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Madhya Pradesh High Court · body

2012 DIGILAW 1139 (MP)

Naveen Kumar George v. State of M. P.

2012-11-06

N.K.GUPTA

body2012
Judgment N.K. Gupta J.;- 1. The appellant has preferred this appeal against the judgment dated 22.6.2006 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Mandla in Special Case No. 5/05, whereby the appellant was convicted for the offence punishable under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act (hereinafter referred to as the 'Special Act') and sentenced for six months' R.I. with fine of Rs. 500/- and in default of payment of fine, 11/2 months' R.I. was directed. The prosecution's case, in short is that, on 26.3.2005 at about 10-11 a.m. in the morning, the victim Kalicharan was taking rest in the courtyard of his house and his wife Anita Bai (PW-6) was cleaning some grains in the courtyard. Five accused persons including the appellant came to the spot and they told some obscene words to the wife of the complainant Kalicharan. The complainant tried to inform about the incident to other villagers then, the appellant and his companions came on the motorcycle and surrounded him and they abused him on the basis of his caste and thereafter, they assaulted him. Accused Sanju assaulted him by a knife causing an injury on his left face near the ear. The witness Jile Singh (PW-1), Ajab Singh (PW-2) and Vijay Singh (PW-3) saved the complainant, thereafter the accused persons went away. The complainant went to the Police Station Bamhani, District Mandla and lodged an FIR Ex. P/11 on the very same day. He was sent for his medico legal examination. After due investigation, a charge sheet was filed before the C.J.M. Mandla, who committed the case to the Special Court. 2. The appellant abjured his guilt. He did not take any specific plea in defence and therefore, no defence evidence was adduced. 3. The complainant Kalicharan and his wife Anita Bai had submitted an application for compromise before the trial Court, which was prima facie accepted by the Special Judge on 19.1.2006, but it was directed that an order on the said application shall be passed in the judgment and therefore, that application was accepted in para 6 of the judgment and the accused persons were acquitted from the charges of the offences punishable under Section 294, 506 (Part-II) and 324/34 of IPC. Remaining accused persons were acquitted from the charge of the offence under Section 3(1)(x) of the Special Act, but the appellant was convicted for the offence punishable under Section 3(1)(x) of the Special Act and sentenced as mentioned above. 4. I have heard the learned counsel for the parties. 5. The learned counsel for the appellant has submitted that it is nowhere established that the appellant insulted the complainant on the basis of his caste and therefore, the learned Special Judge convicted the appellant with confusion. The evidence was not properly appreciated by the trial Court and hence, no offence punishable under Section 3(1)(x) of the Special Act is made out against the appellant. The guilt of someone else was transferred upon the appellant and therefore, it is prayed that the appellant may be acquitted. 6. On the other hand, the learned Panel Lawyer has submitted that the conviction as well as the sentence directed by the trial Court appears to be appropriate. There is no basis by which any interference can be done at this stage. 7. After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether, the appeal filed by the appellants can be accepted? 8. If the procedure adopted by the Special Judge is observed then, it appears that such a senior Judge adopted an exceptional procedure and therefore, a haphazard evidence was adduced and ultimately, the learned Special Judge could not appreciate the evidence in a proper manner and therefore, case was resulted in the conviction, whereas a compromise took place between the parties. The learned Special Judge framed the charges of the offence punishable under Sections 294, 506(Part-II) and 324/34 of IPC alongwith the offence punishable under Section 3(1)(x) of the Special Act and therefore, it was for the Special Judge to decide the compromise application from the very beginning so that the prosecutor could concentrate on the evidence of the witnesses for the offence punishable under Section 3(1)(x) of the Special Act only. 9. 9. It is also pertinent to note that the offences punishable under Sections 294, 506(Part-II) and 324/34 of IPC were compoundable with the permission of the Court, but no application for permission to do compromise was submitted before the trial Court and no permission was granted by the trial Court to do the compromise. Such irregularities took place because the learned Special Judge did not decide the compromise application on the very same day and thereafter, he accepted the compromise at the time of the judgment, whereas no permission was sought from the Court to do the compromise. However, at present where the trial Court has accepted the compromise, it is presumed that an oral permission was given and no adverse inference can be drawn from the case file. 10. First of all, it was for the prosecution to prove the caste of the complainant. The police has submitted a caste certificate Ex. P/11 issued by a Sarpanch of the Gram Panchayat. Meharsingh (PW-9), who has accepted in his cross-examination that he did not have any document by which his certificate was passed and therefore, it appears that the certificate was issued on the basis that the victim Kalicharan had told to the Sarpanch that he was a member of the Scheduled Tribe. Meharasingh (PW-9) has also accepted in para 2 of his reply to the question 3 of his statement that "Kalicharan Ne kaha ki mein Aadivasi Jati Ka Hu. Is Adhar Par Aapne Praman Patra Jari Kiya" answer 'Yes'. By the statement of Sarpanch Meharsingh, it is apparent that he did not know about the caste of the complainant. The caste of the complainant was Maravi as told by the complainant himself and it was to be seen by the Sarpanch as to whether the caste Maravi falls in the category of Scheduled Tribe or not. No one can claim that his caste is the Scheduled Tribe. Under such circumstances, the certificate Ex. P/11 was issued by an unauthorized person and therefore, it has no evidentiary value. The prosecution has failed to prove that the complainant was a member of the Scheduled Tribe and therefore, the appellant cannot be convicted for any offence of the Special Act. 11. Under such circumstances, the certificate Ex. P/11 was issued by an unauthorized person and therefore, it has no evidentiary value. The prosecution has failed to prove that the complainant was a member of the Scheduled Tribe and therefore, the appellant cannot be convicted for any offence of the Special Act. 11. Jile Singh (PW-1), Ajab Singh (PW-2), Vijay Singh (PW-3) and Kalicharan (PW-4) were examined as witnesses to the incident, when the accused persons assaulted the victim Kalicharan, whereas Shashi (PW-5) and Anita Bai (PW-6) were the eyewitnesses to the incident, which took place with Anita Bai in her house. The trial Court has not levelled the charge of Section 3(1)(xi) of the Special Act, where the charge of offence under Section 3(1)(x) of the Special Act has framed for the victim Ania Bai and therefore, the incident took place in the house is not at all relevant. After acceptance of the compromise, the testimony of the witnesses Shashi and Anita Bai is not relevant to the present incident. 12. Jile Singh, Ajab Singh, Vijay Singh and Kalicharan all of them have turned hostile. They did not say that the appellant abused the victim Kalicharan on the basis of his caste. It is not stated by these witnesses that the incident took place because of his caste. It is apparent from the statement of these witnesses that on the festival of 'Holi', the appellant and his companions were teasing Anita Bai and therefore, the complainant was going to tell about the incident to the villagers, therefore the incident took place to stop the complainant in doing so and therefore, the incident did not take place on the basis of the caste. 13. Secondly, all the witnesses were declared hostile and the learned Prosecutor has suggested them that the accused persons told the complainant to be "Gondwa" in abuses told by them. Such suggestion was given in an omnibus manner for all the accused persons. It is not possible for a mob of five persons to say a common word or common abuse to the victim. If the statement of the complainant Kalicharan (PW-4) is considered, then in questions 5 & 6, he did not say that it was the appellant, who abused him on the basis of his caste. It is not possible for a mob of five persons to say a common word or common abuse to the victim. If the statement of the complainant Kalicharan (PW-4) is considered, then in questions 5 & 6, he did not say that it was the appellant, who abused him on the basis of his caste. On the contrary, in para 8 of his statement, he has stated that no talk took place with the appellant Naveen and he did not abuse the complainant at all. Under such circumstances, it is apparent that the appellant did not abuse the complainant on the basis of the caste or otherwise. Hence, since the incident did not take place on the basis of the caste and the appellant did not abuse the victim on the basis of his caste, then it is not proved beyond doubt that the appellant insulted the complainant on the basis of the caste. 14. It appears that the identification of other accused persons was under dispute and therefore, the learned Special Judge without appreciating the evidence of the complainant, convicted the appellant in a whimsical method. However, it is not proved beyond doubt that the appellant insulted the complainant on the basis of his caste and therefore, the appellant cannot be convicted for the offence punishable under Section 3(1)(x) of the Special Act. Hence, the appeal filed by the appellant appears to be acceptable and hence, it is hereby accepted. The conviction as well as the sentence directed for the offence punishable under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act is hereby set aside. The appellant is acquitted from the aforesaid charge. The appellant would be entitled to get the fine amount back, if he has deposited the same before the trial Court. 15. At present, the appellant is in the jail because of bail jump and therefore, Registry is directed to issue a release warrant as early as possible so that the appellant may be released forthwith. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance.