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2011 DIGILAW 693 (MP)

Prahalaad Kurmi v. State of M. P.

2011-06-29

G.D.SAXENA

body2011
JUDGMENT : G.D. Saxena, J.:- This revision petition under Section 397/401 of Cr.P.C. is directed against an order dated 28th April, 2011 in Special Case No. 29/2011 , by the Special Judge (SC & ST) , Datia framing thereby charge against the petitioners-accused for commission of offence punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocity) Act, 1989. 2. The facts in short, just for the decision of this revision petition are that on 3rd August, 2010 at about 9 P.M. on the front door of the complainant's house at public place, the accused/petitioners (not belonging to SC/ST) being members of an unlawful assembly, in prosecution of their common object caused injuries to the complainant and also abused the filthy words with an intention to insult him, after entering into his house. The FIR was lodged and after investigation, the charge-sheet was filed. Trial is under progress. 3. The contention of the learned counsel for the accused-petitioners are that the genesis of the crime is that the complainant drove out the she Buffaloes of the accused-party from his agricultural field. There was no intention on the part of the accused to abuse the filthy words belonging to caste with an intention to humiliate/insult the complainant or his family members, who belonged to Scheduled Castes. It is submitted that there is no ground available nor ingredients constituting such offence as mentioned above from perusal of the charge-sheet and the evidence collected during investigation appear. Therefore, it is requested that the charge framed against Section 3 (1) (x) of the Act against the petitioners/accused be set aside. In support of his submission, learned counsel placed reliance on the decision of this court in the case of Ravi Sharma vs. State of M.P. [ 2010 (3) MPWN 77 ]. 4. Per contra, learned Panel Lawyer for the respondent/State supported the impugned order and prayed for dismissal of the petition. 5. Heard the learned counsel for the petitioners and learned Panel Lawyer for the State/respondent and also perused the impugned order, charge sheet and the documents filed alongwith petition. 6. It is not disputed that the accused/petitioners are the members of general caste and the complainant and his family members are belonging to "Ahirwar", which falls within the definition of schedules Caste, as declared in Schedule X under the Indian Constitution. 6. It is not disputed that the accused/petitioners are the members of general caste and the complainant and his family members are belonging to "Ahirwar", which falls within the definition of schedules Caste, as declared in Schedule X under the Indian Constitution. This is also admitted that prior to the incident, the complainant drove the buffaloes belonging to the accused-persons away from the agricultural fields. It also appeared that all the accused' having Lathis in their hands collectively when to the house of complainant, shouted filthy words by caste and inflicted injuries by lathies to the members of the complainant-party by entering into the open place of their house. 7. In the case of Ashabai Machindra'Adhagale vs. State of Maharashtra ( AIR 2009 SC 1973 ), the Hon. Apex court held : "after ascertaining the.facts during the course of investigation, it is open to the Investigating Officer to record that the accused either belongs to or does not belong to scheduled caste or scheduled tribe. After final opinion is fofmed, it is open to the Court to either accept the same or take cognizance. Even if the charge sheet is filed at the time of consideration of the charge, it is open to the accused to bring to the notice of the Court that the materials do not show that the accused does not belong to scheduled caste or scheduled tribe. Even if charge is framed at the time of trial materials can be placed to show that the accused either belongs or does not belong to scheduled caste or scheduled tribe." 8. Also in the case of Masumsha Hasanasha Musalman vs. State of Maharashtra (2000 AIR SCW 719), the Hon. Apex court held as under: "Section 3 (2) (v) of the Act provides that whoever; not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code punishable with imprisonment for a term often years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3 (2) (v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3 (2) (v) of the Act arises," 9. There is another decision rendered in the case of Ramdas vs. State of Maharashtra (AIR 2007 SC 155), in which the Hon. Apex court held : "At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment." 10. On perusal of the present case, it appears that prior to the incident the complainant drove the buffaloes of the accused-persons away from his agricultural field. However, no such intention of the accused appears from the charge sheet filed on record to humiliate the complainant party by using filthy language belonging to their castes. To constitute an offence under section 3 (1) (x) under the Act, it is necessary that whoever, not being a member of a Scheduled Caste intentionally insults to humiliate a member of a scheduled caste or a scheduled tribe in any place within public view, shall be punishable with imprisonment for a term which shall not be less than six month and which may extent to five years and with fine. Absolutely, there is nothing on record to suggest that the petitioners have committed the offence under the Act. Absolutely, there is nothing on record to suggest that the petitioners have committed the offence under the Act. In this view of the matter, the charge framed for offence under Sections 3 (1) (x) of the Act is not sustainable as per provisions of law (as mentioned above). 11. In the result, the revision petition stands allowed only to the extent of framing of charge under Sections 3 (1) (x) of the said Act. The petitioners/ accused are discharged from the alleged offence under the Act. It is made. clear that the trial against petitioners/accused shall continue for other charges except the charges under Sections 3 (1) (x) of the Act.