Devanand and Another Vs State of Chhattisgarh

This appeal has been filed by the appellants assailing the legality, correctness and judicial propriety of the judgment dated 20.10.2005 passed in Special Criminal Case No. 71/2004 by Special Judge constituted under Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989. By the impugned judgment, the appellants have been convicted and sentenced in the following manners:-

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Conviction Sentence Under Section 294 IPC RI for one month Under Section 323 r/w Section 34 RI for three months IPC Under Section 325 r/w Section 34 RI for one year and fine of Rs. IPC 250/- each. In default of payment of fine further RI for one month Under Section 3(1)(X) of RI for six month and fine of Rs. Prevention of Scheduled Caste 250/- each. In default of payment and Scheduled Tribe of fine further RI for one month.

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2. Case of the prosecution in nutshell is that the complainant Hirday Sai (PW-5) and Bakhsu (PW-6) were cooking the meat near the madia (thatched hut) of appellant No. 1 Devanand and at that time, both the appellants came and asked as to why they were cooking food in the hut and then started assaulting the complainants by Lathi . As a result of this, Hirday Sai sustained injuries on his head, right wrist, chest and neck etc. whereas Bakhsu received injuries on his head and near the left eye etc. Choudhary Ram Pratap (PW-8) and Ramesh (PW-7) came to stop and tried to pacify the matter but the appellants ran with intension to assault. The injured/complainants were taken to police station Pendra where complainant Hirday Sai lodged the FIR (Ex. P-12). Both the injured were medical examined by Dr. H. K. Tawar (PW-1) who found the following injuries and gave his report Ex.P-7 on the person of Bakhsu Choudhar (PW-6):-

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1 &vkgr ds cka, vka[k ds iydksa ds mij ,oa]iyd esa Hkh rFkk]ckabZ vksj

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QzaVy fgLls esa lwtu Fkha] ftldk vkdkj 5& lsa-eh- yack *4 lsa-eh- dk FkkA

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2 & vka[kks iqu% dgk fd cka, vka[kks dh nksuksa iydsa dkyh iM xbZ Fkh-

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3 & [kksiMh esa cka, isjkbZVy Hkkx ij ,d ?kko ftldk vkdkj 4&lsaeh-* 0-5 lsaeh- gM~Mh dh xgjkbZ rd Fkh-

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4& tka?k esa iqu% dgk fd] iwjs tka?k esa lwtu Fkha] tks iwjs fgLls esa Qsyh gqbZ Fkha-

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5& ejht dks [kwu dh mYVh gks jgh Fkha-

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Likewise, following injuries were found on the person of Hirday

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Sai and gave his report Ex. P-8:-

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1 & [kksiMh ds nkabZ vksj iSjkVkbZy Hkkx ij ,d QVh gqbZ pksV ftldk

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vkdkj 2-5 lsaeh-* 0-5 lsaeh- gMMh dh xgjkbZ rd Fkh] fdUrq gMMh esa pksV gksuk izrhr ugha gks jgk Fkk-

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2& [kksiMh ds vkWDlhfiVy fjtu ij ,d QVh gqbZ pksV Fkha]ftldk

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vkdkj 2-5 lsaeh-* 0-5 lsaeh- gM~Mh dh xgjkbZ rd Fkk-

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3& nka, gkFk ij lkeus dh lrg ij ,d QVh gqbZ pksV Fkha]ftldk

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vkdkj 2-5 lsaeh-* 0-5 lsaeh- peMh dh xgjkbZ rd Fkk-

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4& nka, gkFk ds chp ds fgLls esa lwtu Fkha] ftldk vkdkj 3 lsaeh-* 2 lsaeh- FkkA

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5& ihB ij nkabZ vksj uhy dk fu’kku Fkk] rFkk ftldk vkdkj 6 lsaeh- * 2 lsaeh- FkkA

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This apart, radiologist (PW-2) has also given the report Ex. P-9 opining fracture of his left temporal bone of the complainant/Bakshu Choudhary. Thereafter, by adding Section 325 IPC, investigation further carried out. During the course of investigation, Caste certificate of the complainants was seized vide Exs. P-1 & 2. One bamboo stick and guava stick was seized from the appellants vide Ex. P-10 and 11. Spot map Ex. P-13 was prepared. Statements of the witness were recorded. Appellants were arrested and on completion of the investigation, charge-sheet was filed. Appellants were charge for offence under Sections 294, 323 r/w 34 and 325 r/w 34 IPC and Section 3(1)(X) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short Special Act). They denied the

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charges and claimed trial.

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Prosecution examined 10 witnesses and exhibited as many as 13 documents. Statements of the accused persons under Section 313 CrPC were recorded in which they pleaded their innocence and claimed false implication.

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Learned trial Court after appreciating the evidence available on record convicted and sentenced the accused/appellants as stated above. Hence this appeal. 6. Mr. Rudra Pratap Dubey, learned counsel for the appellants vehemently argued that the conviction of the appellants under the Special Act is erroneous contrary to the evidence on record and is bad in law. He submits that the caste certificate of the complainants Exs. P-1 & 2 was said to have been issued by Tahsildar which is not a competent authority to issue such caste certificate. He submits that the appellants have not caused injuries on the persons of the complainants with an intension that they belong to scheduled caste category, therefore, the conviction of the appellants under the special act cannot sustain and is liable to set aside. To buttress his submission, he placed reliance upon the decision of Supreme Court in case of Ku. Madhuri Patil v. Addl Commissioner, Tribal development , reported in AIR 1995 SC 94 and also a judgment of this Court in case of Pilla Bai and Ors. Vs. State of CG passed in CRA No.340 of 2004 decided on 05.01.2023 .

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In respect to conviction of the appellants under provisions of IPC, he submits that the there are majority contradictions and omissions in the statement of prosecution witnesses the seizure of bamboo and guava sticks has not been proved as the seizure witnesses have turned hostile and have

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not supported the case of the prosecution. In respect to Sections 294, he submits that none of the witnesses have stated that by speaking of oscene songs/words it has caused annoyance to the public or to the witnesses. He placed reliance upon the decision of Hon’ble Supreme Court in case of N.S. Madhanagopal and another Vs. K. Lalitha reported in (2022) 17 SCC 818. He submits that the conviction of the appellants under Section 294 cannot sustain. In respect to Sections 323 & 325 IPC, he submits that as the alleged incident is said to have been committed on 27.06.2003 and after due deliberation, it goes to show that a false case has been made out and the statements of the witnesses is not of sterling quality to sustain conviction. Therefore, he submits that the conviction of the appellants under these sections, is also liable to be set aside. Alternatively, he submits that the incident has occurred on 27.06.2003 since then the appellants are facing the lis. They were young aged about 29 and 22 years at the time of incident and at present they have reached to a mature age. Appellants were remained in jail about 6 days and they were granted bail by the learned trial Court and after their conviction their sentences were also suspended by this Court and they have never misuse the liberty granted to them. They appear to be first offender and during these long period, they must have reform and there is nothing on record to suggest that during this period they were involved in any unsocial or criminal activities. Therefore, in the event conviction of the appellants under the special act is set aside and their conviction under IPC is maintained, the sentences awarded to them may be reduced and or they may be sentence to only undergone. He further submits that the appellants may be granted benefit of Section 4 of Offender Act, 1958

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(for short Act) they may be set free forthwith.

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Learned counsel for the State supports the impugned judgment. He submits that the appellants has caused injuries upon the person of both the complainants and injured Bakhsu sustain fracture on his temporal bone which has also been proved by doctor (PW-1). He further submits apart from the eye witnesses PW-7 and PW-8 have supported their version. The intension of the appellants can be gathered from their overt act and as the caste of the injured persons is not dispute, their conviction under the provision of special Act and IPC is made out and the meritorious finding recorded by the trial Court is not required to be disturbed in this appeal. He further submits that long pendency of lis is not a consideration for reduction of the sentences of the appellants, therefore, he submits that the appeal is liable to be dismissed.

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Heard counsel for the parties, considered their rival submission and also perused the record with utmost circumspection. 10. As regards the conviction of the appellant under the Special Act, the caste certificate issued by the competent authority authorized to do so under the statute is a sine qua non. Though the prosecution in this case has produced the caste certificate as Exs. P-1 & 2. Not only this, the said certificate has not been authenticated by the competent authority to do so under the law for the time being in force. Dealing with an identical question, it has been held by this Court in the case of Pilla Bai (Supra) relying upon judgment of the Apex Court in the matter of Ku. Madhuri Patil v. Addl Commissioner, Tribal development , reported in AIR 1995

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SC 94 that there is a forum and procedure for issuing or assailing the caste certificate, and also to determine the status of the candidate. It has been

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further held that the caste certificate issued by someone not authorized or competent to do so has no evidentiary value. Relevant portion of the said decision reads as under:-

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“21. The procedure for issuance of caste certificate has been well prescribed by the Hon'ble Supreme Court in the matter of Ku. Madhuri Patil (supra) which laid down the forum and procedure for issuance of/assailing caste certificate and the status of candidate. Thus, in view of the aforesaid dictum of Hon’ble the Supreme Court, the aforesaid caste certificate has no evidentiary value, as it has not been issued by incompetent authority and the prosecution has failed to discharge his burden to prove the caste as discussed above. Apart from this, from the perusal of evidence available on record, it is evident that the appellants have not abused the complainants in filthy language knowing that they belong to Scheduled Tribe Community. This can be fortified from the bare perusal of the statement of the victim – Rupnath.”

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Thus looking to the fact that the prosecution has not proved the caste certificate produced in this case as is required under the law, and as mandated by the Supreme Court in the case reproduced hereinabove, this Court is of the considered opinion that the conviction of the accused/appellant under the Special Act cannot ensue and accordingly the finding recorded by the Court below to that effect is hereby set aside.

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Now, the question that arises for consideration as to whether the conviction of the appellants under Section 294 and 323 of the IPC can sustain the scrutiny of this Court. In order to appreciate this, it would be to appropriate to quote Sections 294, 323 and 325 of IPC as under:-

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“294. Obscene acts and songs.— Whoever, to the annoyance

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of others—

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(a)does any obscene act in any public place, or

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(b)sings, recites or utters any obscene song, ballad or words, in or near any public place,shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.”

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“323. Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”

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325. Punishment for voluntarily causing grievous hurt.—

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Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

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Hon’ble Supreme Court in case of N.S. Madhanagopal and another Vs. K. Lalitha reported in (2022) 17 SCC 818 has held that to prove the offence under Section 294 IPC, mere utterance of obscene words are not sufficient but there must be further proof to establish that it was to the annoyance of others. The prosecution witnesses have deposed with regard to utterance of obscene words but as to whether it has caused annoyance to them is locking in the case, Therefore, conviction of the appellants is set aside.

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Now, this Court would deal with validity of conviction of the appellants under Sections 323 and 325 IPC. From the evidence gathered on record, it appears that some incident had occurred on 27.06.2003 on account cooking the food, but the facts remains that the injured persons suffered injuries also proved from the MLC of the persons, therefore, the conviction of the appellant under Section 323 and 325 of IPC appears to be based on proper appreciation of evidence does not require any interference.

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The last submission which is placed before this Court whether the sentence of appellant can be reduced to period already undergone or what would be adequate sentence to be imposed in facts and circumstances of the case. The Hon’ble Supreme Court in case of Deo

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Narain Mandal Vs. State of UP reported in (2004) 7 SCC 257

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observed in paragraph 8 as under:

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“8.This brings us to the next question in regard to the reduction of sentence made by the High Court. In criminal cases awarding of sentence is not a mere formality. Where the statute has given the court a choice of sentence with maximum and minimum limit presented then an element of discretion is vested with the court. This discretion can not be exercised arbitrarily or whimsically. It will have to be exercised taking into consideration the gravity of offence, the manner in which it is committed, the age, the sex of the accused, in other words, the sentence to be awarded will have to be considered in the background of the fact of each case and the court while doing so should bear in mind the principle of proportionality. The sentence awarded should be neither excessively harsh nor ridiculously low.”

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In the same breath I am persuaded to mention herein below few lines from the judgment authored by Justice V.R. Krishna Iyer in case of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in

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AIR 1977 SC 1926 : -

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“Western jurisdiction and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a

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therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : 'If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.'”

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While determining the quantum of punishment various factors needs to be consider. Nature and gravity of offence, penalty provided for the offence, manner of commission of offence, proportionality between crime & punishment, character of the offender, age and sex of the offender, antecedents if any, possibility of reforms, impact of crime on society etc are some of the relevant consideration in determining the quantum of punishment. Court has to strike a balance between crime and punishment. Possibility of reform is an important mitigating factor while imposing appropriate sentence. Undue sympathy should not be given only because of long drawn pendency of criminal proceedings.

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Thus keeping in mind the fact that the appellants have remained in jail for 6 days, that there is no minimum sentence provided for offence alleged the appellants, that the fine amount is reported to have already been deposited by them, that for the offence under Section 323 IPC only the sentence of fine can also serve the purpose has been awarded, that the incident had occurred in the year 2003, that the appellants were granted bail and do not appear to have misused the liberty, that even after conviction they were granted bail by this Court, and further taking into consideration the aforesaid

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legal position, this Court is of the opinion that the interest of justice would served, if the sentence imposed on the appellants is reduced to the period already undergone. Order accordingly. However, this Court also thinks it proper and in the interest of justice if the accused/appellant are required to pay fine of Rs. 5,000/- each in addition to the one already imposed by the trial Court. Order accordingly. It is directed that out of the fine amount so imposed, an amount of Rs. 4,000/- each would be given to the injured persons Hirday Sai (PW-5) and Bakhsu Choudhary (PW-6) as compensation in terms of Section 395 of BNSS. It is made clear that the failure in deposit of fine as directed above within 90 days would make the appellants further remain behind the bars for a period of ten days. Order Accordingly.

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Appeal thus allowed in part as indicated above. Seized property be disposed of in terms of judgment of the learned trial Court. 20. It is reported that the Appellants are on bail. Their bail bond will remain in force for six months in view of section 481 of BNSS, 2023. 21. Record be sent back along with a copy of this judgment forthwith for information and necessary compliance.

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Sd/-

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(Sachin Singh Rajput) JUDGE

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Pawan

Devanand and Another v. State of Chhattisgarh

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Devanand and Another v. State of Chhattisgarh

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