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2012 DIGILAW 2105 (RAJ)

Daya Ram v. State of Rajasthan

2012-10-06

GOPAL KRISHAN VYAS

body2012
JUDGMENT 1. - The instant criminal appeal has been filed by the appellant Daya Ram under Section 374 (2) of Cr.P.C. in which he has challenged the judgment dated 20.12.1993 passed by Special Judge, SC/ST (Prevention of Attrocity cases), Pratapgarh District Chittorgarh in Special Sessions Case No.68/93 whereby the accused appellant was convicted for offence under Section 3 (1) (x) of SC/ST (Prevention of Attrocities Cases) Act, 1989 (hereinafter referred to as the Act of 1989) and sentenced to six months RI along with fine of Rs. 100 and in default of payment of fine to further undergo three months simple imprisonment. 2. As per facts of the case, upon complaint filed by one Bal Mukan @ Mukand Lal S/o Shambho Raidas at police station Rathajana District Chittorgarh, a case under Section 147, 149 and 302 I.P.C. read with Section 3 (1) (x) of the Act of 1989 was registered against three persons namely Daya Ram (appellant), Mst. Kari Bai and Mst. Keshi Bai. In the complaint, it is specifically alleged by the complainant that his wife Bali Bai went to the well of Deva Gayari at about 11.30 a.m. for drinking water. Daughters of Deva Gayari, Mst. Kari Bai, Keshi Bai and Daya Ram S/o Gulabchand, Samrath S/o Bhanwar, Bhoma S/o Bheru Meena and Bheru S/o Rama Meenu were there and all above persons made allegation against Bali Bai that she stolen ornament 'hasli' and Kari Bai and all other persons assaulted her and ran away from the place of occurrence. A serious allegation was also levelled against his wife for committing theft and after above incident, Sarpanch Deep Singh and other persons came to his house but complainant was ill. The Sarpanch Daya Ram said that your wife has committed theft of ornament 'hasli' from neck of his sister's son and she is sitting on the well of Badri. Upon said information received by the complainant, he went to the place of occurrence where the body of his wife Bali Bai was lying and she was dead. 3. The complainant lodged FIR, thereafter, investigation was conducted for the said incident and after investigation ultimately challan was filed against three persons namely Daya Ram (appellant), Mst. Kari Bai and Mst. Kesi Bai for committing offence under Sections 147-302 and 149 I.P.C. and Section 3 (1) (x) of the Act of 1989. 4. 3. The complainant lodged FIR, thereafter, investigation was conducted for the said incident and after investigation ultimately challan was filed against three persons namely Daya Ram (appellant), Mst. Kari Bai and Mst. Kesi Bai for committing offence under Sections 147-302 and 149 I.P.C. and Section 3 (1) (x) of the Act of 1989. 4. After filing challan in the Court of A.M.J.M., Pratapgarh, the concerned Magistrate committed the case to the Sessions Court from where the case was transferred to the Court of Special Judge, SC/ST (Prevention of Attorcities Cases), Pratapgarh, District Chittorgarh for trial. 5. In the trial, as many as 14 witnesses were examined from the prosecution side and after recording evidence of prosecution, statement of all the accused under Section 313 Cr.P.C. were recorded and no oral evidence is produced by the accused in defence. The trial Court finally heard the case and acquitted all the three accused persons for offence under Section 147-302 read with Section 149 I.P.C. and from offence under Section 3 (ii) (v) of the Act of 1989 but the present appellant Daya Ram was convicted for offence under Section 3 (1) (x) of the Act of 1989 vide impugned judgment and sentence aforesaid was passed. 6. Learned counsel for the appellant vehemently argued that for convicting the appellant for offence under Section 3 (1) (x) of the Act of 1989, the trial Court relied upon the statement of PW-1 Mukan Lal @ Bal Mukund and PW-2 Deep Singh but upon perusal of statement of these witnesses, it cannot be presumed that any offence under Section 3 (1) (x) of the Act of 1989 is committed by the appellant but trial Court punishment the appellant for the aforesaid offence solely on the basis of statement of interested witnesses for the offence under Section 3 (1) (x) of the Act of 1989 which is not framed against the appellant, more so, for the charge levelled against the appellant for offence under Section 3 (ii) (v) of the Act of 1989, there was no evidence on record, therefore, appellant was acquitted. As per language of Section 3 (1) (x) of the Act of 1989 and the statement of PW-1 and PW-2, it can be said that a gross error has been committed by the trial Court in punishing the appellant for the aforesaid offence. As per language of Section 3 (1) (x) of the Act of 1989 and the statement of PW-1 and PW-2, it can be said that a gross error has been committed by the trial Court in punishing the appellant for the aforesaid offence. Hence, the appellant may be acquitted from the charges levelled against him. 7. Learned Public Prosecutor vehemently opposed the argument advanced by learned counsel for the appellant and submits that the finding given by the trial Court for offence under Section 3 (1) (x) of the Act of 1989 does not suffer from any perversity or illegality, there is jurisdiction left with the trial Court to punish the accused, if lesser offence is made out from the evidence adduced by the prosecution, therefore, although the appellant has been acquitted from the charge levelled against him for offence under Section 147-302 and 149 I.P.C. and from the charge of offence under Section 3 (ii) (v) of the Act of 1989 but as per statement of prosecution witnesses PW-1 and PW-2, the trial Court has rightly arrived at with the finding that the offence under Section 3 (1) (x) of the Act of 1989 is made out. 8. After hearing learned counsel for the parties, I have perused the entire record of the case. Admittedly, for the charges framed against the appellant and other accused persons, they have been acquitted by the trial Court but appellant has been convicted for offence under Section 3 (1) (x) of the Act of 1989 and the finding for offence above has been given by the trial Court on the basis of prosecution evidence whereby the charge under Section 3 (1) (x) of the Act of 1989 is made out. I have also perused the statement of PW-1 and PW-2 as well as Section 3 (1) (x) of the Act of 1989. Section 3 (1) (x) of the Act of 1989 is as follows:- "Section 3 (1) (x):- intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view." 9. Section 3 (1) (x) of the Act of 1989 is as follows:- "Section 3 (1) (x):- intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view." 9. Upon perusal of aforesaid Section, it is apparent that offence is punishable if any person intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view but upon perusal of statement of PW-1 Mukunlal and PW-2 Deep Singh, it emerges that conversation was made in the house of Mukan Lal and not at public place, that too, not in front of Bali Bai but before the complainant Mukan Lal, therefore, in my opinion, the finding given by the trial Court for the aforesaid offence is totally perverse and contrary to the material available on record. More so, the trial Court wrongly applied the ingredients of Section 3 (1) (x) of the Act of 1989 to reach upon the conclusion that offence is made out against the appellant under Section 3 (1) (x) of the Act of 1989. Therefore, after carefully reading of Section 3 (1) (x) of the Act of 1989 and statement of PW-1 Mukanlal and PW-2 Deep Singh, this Court is of the opinion that there is gross error and perversity in the finding given by the trial Court for convicting the appellant for the offence under Section 3 (1) (x) of the Act of 1989. Both the witnesses are interested witnesses because PW-1 Bal Mukund @ Mukan Lal is husband and PW-2 Deep Singh is Sarpanch. 10. In view of above, this criminal appeal is hereby allowed. Consequently, the impugned judgment dated 20.12.1993 passed by Special Judge, SC/ST (Prevention of Attrocity cases), Pratapgarh District Chittorgarh in Special Sessions Case No.68/93 is hereby quashed and set aside. The appellant is already on bail, therefore, his bail bonds are hereby discharged.Appeal allowed. *******