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2011 DIGILAW 44 (CHH)

KHAMHAN v. STATE OF M. P.

2011-02-03

PRITINKER DIWAKER

body2011
JUDGMENT 1. This appeal is directed against the impugned judgment and order dated 13.2.1995 passed by Special Judge, Raipur in Special Case No. 303/1991 convicting the accused/appellants under Section 3 (1) (xv) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act and sentencing each of them to undergo rigorous imprisonment for six months. 2. Case of the prosecution in brief is that on 1.7.1991 the report was lodged by Dahru Ram (PW -1) alleging in it that on that day the accused/appellants had entered in his enclosure (Baadi) and damaged the crop of vegetables and flowers and also beaten him: On the basis of this report, entry was made in the Rojnamcha Sanha vide Ex.P-1 and after investigation, on 24.7.1991 F.I.R. (Ex.P-5) was registered against seven accused persons under Sections 294/34 and 325 of the Indian Penal Code and Section 3 (1) (xv) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. After investigation challan was filed on 7.9.1991 under Sections 294, 147, 148,325 of the IPC and 3 (I) (xv) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. While framing the charge, court below has framed the charge only under Section 3 (1) (xv) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act against the accused/appellants. 3. So as to hold to accused persons guilty, prosecution has examined seven 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. Apart from this, witnesses namely Mohan Lal Sahu (DW-1) and Baluram (DW-2) have also been examined by the defence in support of its case. 4. During trial two accused persons namely Dauaram and Roop Singh have expired and by the impugned judgment the learned trial Court has convicted and sentenced the remaining accused/appellants as mentioned above. Hence this appeal. 5. Counsel for the appellants submits that the land in question belongs to the appellants and as the same was illegally encroached by the complainant, the appellants were requesting him to vacate the same and to grab the land of the accused/appellants, false report has been lodged by the complainant. Hence this appeal. 5. Counsel for the appellants submits that the land in question belongs to the appellants and as the same was illegally encroached by the complainant, the appellants were requesting him to vacate the same and to grab the land of the accused/appellants, false report has been lodged by the complainant. He submits that there is no evidence on record to show that the complainant belongs to Scheduled Tribe category and no caste certificate whatsoever has been produced by the prosecution and the appellants had not admitted the fact of the caste of the complainant. It has been further argued that in the F.I.R. lodged by the complainant, there is no mention by him about his caste. He submits that in the facts & circumstances of the case, prosecution was obliged to produce the relevant evidence including caste certificate of the complainant. He further submits that there is no evidence on record to show that the act alleged to have been done by the accused/appellant was done with an intention and knowledge that the complainant belongs to Scheduled Tribe category and, therefore, also the accused/appellant cannot be convicted under Section 3 (l) (xv) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. 6. On the other hand supporting the impugned judgment it has been argued by the State counsel that the impugned judgment is in accordance with law and there is no infirmity in the same. 7. I have heard counsel for the parties and perused the material available on record including judgment impugned. 8. Complainant Dahru Ram (PW-1) has stated in his' evidence that he belong to 'Nagarchi' caste which comes under the category of Scheduled Tribe community. He has stated that sometime in the month of July, at about 8-9 pm accused/appellants had entered in his enclosure (Baadi) and damaged the crop of his vegetables and flowers and when he tried to protest, accused/ appellants had stated that the said land belongs to them and not to the father of the complainant. He has stated that thereafter, accused/appellant No. 2 Ishwar gave him blow of lathi as a result of which he sustained injuries. In cross-examination, this witness has admitted the fact that land where he had put the fencing does not belong to him nor he had taken any permission from the accused/appellants. He has stated that thereafter, accused/appellant No. 2 Ishwar gave him blow of lathi as a result of which he sustained injuries. In cross-examination, this witness has admitted the fact that land where he had put the fencing does not belong to him nor he had taken any permission from the accused/appellants. He has stated that at the time of incident he and his wife were present and then the report was lodged. 9. Kanchan (PW-2) - wife of the complainant has stated in her evidence that on the date of incident the accused/appellants had entered her enclosure and damaged the same and the accused/appellant No.2 namely Ishwar assaulted her husband by means of club. Paras Ram (PW-3) has made almost similar statement as has been made by complainant and her wife but he also admits that land belongs to one of the accused/appellant. Ram Sahai Kanooje (PW6) - Head Constable has stated in his evidence that he had made entry in the Rojnamcha Sanha No. 503. Surajbhan Singh Rana (PW-7) - Investigation Officer has supported the case of the prosecution. 10. Minute examination of the evidence of the witnesses makes it clear that the prosecution has utterly failed to prove the caste of the complainant and no document whatsoever including caste certificate has been filed and the appellants have not admitted the fact that the complainant belongs to Scheduled Tribe category. Furthermore, there is no evidence on record to show that the act alleged to have been done by the accused/appellant was done with an intention and knowledge that the complainant belongs to Scheduled Tribe category. Merely because some crops of the complainant have been damaged, the provision of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act would not be attracted automatically. Further there is no evidence on record that in any manner the accused persons have forced the, complainant to leave his house, village or place of residence and thus essential ingredients for convicting the accused/appellants under Section 3 (1) (xv) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act is altogether missing in this case. 11. To conclude, the appeal is allowed. Impugned judgment dated 13.2.1995 is hereby set aside. Appellant is acquitted of the charges levelled against him. Since appellant is already on bail, his bail bonds stand discharged. Appeal Allowed.