IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE GAJENDRA SINGH CRIMINAL APPEAL No. 2182 of 2004 BETWEEN:-

1. ANTRAM ALIAS ANOOP, S/O CHIDAMILAL LOHAR, AGED ABOUT 26 YEARS.

2. KUTRU ALIAS BARSAN S/O CHIRONJI LOHAR, AGED ABOUT 20 YEARS, VILLAGE MALARA P.S.

MAHARAJPUR (MADHYA PRADESH)

3. DASHRATH S/O CHIDAMILAL LOHAR, AGED ABOUT 38 YEARS, VILLAGE MALARA P.S.

MAHARAJPUR (MADHYA PRADESH)

.....APPELLANTS (BY SHRI SANJAY SAINI - ADVOCATE FOR APPELLANTS)

AND THE STATE OF M.P. THROUGH ADIM JATI KALYAN THANA, MANDLA, DISTRICT MANDLA (MADHYA PRADESH)

.....RESPONDENT (BY SHRI K.S. PATEL - PANEL LAWYER FOR STATE)

Reserved on : 22.02.2024 Pronounced on : 01.03.2024 This Criminal Appeal having been heard on admission and reserved for order, coming on for pronouncement on this day, Justice Gajendra Singh pronounced the following:

JUDGMENT

This Criminal Appeal under Section 374 (2) of the CPC has been preferred feeling aggrieved by the judgment dated 06.12.2004 in Special Case Signature Not Verified Signed by: DHEERAJ No.61/2003 by special Judge SC and ST (POA) Act, Mandla whereby the appellants/accused person has been convicted under Section 324 read with Section 34 of the IPC for 6 months R.I. and under Section 3(1)(x) of the SC and ST (POA) Act, 1989 for 6 months R.I. and a fine of Rs.500/- with default stipulations.

2. Prosecution case in brief is that appellants/accused person do not belong to SC or ST category whereas the victim Mitthan Lal Uikey (PW-1) belongs to Gond tribe which comes under ST category in the State of M.P. On 11.06.2003 at about 7-8 PM when he was on the way to Village Malhara Bicchua, Police Station- Maharajpur, District - Mandla, the appellants/accused persons beaten in furtherance of common intention and caused voluntary injuries by teeth bite and abused the victim with obscene words at public place and intentionally dishonored and intimidated to victim (PW-1). AJK Police recorded the complaint of Mitthanlal after receiving the medical report (Ex.P-6) and offence under Section 323, 324 read with 34 of the IPC and Section 3(1) (x) of SC and ST (POA) Act, 1989 was registered as Crime No.17/2003 on 11.06.2003. After completing the investigation by AJK Police a final report under Section 173 (2) of the Cr.P.C. was submitted.

3. Appellants/accused persons were tried under Sections 323 & 324 read with Section 34 of IPC and Section 3 (1) (x) of the SC and ST (POA) Act, 1989.

4. Appellants/accused persons abjured guilt. Prosecution examined victim Mitthan Lal Uikey as PW-1, Gyanilal Uikey as PW-2, DSP Iqbal Azmi as PW-3, Dr. Alamdar Hussain as PW-4 and Dr. Ashok Sharma as PW-5.

5. In examination under Section 313 of Cr.P.C. also, appellants/accused denied the incidence and they examined Ashok Kumar Daheria as DW-1.

Signature Not Verified Signed by: DHEERAJ

6. Appreciating the prosecution and defence evidence trial Court found proved that appellants/accused persons does not belong to SC or ST category but victim (PW-1) belongs to ST category and also found proved that they insulted the victim (PW-1) in public view by uttering the castiest word and caused voluntary injuries by teeth bite in the left cheek of the victim (PW-1) in further of the their common intention to cause voluntary injuries to victim (PW-

1).

7. Observing that offence under Section 323 is minor offence of Section

324 of IPC and no separate conviction is necessary so acquitted from the charges of Section 323 and thus convicted and sentenced the appellants/accused persons as per para-1 of the impugned judgment.

8. Challenging the conviction and sentence, this appeal has been preferred on the ground that :-

"i. Trial Court has overlooked that injuries found on the person of complainant by teeth bite is not got examined by the doctor by examination of the teeth of the appellants.

ii. Trial Court has not considered the version of defence witness Ashok Kumar Daheria (DW-1) who is eye-witness of the incident and listed witness of the charge-sheet.

iii. Trial