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Madhya Pradesh High Court · body

2006 DIGILAW 1385 (MP)

Lalit Kumar v. State of M. P.

2006-12-05

SUSHMA SHRIVASTAVA

body2006
JUDGMENT 1. Both the appellants have been convicted under sections 3 (1) (v) and 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter, to be referred as the Act) and sentenced to rigorous imprisonment for six months with fine of Rs. 200/- each by Special Sessions Judge, Sehore, vide judgment dated 17.8.1992 passed in ST No. 141/1991. Being aggrieved by the aforesaid order of conviction and sentence, appellants have preferred this appeal. 2. According to prosecution, on 24.3.1991 at village Siradi, District Sehore, the Harijan members of the village held a meeting to prevent untouchability and atrocities against Harijans. The meeting was also attended by 'Swarnas' and non Harijan members of the village and it was decided that Harijans would not be prevented from going to the temple and taking water from the well of the village. However, on 25.3.1991 at about 2 O'clock in the noon, when complainant Badri Prasad (PW 1), a member of the Scheduled Caste was sitting in front of his house, appellants Lalit Brahmin and Suman Brahmin alongwith one Kishna Brahmin, came there and abused him addressing as Harijan and uttered filthy abuses. Appellants threatened and intimidated the complainant saying that he was talking too much in the meeting and now if he would go to the temple or take water from the well, he would be cut by an axe. Complainant with folded hands requested the appellants not to quarrel with him. Meanwhile, complainant's brother namely, Imrat also came there, who also asked the appellants not to quarrel. Thereafter, they went to the place of Sarpanch, but he was not available being out of the village. Then the complainant apprised Kotwar of the village with the incident. 3. Complainant then went to Police Station Doraha and lodged the FIR on 27.3.1991. On the basis of the report lodged by the complainant offence was registered against the appellants and was investigated. After necessary investigation, appellants were prosecuted under sections 294 and 506 of IPC and 3 (1) (v) and 3 (1) (x) of the Act and they were put to trial. 4. Appellants denied the charges framed against them under sections 294 and 506 (2) of IPC and sections 3 (1) (v) and 3 (1) (x) of the Act and pleaded innocence and false implication. 5. 4. Appellants denied the charges framed against them under sections 294 and 506 (2) of IPC and sections 3 (1) (v) and 3 (1) (x) of the Act and pleaded innocence and false implication. 5. The learned Special Judge after trial, found both the appellants guilty under section 3 (1) (v) and 3 (1) (x) of the Act and convicted and sentenced them as aforesaid. However, no separate conviction under sections 294 and 506 of IPC was recorded. 6. Being aggrieved by the order of their conviction and sentence passed by impugned judgment, appellants have preferred this appeal mainly on the ground that the Special Court gravely erred in law and facts in convicting them, though no case was proved against them. 7. Arguments of both the parties were heard. Record of the Lower Court perused. 8. The conviction of the appellants rests upon the testimony of PW 3 Imrat. The learned counsel for the appellants submitted that the learned trial Judge, erred in convicting the appellants on the basis of the testimony of Imrat (PW 3), when complainant Badri Prasad (PW 1) himself did not support the prosecution case. The learned counsel for the appellants further submitted that no case under sections 3 (1) (v) and 3 (1) (x) of the Act was proved even from the testimony of Imrat (PW 3). 9. Now it is manifest from the record that complainant Badri Prasad (PW 1), victim of the alleged incident did not support the prosecution case and did not depose anything against the appellants with regard to charges levelled against them. Complainant Badri Prasad (PW 1) simply deposed, that a meeting of Harijans was held in the village and the appellants had asked about the meeting next day and told him not to speak anything. Complainant Badri Prasad (PW I) denied that the appellants prevented him from filling water from the well or intimidated him or in anyway threatened him. Complainant Badri Prasad (PW 1) also resiled from the FIR (Ex. P-l) which according to Surendra Singh Thakur (PW 7) Station House Officer, was lodged by the complainant. But FIR by itself is not substantive evidence. 10. Complainant Badri Prasad (PW 1) also resiled from the FIR (Ex. P-l) which according to Surendra Singh Thakur (PW 7) Station House Officer, was lodged by the complainant. But FIR by itself is not substantive evidence. 10. In view of the evidence given by Badri Prasad (PW 1), the statement of Dariyav (PW 2), that he was informed by complainant Badri Prasad (PW 1) that appellants had abused and assaulted him when he went to take water from the well is also no avail and consequence to the prosecution. The other witness Kishanlal (PW 4), also did not support the prosecution and denied that appellants prevented the complainant from taking water from the well. 11. Therefore, the only evidence that remains to be examined is that of PW 3 Imrat. PW 3 Imrat deposed that when his brother Badri Prasad (PW 1) had gone to the well to fill up the water in buckets, appellants had prevented him and threatened him to kill if he went to take water. Imrat (PW 3), also deposed that the appellants also hurled filthy abuses and did not allow them to take water. 12. Apart from the fact that complainant Badri Prasad (PW 1) himself has not supported the incident narrated by Imrat (PW 3), the narration given by Imrat (PW 3) himself does not disclose that the appellants abused or insulted the complainant by naming him by caste or by humiliating him on account of his caste. It does not transpire from the testimony of Imrat (PW 3), that appellants intimidated or threatened his brother Badri Prasad (PW 1) on account of his being a member of Scheduled Caste Scheduled Tribe or prevented him from taking water on the ground of his caste. 13. Needless to say, as argued by the learned counsel for the appellants, that Imrat (PW 3) or his brother Badri Prasad (PW 1) did not disclose their actual caste in their evidence. The mere statement that they are Harijan does not denote their actual Caste so as to hold that complainant Badri Prasad (PW 1) is included in the category of the member of Scheduled Caste and Scheduled Tribe as notified by the Government. No Caste Certificate of the complainant was filed by the prosecution on record. 14. The mere statement that they are Harijan does not denote their actual Caste so as to hold that complainant Badri Prasad (PW 1) is included in the category of the member of Scheduled Caste and Scheduled Tribe as notified by the Government. No Caste Certificate of the complainant was filed by the prosecution on record. 14. Besides, as already stated, there is no positive evidence and also no such specific averment in testimony of Imrat (PW 3), that appellants abused or insulted or intimidated the complainant on account of his being a member of Scheduled Caste or Scheduled Tribe or on the ground of his caste. It is well settled that to sustain a conviction under section 3 (1) (x) of the Act it must be proved that intentional insult or intimidation is caused to a member of Scheduled Caste or Scheduled Tribe with intent to humiliate him as a member of Scheduled Caste or Scheduled Tribe by a person not being a member of Scheduled Caste or Scheduled Tribe within the public view. Mere intimidation or insult to a member of Scheduled Caste or Scheduled Tribe is not enough. 15. Needles to repeat that the aggrieved person, the complainant namely Badri Prasad (PW 1), himself has not substantiated the version that he was insulted or intimidated by the appellants. 16. Thus, in view of the aforesaid discussion, no case under section 3 (l) (x) of the Act was proved against the appellants from the evidence available on the record. The learned trial Judge, fell in error in finding them guilty under section 3 (1) (x) of the Act. 17. Similarly, no case under section 3 (1) (v) of the Act is found proved against the appellants. The version of PW 3 Imrat, that he and his brother were prevented by the appellants from filling water from the well is not corroborated by the evidence of his brother complainant Badri Prasad (PW 1), himself nor from any other evidence on record. Moreover, it has come in evidence that the disputed well of the village is known as 'Pandey's well'. PW 4 Kishanlal deposed that the said well belonged to his family, although the villagers take water from it. A.S.I., Budhram (PW 6) also admitted that the disputed well belonged to Kishan Pandit from which people take water. Moreover, it has come in evidence that the disputed well of the village is known as 'Pandey's well'. PW 4 Kishanlal deposed that the said well belonged to his family, although the villagers take water from it. A.S.I., Budhram (PW 6) also admitted that the disputed well belonged to Kishan Pandit from which people take water. Thus, the private well of a person cannot be said to be public well, no matter villagers are taking water from it. 18. In such a case it cannot be said that complainant Badri Prasad (PW 1) had any right over the water of the well. Therefore, the question of any interference with the enjoyment of his right over the water, which is one of the main ingredients of the offence under section 3 (1) (v) of the Act, does not arise. Thus, no charge under section 3 (1) (v) of the Act as framed against the appellants was legally proved against the appellants. 19. In view of the aforesaid discussion, the conviction of the appellants under section 3 (1) (v) and 3 (1) (x) of the Act cannot sustained. 20. Appeal is therefore, allowed. The conviction of the appellants under sections 3 (1) (v) and 3 (1) (x) of the Act and the impugned sentence awarded to them for the aforesaid offences are hereby set aside. 21. Appellants are on bail. Their bail bonds shall stand discharged.