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Madhya Pradesh High Court · body

2009 DIGILAW 819 (MP)

Khilan Singh Thakur v. State of M. P.

2009-07-17

K.S.CHAUHAN

body2009
JUDGMENT 1. This criminal appeal under section 374(2) of the Code of Criminal Procedure has been filed by the appellant being aggrieved by the impugned judgment, finding and sentence dated 5.8.1999 passed by Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Sagar (M.P.) in Special Case No.99/99, whereby the appellant has been convicted under section 294 of IPC and section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act but sentenced only under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to RI for 6 months with fine of Rs.200/- in default of payment of fine further SI for 1 month. 2. The prosecution case in short is that on 18.1.1999 one Khemchand along with other persons submitted a report against appellant Khilan Singh, Deewan Singh, Balram Singh and Veeran Singh to Superintendent of Police, Sagar to the effect that the accused persons are committing atrocities on them. They have forcibly dispossessed them from land, used filthy languages denoting their caste, threatened to kill and also to outrage the modesty of the women and to force them to leave the village. Their report was not written at concerned police station instead the proceedings under section 107/116 of CrPC were initiated against them. After inquiry the offence under sections 294, 506B of IPC and 3(1)(x) of the SC/ST (Prevention of Atrocities) Act was registered at Police Station AJK, Sagar. The spot map was prepared. The statements of the witnesses were recorded. After completing the investigation the charge-sheet was filed in the Court of Special Judge, Sagar. 3. Two accused persons Veeran @ Veer Singh and Balram Singh were discharged on 16.2.1999. The charges were framed against Diwan Singh and Khilan Singh under sections 294, 506B of IPC and also under section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act. They abjured the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated. Prosecution examined as many as 7 witnesses, the accused persons did not examine any witness in their defence. They abjured the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated. Prosecution examined as many as 7 witnesses, the accused persons did not examine any witness in their defence. After appreciating the evidence trial Court acquitted the co-accused Diwan Singh from all the charges and this appellant was also acquitted from the charge under section 506B of IPC but convicted under sections 294 of IPC and 3(1)(x) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced only under section 3(1)(x) of the Act as stated hereinabove in para No.1 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred on the grounds mentioned in the memo of appeal. 4. Shri D.P. Golandaz, Advocate was engaged by the appellant as his counsel but he did not appear to argue on the dates i.e. 18.4.2009 and 23.6.2009. Since the appeal was of the year 2005, therefore, Shri Jai Singh Thakur was appointed from the panel of High Court Legal Services Committee to argue the matter on behalf of the appellant so that this appeal may be disposed of expeditiously. 5. Shri Jai Singh Thakur, learned counsel for the appellant submitted that trial Court has not appreciated the evidence in proper perspective. There is delay in lodging the FIR. There are several contradictions and omissions in the statements of the prosecution witnesses and trial Court has committed an illegality in relying upon the evidence of the interested witnesses. The finding of guilt is erroneous which deserves to be set aside and appellant is entitled for acquittal. 6. On the contrary, Shri Jaideep Singh, learned Govemment Advocate appearing on behalf of respondent-State supported the impugned judgment, finding and sentence mainly contending that prosecution has proved the guilt beyond reasonable doubt against the appellant. The trial Court has rightly convicted and sentenced the appellant hence no interference is called for. 7. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989? 8. Learned counsel for the appellant submitted that there is enormous delay in lodging the FIR which has not been properly explained by the prosecution. 9. 8. Learned counsel for the appellant submitted that there is enormous delay in lodging the FIR which has not been properly explained by the prosecution. 9. On perusal of record it reveals that the incident is of 13.1.1999 whereas complainant Khemchand (PW 1) and others have submitted written report EX.P-1 on 18.1.1999. There is delay of near about 5 days in lodging the report. According to Khemchand (PW 1) this report was typed by the clerk of an advocate of civil Court, Sagar. Thus, it appears that this report was written after consultation and due deliberation. The delay in lodging the FIR has not been properly explained by the prosecution. There is inconsistency also in the statement of Khemchand (PW 1) and his son Rajkumar (PW6) whether the report was written or not at Police Station Rahatgarh. According to Khemchand the report was written but no action was taken. On the contrary, Rajkumar (PW6) has stated that no such report was written at Police Station, Rahatgarh. If the report was not written at Police Station Rahatgarh or no any action was taken by concerned police then on the same date immediately the written report ought to have been submitted to Superintendent of Police, Sagar but the report has been delayed by five days and hence got the chance of making consultation prior to submitting the written report. Thus, in the facts and circumstances of this case, it is found that the report has been lodged at an enormous delay which has not been properly explained by the prosecution and the adverse inference ought to have been drawn against the prosecution. Thus the Court below has not considered this fact objectively and ignored the same. 10. Learned counsel for the appellant further submitted that no independent witness has supported the prosecution case. 11. On perusal of record it reveals that prosecution has examined Shankar Singh (PW2), Radhasharan Rawat (PW3), and Tikaram (PW4) who are the independent witnesses but they have not supported the prosecution case and declared hostile. The alleged incident is of the public place where the presence of these witnesses have been shown by the prosecution but none of these independent witnesses has supported the prosecution case. They have clearly stated that the appellant did not insult or abuse or threaten the complainant Khemchand (PW 1). Thus, the prosecution story is not supported by the independent witnesses. 12. They have clearly stated that the appellant did not insult or abuse or threaten the complainant Khemchand (PW 1). Thus, the prosecution story is not supported by the independent witnesses. 12. Khemchand (PW 1) is the complainant, Rajkumar (PW6) is his son and Hotilal (PW5) is his nephew. They are related and interested witnesses. They are in inimical terms with the appellant. It is admitted that the security proceedings under section 107/116 of CrPC were launched against each other. The land dispute was there in between them. Keeping in view the relationship and interestedness of these witnesses, their evidence requires to be scrutinized carefully. 13. Khemchand (PW 1) has stated that Khilan Singh came at the village temple where Panchayat was going on and abused him in the name of his daughter and also insulted him indicating his caste but he has been contradicted from the police report EX.P-1 and police statement EX.D-1 on this fact. He has further been contradicted from the police report regarding taking forcible possession of the land by the appellant. He has clearly stated in his evidence that Diwan Singh did not abuse him. Thus, there are material contradictions and omissions in the statement of this witness. He has adopted the theory of pick and choose by inculpating appellant and exculpating others. He has also improved his version exaggerating his statement. Therefore, no reliance can be placed on his evidence. 14. Rajkumar (PW6) and Hotilal (PW5) have stated that the appellant said to Khemchand indicating his caste that "Chamra lodges the report he will bury him in 6' land". These witnesses have also been contradicted from report EX.P-1 and no such fact is found in the report EX.P-1. Thus, they are improving their version and giving exaggerated statements. Since they are interested witnesses and also having inimical terms with appellant, therefore, the possibility of falsely implicating him on that account cannot be ruled out. There was no any motive to insult or intimidate the complainant, therefore, the offence under sections 294 of IPC and section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 have not been proved beyond reasonable doubt against the appellant. The finding of guilt is erroneous which deserved to be set aside and the appellant is entitled for acquittal. 15. Consequently, appeal succeeds and is allowed. The judgment passed by the trial Court is hereby set aside. The finding of guilt is erroneous which deserved to be set aside and the appellant is entitled for acquittal. 15. Consequently, appeal succeeds and is allowed. The judgment passed by the trial Court is hereby set aside. The appellant is acquitted from the charge under section 294 of IPC and section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. He is on bail. His bail bonds are discharged. Fine amount, if deposited, be refunded to him as per rules.