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Madhya Pradesh High Court · body

2008 DIGILAW 406 (MP)

Bhupendra v. State of M. P.

2008-03-13

S.SAMVATSAR, SHEELA KHANNA

body2008
Judgement S. SAMVATSAR, J. :- This appeal is preferred by the appellants-accused being aggrieved by the judgment dated 10-5-1999 delivered by the 2nd Additional Sessions Judge, Dabra, District Gwalior in Sessions Trial No. 47/1998, whereby the Sessions Court has convicted the present appellants for commission of offence under Section 436 read with Section 34,1. P. C. and sentenced to undergo five years rigorous imprisonment with fine of Rs. 5,000/- each, in default of payment of fine, they are directed to undergo further one year's rigorous imprisonment. The appellants are also convicted by the impugned judgment for commission of offence under Section 3(2)(4) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo life imprisonment with fine of Rs. 5,000/- each, in default of payment of fine they are directed to undergo further one year R. I. 2. During the pendency of this appeal, appellant No. 2 Santo alias Satish died, hence his appeal stood abated. 3. As per the prosecution case, in the intervening night of 4th and 5th March, 1998 complainant-Babulal Jatav was sleeping in his house with his family after taking food. He was awoken by his wife Leelavati. Both of them came out and saw accused Lakke Pandit and Satto Pandit ablazing their huts (Madaiya). Bhupendra Pandit was standing on the ground. They asked them as to what they are doing; whereupon the accused threatened them and after abusing they ran away. Complainant-Babulal shouted, on which persons residing in nearby colony came to the spot. By that time three huts of the complainant were burnt. 4. Three-four days prior to the present incident, at about 11:00 in the night accused Lakke Pandit had gone to the house of the complainant and pushed the door by leg. However, the door could not open. Next day, complainant and his wife went to the house of Lakke Pandit, where they met Lakke Pandit and his father Gauri Shankar. They made complaint to Gauri Shankar about the incident. On that Gauri Shankar abused them with reference to their caste and threatened to set their huts ablaze. Complainant-Babulal and his wife returned back to their house. Due to this enmity, Gauri Shankar got the house set at fire with the help of his sons Lakke, Satto and Bhupendra. Due to the fire, household goods, cereals, husk, table fan, oil and cash etc. had burnt. 5. Complainant-Babulal and his wife returned back to their house. Due to this enmity, Gauri Shankar got the house set at fire with the help of his sons Lakke, Satto and Bhupendra. Due to the fire, household goods, cereals, husk, table fan, oil and cash etc. had burnt. 5. On the report lodged by the complainant Crime No. 21/98 was registered and the police after investigation filed challan against the accused. The matter was committed to the Sessions Court and the Sessions Court framed charge against the accused for commission of offence under Sections 436 in alternative 436/34 of I. P. C. and Section 3(2)(4) of Scheduled Castes and Scheduled Tribes (Prevention and Atrocities) Act, 1989. The Sessions Court after recording the evidence and appreciating the same convicted the accused as aforesaid, hence this appeal. 6. Shri Shailendra Singh, learned counsel for the appellants submitted that the findings arrived at by the Sessions Court are not supported by the evidence on record, and therefore, order of conviction deserves to be set aside. It is contended that even assuming that offence is proved, punishment awarded by the Sessions Court is on higher side. It is further contended that appellant No. 3 Lakke alias Lokendra is in custody for more than 10 years, hence lenient view should be taken. 7. On the other hand, Mohd. Irshad, learned counsel for the respondent/State supported the impugned judgment. He submits that the Sessions Court has not committed an illegality in convicting the present appellants. 8. We have heard learned counsel for the parties and perused the evidence on record. 9. Babulal is examined as PW-1, who is author of the FIR (Ex. P-1). This witness states that he knows the accused. Kalicharan is his brother and Megha Nath is his uncle. Accused-Bhupe, Satto and Lokendra got three huts ablazed at 12-1 in the night. At that time he was sleeping in the hut. He was awaken by his wife Leelavati after hearing bleat of goat. He saw Lakke and Satto ablazing their huts (Madaiya). Bhupendra was standing on the ground. He asked them as to what they are doing; whereupon the accused threatened them and after abusing they ran away. Complainant-Babulal shouted, on which persons residing in nearby colony came to the spot. By that time his four goats were injured. Due to the fire, household goods, cereals, husk, and cash amount of Rs. Bhupendra was standing on the ground. He asked them as to what they are doing; whereupon the accused threatened them and after abusing they ran away. Complainant-Babulal shouted, on which persons residing in nearby colony came to the spot. By that time his four goats were injured. Due to the fire, household goods, cereals, husk, and cash amount of Rs. 12,000/- had burnt. In para 2 this witness states that three days prior to the incident Lakke had came to his house and pushed the door by leg. Lakke abused her wife. He and his wife went to the house of father of Lakke, where Gauri Shankar father of Lakke abused them with reference to his caste and threatened to ablaze their huts. Thereafter this witness lodged report in the police station. A copy of the report is Ex. P-1. In para 5 of his cross examination, he admits that there was a conflict between his brother Gangaram and accused Lakke about the cycle. He states that he was not in his house when accused Lakke pushed the door of his house. He further states that he had not narrated this fact to any one. From perusal of para 6 of his statement, we find minor contradictions in his statement and nothing in his cross-examination is brought to disbelieve his statement. 10. Leelavati wife of the complainant is examined as PW-2. She states that she knows the accused. They reside in the same colony. She states that her huts are temporary huts. She has five huts, out of which three huts are covered by tiles, while two huts are covered by straws. She states that she wake up after hearing goats bleat, thereafter she awaked her husband, then they came out and saw that Lokendra was setting ablaze their huts. Bhupendra was standing on the ground. On asking about what they are doing, then they asked them to keep mum. They also abused them with reference to their caste. Goats were bleating and they took them out, and thereafter the accused ran away. She states that her statement was recorded by the police. 11. Mahendra Dev Singh is PW-3, who had recorded the FIR (Ex. P-1). Ramesh Prasad Upadhyaya is examined as PW-4. He is a witness to Ex. P-2. 12. Goats were bleating and they took them out, and thereafter the accused ran away. She states that her statement was recorded by the police. 11. Mahendra Dev Singh is PW-3, who had recorded the FIR (Ex. P-1). Ramesh Prasad Upadhyaya is examined as PW-4. He is a witness to Ex. P-2. 12. Ramesh is examined by the defence as DW-1 to show that wife of the complainant Babulal is not of a good character. 13. From perusal of overall evidence, we find that statement of Babulal (PW-1) is fully corroborated by the statement of Leelavati (PW-2). They have specifically stated that they had seen the accused Lokendra and Satto were ablazing their huts, while accused Bhupendra was standing on the ground, and there is nothing in their cross examination to disbelieve them to that extent. 14. So far as accused Bhupendra is concerned, it is alleged that he was standing near the place of incident. He is impleaded as accused with the help of Section 34 of I. P. C. From perusal of evidence available on record, we find that there is absolutely no evidence to hold that he had also common intention with the other co-accused. As per the evidence, he is merely present on the spot. In such circumstance, his conviction deserves to be set aside. 15. So far as accused Lakke alias Lokendra is concerned, there is definite evidence on record to show that he ablazed the huts of the complainant, due to which household goods, cereals, husk, oil and cash etc. had burnt. 16. Contention of learned counsel for the appellants is that punishment imposed by the Sessions Court is on higher side. From perusal of the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 we find that offence is covered in Section 3(2)(iv) of the Act, 1989, which provides as under :- "Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe - "commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as place of worship or as a place for human dwelling or as a place for custody of the property by a member of Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine." 17. From perusal of the provisions of the said section, it appears that only sentence prescribes under the said section is life imprisonment. Contention of learned counsel for the appellants is that unless and until it is proved that the appellants were aware about the fact that the complainant and his wife were belonging to the Scheduled Castes and Scheduled Tribes, they cannot be held guilty of the offence. For this purpose, he has relied on judgment of the Apex Court in the case of Dinresh alias Buddha v. State of Rajasthan, (2006) 2 SCC (Cri) 1 : 2006 Cri LJ 1679 and in the case of Ramdas and others v. State of Maharashtra, 2006 (4) Crimes 329 : AIR 2007 SC 155 (SC). From perusal of both these judgments, we find that in those cases offence under Sections 376/34 is made out, and the offence was covered under S. 3(2)(v) of the Act, 1989, in which it is provided that who commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. Thus, said section provides that a person who commits crime on the ground that such person is a member of Scheduled Caste and Scheduled Tribe, but these words are missing in clause (v) of sub-section (2) of Section 3 of the Act, 1989. Section 3(2)(v) of the Act, 1989 provides that a person commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as place of worship or as a place for human dwelling or as a place for custody of the property by a member of Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine. Thus, there is difference between the words mentioned in clauses 4 and 5 of sub-section 2 of Section 3 of the Act, 1989. The requirement of knowledge of the accused that a victim is a member of Scheduled Caste and Scheduled Tribe is not in clause 4. Thus, there is difference between the words mentioned in clauses 4 and 5 of sub-section 2 of Section 3 of the Act, 1989. The requirement of knowledge of the accused that a victim is a member of Scheduled Caste and Scheduled Tribe is not in clause 4. In such circumstances, this Court has no discretion, but to award sentence of life imprisonment. 18. As already stated, we find that there is no evidence against the appellant No. 1 Bhupendra to involve in the offence or about his common intention. In such circumstances, we set aside the conviction of appellant No. 1 Bhupendra and maintain that against appellant No. 3 Lakke alias Lokendra. 19. In the result, the appeal is partly allowed. The conviction of appellant No. 1 Bhupendra under Section 436/34 of I. P. C. and under Section 3(2)(4) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentence thereon is hereby set aside and maintain the conviction of appellant No. 3 Lakke alias Lokendra under Section 436 of I. P. C. and under Section 3(2)(4) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentences thereon passed by the trial Court. Both the sentences to run concurrently. Appellant No. 1 Bhupendra is on ball. His bail bond and surety stand discharged. Appellant No. 3 Lakke alias Lokendra is in custody, hence no further orders are necessary. Appeal partly allowed.