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Madhya Pradesh High Court · body

2006 DIGILAW 1415 (MP)

Babu Khan v. State of M. P.

2006-12-12

UMESH CHANDRA MAHESHWARI

body2006
JUDGMENT 1. This appeal is directed on behalf of the appellant being aggrieved by the judgment dated 30.7.1992 passed by the III Additional Sessions Judge, Sehore in Sessions Trial No.224/91 convicting the appellant for the offence under section 294, 506B of the IPC and under section 3 (1) (x) of the SC/ST (Prevention of Atrocities) Act, 1989 (in brief 'the Act'), with punishment of fine of Rs. 500/- under the first count while RI 2 years under the second count and RI 2 years with fine of Rs. 1,000/- under the last count with stipulation of further sentence in default of payment of fine amount. 2. The factual matrix of the prosecution case are that on dated 12.4.1991 at about 8 O' clock in the evening complainant Nanulal (since deceased) and his son Ramesh were returning from village Shyampur and going towards village Mukhtyar Nagar. On reaching round about 2 Km. they saw appellant ahead to them going to the same village. While, the complainant crossed him, then appellant kicked him on his buttock. On asking about it by his son, appellant took-out a knife, abused them and said that till you are alive they cannot do anything, even they cannot slaughter the cow and eat cow meat. Saying this, he tried to assault the complainant but the complainant caught hold his hand while his son Ramesh caught hold his waist. Due to fear, they could not lodge the report on the same night. The same was lodged with the Police outpost Shyampur on dated 13.4.1991 at about 8:35 in the morning, on which the offence under section 294, 506B of the IPC and section 3 (1) (x) of the Act was registered against the appellant. On sending such FIR to PS Daroha, the SHO registered the case as Crime No.74/91 by reproducing the said FIR. After interrogating to the witnesses and preparing different Panchnamas, on completion of the investigation, the appellant was charge-sheeted under the aforesaid sections. 3. On committing the case to the Sessions Court, the charges for the aforesaid sections were framed against the appellant. He abjured the same. Then the trial was held, in which prosecution has examined as many as 7 witnesses while one witness, namely, Gheesilal was examined by the appellant in his defence. On appreciation of the evidence, appellant was held guilty for the aforesaid charges and punishment was imposed as mentioned above. He abjured the same. Then the trial was held, in which prosecution has examined as many as 7 witnesses while one witness, namely, Gheesilal was examined by the appellant in his defence. On appreciation of the evidence, appellant was held guilty for the aforesaid charges and punishment was imposed as mentioned above. Hence this appeal. 4. Shri A. Usmani, leamed counsel for the appellant challenged the impugned conviction saying that on proper appreciation of the evidence, the appellant ought to have been acquitted by the trial Court as the ingredients of the alleged offence have not been proved beyond reasonable doubt. Appellant has not committed any offence at a 'Public Place' by using the obscene or abusive language with intention to humiliate the complainant or his son because of his caste covered by the Act. By referring the deposition of Ramesh, son of the deceased complainant and other alleged eye-witnesses, said that no one has stated that the incident was happened at a 'Public Place' or at the place which was in view of the public. Besides this, even in the FIR the same was not mentioned. In the absence of any other person, on the way outside the village, if some abusive words are spoken then mere on this ground such place could not be termed as 'Public Place'. As such, no annoyance was created by the appellant at a 'Public Place'. Hence, appellant was wrongly convicted under section 294 of the IPC and aforesaid provision of the Act. Besides this, it has come in the evidence that there was a dispute in the village on account of group politics, and the appellant and complainant were belonging to the different groups. Thus, it could not be inferred that the appellant has committed any offence punishable under the Act. It was also said that threat to kill the complainant or said Ramesh by the appellant has not been proved beyond reasonable doubt as firstly, the same has not been supported by any independent evidence or by the eye-witnesses and secondly single person like appellant cannot dare to do such act against the two persons i.e. the deceased complainant and his son Ramesh. On account of such threat complainant was in fear, such evidence has also not come on the record. With these submissions, he prayed for allowing his appeal and acquittal of the appellant. 5. On account of such threat complainant was in fear, such evidence has also not come on the record. With these submissions, he prayed for allowing his appeal and acquittal of the appellant. 5. On the other hand, responding the aforesaid argument, Shri Vikram Singh, learned Panel Lawyer while supporting the impugned judgment as well as the conviction of the appellant said that the same is based on proper appreciation of the evidence and is in conformity with law and it does not require any interference at this stage, either for acquittal or for any other purpose and prayed for dismissal of this appeal. 6. After hearing the counsel for the respective parties, in order to consider their rival submissions, I have carefully perused the impugned judgment and examined the evidence recorded by the trial Court. 7. During trial, the complainant Nanulal had died, hence he could not be examined but his son Ramesh (PW 1) was examined. He categorically stated that while returning to village Mukhtyarnagar, on the way, round about 2-1/2 Km from village Shyampur, appellant assaulted his father by kicks and fists, also took-out the knife and tried to give its blow on his father but his hand was caught hold by his father and he also caught hold his waist. He has further stated that appellant abused them in the name of their Caste as 'Chamre' 'Chamatte', also in the name of mother and also said that till they will reside in the village, they cannot slaughter the cow and eat its meat. He also told other abusive words alleged to be spoken by the appellant. He further said that appellant followed them upto the village Mukhtyarnagar, threatened to kill them and also abused with the name of mother. Then they stayed in the village for whole night and reported the matter at police outpost Shyampur in the morning. It was also said that on account of such obscene language, he got annoyed and due to alleged threat they were under fear. Subsequent to this incident, his father was murdered for which some other case is pending. After going through the entire record, I have not found that the aforesaid incident was happened in the locality or in urban area and also in presence of some other persons. Subsequent to this incident, his father was murdered for which some other case is pending. After going through the entire record, I have not found that the aforesaid incident was happened in the locality or in urban area and also in presence of some other persons. Mere, on the way, in the absence of any person, for the sake of argument if any abusive words were spoken then the 'outside area' or the 'way', could not be inferred as 'Public place', or such place could not be 'in public view', unless the public is present there. The word "Public" is defined under section 12 of the IPC in the following manner, "public" includes any class of the public, or any community.", and the word "Place" is defined under section 2 (p) of the CrPC as "place" includes a house, building, tent, vehicle and vessel". 8. On jointly reading the aforesaid definitions, it is apparent that the alleged incident was not happened at 'public place' or the place 'in public view' and this material ingredient is absent in the testimony of the sole witness of the incident Ramesh (PW 1). Even in his cross-examination such version has not come in any explanatory manner. Hence, this Court has no option except to hold that the incident was not happened at a 'public place' and in view of the aforesaid, this Court is bound to hold further that the offence under section 3 (1) (x) of the Act and section 294 of the IPC has not been established against the appellant. 9. Coming to the question of giving threat or criminal intimidation to the deceased Nanulal or Ramesh (PW 1) by the appellant, before giving any finding on this point, I would like to refer a decision of this Court reported in the matter of Rajender Dutt v. The State of Haryana [ 1993 CrLJ 1025 ] in which it was held as under: "12. The conviction of the appellant for offence under section 506 IPC is also not maintainable as the alleged threats to kill the injured are not borne out by the conduct of the appellant in causing both the injuries on his left shoulder and that too with blunt weapon like hockey stick. Consequently, the mere outburst of the petitioner at the time of assault that he will kill Mr. Consequently, the mere outburst of the petitioner at the time of assault that he will kill Mr. Sharma is not sufficient to hold that it would fall within the mischief of section 506 IPC as it cannot be said that he indulged in criminal intimidation of the injured to cause the death or grievous hurt. The substantive sentence of causing grievous hurt has been awarded to the appellant. There is no question of indicating him under section 506 IPC on mere threats to cause grievous injury. Thus, the appellant also stands acquitted of the charge under section 506 IPC." 10. As alleged the appellant had knife in his hand and inspite it, he did not give any blow to the complainant or the Ramesh, and it is apparent fact on the record that no injury was caused by him. It appears to be unnatural that one person can dare to cause the incident by giving criminal intimidation to two persons i.e. the deceased complainant and Ramesh (PW 1). It appears from the record that inspite the incident, they proceeded towards their village. Stayed for whole of the night and even before lodging the report or thereafter till arrest of the appellant, nothing was happened against the complainant and Ramesh. It shows that on account of such alleged threat, no fear was created in the mind of victim. Subsequent to it, only for impleading to the appellant such allegations have been made. 11. Although, as per the prosecution, immediately after the incident the same was mentioned by the victim to Om Prakash (PW 5) but at trial he was declared hostile, although something has been stated by him but in view of the aforesaid his deposition is not helping to the prosecution. Some other witness Vijayendra Singh (PW 3) was also turned hostile, therefore, his deposition is also not helping to the prosecution. Therefore, in view of the aforesaid evidence, no offence is made out against the appellant. 12. Besides this, there is one more material circumstance, which appears from the evidence that at the political level, the appellant and the complainant's family were helping different political groups. Accordingly, they had enmical relations against each other. Therefore, in view of the aforesaid evidence, no offence is made out against the appellant. 12. Besides this, there is one more material circumstance, which appears from the evidence that at the political level, the appellant and the complainant's family were helping different political groups. Accordingly, they had enmical relations against each other. Under such circumstances, the testimony of Ramesh -- the sole eye-witness, could not be relied unless the same is corroborated by independent and admissible evidence as laid down by the apex Court in the matter of Bir Singh and other v. The State of Uttar Pradesh [ AIR 1978 SC 59 ], in which it was held as under: "Where all the eye-witnesses examined by the prosecution had serious animus against the accused and were interested in implicating the accused and neither independent witnesses were examined nor any reasonable explanation was given by the prosecution, the Court would be justified in drawing an adverse inference against the prosecution." (Para 9) It is apparent fact on the record that the story has not been corroborated by any independent source of the evidence, hence, the testimony of Ramesh does not appears to be reliable. In any case, it could not be a foundation for holding guilty to the appellant. 13. All the aforesaid aspects have not been considered by the trial Court while convicting the appellant, therefore, the judgment of the trial Court is apparently perverse having infirmity and also erroneous. The same is liable to beset aside. Therefore, by allowing this appeal, the judgment of the trial Court is hereby set aside and the appellant is acquitted from all the alleged charges. His bail bonds are hereby cancelled. The amount of fine, if deposited, the same be refunded to him after proper verification. The appeal is allowed accordingly.