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2012 DIGILAW 504 (MP)

Vanshi v. State of M. P.

2012-05-08

RAKESH SAKSENA

body2012
JUDGMENT 1. Appellants have filed this appeal against the judgment dated 6.7.1999, passed by Special Additional Sessions Judge, Tikamgarh in Special Case No. 284/1997, convicting them under section 447 of the Indian Penal Code and section 3(1)(v) of the SC/ST (Prevention of Atrocities) Act (for short ‘the Act’) and sentencing them to pay fine of Rs. 500 - Rs. 500 and rigorous imprisonment for 1 ½ years-1 ½ years with fine of Rs. 3000/-Rs. 3000/-, on each count respectively. 2. In short, the prosecution case is that Police Station, Baldevgarh registered a case against appellants/accused persons under sections 447, 504 and 294 of the Indian Penal Code and section 3(1)(v) of the Act on the complaint made by Jaggu Ahirwar that accused persons grabbed his land which was allotted to him by Revenue Authorities. When he resisted his dispossession, accused persons abused and intimidated him. 3. After investigation, charge sheet was filed and the case was taken up for trial. Learned Special Judge relying on the evidence of complainant Jaggu (PW1), his wife Janki Bai (PW2), Kashi Prasad (PW3) and Brijnandan Mishra (PW4) held the appellants guilty under section 447 of the Indian Penal Code and section 3(1)(v) of the Act. 4. Learned counsel for the appellants submits that the learned Special Judge committed error in holding the appellants guilty of the offence under section 3(1)(v) of the Act because it was not proved by legal evidence that complainant Jaggu belonged to Scheduled Caste. Even if it was not contended by accused persons in the trial Court that complainant, who was ‘Ahirwar’, was not a member of Scheduled Caste, it cannot be presumed, in the absence of any positive evidence, that complainant belonged to Scheduled Caste or Scheduled Tribe. Since, it has not been established by the evidence, therefore, the conviction of appellants under the provisions of the Act is illegal and unwarranted. On the other hand, learned counsel for the State submits that it is well known that complainant who was ‘Ahirwar’ by caste was a member of Scheduled Caste. He, however, concedes that no evidence was adduced in that regard in the Court. 5. Learned counsel for the appellants placed reliance on the decisions rendered by this Court in Bharat Singh Vs. State of M.P.- 2006 (4) M.P.L.J. 171 and Shankarlal Vs. State of M.P.- 2005(1) M.P.L.J. 449 . He, however, concedes that no evidence was adduced in that regard in the Court. 5. Learned counsel for the appellants placed reliance on the decisions rendered by this Court in Bharat Singh Vs. State of M.P.- 2006 (4) M.P.L.J. 171 and Shankarlal Vs. State of M.P.- 2005(1) M.P.L.J. 449 . In case of Bharat Singh (supra) this Court observed: “4. After hearing the learned counsel for the parties and perusing the entire record, this Court is of the considered view that the conviction of the appellants is not sustainable because the prosecution has failed to establish by adducing cogent and reliable evidence that the complainant (PW1) Rameshwar belonged to the Scheduled Caste or Scheduled Tribe community. In the Court statement Rameshwar (PW1) has deposed that he belongs to BALAI caste but no-where he has stated that his caste falls within the category of Scheduled Caste or Scheduled Tribe. None of the prosecution witnesses has stated so though the appellants have admitted that the complainant belong to BALAI community but that itself is not sufficient to establish that the complainant belonged to the Scheduled Caste Community. Learned trial Court, without any evidence on record, has held in para 8 of the judgment that the complainant Rameshwar (PW1) and Sobalsingh (PW2) belong to the Scheduled Caste Community. The prosecution has not filed any caste certificate issued by the duly competent authority to prove that the caste of the complainant Rameshwar falls within the category of Scheduled Caste. Filing of caste certificate is sine-qua-non. This Court has examined this issue in detail and held so in the case of Bhagwansingh Vs. State of M.P., Cr. Appeal No. 1396/1988. The learned trial Court in its judgment has not decided this issue in the light of the definition of Scheduled Caste and Scheduled Tribe defined under section 2 sub-section (1)(c) of the Act which reads thus: “Scheduled Caste and Scheduled Tribes” shall have the meaning assigned to them respectively under Clause (24) and Clause (25) of the Article 366 of the Constitution.” 6. Similar was the situation in the case of Shankarlal (supra). This Court observed that in order to establish the charge it is essential to prove that the prosecutrix belongs to Scheduled Caste or Scheduled Tribe community and criminal force was used on her by a person who is not a member of Scheduled Caste or Scheduled Tribe community. Similar was the situation in the case of Shankarlal (supra). This Court observed that in order to establish the charge it is essential to prove that the prosecutrix belongs to Scheduled Caste or Scheduled Tribe community and criminal force was used on her by a person who is not a member of Scheduled Caste or Scheduled Tribe community. Since no evidence was led that the caste of the prosecutrix was included in the list of Scheduled Caste or Scheduled Tribe-as being one of the essential ingredients, this fact was required to be proved beyond any reasonable doubt by the prosecution, therefore, the conviction was to be set aside. 7. On examining the evidence of complainant Jaggu (PW1) and Janki Bai (PW2), it is seen that though they stated themselves to be of ‘Ahirwar’ caste, but they did not say or establish that they belonged to Scheduled Caste. According to Jaggu (PW1), accused persons did not permit him to go on his land despite he got his land demarcated. He had sown ‘Tili Crops’ on the said land. Similar was the evidence of Janki Bai (PW2). All other witnesses including the Investigating Officer B.N.Dohre (PW6) though stated that complainant Jaggu was ‘Ahirwar’, but none of them stated that ‘Ahirwars’ were included in the list of Scheduled Caste. Thus, it was not established by the evidence on record that complainant Jaggu belonged to or was a member of Scheduled Caste. For bringing home the charge under section 3(1)(v)of the Act,it is essential that it should be proved that the victim/complainant belonged to Scheduled Caste or Scheduled Tribe and the offender belonged to upper caste. 8. After evaluating the evidence on record, I am of the opinion that the conviction of appellants under section 3(1)(v) of the Act and the sentence awarded to them thereunder deserves to be set aside. However, from the same evidence, I find the conviction of appellants under section 447 of the Indian Penal Code justified. 9. Accordingly, the conviction of appellants under section 3(1)(v) of the Act and the sentence awarded thereunder is set aside. The conviction of appellants under section 447 of the Indian Penal Code and the sentence of fine of Rs. 500/- to each of them is affirmed. 10. Appeal partly allowed.