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Madhya Pradesh High Court · body

2007 DIGILAW 505 (MP)

Kundanlal v. State of M. P.

2007-05-01

D.C.MAHESHWARI

body2007
JUDGMENT 1. This appeal is directed being aggrieved by the judgment dated 24.4.2002 passed by the Special Judge, Raisen (Constituted under Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, for short "the Act") in Special Case No.206/2000 whereby the appellants have been convicted under section 323/34 of IPC with fine of Rs.500/- in default of it further one month SI was awarded while appellant No.1 additionally convicted under section 3(1)(x) of the Act for six months RI with fine of Rs.200/-, in default of it further fifteen days SI was awarded. During the pendency of this appeal parties have entered in compromise, in pursuance of it the appellants have been acquitted from the charge of section 323/34 of IPC vide order dated 4.4.2007. 2. The facts giving rise to this appeal in short are that on 25.5.1998 Vijay Singh victim went to the house of Radhabai to give the papers sent by the Collector; he handed over the same to her husband Kundanlal who was available there with other appellants. In response of it he was abused by filthy languages with intention to humiliate him on account of his caste "Chamar" and was also beaten by the appellants, he came back to home and mentioned the incident to his mother Kalabai. She asked them the reason for such act, on which the appellant entered in her house and humiliated her in the same manner and also beat her by fists and kicks and with intention to outrage her modesty her sari was also tom. Matter was reported in writing to Police Harijan Kalyan, Raisen on 4.6.1998, on which after registering the offence on 15.6.1998 and holding investigation the appellants were charge sheeted for the offence under section 354, 294 and 34 of IPC and U/S 3(1)(xi) of the Act. 3. The Special Judge framed the charges for the offences under section 294/34, 323/34, 354/34 of IPC and section 3(1)(xi) of the Act. They abjured the guilt, on which the trial was held. After recording the evidence on appreciation of it all the appellants have been convicted under section 323/34 of IPC while appellant No.1 Kundanlal was additionally convicted under section 3(1)(x) of the Act and punished them with the above mentioned punishment. The offence under section 323/34 of IPC has already been compounded between the parties. After recording the evidence on appreciation of it all the appellants have been convicted under section 323/34 of IPC while appellant No.1 Kundanlal was additionally convicted under section 3(1)(x) of the Act and punished them with the above mentioned punishment. The offence under section 323/34 of IPC has already been compounded between the parties. Thus, this Court has to consider only the sustainability of the conviction of the appellant No.1 under the Act. 4. Shri Ashok Lalwani, learned counsel for the appellants assailed the impugned judgment saying that the alleged incident had not happened because of the caste of the victims covered under the Act but the incident took place on account of some political enmity in between the family of appellant No.1 and the victims. Besides this, there was another dispute between them regarding a septic tank constructed by the appellants in spite the objection of the victim's family. The trial Court has not considered these aspects on appreciation of evidence. He further said that the complainant Kalabai did not say that appellant committed the alleged act with intention to humiliate her on account of her caste. In the lack of such evidence the impugned conviction under the Act is not sustainable and prayed for allowing the appeal. 5. Shri Pramod Choubey, learned Government Advocate opposed the aforesaid prayer saying that in view of the available evidence the conviction and sentence of the appellant No.1 do not require any interference at this stage, and prayed for dismissal of this appeal. 6. Having heard the learned counsel and after perusing the evidence and exhibited documents on record, I am of the view that available evidence is not sufficient evidence to draw the inference against the appellant for holding him guilty under the Act. It appears that the alleged incident took place between them because of some rivalry of panchayat election and also on account of the construction of septic tank by the appellant No.1 in spite the objection of the victims. Thus, the conviction and sentence of appellant No.1 under the Act is not sustainable. 7. The victim Kalabai (PW 1) did not state that alleged incident took place just to humiliate her on account of her caste. In paragraph seven of her cross-examination she categorically stated that there was enmity in between them on account of septic tank. She also contradicted her earlier case diary statement (Ex.P-1). 7. The victim Kalabai (PW 1) did not state that alleged incident took place just to humiliate her on account of her caste. In paragraph seven of her cross-examination she categorically stated that there was enmity in between them on account of septic tank. She also contradicted her earlier case diary statement (Ex.P-1). Her husband Kamal Singh (PW2) is not the eye-witness of the case as he was not present in the village on such date. So firstly, his testimony being hearsay is not admissible. Beside this, it appears from his deposition that the incident took place on giving some intimation of Collector to appellant No.1, Kundanlal regarding "Sampark Abhiyan". He did not depose that the incident was happened because of his caste. He also contradicted his earlier statement (Ex.D-2) given to the police. 8. Although another victim Vijay Kumar (PW3), deposed that he was abused by taking the name of his caste by the appellant and was also beaten by them. But he did not say that the appellant humiliated him on account of his caste. He further said that on the next day of the incident the report was lodged. He contradicted his earlier case diary statement (Ex.D-3) till some extent. Accordingly, the aforesaid witnesses have failed to prove the alleged offence under the Act. 9. Besides the above, the case of the prosecution is also not supported by any independent source of evidence. Kartar Singh (PW4) and Vishnu (PW5) the independent witnesses have not stated any incriminating thing against the appellant. 10. I have found one more material circumstance on record that the alleged incident took place on 25.5.1998 while the report in writing was given on 4.6.1998 stating that in spite giving the report to the police, the same was not written as said by the victim Kalabai but no such other report has neither been filed nor proved. It shows that the alleged report in writing was given at very belated stage, i.e., after ten days from the date of the incident, which loses the truthfulness of the prosecution case. More so when the story of the prosecution has not been supported by any independent source of evidence, hence the conviction of the appellant No.1 under the Act cannot be upheld. 11. More so when the story of the prosecution has not been supported by any independent source of evidence, hence the conviction of the appellant No.1 under the Act cannot be upheld. 11. So far caste of the victims are concerned the same has not been challenged by the appellant in the cross-examination of the aforesaid witnesses namely Kalabai, Kamal Singh and Vijay Kumar. Hence, the approach of the trial Court in this regard does not require any interference. 12. In view of the aforesaid discussion, it is held that the trial Court has committed grave error in holding guilty to the appellant No.1 for the offence under section 3(1)(x) of the Act. Hence, the impugned judgment as well as conviction and sentence of appellant No.1 is not sustainable. 13. Therefore, by allowing this appeal the impugned judgment as well as the conviction and sentence of appellant No.1 for the offence under section 3(1)(x) of the Act is hereby set aside. He is acquitted from such charge. His bail bounds are hereby cancelled. The amount of fine, if deposited, be refunded to him after proper verification. 14. Appeal is allowed.