public place would ordinarily
mean a place which is owned or leased by the Government or the municipality
(or other local body) or gaon sabha or an instrumentality of the State, and not by
private persons or private bodies."
(emphasis in original)
In view of the aforesaid observations of the Hon'ble Supreme Court, it is
found from the present fact that no one was present at the place of
occurrence except the victim P.W.-2 and his son P.W.-5 Ramdeo Uraon
who are said to be eye witnesses of the occurrence. The learned Trial
Court did not appreciate the depositions and testimonies of P.W.-2 and
P.W.-5 and therefore the findings of the learned Trial Court in order to
fasten the guilt of the appellant under Section 3(1)(x) of the SC/ST Act is
bad in law and fit to be set aside. Even the informant P.W.-1 had stated
categorically in paragraph 5 of the cross-examination that the occurrence
did not take place in his presence. Even the P.W.-2 who is the victim did
not utter a single word regarding the alleged offence in the public view
either in his examination-in-chief or cross-examination about the
8 Cr. Appeal (SJ) No. 1647 of 2006
presence of any other persons other than his son P.W.-5 in order to attract
the Section 3(1)(x) of the SC/ST Act, and the I.O. in para 14 had stated
that in his re-statement the victim Jitu Uraon had not stated that he was
abused by accused saying him "Adiwasi".
25. The Hon'ble Supreme Court has categorically held that office is
not a public view and in the present case no one were present in the
office and therefore the conviction of the appellant deserves to be set
aside so far as offence under Section 3(1)(x) of the SC/ST Act is
concerned.
26. Accordingly, the conviction of the appellant in SC/ST Case No.
07 of 2004 arising out of Balumath P.S. Case No. 28 of 2004
corresponding to G.R. No. 187 of 2004 by the Court of Learned 1st
Additional Sessions Judge, Latehar under Section 3(1)(x) of SC/ST Act
is set aside and conviction under sections 323, 341 and 384 of the IPC
are upheld.
27. So far as the sentence is concerned, it is stated by the learned legal
aid defence counsel that occurrence is of the year 2004 and as such more
than 20 years have gone under which this appellant has been suffering
from the trauma and misery of the criminal prosecution.
28. Further, there is nothing on record to show that this appellant is a
man of criminal history and it has also come from the report as
submitted by the learned APP through the counter affidavit that this
appellant has been leading a peaceful life with his family member
including wife, three daughters and one son. He also remained in jail for
a short period of time therefore it is urged on behalf of the appellant that
a lenient view may be taken in awarding the sentence.
29. Learned APP appearing on behalf of the State also did not
controvert this fact that this occurrence has taken place as far back as in
the year 2004 and this appellant has remained in jail although for a very
short period of 3 days but as per the report, it is also found that this
appellant has been leading a peaceful life with his family by running a
shop of cement and rod including his three daughters and son and
therefore an appropriate order on the point of sentence may be passed.
30. Having taken into consideration the aforesaid submissions of the
parties, it is found that this occurrence has taken place in the year 2004
9 Cr. Appeal (SJ) No. 1647 of 2006
and there is nothing on record to show about the criminal history of the
appellant. Further it has also been found that he has been found guilty
for the offence punishable under Sections 323, 341 and 384 of the IPC
and he is not found guilty for the offence punishable under Section
3(1)(x) of the SC/ST Act.
31. Further, it is also found that he has remained in jail for a short
period of time and in the backdrop of the aforesaid circumstances, it is
found that no useful purpose would be served by sending the appellant
again to the jail and purpose of justice would be meted out if the order of
sentence dated 27.11.2006 is set aside and the appellant is sentenced to
imprisonment for the term of a period already undergone by him and a
suitable amount of fine is imposed by way of compensation in order to
give to the victim PW-2 Jitu Uraon.
32. In this view of the matter, the order of sentence passed by the
Learned 1st Additional Sessions Judge, Latehar dated 27.11.2006 in
SC/ST Case No. 07 of 2004 against this appellant for the offence
punishable under sections 323, 341 and 384 of the IPC are set aside and
he is awarded the sentence of imprisonment for the period already
undergone. Further, a composite sentence of fine is imposed upon the
appellant under all the three heads to a sum of Rs. 10,000/-(Rupees Ten
Thousand) in order to give it to the victim, P.W.-2 Jitu Uraon.
33. Since, the appellant is on bail therefore he is given six months'
time to deposit the said fine amount and in case of default of payment of
fine, he will undergo a composite imprisonment for six months
collectively under all the three heads. The appellant may deposit the fine
amount through the Nazarat of the concerned Civil Court in order to give
it to the victim/injured PW-2 by way of compensation.
34. The learned Trial Court is directed to take all necessary steps to
ensure that the said fine amount is deposited within the stipulated period
of time and if the same is not deposited by the appellant, then he will
serve the sentence as awarded in case of default of payment of fine by
taking all necessary measures as per the provisions of law.
35. The appellant has been allowed to deposit the said fine amount
through the Nazarat of the concerned Civil Court and the moment
appellant deposits the fine amount, he shall be released and/ or
10 Cr. Appeal (SJ) No. 1647 of 2006
discharged from the liabilities of bail bonds accordingly in this case.
36. The learned trial court is also directed that on deposit of the said
fine amount by the appellant, a notice be sent to the victim P.W.-2 Jitu
Uraon and on his appearance the said fine amount, if so, deposited by the
appellant, shall be disbursed to him. In case, the said victim Jitu Uraon
(P.W.-2) is not traceable or not available or not found at the given
address, or does not appear before the learned trial Court, the same shall
be disbursed to the close or near relatives or kith and kin of the said
victim or else, as the concerned learned trial court may deem fit and
proper, and in this regard the Court concerned may also involve the Para
Legal Volunteer (PLV) of District Legal services Authority (DLSA),
Latehar, if required and the Secretary, D.L.S.A., Latehar is directed to
co-operate in this regard.
37. In result, this Criminal Appeal is dismissed with the modification
in the Judgment of conviction and order of sentence as above.
38. Let the Lower Court Records and the copy of the judgment be
also transmitted to the learned Court below for its compliance in letter
and spirit.
39. Let a copy of the judgment be also sent to the Member Secretary,
Jharkhand State Legal Services Authority to do the needful for the
payment of professional fees to the Legal Aid Defence Counsel/Amicus
Mr. Rahul Kamlesh who has effectively and efficiently assisted to the
Court on behalf of the appellant.
(Navneet Kumar, J.)
Basant B./S. Das
11 Cr. Appeal (SJ) No. 1647 of 2006
