Trilokbhai Motilal Rajput (Bundel) vs State of Gujarat

K.M. Thaker, J.—This appeal is directed against the judgment and order dated 24.03.2014, passed by the Special Judge (Atrocity), Court No. 7, Ahmedabad, in Special (Atrocity) Criminal Case No. 23 of 2012.

The appellant, in this Criminal Appeal, is original accused in said Special (Atrocity) Criminal Case No. 23 of 2012. The appellant was charged for the offence punishable under Sections 326 , 337 , 294(b) of the Indian Penal Code and Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989. By the impugned judgment and order, the accused-appellant is acquitted from the charge of the offence punishable under Sections 326 , 337 , 294(b) of the Indian Penal Code by granting benefit of doubt. However, the appellant in present appeal is convicted for the offence punishable under Sections 324 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989. After recording the conviction against present appellant-accused in the said offences, the learned Trial Court sentenced the appellant to undergo simple imprisonment for 1(one) year for the offence punishable under Section 324 of the Indian Penal Code and to pay fine in the sum of Rs. 4,000/- and if the fine is not paid then to undergo simple imprisonment for 1(one) month and for the offence punishable under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989, the appellant is sentenced to undergo simple imprisonment for 1(one) year and to pay fine in the sum of Rs. 4000/- and in default to undergo simple imprisonment for 1(One) month. The sentence imposed on the appellant have to be undergone concurrently.

Briefly stated, the case of the prosecution was that on 02.10.2005, at about 06.45 P.M., when the appellant was present in his cabin-shop, where he is running a small watch repairing shop, quarrel took place between the accused and the complainant, who had given his watch for repair and during the said quarrel, the appellant abused the complainant and insulted him by naming his caste and using derogatory words/language. According to the case of the prosecution, at the time of quarrel, the appellant was repairing some watch and for that purpose, he had poured acid in a bowl to clean the parts of the watch and during the quarrel the appellant threw the said liquid acid at the complainant on account of which the complainant received burns injuries since some of liquid acid fell on chest and hand. The complainant was treated at a hospital. The complainant lodged a complaint on the same date when the incident occurred i.e. on 02.10.2015. In his complaint he mentioned the names of witnesses who, according to his allegation were present along with him at the shop of the appellant when the incident occurred.

3.1 Thereafter, investigation was undertaken. According to the prosecution, after getting sufficient material during the investigation, charge-sheet came to be filed against the appellant-accused. The case being triable by the Special Court was registered before the Special Court. The Special Court framed the charge at Exh. 5.

3.2 The statement of the accused - present appellant was recorded. Upon being asked by the learned Trial Court, the accused-appellant pleaded not guilty and claimed to be tried.

3.3 So as to bring home the case-charge against the accused-present appellant, the prosecution examined 11 witnesses. The prosecution also relied on documentary documents and about 14 documents were placed on record. After the oral evidence was recorded, further statement of the appellant-accused under Section 313 of the Code of Criminal Procedure Code was recorded and the incriminating evidencing material was put before the appellant-accused.

3.4. In his further statement the accused-appellant said that the complainant is a known bully in the said locality-area and he used to collect "Hapta" and used the said amount for purchasing liquor and used to harass the persons staying there or the persons running their own shops/businesses. The appellant also mentioned in his further statement that whenever his daughter used to seat at the shop to help him, the complainant used to harass her. The appellant also claimed that such incident did not occur and he has been implicated in false case.

3.5 After considering oral and documentary evidence placed on record and after hearing the submissions on behalf of the appellant and the prosecution, submissions by the prosecution and the appellant-accused, the learned Trial Court found the appellant guilty of offence punishable under Section 324 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989, and imposed the sentence mentioned above. Feeling aggrieved by the judgment and order, the appellant has also taken out present appeal.

Mr. Rupera, learned advocate for the appellant submitted that the learned Trial Court has committed error in convicting the appellant for the offence punishable under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989, whereas the appellant is not guilty and he was implicated in false case. Learned advocate for the appellant submitted that the appellant had not opposed the complaint and he had not insulted the complainant in any manner, much less using derogatory words or in the name of complainant''s caste or other words. Learned advocate for the appellant submitted that even if it is assumed that the alleged incident occurred then also it cannot be said that the incident occurred in public view and that therefore, it would not fall within purview of Section 3(1)(x) of the Atrocities Act and the learned Trial Court has committed error in not appreciating the said aspect and in convicting the appellant. Learned advocate for the appellant also submitted that the witness, who is examined as eye witness has not supported the case of the prosecution, however, the learned Trial Court has erroneously ignored the said aspect. Learned advocate for the appellant also submitted that all panch witnesses were declared hostile and consequently neither recovery nor the incident are proved. Learned advocate for the appellant also submitted that the complainant''s brother was examined, but the said evidence is purely hear-say evidence since the complainant''s brother was not present at the time of incident. According to the learned advocate for the appellant the evidence of adjoining cabin holder did not support the case of the prosecution. Learned advocate for the appellant also relied on the decision in case of Asmathunnisa Vs. State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and Another, . He also relied on the decision of Delhi High Court dated 03.07.2006 in case of Sachin Kumar Vs. State of Delhi. He also relied on the decision by Bombay High Court in case of Dinakar Rao as Javale Vs. State of Maharashtra. He also relied on the decision by Andhra Pradesh High Court in the case of Bharat Petroleum Corporation Vs. Union of India.

4.1. Learned APP has opposed the appeal and the submissions by the learned advocate for the appellant. Learned APP submitted that since the complainant received burn injuries because acid was thrown at him the investigating officer had forwarded the request to the Executive Magistrate to record Dying Declaration and for that purpose, the Executive Magistrate was called for. The Executive Magistrate had, on 02.10.2005 (i.e. on the date of incident/complaint) recorded of the statement of the complainant. He submitted that in his said statement of Dying Declaration the appellant specifically mentioned the name of the appellant and also mentioned the details of the incident. Learned APP also submitted that clothes of the complainant had burns/acid marks. Learned APP also submitted that when acid thrown by the appellant, it also fell on a person who also runs a cabin-shop next to the appellant''s and he was also injured on account of the acid thrown by the appellant at the complainant. The learned APP also submitted that the Court is right and justified in recording conviction under Section 324 of the Indian Penal Code against the appellant. With regard to the submissions on behalf of the appellant and with regard to the offence punishable under Section 3(1)(x) of the Atrocities Act, learned APP submitted that the shop is situate at the road side and therefore, shop is in public place and consequently the claim of the appellant that the incident would not fall within purview of Section 3(1)(x) of the Atrocities Act is misconceived and unsustainable. Learned APP also submitted that on account of the injuries received by the complainant, he was admitted in hospital and he was discharged after about 7 days i.e. on 10.10.2005.

4.2 Learned APP and Learned advocate for the appellant jointly submitted that complainant died before the trial commenced and the learned Trial Court has recorded the said fact in the judgment.

4.3 According to the details mentioned to the learned Court, the complainant died in July, 2007, i.e. about 2 years after the date of the incident, and there is no dispute about the fact that the complainant died natural death and the learned Trial Court has recorded in Paragraph No. 12 of the judgment that the complainant died "natural death".

4.4 Moreover, it is not the case even of the prosecution that the complainant''s death was on account of injuries received by him on account of the incident.

4.5 The Statement/Dying Declaration recorded by the Executive Magistrate on 02.10.2015 is not treated as Dying Declaration by the learned Trial Court and it is not the case even of prosecution that the statement of the complainant recorded by the Executive Magistrate should be treated as Dying Declaration.

4.6 Learned APP submitted that the prosecution does not claim that the said statement recorded by the Executive Magistrate is in the nature of, and has the characteristic of, Dying Declaration and should be treated as such.

I have heard learned counsel for the appellant and learned APP and also considered the evidence available on record and the decision relied on by the learned advocate for the appellant.

5.1 In light of submissions made by learned counsel for the appellant and learned APP, the only question which arises for decision in present appeal is as to whether the learned Trial Court has committed any error in recording conviction against the appellant under Section 324 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 and in sentencing him to undergo above stated sentence.

As mentioned earlier, PW-1 to PW-3 are panch witnesses. The panch witnesses are declared hostile.

6.1. Thereafter, the prosecution examined brother of the complainant as PW-4. In his deposition, PW-4 mentioned that the incident occurred on 2.10.2005 between 6.30 p.m. to 7.00 p.m. and at the time of incident, he was not present at the place of incident, but he was at his house. He also mentioned that the complainant is his brother and when he came to know that some incident had occurred between his brother (i.e. the complainant) the complainant and the appellant, he had gone to the place of the incident. At that time, the appellant was not present at the place of incident. The P.W. No. 4 mentioned in his evidence that he had taken his brother to the hospital for treatment. He also mentioned in his evidence that his brother was admitted in the hospital and was treated there for about 5 days. In his deposition, PW-4 also mentioned - accepted that the complainant had hit the appellant with a stone which caused fracture to the appellant.

6.2. The prosecution examined P.W. 5. The prosecution claimed that the P.W. 5 is eye witness. He mentioned in his deposition that a drop of acid had fallen in his left eye and he had immediately gone for medical treatment and that he was not aware, and he could say, how the acid drop fell in his left eye. The said P.W. 5 is declared hostile, and thereafter, he was subjected to cross-examination. The said P.W. 5 mentioned in his deposition that the complainant and the accused might have quarreled on 02.10.2005, however, he was busy with his tailoring/sewing work. He mentioned that he had not stated anything in his statement before police/during investigation to the effect that the accused had abused the complainant and used derogatory language.

6.3. Thereafter, the prosecution examined P.W. 6. In his evidence, P.W. 6, mentioned that his deposition is based on the record and he had not admitted and/or attended to or treated the patient i.e. the complaint and that his evidence/deposition is based on the details recorded in the case papers. According to the record, the complainant was examined by Doctor Saxena, and that the said Doctor Saxena had asked about the facts/history to the complainant. The complainant had mentioned that, at about 06.45 P.M., one Mr. Trilok had thrown acid at him and said Mr. Trilok had also kicked him, and his friends brought him to the hospital for treatment. In his deposition, P.W. 6 clarified that he had not examined and/or treated the complainant and he himself had not asked the history/facts of the incident to the complainant. In his deposition, he has stated that he has mentioned the details on the basis of record. P.W. 6 also mentioned in his deposition that according to the hospital record, the complainant received 4% injuries on his face and throat, 2% on his right hand and 2% burns injury on part of his chest. P.W. 6 mentioned in his evidence that according to the hospital''s record, the extent of burn injuries to the complainant was 8% and the complainant was admitted as indoor patient and was discharged on 10.11.2005. In reply, during cross-examination, P.W. 6 mentioned that similar injuries can be caused if acid falls on somebody in his house/bathroom.

6.4. The prosecution then examined another Doctor i.e. Dr. Tyagi as P.W. 7. The P.W. 7 has mentioned in his deposition that on 03.10.2005 (i.e. the day after the date on which the incident occurred) one Mr. Manubhai Mafatlal Maharaj had visited his hospital with a complaint that there was pain in his right eye. P.W. 7 also mentioned in his deposition that he had examined right eye of said the patient i.e. Manubhai Mafatlal Maharaj and on examination, he noticed that there was some swelling on the pupil of patient''s right eye and there was radish abrasion. P.W. 7 mentioned in his evidence that such type of injury can be caused if the eye is hurt or on account of some chemical. P.W. 7 mentioned that he had treated the said patient Mr. Manubhai Mafatlal Maharaj during the period between 03.10.2005 to 10.10.2005. The said P.W. 7 also mentioned that he had issued a certificate. The said certificate is on record at Exh. 28. In the said certificate, it is mentioned that:- "Mr. Manubhai M. Maharaj was suffering from RA Superficial Corneal and Conjectival burns". He had been in my treatment from 03.10.2005 to 10.11.2005.

6.5. The Executive Magistrate was examined as P.W. 8 and his evidence was recorded at Exh. 27. P.W. 8 has mentioned in his evidence that on 03.10.2005, he had received a request (Vardhy) at 03.10 P.M. to record dying declaration and then he had gone to L.G. Hospital, where he was taken to burns ward and he had asked the patient usual details like name and facts about the incident. The P.W. 8 mentioned in his deposition that the said patient i.e. the Complainant said that since last 2-3 days some dispute with regard to the watch which he had given for repair was going on between him and the accused and that on 03.10.2005, the accused had insulted him and abused him by mentioning his caste and during the quarrel there was some altercation and scuffle between him and the accused when the accused threw acid at him.

The appellant was charged with offence punishable under Section 326 of the Indian Penal Code. However, in light of the deposition by the Doctor of the hospital where the complainant was treated as well as case papers of the hospital and in light of the medical evidence, the Court found that the injury to the complainant does not fall within purview of Section 320 of the Indian Penal Code.

Consequently, the learned Trial Court held that the offence punishable under Section 326 of the Indian Penal Code is not established since the injury does not fall within purview of Section 320 of the Indian Penal Code. The learned Trial Court, however, having regard to the injury held that the offence punishable under Section 324 of the Indian Penal Code is established and convicted the accused-appellant for the said offence.

Before proceeding further, it is relevant to note that considering the complainant''s allegation that acid was thrown at him the Police - Investigating Officer had forwarded Yadi to the Executive Magistrate to record Dying Declaration and the statement/declaration, was recorded as Dying Declaration by the Executive Magistrate at about 03.00 p.m. on 03.10.2005, whereas the complainant died in July-2007 i.e. almost two years after the magistrate recorded the statement and the learned Trial Court has recorded in the judgment that the complainant died natural death i.e. he did not die on account of the injuries.

9.1 In this view of the matter, the learned advocate for the appellant and/or the learned APP has not claimed that the statement should be treated or it should be given status of dying declaration and even the learned Trial Court has not treated the said declaration and statement as "Dying Declaration".

9.2. Further, so far as the allegations in the complaint are concerned, it is pertinent that the complainant died on 19.07.2007, whereas the charge below Exh. 5 was recorded on 10.10.2013 and the deposition - evidence of P.W. 1 was recorded on 22.10.2013. Meaning thereby, the complainant died even before the charge was framed and evidence of the witnesses were recorded. The complainant, obviously, is not examined and his evidence is not recorded before the Court and the allegations - statements by the complainant in the complaint are not established by examining the complainant before the Court and the complainant was not subjected to cross-examination. Moreover, it is pertinent that even two persons whose names the complainant mentioned in the charge-sheet as the persons who were present when the incident occurred, are also not examined.

In this view of the matter, the matter, including complainant''s statement before the Executive Magistrate, deserves to be considered in light of other depositions and other physical evidence available on record of the Court. On such examination various discrepancies or contradictions have come on the surface.

On scrutiny of entire set of evidence, it has emerged that in the case presented by the prosecution there are certain discrepancies or contradictions.

11.1 On this count, it is relevant to note that in the complaint lodged by the complainant on the date of incident, (i.e. on 2.10.2005), he alleged and claimed that the appellant threw acid at him and thereafter his brother arrived at the place of incident and his brother took him to L.G. Hospital.

11.2 In this context, it is also relevant to mention that the prosecution has examined brother of the complainant. In his evidence, the brother of the complainant (i.e. PW-4) has admitted that he was not present at the time and at the place of incident, but when he came to know that some incident had occurred between the appellant and his brother he reached at the place of incident and he saw that the appellant had run away and his brother had received burns injuries, so he (i.e. complainant''s brother) took him to the L.G. Hospital.

11.3 Whereas the PW-6 also has mentioned in his evidence that according to the history of the incident told by the complainant to, and recorded, by Dr. Saxena, the complainant had mentioned that his i.e. Complainant''s friends had brought him to the hospital. Even in the OPD case papers it is recorded that the complainant had mentioned that "his friend took him" to the hospital.

11.4 As against the said fact, while lodging the complaint the complainant had mentioned in the complaint, that he was taken to the hospital by his elder brother, i.e. PW-4.

11.5 Thus, there is no clarity or rather there are contradictions or discrepancies between the details mentioned in the complaint and the depositions of the witnesses and/or documents on record. These aspects are relevant in light of the fact that evidence of the complainant or of the two persons whose names are mentioned in the complaint is not recorded and complete chain is not established by the prosecution.

Besides this, there are discrepancies/contradictions as to the exact/actual injury to the complainant. From the deposition of PW-6, it emerges that the complainant had received 2% burns injury on his right hand and 2% injury on chest and 4% injuries on his face and at his neck. It is pertinent that there is no mention in the case papers about any injury to the complainant in his eyes.

12.1 According to the facts and details mentioned by the complainant in his complainant dated 02.10.2005, he had received injury on his face, right hand and on his chest. Thus, even according to the claim of the complaint, he had not received any injury in his eyes.

12.2 Whereas according to the deposition/evidence by the Dr. Tavyad (PW-6) the complainant had received injury in his eyes, and therefore, opinion of eye surgeon was taken. However, the hospital''s case paper placed on record by PW-6 do not mention anything about the injury in complainant''s eyes. On the contrary, the remarks in the hospital papers contain below quoted remarks.

"Vision normal. Eye movement Normal. Pupils Normal Size, reacted"

12.3 Thus, on one hand, the complainant himself did not say anything about the injury in his eyes nor does the case paper mention anything to said effect, whereas on the other hand PW-6 has mentioned in his evidence about the injury in complainant''s eye.

Another pertinent aspect is that though PW-6 mentioned about the report of eye surgeon, any report by the eye surgeon-which may support and corroborate the evidence by P.W. 6 with reference to injury to the complainant in his eyes is not on record.

There is one more discrepancy or contradiction. The panchnama of complainant''s physical condition mentions that "burns injury was on the palm of "left hand", whereas according to the OPD case papers and according to the details mentioned by the complainant in his complaint, he had received burn injuries on his "right hand". Even according to the deposition of P.W. 6 the injury was on complainant''s right hand (and not left hand as mentioned at Exh. 8)

Neither in the complaint dated 02.10.2005 nor before the Doctor (while mentioning the facts/history of the incident), the complainant mentioned that he had hit the accused-appellant with a stone. Even PW-5 who was examined by prosecution as eye witness (who was declared hostile) did not mention in his deposition that the complainant had hit the appellant with a stone, whereas the complainant''s brother i.e. PW-4, who was not even present at the place of incident, or at the time when the incident occurred, mentioned in his evidence that his brother i.e. the complainant had hit the appellant with a stone, which caused fracture to the appellant''s leg.

Beside above mentioned discrepancies or contradictions, it is relevant to mention that PW-5 was examined as eye-witness. In his statement/deposition the PW-5 mentioned that "(a) drop of acid fell in his left eye (b) and that he had immediately rushed to the hospital/disciplinary for treatment.

16.1. In this context, it is relevant to note that Dr. A.S. Tyagi (PW-7) was examined by the prosecution (as the Doctor, who allegedly treated above mentioned PW-5).

16.2 The prosecution examined said PW-7 Dr.Tyagi to support and fortify the evidence of PW-5. However, when the deposition of PW-7 is examined, it emerges that while the PW-5 himself claimed that a drop of acid had fallen in his "left eye", the PW-7 Dr. Tyagi said that the patient whom he examined had come to him with complaint in his "right eye" (and not in his left eye) and that there was little swelling on the pupil of his right eye and there was slight radish abrasion.

16.3 In the Certificate dated 21.10.2005 (Exh. 24) issued by him he has mentioned that "RE superficial corneal and conjectival burns. More over, according to the deposition of Dr. Tyagi (PW-7), the name of the patient whom he examined (with complaint in right eye) and in respect of whom he issued said certificate dated 21.10.2005 (Exh. 24) was Manubhai Mafatlal Maharaj.

16.4 Even in the certificate at Exh. 24, the name which is mentioned by Dr. Tyagi is Manubhai M. Maharaj, whereas the name of the PW-5 (i.e. the person examined as eye witness by the prosecution) which is mentioned in Exh. 18 i.e. deposition of the PW-5, (who runs a shop adjoining the accused''s shop and received some injury) is "Manubhai Mafabhai Shrimali".

16.5. Further, PW-5, in his statement/deposition mentioned that he had rushed to the dispensary on the same day immediately after the acid drop fell in his eye i.e. on 02.10.2005. Whereas according to the deposition by Dr. Tyagi (PW-7) the patient viz. Manubhai Mafatlal Maharaj had come to his hospital (with complaint in his right eye) on 03.10.2005 (and not on 02.10.2005). There is no explanation with regard to these aspects emerging from the evidence-deposition of PW-5 and PW-7, which are recorded at Exhs. 18 and 23 respectively and in Exh. 24 (i.e. certificate issued by Dr. Tyagi).

Another aspect which is required to be mentioned and taken into account is related to the clothes of the complainant (at whom acid was thrown by the appellant).

17.1. On this Count, it is relevant to recall and mention that the deposition - evidence of complainant is not recorded and the complainant was not examined in the Court.

17.2 Thus, the complainant himself did not identify the clothes which were shown/produced and handed over to the Investigating Officer describing the said clothes as that of the complainant i.e. the clothes which he had worn when the incident occurred.

17.3 According to the material on record, the said clothes were handed over to the police/Investigating Officer by complainant''s brother i.e. PW-4. It was the PW-4 who claimed/said that the clothes which were handed over are of the complainant and the complainant has worn the said clothes when the incident occurred, but the complainant himself never identified the said clothes as his clothes and that he had worn the said clothes on the day when the incident occurred.

17.4 What is relevant is the fact that the panchnama records that there were holes on the right front side of the shirt as well as on the back side of the shirt which the complainant had worn at the time when the incident occurred. It is pertinent that in his deposition Dr. Tavyad (PW-6) and in the certificate issued by the hospital it is mentioned that the complainant had received burn injury on his chest.

17.5. In this view of the matter, it is not probable or possible that acid would reach the backside of the shirt and would cause - make hole on the backside of the shirt when acid was thrown at the face of the complainant (i.e. on his front side) and that too when the shirt was worn by the person (at whose front side acid is thrown) at the time of the incident. Since according to the certificate and also according to the Doctor''s evidence acid was thrown at the face of the complainant, there was no possibility or probability that acid would cause holes not only on the front side, but on the back side, of the shirt which the person had worn at the time of incident.

On this count, it is also relevant to note that though the clothes were sent for the FSL report, the FSL report was not placed on record and was not even called for and received by the Court.

18.1 Thus, the F.S.L. report which would ordinarily clarify as to whether the holes on the shirt and trouser were caused by acid (or some other material) and whether the type of acid used in watch repair shop for cleaning parts of watch would cause such burn injury and whether the holes on the shirt and trouser were caused by same type of acid which caused injury to the complainant and whether the acid which caused the injury/burn marks was the same as used by the appellant in his shop and whether it is possible that a shirt which is worn by the injured person at the time of acid attack would get holes though acid is thrown only at front side, was not placed before the Court.

18.2 According to the recovery panchnama, even the front side of complainant''s trouser had holes. It is also relevant that without conducting any type of test, the holes are described (in the panchnama) as the holes caused by the acid. The evidence of Doctor Taviyad (PW-6) and/or the hospital''s case papers do not mention that the appellant had any burns injury on lower part or upper part of his legs. Even the complainant himself has not claimed that the acid thrown by the appellant had fallen on his legs as well. Thus, the holes on the trouser have not been explained by the prosecution.

18.3. While on this issue, it is also relevant to mention that when the Investigating Officer visited the place of incident and drew the panchnama of the appellant''s cabin - shop where the incident allegedly occurred, the bowl which contained the acid (before it was allegedly thrown at the complainant) which was allegedly thrown at the complainant was not found in the cabin-shop or at any place around the cabin-shop at the place of the incident.

18.4 Not only this, but even any quantity of acid was not found in the cabin - shop and even any traces of acid were not found either on the counter or in entire cabin - shop and even the steel bowl (Vatki) which contained acid and from which acid was allegedly thrown at the complainant was not seen in the cabin.

18.5 Anything i.e. either the bowl (from which acid was allegedly thrown) or any quantity of acid were not seized/recovered from the appellant''s/accused''s cabin-shop and there were no sign or mark in the cabin-shop (i.e. on floor of the shop or on the counter) or outside area which would indicate that acid was thrown at some one.

18.6 The fact remains that these aspects viz. that though according to the prosecution acid was thrown at the complainant, there were no marks or sign either on the counter or on the floor of the shop and there was no acid in the shop, are not explained by the prosecution.

As mentioned earlier, with regard to the complaint and the contents of the complaint neither the complainant nor any other witness is examined by the prosecution. It is true that the brother of the complainant (PW-4) is examined by the prosecution.

19.1 However, undisputedly at the time when the incident occurred the said PW-4 was not present at the place of incident.

19.2 Hence his (P.W. 4) evidence - deposition is of no assistance to the prosecution and the said evidence does not prove (a) that acid was thrown and/or (b) that acid was thrown by the appellant and/or (c) that the injuries to the complainant were caused by the acid used in appellant''s shop. Differently put the said evidence does not help the prosecution for establishing that the incident occurred as it was claimed. On the other hand P.W. No. 5 does not support the case of prosecution. Besides this, the complainant had mentioned name of two friends/persons as his witnesses. However, none of said two persons is examined by the prosecution.

19.3 When all these aspects are considered cumulatively and conjointly then it emerges that there are more issues and questions which have remained unexplained and unanswered then what has emerged from the deposition and other physical evidence available on record.

Another important aspect is about or related to the two persons whose names the complainant mentioned in the complaint. Any evidence to establish their alleged presence at the time and place of incident is not placed on record.

20.1 The deposition of the witnesses and other physical evidence on record has brought to the surface contradictions and discrepancies which are more in quantity and quality than convincing and satisfactory reply/explanation. There is conspicuous absence of any evidence having evidentiary or and probative value and even the FSL report in respect of the of the clothes of the complainant and/or of the appellant is also not on record.

20.2. In his deposition, the PW-4 (i.e. brother of the complainant) has not mentioned that other friends, particularly the persons whose names are mentioned in the complaint dated 02.10.2005 lodged by the complainant were present when he reached at the place of incident (and took his brother to the hospital). The PW-4 i.e. brother of the complainant has also accepted that he came to know about the incident only when he was informed about it and that he was not present at the place of incident when the incident occurred.

20.3 Even P.W. 5 also did not mention in his deposition that other two persons were present with the complainant at the time and at the place of incident. Thus, the claim in the complaint that two persons (whose names are mentioned in the complaint) were present with the complainant at the place of incident when the incident occurred, is also not proved.

20.4 This aspect coupled with the fact that the said 2 persons have not been examined by the prosecution, is relevant and vital aspect and raises question about presence of said two persons at the time and place of the incident. Differently put, it raises question as to whether any person - more particularly said two persons were actually present with the appellant at the time and place of incident, or not? Their alleged presence at the place and at the time of incident is not proved.

In absence of F.S.L. report, it cannot be said that prosecution has established that (a) the holes on the clothes are caused by acid (b) the type of acid which made/caused holes on the muddamal shirt is the same type of acid which was allegedly thrown at the complainant (c) the holes on the clothes and/or the injuries to the complainant were caused by the type of acid which was used in the watch repair shop by the appellant (for cleaning machine parts of watches) or it was different type of acid.

21.1 The panchnama of the place of incident is on record at Exh. 31. It is specifically recorded in the panchnama of place of incident that any marks or sign of acid were not found in the cabin i.e. at the accused''s shop.

21.2 These aspects are not brought out either from deposition of any witness examined by the prosecution neither it is established by placing on record the FSL report or by any other evidence.

21.3 Another relevant aspect is related to main or principal subject matter of the incident (said to have occurred on 02.10.2005) viz. the watch which the complainant had allegedly given for repair to the appellant.

21.4 On this count, it is relevant to mention that panchnama of the place of incident is prepared on 03.10.2005 at the time of visit of the Investigating Officer (with the panchas) at the place of incident. The panchnama is prepared on 03.10.2005 i.e. a day after the date of incident.

21.5. However, the watch which the complainant had allegedly given for repair is not identified and/or recovered from the cabin-shop of the appellant or from any other place.

21.6. Any evidence (any acknowledgment) to prove that the complainant had given any watch for repair to the appellant is not proved and such watch (i.e. watch allegedly given by the appellant) is not recovered from the appellant''s shop.

21.7. According to the deposition by Dr. Tavyad, PW-6, the complainant was discharged from the hospital (where he was admitted and treated for burns injury) on 10.10.2005. Even thereafter, the Investigating Officer and the complainant did not identify the watch and the watch was not recovered. The watch - allegedly given by complainant to the appellant for repair - which was the subject matter of quarrel is not part of record/muddamal before the learned Trial Court.

On examination of evidence available on record, it appears that in view of the discrepancies and contradictions in the set of evidence placed on record, reasonable doubt is created or reasonable doubt persists in respect of the charge for commission of offence under Section 324 of the Indian Penal Code and it is not possible to hold that entire chain to bring home the charge against the appellant for the offence under Section 324 of the Indian Penal Code and all facts related to alleged incident are established beyond reasonable doubt.

22.1 The above discussed aspects cumulatively and conjointly bring out contradictions or discrepancies and unexplained or unconnected gaps as a result of which continuous chain is not established beyond doubt and such gaps or missing links in the chain of events or unexplained details and the contradictions or discrepancies discussed above lead the Court to the conclusion that in view of the material on record and as cumulative effect of above discussed aspects, the appellant is entitled for benefit of doubt in respect of the charge of commission of offence under Section 324 of the Indian Penal Code. It has also emerged that the prosecution has failed to prove those aspects and consequently it has also failed to establish that appellant threw acid (used in his watch repair shop for cleaning parts of watch on the complainant) and that same acid (which the appellant used in his shop for cleaning parts of watch) caused the injury to the complainant on his chest and hand and also made holes on the front side of his shirt as well as on the backside of his shirt and thereby the prosecution failed to explain how the acid allegedly thrown by the appellant on the front side of complainant i.e. at his chest/hand fell on the backside of complainant''s shirt and made/caused holes on the backside of his shirt which he had put-on when alleged incident occurred and the prosecution failed to establish that the appellant committed the offence punishable under Section 324 of the Indian Penal Code.

Now so far as the charge of offence punishable under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989, is concerned, in view of the above discussed aspects with regard to offence under Section 324 of the Indian Penal Code, the said second charge is required to be examined and tested in light of the said conclusion and by keeping in focus the discrepancies and contradictions in the complaint and the evidence.

As regards the learned trial Court''s conclusion with regard to the offence punishable under section 3(1)(x) of the Atrocity Act, 1989 is concerned, it is necessary to keep in focus the relevant provision which reads thus:-

"3. (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe -

(i) to (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;"

Learned advocate for the appellant, referred to the said provision and submitted that even if it is assumed that the incident as alleged had occurred and the appellant had used derogatory and insulting language and the complainant''s caste was mentioned, then also the alleged act does not fall within the purview of section 3(1)(x) .

25.1. On reading the said provision, it comes out that following ingredients are required to attract and apply the provision of clause (x) of section 3(1) viz. (a) intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe; (b) the person who is insulted or intimidated must be members of Scheduled caste or a Scheduled Tribe; (c) the person who caused insult or intimidation to a member of a Scheduled Caste or a Scheduled Tribe must not be a member of a Scheduled Caste or a Scheduled Tribe; (d) such insult or intimidation occurs in any place "within public view".

25.2 The provision does not prescribe that the incident must occur in "public place" but it provides that the place where the incident occurs, should be a place ''within public view''. There is distinction between two terms and the section employs specific expression which emphasized clear distinction between the term "within public view".

Before proceeding further, at the outset, profitable reference may be made to the observations by Hon''ble Apex Court in case of Swaran Singh and Others Vs. State through Standing Counsel and Another, . The relevant background of the facts involved in said case is mentioned in Paragraph Nos. 9 to 12 of the said decision, which reads thus:-

"9. A perusal of the FIR shows that the first informant Vinod Nagar belongs to the Scheduled Caste. He has alleged in the FIR that appellant Nos. 2 & 3 Swaran Singh and her daughter Ms. Tarjeet told him whenever they come near him for the last 15 to 20 days that he is a Chuda-Chamar and he should not come in their way. When Vinod Nagar complained about this to appellant No. 1 Swaran Singh, he also said that Vinod Nagar actually is a Chuda-Chamar and that appellant Nos. 2 and 3 did not say anything wrong.

It is also alleged in the FIR that Smt. Simran Kaur and her daughter Ms. Tarjeet threw dirty water on the first informant and said ''Chuda-Chamar why did you come...''.

The question which arises for consideration in this case is whether prima facie an offence has been committed under section 3(1)(x) of the Act. Section 3(1)(x) states:

"(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--

(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."

The question in this case is whether calling a person ''Chamar'' amounts to intentionally insulting with intent to humiliate a member of the Scheduled Caste."

In the said decision, Hon''ble Apex Court observed that:-

"24. In our opinion, calling a member of the Scheduled Caste ''Chamar'' with intent to insult or humiliate him in a place within public view is certainly an offence under section 3(1)(x) of the Act. Whether there was intent to insult or humiliate by using the word ''Chamar'' will of course depend on the context in which it was used.

Learned counsel then contended that the alleged act was not committed in a public place and hence does not come within the purview of section 3(1)(x) of the Act. In this connection it may be noted that the aforesaid provision does not use the expression ''public place'', but instead the expression used is ''in any place within public view''. In our opinion there is a clear distinction between the two expressions.

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.

Learned counsel for the appellants submitted that so far as appellant No. 1, Swaran Singh is concerned, his case even treating the allegations in the FIR to be correct, does not attract section 3(1)(x) of the Act. Learned counsel submitted that in the FIR it is mentioned that when the first informant Vinod Nagar complained to appellant No. 1, Swaran Singh that his wife and daughter were insulting him by calling him ''Chuda-Chamar'', Swaran Singh said that actually he (Vinod Nagar) is a ''Chuda-Chamar'' and hence they did not say anything wrong.

We have already stated above that in today''s context even calling a person ''Chamar'' ordinarily amounts to intentionally insulting that person with intent to humiliate him. It is evident from a perusal of the FIR that appellant No. 1, Swaran Singh joined his wife and daughter in insulting Vinod Nagar, and he also used the word ''Chamar'' in a derogatory sense. However, a perusal of the F.I.R. shows that Swaran Singh did not use these offensive words in the public view. There is nothing in the F.I.R. to show that any member of the public was present when Swaran Singh uttered these words, or that the place where he uttered them was a place which ordinarily could be seen by the public. Hence in our opinion no prima facie offence is made out against appellant No. 1.

The facts of the case have to be considered in light of the above mentioned requirements prescribed by and under clause (x) of section 3(1) .

27.1 So far as the complainant is concerned, he has claimed that he is a member of a Scheduled Caste.

27.2 So as to support his said claim, the caste certificate issued by the competent authority was submitted to the police authority and a copy was placed on record before the learned Trial Court and was submitted to the police. Thus, the fact that the complainant was a member of a Scheduled Caste, is established by the certificate. The said fact is not in dispute.

27.3 So far as the accused - appellant is concerned, it is not disputed that the accused - appellant is a member of a Scheduled Caste or a Schedule Tribe.

27.4 In his complaint, the Complainant alleged that during the quarrel/altercation between him and the accused, the accused mentioned name of his caste, and thereby, made derogatory remark.

According to the complainant, the alleged quarrel and the altercation/scuffle between him and the accused took place at the cabin-shop of the accused-appellant. From the panchnama of place of incident, it has come on record that the watch repair shop/cabin of the accused is a temporary plywood cabin put up at the road side. The location - situation of appellant''s cabin is in "public view".

28.1 However, in light of the complaint/its text and allegations therein the question which arises is (a) whether the complaint meets with and complies the requirement flowing from and prescribed by clause (x) of Section 3(10) of Atrocity Act so as to attract the said provision and the second question which arises is (b) whether the words (mentioned in the complaint) allegedly uttered - spoken by the appellant were spoken - uttered in presence of members of public or "in public view", and whether the words were spoken/used with "intention" to insult and/or humiliate and/or intimidate the complainant or not.

As mentioned earlier, the provision under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989, postulates and requires that the prosecution must establish and prove that the complainant is a member of Scheduled Caste or Scheduled Tribe and the words were uttered - spoken with intent to humiliate the complainant (who is member of Scheduled Caste and Schedule Tribe) and such act occurred in a place which was within a public view.

Now so far as the facts in present case are concerned, according to the allegation in the complaint by the complainant, the quarrel between him (i.e. the complainant) and the appellant was going on since last 2-3 days and on the date of incident, the appellant, during their altercation mentioned name of his (complainant''s) caste and thereby insulted or humiliated him.

Before proceeding further, it is relevant and necessary to note that in his deposition - evidence the appellant''s brother P.W. 4 has not said - mentioned anything about the words/language allegedly spoken/used by the appellant. There is not even a whisper on this count in the deposition - evidence by P.W. 4 i.e. appellant''s brother.

31.1 The P.W. 4 has not said in his deposition that while mentioning the history of the incident the complainant told him that the appellant had uttered the words and that the complaint did so with intent to insult him (i.e. the complainant).

31.2 Thus, except in the complaint, there is no reference - mention at any place or by anyone about the appellant uttering said words. Except the allegation in the complaint lodged before the authority there is no evidence to establish and prove that all requirement contemplated by the said Section are established viz. (a) the appellant uttered the words (b) he uttered the words with intent to insult/humiliate the complainant (c) he uttered the words at a place in public view.

On this count, it is pertinent to note that (a) the complainant is not examined and his deposition - evidence is not recorded (since he died before the testimony were recorded) thus his evidence with regard to allegations in the complaint is not on record (b) even other two persons who were allegedly present with the complainant at the time and place of incident and whose names were mentioned in the complaint as witnesses, have not been examined and their evidence - deposition is not recorded; and (c) a very pertinent aspect is that evidence of complainant''s brother is recorded but he (i.e. complainant''s brother) has not said anything in his evidence about the incident (he was not even present at the place and time of the incident).

In his deposition (P.W. 4) there is not even a whisper about what the appellant allegedly spoke during the alleged quarrel or altercation between the complainant and the appellant.

On examination of evidence-deposition of brother of the Complainant (P.W. 4) has brought out another relevant aspect viz. that the said witness (i.e. brother of the complainant) has not even made any reference of said two persons and in his deposition the said P.W. 4 has not mentioned that two friends of the complainant were present at the place of incident and/or that he had seen the said two persons.

34.1 Thus, the presence of two persons allegedly present at the time of and at the place of incident is not established in any manner.

It is also pertinent that due to death of the complainant before the trial actually started, the complainant is not examined by the prosecution and consequently the complainant was not subjected to cross-examination.

35.1 Moreover, the said two friends of the complainant (whose names are mentioned by the complainant in the complaint as the persons present at the time of incident) are not examined by the prosecution.

35.2 From any material, it is not proved in any manner to any extent that at the time of incident, said two persons/friends of the complainant (or any other person except the complainant himself and the appellant) were present at the appellant''s cabin - shop.

Thus, there is no evidence - except allegation in the complaint - to prove that the appellant spoke the words alleged - mentioned in the complaint and/or to prove that the appellant spoke the words (mentioned in the complaint) at a place in public view - in presence of any person of public i.e. any person other than the complainant.

Despite the facts and factual backdrop discussed above and despite the fact that the prosecution has not proved relevant and necessary facts even if it is assumed that the prosecution has established also the fact remains that prosecution has not proved beyond doubt that (i) the appellant used the words and mentioned name of complainant''s caste with intention to insult the complainant; and (ii) any person other than the complainant and the appellant was present at the cabin shop of the appellant at the time of incident and that (iii) the incident took place and the appellant - uttered the words (complainant''s caste) and/or that he mentioned the alleged words in presence of any person other than the complainant.

In this view of the matter, it is appropriate to recall the observations and conclusion by Hon''ble Apex Court in case of Swaran Singh and Others Vs. State through Standing Counsel and Another, , wherein Hon''ble Apex Court observed, inter alia, that:-

"33. We have already stated above that in today''s context even calling a person ''Chamar'' ordinarily amounts to intentionally insulting that person with intent to humiliate him. It is evident from a perusal of the FIR that appellant No. 1, Swaran Singh joined his wife and daughter in insulting Vinod Nagar, and he also used the word ''Chamar'' in a derogatory sense. However, a perusal of the F.I.R. shows that Swaran Singh did not use these offensive words in the public view. There is nothing in the F.I.R. to show that any member of the public was present when Swaran Singh uttered these words, or that the place where he uttered them was a place which ordinarily could be seen by the public. Hence in our opinion no prima facie offence is made out against appellant No. 1.

On this count, it is pertinent that the presence of the two persons (whose names are mentioned in the complaint) at the place and time of the incident is not established. The said two persons - or anyone of them - are not examined before the Court and their deposition are not recorded. The P.W. 4 was not present at the time and place of incident even otherwise he has not mentioned anything about presence of said two persons. The P.W. 5 also has not said anything about use of alleged words by the appellant. Thus, there is no evidence (a) about presence of any other person except the complainant and the appellant at the time of alleged incident; and (b) that the appellant had actually used the alleged words; and (c) that the appellant used the words in presence of any member of public/any other person except the appellant and complainant; (d) that the appellant had actually used the alleged words and that he used the words with "intention" to insult or humiliate the complainant, and thus the "intent" is also not proved.

39.1 Besides this, none of these aspects are mentioned in the complaint and the complaint is devoid and bereft of necessary details.

39.2. In this context, it appears that though it is not proved and established, however, even if it is assumed that the appellant used the words mentioned by the complainant and mentioned the name of complainant''s caste and that he did so with intention to humiliate or intimidate or humiliate the complainant then also it is not possible to hold that alleged words were mentioned in presence of any member of public or in presence of any person other than the complainant himself and the appellant.

39.3 On this count, it is relevant to recall that (a) in his complaint the complainant mentioned that two person i.e. Mr. Patil and Mr. Vyas were present with him at the time and at the place of incident (b) however, the complainant himself is not examined to establish the claim of the complainant (c) on the other hand the brother of the appellant (i.e. P.W. 4) has not mentioned anything about presence of said two persons and/or having seen that the said two persons were present at the place of incident. Even (d) even the P.W. 5 (who came to be declared hostile), did not say anything about presence of said two persons at the time of and at the place of incident. P.W. 5, during his deposition, denied that he had seen/witnessed the incident and/or heard anything. Even otherwise, P.W. 5 according to his own claim was in his own cabin-shop and was busy with his tailoring/sewing work and was not present at the time of incident i.e. when the appellant allegedly uttered the words mentioned by the complainant in his complaint. Thus, the two persons whose presence is mentioned in the complaint are not examined and none of other witnesses have, said anything before the Court about the presence of said two persons. Thus, presence of any person other than the complainant and the appellant at the place of incident and at the time of incident is not proved by the prosecution beyond reasonable doubt.

When the above discussed facts of present case and above mentioned evidence on record of present case is examined in light of above quoted observation by Hon''ble Apex Court, it becomes clear that in present case also there is nothing on record to establish that any member of public was present when the appellant allegedly uttered the words mentioned by the complainant in his complaint

40.1 For the foregoing discussion and in light of above discussed reasons and the evidence on record and above quoted observations by Hon''ble Apex Court in case of Swaran Sigh (Supra), it is not possible to confirm the conclusion recorded by the learned Trial Court with regard to charge of offence punishable under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989.

40.2 There is yet another perspective so far as offence punishable under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989, is concerned. It is necessary to examine the complaint filed by the complainant on 02.10.2005. It emerges, on reading the said complaint, that the complainant alleged that oral altercation started between him and the appellant with reference to the watch which he (i.e. the complainant) had given for repair to the appellant and during that altercation the appellant mentioned name of his caste. There is no reference or allegation in the complaint that the appellant mentioned the name of his caste with intention to insult and/or humiliate and/or intimidate him (i.e. the Complainant) in a place within public view. Differently put, the allegation about appellant''s intention to humiliate and/or insult and/or intimidate the complainant is conspicuously absent in the complaint. Even when the Executive Magistrate recorded his statement, the complainant did not say or claim that the appellant had mentioned name of his caste with intention to insult and/or humiliate him in a place within public view. That is not the allegation in the complaint. Beside this, it is also relevant that the cause of the altercation and the subject matter of the altercation between the complainant and the appellant was the watch allegedly given by the complainant to the appellant. Even according to the complaint, the dispute between the complainant and the appellant was going on since about 2-3 days. Under the circumstances, it cannot be said, (and even it was not the case of the complainant), that the appellant started or raised the dispute or altercation and mentioned the complainant''s caste because the complainant is member of Schedule Caste and/or with intention was to humiliate him (i.e. the complainant) in a place within public view. 40.3 In this context, it would be appropriate to refer to, at this stage, observation by Hon''ble Apex Court in case of Gorige Pentaiah Vs. State of A.P. and Others, .

"6. In the instant case, the allegation of respondent No. 3 in the entire complaint is that on 27.5.2004, 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 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 of process of law.

(emphasis supplied)"

40.3 In light of the above quoted observations, it emerges that the complainant ought to have alleged in the complaint, and it was necessary that the complaint disclosed, that the accused-appellant is not a member of Schedule Caste or Schedule Tribe and that the appellant intended to humiliate or intimidate or insult him (i.e. the Complainant) in a place within public view and with such intent he mentioned the name of his caste. In present case, this requirement is absent and it is missing. Beside this the said aspects/facts are not proved and established. Any evidence to establish such intention on the part of the appellant, was not placed on record and the said aspect or ingredient or requirement is not established by the prosecution before the learned trial Court.

Thus, in present case the primary, fundamental and main ingredient for attracting Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989, is not alleged or made out or established. However, the learned trial Court has recorded conviction against the appellant.

In this view of the matter the conclusion by the learned trial Court holding that the prosecution has established commission of offence under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989, against the appellant, cannot be sustained.

42.1. Consequently the appeal against the learned trial Court''s decision recording conviction for offence under Section 324 of the Indian Penal Code and the appeal against the order awarding sentence for the said offence under Section 324 of the Indian Penal Code deserves to be allowed and in view of the facts of the case and material on record the appellant deserves to be granted benefit of doubt for the charge of offence punishable under section 324 of IPC. Therefore, the appellant is hereby granted benefit of doubt in respect of the offence under Section 324 of the Indian Penal Code.

42.2 The conclusion by learned Trial Court holding the appellant guilty for offence under section 3(1)(x) of the Atrocity Act is not sustainable and does not deserve to be maintained and is required to be set aside.

42.3 In view of the facts of the case and in light of the foregoing discussion and for above mentioned reasons the judgment and order impugned in present appeal i.e. the judgment and order dated 24.03.2014, passed by the Special Court (Atrocity), No. 7, Ahmedabad, in Special (Atrocity) Case No. 23 of 2012 does not deserve to be and cannot be sustained.

In the result, for the above discussed reasons, the judgment and order dated 24.03.2014 passed by learned Special Court (Atrocity) No. 7 Ahmedabad in Special (Atrocity) Case No. 23 of 2012 convicting the accused-appellant for the offence punishable under Section 324 of the Indian Penal Code is hereby quashed and the accused-appellant is acquitted from the charge of offence under Section 324 of the Indian Penal Code by giving him benefit of doubt and the appeal qua the conviction and sentence for offence under Section 324 of the Indian Penal Code is accordingly allowed to that extent by giving benefit of doubt to the appellant in respect of the charge for offence under Section 324 of the Indian Penal Code.

So far as the conclusion, decision, judgment and order convicting the appellant under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989, is concerned, it is not sustainable and the decision and conclusion deserves to be quashed.

In light of the facts of the case and in view of the material on record and the evidence on record and in light of above discussion and for the foregoing reasons the appellant is acquitted from the charge of offence under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989, and the judgment - decision and order dated 24.03.2014 passed by learned Special (Atrocity) Court No. 7, in Special (Atrocity) Case No. 23 of 2012 holding the appellant guilty for commission of offence under section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989 is hereby quashed and the appeal against the judgment and decision dated 24.03.2014 in Special (Atrocity) Case No. 23 of 2012 recording conviction against the appellant for offence under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act, 1989, is allowed to the aforesaid extent.

The Court is informed that the appellant is on bail. Therefore, it is directed that the bail and bail bond shall stand cancelled. It is however clarified that if the appellant is in custody/jail then he shall be immediately released if he is not required in/for any other offence. The amount of fine, if any paid, shall be refunded to him. Record and Proceedings shall be sent back to the concerned learned trial Court forthwith.