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Madhya Pradesh High Court · body

2011 DIGILAW 157 (MP)

Krishna alias Kresa v. State of M. P.

2011-02-03

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 24.9.2003 passed by learned Special Judge (Atrocities) and Additional Sessions Judge, Gwalior, in Special Trial No. 17/2603 convicting the appellant for the offences punishable under section 3 (1) (x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter for short referred as .. Act") and further convicting him under section 323 of the Indian Penal Code and thereby sentencing him to suffer six months RI for each offence and fine Rs. 500/-, in default, further RI of three months, the appellant has knocked the doors of this Court by preferring this appeal under section 374 (2) of Criminal Procedure Code, 1973. 2. In brief the case of the prosecution is that on 15.1.2003 at 5.30 p.m. complainant Santosh alongwith his mother Rajabeti and brother-in-law Pappu was coming back from village Lidhora and were going to Village Chinor. As soon as these persons entered in the village, nearby the Flour Mill of Bhagwan Singh, three accused persons, namely, Krishna Kushwah (appellant), Kallu Kushwah and Prem Singh Kushwah (acquitted co-accused) were coming from the opposite direction and when the complainant party were passing nearby them, the accused persons, after hurling the abuses of mother and saying "Mehtarwale", scolded on them as a result of which complainant Santosh asked them not to hurl the abuses. But, insted of not hurling the abuses, all the three accused persons threw him on the ground and dealt blows of kicks and fists as a result of which he sustained injuries. When his mother and brother-in-law tried to intervene, they were also beaten by the accused persons. Thereafter, Suresh Sweeper intervened. A report was lodged by Santosh which was registered and a case under sections 323, 294, 341 of IPC and also under section 3 (1) (x) of the Act was registered against the accused persons. 3. After investigation was over, a chargesheet was submitted in the competent Court within on its turn committed the case to the Special Court where the appellant was tried. 4. The Learned Special Judge on the basis of the allegations made in the chargesheet framed the charges punishable under sections 341,323 in the alternative section 323/34 of IPC and section 3 (1) (x) of the Act against the appellant and acquitted co-accused persons. 4. The Learned Special Judge on the basis of the allegations made in the chargesheet framed the charges punishable under sections 341,323 in the alternative section 323/34 of IPC and section 3 (1) (x) of the Act against the appellant and acquitted co-accused persons. Needless to say that all the accused persons abjured their guilt and pleaded complete ignorance. 5. In order to prove the charges, prosecution examined as many as 8 witnesses and placed Ex. P-l to Ex. P:16, the documents on record. 6. The defence of the accused persons including the appellant is that because they stopped to take the services of the complainant side to clean the toilets and further they were not being called in the marriage to collect the food and further that they were taking services to clean their toilets from other scavenger, therefore they have been falsely implicated in the said offence. In support of their defence, they have examined once scavenger Gutti as DW 1. 7. On the basis of the evidence placed on record, the learned Single Judge found that the charges against accused Kallu alias Kalyan Kushwah and Prem Singh Kushwah are not proved eventually they have been acquitted while the offence under section 323 of IPC and Section 3 () (x) of the Act has been proved against the appellant as a result of which he has been convicted to suffer the sentence as mentioned hereinabove. 8. In this manner this appeal has been filed by the appellant assailing the judgments of conviction and the order of sentence. 9. I have heard Shri M.L. Yadav, learned counsel for the appellant as also Ms. Sudha Shrivastava learned Public Prosecutor for the respondent State. Having heard learned counsel for the parties, I am of the considered view that this appeal deserves to be allowed. 10. In order to convict the accused for the offence punishable under Section 3 (1) (x) of the Act, it is incumbent upon the prosecution not only to prove that the complainant is the member either of Scheduled Castes or Scheduled Tribe, but further the prosecution is obliged to prove that the accused is not a member either of Scheduled Caste or Scheduled Tribe. In the present case although by filing the documentary evidence Ex. P/8, Ex. P/9 and Ex. In the present case although by filing the documentary evidence Ex. P/8, Ex. P/9 and Ex. P/10, it is proved that complainant Santosh, Pappu and Rajabeti are the member of Scheduled Castes (Mehtar) community, but no document has been filed by the prosecution in order to prove that the appellant is not a member of either Scheduled Caste or Scheduled Tribe community. 11. A bare perusal of the testimony of complainant Santosh (PW 3) and other witnesses Pappu (PW 4) and Rajabeti (PW 5), it is found that although they have stated that they are the members of the Scheduled Caste being the member of Mehtar community and the certificate (Ex. P/8 to P/10) are also filed demonstrating and proving that they are the members of Scheduled Castes Community and although they have said that the appellant is of Kushwah community, but nowhere they have stated that the accused persons are not the members of either Scheduled Castes or Scheduled Tribe community. Thus, this fact is not proved that the appellant did not belong to either Scheduled Caste or Scheduled Tribe community. According to me, in order to attract any of the offence enshrined under section 3 (1) (x) of the Act, proving that the accused is not a member of Scheduled Caste or Scheduled Tribe Community is presupposed on bare perusal of the wordings of the said provisions. Since there is no material on record in order to hold that the appellant is not a member of either Scheduled Caste or Scheduled Tribe community, according to me, the learned Special Court has committed an error in convicting the appellant for the offence punishable under section' 3 (1) (x) of the Act. 12. Apart from this, on x-raying the testimony of complainant Santosh (PW 3), his brother-in-law Pappu (PW 4) and mother Rajabeti (PW 5), this Court finds that earlier they were cleaning the toilets of the accused persons including the appellant. Earlier to the present incident, several times quarrel took place between them and appellant, because the appellant discontinued to take their services to clean the toilets of his house. The suggestion put to them that the appellant has deployed another sweeper to clean his toilet the members of complainant side became annoyed, has been denied. Earlier to the present incident, several times quarrel took place between them and appellant, because the appellant discontinued to take their services to clean the toilets of his house. The suggestion put to them that the appellant has deployed another sweeper to clean his toilet the members of complainant side became annoyed, has been denied. It is also true that although certain more suggestions put to these witnesses have been denied by them that in order to take revenge, they have falsely implicated the appellant, but on bare perusal of the defence witnesses, who is also a member of scavenger community to which the complainant party belongs, it is gathered that the appellant stopped to take the services of the complainant party to clean their toilets and, therefore, they became annoyed with him, not only this, the appellant did not permit them to collect the food material which is left in the marriage ceremony etc. and some quarrel took place on the point of payment of some remuneration. This witness has further stated that after the appellant stopped the services of complainant pm1y, this witness is providing his services to them. Thus, I am of the view that the probable defence, which has been put forth by appellant that in order to take revenge from him, he has been falsely implicated because it is borne out from the testimony of the defence witness as well as suggestions which were put to complainant Santosh (PW 3) that they gave threat to the appellant that he will be implicated in a false case of the present Act. It is well settled that the defence, which is based on preponderance and probability, due weightage should be given to it and it should not be equated with the same standard of proof with that of prosecution, where the prosecution is obliged to prove its case beyond all reasonable doubt. 13. After paying my anxious and bestowed consideration to the entire gamut of the case, I am of the view that this is the unique case that how and in what manner this Act is being misused by the members for whose benefit this Act is enacted. 13. After paying my anxious and bestowed consideration to the entire gamut of the case, I am of the view that this is the unique case that how and in what manner this Act is being misused by the members for whose benefit this Act is enacted. I would like to further observe that the Courts should be very much cautious in these type of cases and should scrutinize the evidence closely in order to take out the grain from the chaff so that the innocent persons may not be unnecessarily harassed and may not face the mental agony. 14. For the reasons stated hereinabove, I am unable to uphold the conviction of the appellant and looking to the facts and circumstances of the case and the evidence placed on record, I have no option except to allow this appeal and to set aside the impugned judgment. 15. This appeal is accordingly allowed. The conviction of the appellant is hereby set aside and he is acquitted from all the charges. The amount of fine. if deposited, be refunded to the appellant.