ORDER

Heard the learned counsel for the appellants and learned Special P. P. for the State.

2. The present appeal has been preferred for setting aside the judgment and sentence dated 26.04.2019 passed by learned 11th A.D.J-cum- Spl. Judge (SC/ST) Act Muzaffarpur in Session Trial no. 378/2015 (G.R. No. 1853/2009) in Minapur P.S. Case No. 138/2009 by which the learned Special Judge has sentenced the appellants simple imprisonment for three months under Section 341 Indian Penal Code; simple imprisonment of one year under Section 323 of Indian Penal Code and further sentenced for two years simple imprisonment each under Section 504 of Indian Penal Code and Section 3(i) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ‘SC/ST Act’). All the sentences were ordered to run concurrently.

3. The prosecution case in brief is that informant one Om Prakash Ram had submitted his written application before the S.H.O. (Panapur O.P) Minapur P.S. stating therein that he is an auto-rickshaw driver and runs auto-rikshaw from Bishunpur Pandey Naya Bazar to Kanti chowk on a daily basis. It is alleged that on 24.06.2009 one Ajay Kumar, appellant No. 1 herein, approached the informant and asked him to carry his bundle of packets containing pouch (wine) with him but the informant refused. It is further alleged that appellants herein threatened the informant to teach a lesson and thereafter went away. Furthermore, it was alleged that when the informant returned to Bishunpur Naya Bazar all the three appellants herein surrounded the informant and abused him by taking his caste name and also assaulted him. It is also alleged that Ajay Kumar (appellant no. 2) snatched Rs. 500/- from the pocket of the informant.

4. As per the records of the case, the F.I.R in Minapur P.S. bearing No. 138/09 was registered on 25.06.2009. After lodging the F.I.R., the police investigated the case and submitted chargesheet bearing No. 196/09 dated 31.08.2009 under Sections 341, 323 and 504/34 of the Indian Penal Code and Section 3(1) (x) of the SC/ST Act against all the three named accused who are the appellants herein.

5. Learned C.J.M, Muzaffarpur took cognizance against Ajay Kumar (appellant no.1), Vishal Kumar (appellant no. 2) and Shiv Shankar Kumar (appellant no. 3) under Sections 341, 323 and 504/34 of the Indian Penal Code and Section 3(i) (x) of the SC/ST Act and committed the case before the Sessions Court. Charges were framed on 24.02.2012 against all the accused- appellants and statement of accused persons were recorded under Section 313 Cr.P.C. in which they claimed themselves to be innocent. The accused pleaded not guilty and claimed to be tried.

6. Learned counsel for the appellants submits that in order to prove its case, the prosecution has examined altogether nine witnesses which are as follows:—

P.W-1-Om Prakash Ram (Informant)

P.W-2- Shashi Bhusan Rai (Hostile)

P.W.-3- Binod Bhagat (Hostile)

P.W.-4- Sheoji Sah (Hostile)

P.W.-5- Vinod Choudhary (Hostile)

P.W-6- Gagandeo Ram (Agnate /Gotia of Informant)

P.W.-7-Nageshwar Ram

P.W.-8- Lalita Devi (Gotiya)

P.W.-9- Asharfi Rai @ Asharfi Ram (Gotia of informant)

7. It is further submitted that some documentary evidence has also been exhibited by the prosecution which was Ext-1 Fardbeyan (F.I.R.).

8. It is also submitted that after considering oral and evidentiary evidence, the learned Trial Judge found the appellants guilty and they were sentenced for simple imprisonment of three months under Section 341 of the Indian Penal Code, one-year simple imprisonment under Section 323 of the Indian Penal Code and simple imprisonment of two years each under Section 504 Indian Penal Code and Section 3(i) (x) of SC/ST (POA) Act. All the sentences were ordered to run concurrently.

9. Learned counsel for the appellants has submitted that the conviction of the appellants under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot be sustained as the