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2011 DIGILAW 23 (CHH)

Mafidar v. State of M. P.

2011-01-25

PRITINKER DIWAKER

body2011
JUDGMENT Pritinker Diwaker, J. 1. This appeal is directed against the judgment and order dated 31.5.1996 passed by the Special Sessions Judge, Raipur in Special Case No. 174/1996 convicting the Appellant under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and sentencing him to undergo rigorous imprisonment for six months and pay fine of Rs. 500 in default of payment of fine to further undergo simple imprisonment for three months. 2. Case of the prosecution in brief is that on 11.10.1993/23.10.1993 a written report was made by six women including Chandra Bai (PW-1) alleging that accused/Appellant and three other persons were harassing the people belonging to scheduled caste or scheduled tribe community and thereby depriving them of getting the benefits under various government schemes. It is alleged that accused/Appellant is a feudal landlord (maalgujar) and after consuming liquor he was in the habit of abusing women belonging to scheduled caste and scheduled tribe community and was not even permitting them to fetch water from the public bore-well. Based on this report FIR (unexhibited) was registered against the accused/Appellant herein and three other persons on 2.12.1993 under Section 3(1)(X) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. After completion of investigation challan was filed on 7.2.1994 for the said offence. 3. So as to hold the accused persons guilty, prosecution has examined as many as 06 witnesses in support of its case. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trial Court has acquitted accused Mahendro, Shankar and Lalo of the charge levelled against them but convicted and sentenced the accused/Appellant herein as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/Appellant submits that the prosecution has utterly failed to prove the fact that the complainant party belongs to scheduled caste or scheduled tribe community as no evidence in this regard either oral or documentary has been adduced by the prosecution. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/Appellant submits that the prosecution has utterly failed to prove the fact that the complainant party belongs to scheduled caste or scheduled tribe community as no evidence in this regard either oral or documentary has been adduced by the prosecution. He submits that in this case the investigation has been done by the Sub Inspector whereas according to the legal provisions it ought to have been done by an officer not below the rank of Deputy Superintendent of Police. He submits that even the investigating officer has not been examined in this case and that neither in the report nor in the evidence the ingredients of Section 3(1)(x) are made out by the prosecution. He submits that there is no evidence on record to show that the accused/Appellant had abused the complainant party in the name of their caste. 7. On the other hand counsel for the Respondent/State supports the judgment impugned and submits that the findings of the Court below convicting the accused/Appellant under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act being based on the material available on record, are just and proper and do not call for any interference in this appeal. 8. Chandra Bai (PW-1) has stated in her evidence that she belongs to Soura caste and also holds the post of the President of the Mahila Mandal of 30 members. She has stated that all the accused persons belong to the same family and on account of fetching of water from the bore well there was a dispute between her and the accused persons. She has stated that the accused persons had thrown cow-dung in the said well and when all the women had gone to fetch water in the public bore-well, they were not permitted to do so by the accused persons. In cross examination this witness has stated that written report was prepared by one Dolamani and that she was not aware as to what was written in the same. She has stated that in her village there are as many as five bore-wells, one being located in her area and the accused persons are residing in a different area. In cross examination this witness has stated that written report was prepared by one Dolamani and that she was not aware as to what was written in the same. She has stated that in her village there are as many as five bore-wells, one being located in her area and the accused persons are residing in a different area. She has admitted the fact that there are two groups in the village and she belongs to one group whereas the accused persons belong to the other one. She has stated in the application made by her that the said application was filed by only six persons belonging to her group. She has stated that quarrel had taken place when the complainant party had not allowed to accused persons to fetch water from the pond. However, according to this witness, before the incident there existed no quarrel between her party and the accused persons. Samari Bai (PW-2) has stated that there was some dispute on account of fetching water from the pond and the accused/Appellant had asked her that the pond did not belong to her father. This witness has not made any specific allegation against the accused/Appellant to connect him with the crime in question. Gurwari Bai (PW-3) has made almost similar allegation as has been made by Chandra Bai (PW-1) and Samari Bai (PW-2). She has stated that members of the Mahila Mandal were abused by the accused persons and that the accused/Appellant herein had put a fencing in a boring which was opposite to his house. Vishakha Bai (PW-4) has not supported the case of the prosecution and has been declared hostile. Lata Bai (PW-5) has made almost similar allegation as has been made by Chandra Bai (PW-1) and Samari Bai (PW-2). Mathura Bai (PW-6) is the investigating officer and she has supported the case of the prosecution. 9. A bare reading of the evidence adduced by the prosecution makes it clear that the prosecution has failed to prove the caste of the complainant! as no evidence - oral or documentary has been brought forth to this effect, Record also shows that there are two parties in the village - complainant party belongs to the one whereas the accused/Appellant belongs to the other and therefore on account of village politics possibility of false implication of the accused/Appellant in the case in hand cannot be ruled out. More so, the prosecution has not produced any material to show that the complainant party was abused by the accused persons in public view. Taking all these aspects together, this Court is of the view that ingredients of Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of atrocities) Act are not attracted to the case in hand. 10. Consequently, it is held that the conviction of the accused/Appellant under this special enactment is liable to be set aside by allowing the appeal. Accordingly the appeal is allowed. Judgment impugned is set aside. Accused/Appellant is acquitted of the charge levelled against him. He is on bail. Bail bonds furnished by him stand discharged.