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Madhya Pradesh High Court · body

2008 DIGILAW 876 (MP)

NATHU v. STATE OF MADHYA PRADESH

2008-07-16

S.A.NAQVI

body2008
Judgment ( 1. ) CHALLENGE is to the judgment dated 27-09-1993 passed by Special Judge, panna in Special Cri. Case No. 60/91 whereby the appellants have been convicted under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "the Act") and sentenced to undergo 1 year rigorous imprisonment and fine of Rs. 500/- in default 3 months simple imprisonment to each. ( 2. ) THE case of the prosecution, in a nut shell, is that on 9-5-1991 buwaram, Prem Bai, Badi alias Suratiya were coming to their village from ajaygarh market, at about 6 p. m. they reached near Jetpur School. All the accused persons including the appellants intercepted them and they asked complainant to make compromise in the previous criminal case. Buwaram declined to compromise. The appellants and accused Bhola caused injuries on the person of buwaram, Prembai, Kallu, Jhallu, Suratiya, Shyam Bai and Gunuwa by lathis. Nathua Kumhar, Sanehi Kumhar and other persons intervened. FIR was lodged on 11-5-1991. Case was registered under Sections 147,148, 341, 294, 506 and 323 of IPC and 3 (v), (x), (xiv), (xv) of the Act. After investigation the accused persons were charge-sheeted and the case was committed to the Court of Sessions. ( 3. ) LEARNED Trial Court framed charges under Sections 11-7,323 read with Section 149 and 342 of IPC and under Section 3 (1) (x) of the Act. The appellants and accused Bhola abjured the guilt, they pleaded innocence and false implications. ( 4. ) PROSECUTION examined 12 witnesses. No witness has been examined in defence. After hearing learned Counsel for both the parties, perusing evidence and material on record learned Trial Court convicted the appellants under Section 3 (1) (x) of the Act and sentenced them as hereinabove mentioned. Accused Bhola has been acquitted of the charges levelled against him. No appeal has been preferred against the judgment of acquittal. ( 5. ) I have heard learned Counsel for both the parties, perused impugned judgment, evidence and material on record. ( 6. ) LEARNED Counsel for the appellants submitted that learned Trial court committed error in convicting the appellants under Section 3 (1) (x) of the act, learned Trial Court has not convicted the appellants under Sections 147, 323 read with Section 149 and 342 of IPC separately and has not sentenced the appellants under these Sections of IPC separately. ( 6. ) LEARNED Counsel for the appellants submitted that learned Trial court committed error in convicting the appellants under Section 3 (1) (x) of the act, learned Trial Court has not convicted the appellants under Sections 147, 323 read with Section 149 and 342 of IPC separately and has not sentenced the appellants under these Sections of IPC separately. No case is made out against the appellants under Section 3 (1) (x) of the Act and they can not be convicted and sentence under Sections 147, 323 read with Section 149 and 342 of IPC, because no appeal has been preferred by the State against the impugned judgment. Contrary to that learned Public Prosecutor for the State supported the impugned judgment and submitted that Trial Court has not committed any error in convicting the appellants and sentencing them hereinabove mentioned. ( 7. ) FROM the perusal of the record and the impugned judgment it is clear that the appellants have been charged under Sections 147, 323 read with section 149 and 342 of IPC and under Section 3 (1) (x) of the Act. On going through the impugned judgment particularly Paras 18 to 20 of the judgment it is revealed that no finding has been given by the learned Trial Court in respect of charges under Sections 147,323 read with Section 149 and 342 of IPC, whether offence under these section has been proved or not and they have not been convicted under these Sections of Indian Penal Code separately and have not been sentenced separately under the aforementioned sections for offence of rioting, causing simple injuries to complainant party in prosecution of common object of unlawful assembly and for wrongful confinement of the complainant Buwaram. In Para 21 of the Judgment learned Trial Court observed that offence under sections 147, 323 read with Section 149 and 342 of IPC are covered by the provisions of section 3 (1) (x) of the Act hence no separate sentence is required under the provisions of Indian Penal Code. ( 8. ) SECTION 3 (1) (x) of the Act reads as under :- "3. Punishments for offences of atrocities.- (1) Whoever, not being a member of a Scheduled Caste or a Schedule Tribe- (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;" ( 9. ) SECTION 3 (1) (x) of the Act reads as under :- "3. Punishments for offences of atrocities.- (1) Whoever, not being a member of a Scheduled Caste or a Schedule Tribe- (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;" ( 9. ) THE main ingredients of Section 3 (1) (x) of the Act is that if any person not being a member of Scheduled Caste or Scheduled Tribe community intentionally insults or intimidates with intent of humiliate a member of a scheduled Caste or a Scheduled Tribe in any place within the public view. The provisions of Section 147 of IPC provides punishment for "rioting" which is defined under Section 146 of IPC as whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of offence of "rioting. " Under the provision of Section 323 of IPC, punishment is provided for "voluntarily causing hurt" by an accused to the complainant if the common object of the unlawful assembly is voluntarily causing hurt to any person and in prosecution of common object members of unlawful assembly or any member of unlawful assembly causes hurt to any person i. e. , to complainant then every member of unlawful assembly is liable for act of that member of unlawful assembly and he can be convicted and punished with the aid of provision of section 149 of IPC. Under the provision of Section 342 of IPC punishment is provided for "wrongful confinement" which is defined in Section 340 of IPC that whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully confine" that person. ( 10. ) ON going through the provision of Section 3 (l) (x) of the Act and sections 147, 323 read with Section 149 and342 of IPC, I am of the view that the ingredients of Section 3 (1) (x) of the Act are quite different from the ingredients of Section under Sections 147,323 read with Section 149 and 342 of ipc. ) ON going through the provision of Section 3 (l) (x) of the Act and sections 147, 323 read with Section 149 and342 of IPC, I am of the view that the ingredients of Section 3 (1) (x) of the Act are quite different from the ingredients of Section under Sections 147,323 read with Section 149 and 342 of ipc. Consequently, I am of the view that offence under Section 3 (1) (x) of the act and offence under Sections 147, 323 read with Section 149 and 342 of IPC are distinct offence and offence under Sections 147, 323 read with Section 149 and 342 of IPC are not covered by provision of Section 3 (1) (x) of the Act. Learned Trial Court manifestly committed error in holding that offence under sections 147, 323 read with Section 149 and 342 of IPC are covered within the provisions of Section 3 (1) (x) of the Act and did not give any finding of conviction and sentence under Sections 147,323 read with Section 149 and 342 of IPC. ( 11. ) AS per above discussion, I am of the view that learned Trial Court committed error in not giving specific finding under Sections 147,323 read with section 149 and 342 of IPC to convict or to acquit the appellants under the provisions of these Sections and not awarding any sentence separately under the provisions of section under Sections 147,323 read with Section 149 and 342 of ipc, if found proved. Consequently, impugned judgment passed by learned Trial court is incomplete in respect of the charges under Sections 147,323 read with section 149 and 342 of IPC. Since no finding has been given by the learned Trial court and no sentence has been passed separately under Sections 147,323 read with Section 149 and 342 of IPC, hence this Court can not pass any finding of conviction or acquittal and order of sentence under the provision of these sections of IPC. ( 12. ) RESULTANTLY, the case is bound to be remitted back to the learned trial Court to give specific finding in respect of the charges under Sections 147, 323 read with Section 149 and 342 of IPC separately after appreciating the evidence afresh. ( 12. ) RESULTANTLY, the case is bound to be remitted back to the learned trial Court to give specific finding in respect of the charges under Sections 147, 323 read with Section 149 and 342 of IPC separately after appreciating the evidence afresh. Be it so, the conviction of the appellants under Section 3 (1) (x)of the Act also is bound to set aside without considering merit of the case in this respect and the Trial Court is bound to record his finding afresh for the offence under Section 3 (1) (x) of the Act as per law. ( 13. ) I am aware of the fact that the case is pending against the appellants from June 1991 but looking to the facts and circumstances of the case the case is bound to be remitted back to the Trial Court. No appeal has been filed against accused Bhola by the State hence he is not suppose to face retrial and his acquittal is deemed to be final. ( 14. ) CONSEQUENTLY, appeal is allowed. Impugned judgment of conviction and order of sentence passed by the learned Trial Court under Section 3 (1) (x) of the Act is set aside. Case is remitted back to the learned Trial Court with a direction to rehear the arguments and pass judgment afresh as per law as directed hereinabove. Learned Trial Court is directed to dispose of the case within two months from the date of receipt of the record. Both the parties are directed to appear before the Trial Court on 4-8-2008.