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Madhya Pradesh High Court · body

2010 DIGILAW 416 (MP)

Mathura Prasad v. State of M. P.

2010-04-09

K.S.CHAUHAN

body2010
JUDGMENT 1. This criminal appeal under section 374 (2) of the Code of Criminal Procedure has been preferred being aggrieved by judgment dated 3rd August, 1995 passed by Special Sessions Judge, Shahdol in Special Case No. 37/91 whereby the appellants have been convicted under section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Act, 1989") and sentenced to RI for 6 months with fine of Rs. 150/- each in default of payment of fine one month's RI to each of them. 2. The prosecution case in short is that Mohan Sweeper lodged report at Police Station Budhar on 4.4.1991 at about 4.30 p.m. to the effect that he along with Dhani and Komal Prasad Namdev and Mahendra Singh had gone for cleaning the urinals. While he was working he touched with Haath- Thaila of fruits of appellants Shishupal Gupta. He abused filthy language denoting his caste and started beating him. At the same time his brother Mathura Prasad and Sudama came there, threw him on the ground and started beating. He tried to run but his two other brothers Dau @ Dinesh Gupta and Nanku Gupta was standing there who caught hold of him and also caused his marpeet. When he made hue and cry Komal Namdev, Mahendra Singh and Rajesh Mishra intervened but they were also beaten by the appellants. 3. On the basis of this information Crime No. 118/91 under sections 323, 341, 294, 324, 506-B/34 of IPC read with section 3 (1) (x) of the Act, 1989 was registered against the appellants. Mahendra, Komal, Rajesh and Mohan were sent for medical examination. They were examined by Dr. A.K. Thakur. Spot map was prepared. Statements of the witnesses under section 161 of CrPC were recorded. After completing the investigation, the charge sheet was filed in the Court of Special Judge, Shahdol. 4. The appellants were charged under section 3 (1) (x) of the Act, 1989. They denied 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 and the appellants did not examine any witness in their defence. After• appreciating the evidence trial Court found them guilty for the charge levelled against them, under section 3 (1) (x) of the Act, 1989 and sentenced thereto as stated hereinabove in para No.1. Prosecution examined as many as 7 witnesses and the appellants did not examine any witness in their defence. After• appreciating the evidence trial Court found them guilty for the charge levelled against them, under section 3 (1) (x) of the Act, 1989 and sentenced thereto as stated hereinabove in para No.1. Being aggrieved by the impugned judgment, finding and sentence, the instant appeal has been preferred by the appellants on the grounds mentioned in the memo of appeal. 5. On 29.3.2010 Shri U.K. Sharn1a, learned Senior counsel who was engaged as counsel by the appellants did not appear, therefore, Smt. Sandhya Pathak from the legal aid was appointed as counsel to appear and argue the matter. The matter was posted on 30.3.2010. On this day Smt. Sandhya Pathak, argued the matter on behalf of the appellants but subsequently, Shri U.K. Sharma, learned senior counsel also appeared along with Shri P.N. Tiwari and argued the matter. 6. Learned counsel for the appellants submitted that the Court below has not appreciated the evidence in proper perspective. It is not proved that appellants abused complainant denoting his caste hence no offence under section 3 (1) (x) of Act, 1989 is made out and finding of guilt is erroneous which deserves to be set aside and the appellants are entitled for acquittal. 7. On the contrary, Shri Vivek Agrawal, learned Govt. Advocate appearing on behalf of State has supported the impugned judgment, finding and sentence mainly contending that prosecution has proved the guilt beyond reasonable doubt against the appellants and the trial Court has rightly convicted and sentenced the appellants, therefore, the finding of guilt is proper and does not call for any interference. 8. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellants under section 3 (1) (x) of the Act, 1989? 9. Mohan (PW-1) who is the complainant has deposed that he was touched with Haath- Thaila of fruits of appellants, therefore they abused him denoting his caste and caused his marpeet for which he lodged report (Ex.P-1) at Police Station Budhar, but his statement does not inspire confidence because he is giving exaggerated statement and trying 'to falsely implicate the appellants. Mohan (PW-1) who is the complainant has deposed that he was touched with Haath- Thaila of fruits of appellants, therefore they abused him denoting his caste and caused his marpeet for which he lodged report (Ex.P-1) at Police Station Budhar, but his statement does not inspire confidence because he is giving exaggerated statement and trying 'to falsely implicate the appellants. The reasons are that in FIR he has mentioned that he touched with Haath- Thaila of appellant Shishupal Gupta whereas in the Court statement he has stated that he touched with Haath- Thaila of all the appellants. In FIR he has mentioned that firstly he was beaten by appellant Shishupal Gupta and then by Mathura Prasad and Sudama Gupta and thereafter by Dinesh Gupta and Nanku Gupta whereas in the Court statement he has stated that all the appellants caused marpeet together. In FIR he has nowhere mentioned that he was beaten by lathis but in the Court statement he has so stated. It is abundantly clear that the quarrel was sudden, therefore there was no question of having lathis at Haath- Thalia where they are said to be seeling fruits. It reflects from his evidence that he was not knowing the appellants from before the incident and he narrated their names in FIR at the instance of Komal and Mahendra. From FIR at appears that alone Shishupal Gupta abused him but in the Court statement he has stated that all the appellants abused him. For all these reasons no reliance can be placed on the evidence of Mohan (PW-1). 10. Mahendra Singh (PW-2), Anil (PW-4), Rajesh Kumar (PW-5) and Komal (PW-6) who were the employees of Municipal Corporation, Budhar and working with complainant Mohan (PW-1) have given evidence that appellants caused marpeet of complainant but their evidence is lacking on the point that appellants abused complainant denoting to his caste. Mahendra Singh (PW-2) has clearly stated that he did not hear abuses alleged to be given to complainant.• Anil has also stated that the appellants said nothing except causing marpeet. His entire statement has been contradicted from his earlier statement (Ex D-1). Rajesh Kumar has stated that he does not know as to what the appellants were saying at that time. Komal has stated that Mohan and appellants were abusing each other. His entire statement has been contradicted from his earlier statement (Ex D-1). Rajesh Kumar has stated that he does not know as to what the appellants were saying at that time. Komal has stated that Mohan and appellants were abusing each other. Thus, from their evidence at the most it can be accepted that the appellants caused marpeet of complainant but it cannot be accepted that they did so with intent to insult or intimidate him. The prosecution has left the lacuna of not examining doctor who examined the injured persons, hence for want of medical evidence it is not proved that these appellants caused injury to them. 11. It is manifestly clear that the incident is of the daytime of the public place i.e. Budhar Bus Stand where there was crowd and several persons were present there but the prosecution has not examined any person who can be said to be an independent witness. All these witnesses were of employees of Municipal Corporation, Budhar and were working with the complainant, hence interested witnesses. Where there were several independent persons and the prosecution did not make them the witness, the adverse inference can be drawn against the prosecution. 12. The defence of the appellants is that Rajesh Mishra taking the advantage of the caste of complainant has falsely implicated them, but this defence has not been proved by adducing evidence. - 13. On perusal of the entire case of the prosecution it appears that it was' simply a case of marpeet which has been brought under the purview of Scheduled , Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, because the complainant was belonging to scheduled caste. It is apparent that the act of the appellants did not cover under section 3 (1) (x) of the Act, 1989 because for attracting the aforesaid section there must be an intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in anyplace within public view. Since the complainant has exaggerated and improved his statement, the entire story becomes doubtful, therefore, for these reasons the prosecution has failed to establish the guilt beyond reasonable doubt against the appellants. The finding of guilt is erroneous which deserved to be set aside and the appellants are entitled for acquittal. 14.Consequently, the appeal succeeds and is allowed. Since the complainant has exaggerated and improved his statement, the entire story becomes doubtful, therefore, for these reasons the prosecution has failed to establish the guilt beyond reasonable doubt against the appellants. The finding of guilt is erroneous which deserved to be set aside and the appellants are entitled for acquittal. 14.Consequently, the appeal succeeds and is allowed. The conviction and sentence passed by the Court below under section 3 (1) (x) of the Act, 1989 are hereby set aside. They are on bail, their bail bonds are discharged. They be set at liberty.