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2012 DIGILAW 580 (MP)

Pappu @ Narendra Kumar v. State Of M. P.

2012-06-20

U.C.MAHESHWARI

body2012
JUDGMENT : The appellants/accused have filed this appeal being aggrieved by the judgment dated 16-1-1996 passed by Special Judge (Constituted under the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, (In short 'the Act'), Panna, convicting and sentencing to each of them for the offence under section 3(1)(x) of the Act with a direction to undergo RI for 6 months with fine of Rs.1,000/- and in default of depositing the same, further three months simple imprisonment. 2. The facts giving rise to this appeal in short are that on dated 18-9-1993, at about 10.30 in the morning the complainant Mulayam Kori (PW-1) went to his field and saw that the animals of appellant No. 1 under supervision of him are grazing his crops. On asking in this regard from the appellant No. l on which, both the appellants taking the name of his caste 'Kuriya' covered under the Act abused him with filthy languages and said that their animals will do this thing. Thereafter, when he was going to village to inform the other persons in this regard then, on the way in front of the house of Lakhan Choubey, again he was intercepted and abused with filthy languages by the appellants and in continuation of it he was subjected to beating with fists and kicks by them. The witnesses Purushottam Chandpula (PW-2) and Guddu Yadav (PW-4) came there and rescued him. Subsequently, on dated 8-10-1993, a report in writing of this incident was given by him to the Police Station Harijan Kalyan Thana, Panna, on which vide dated 9-10-1993 the Crime No. 25/93, was registered against the appellants for the offences of sections 341, 294, 506, 323/34 of Indian Penal Code and section 3(1)(x) of the Act. Prior to registration of the offence, the complainant Mulayam was sent to hospital on 8-10-1993 where after his medical examination the MLC report Ex.P./10 was prepared. On advising the X-ray of some injuries, the same was carried out in which no bony injury was found. After holding the investigation, the appellants were charge-sheeted for the offence under sections 341, 294, 506, 323/34 of Indian Penal Code and section 3(1) (x) of the Act. 3. On evaluation of the charge-sheet, the charge of section 3(1) (x) of the Act was framed against the appellants. They abjured the guilt on which, the trial was held. After holding the investigation, the appellants were charge-sheeted for the offence under sections 341, 294, 506, 323/34 of Indian Penal Code and section 3(1) (x) of the Act. 3. On evaluation of the charge-sheet, the charge of section 3(1) (x) of the Act was framed against the appellants. They abjured the guilt on which, the trial was held. After recording the evidence on appreciation of the same, the appellants were held guilty for the abovementioned offence and punished with the sentence as mentioned above. On which, the appellants have come to this Court with this appeal. 4. Shri Surendra Singh, learned Senior Advocate after taking me through the record of the trial Court along with the impugned judgment argued that on proper appreciation of the available evidence, the appellants ought to have been acquitted by the trial Court, but under the wrong premises they have been convicted. In continuation by referring the deposition of Dr. G. P. Singh (PW-7), he said that according to this witness, the medical examination of the complainant was carried out on 8-10-1993 before registration of the offence and the MLC report (Ex.P.10) was prepared. According to such MLC, four contusions were found on the person of the complainant. Out of them, two contusions were found of bluish red colour and as per opinion of the Doctor, the stated injuries were sustained by the victim within 48 hours from the time of his medical examination. In the light of this fact if the case is examined then as per case of the prosecution the alleged incident was happened on dated 18-9-1993 and the MLC was prepared on 8-10-1993 just after near about 20 days, thus the alleged injuries could not be connected with the alleged incident and in such premises, the case of the prosecution is apparently on false pretext. He further said that the original First Information Report given by the complainant in writing to the Police on 8-10-1993, has neither been proved nor marked the exhibit on record. In the lack of proving the original FIR mere on the basis of the report of registration of offence, the appellants could not have been convicted. He further argued that the caste of the complainant has not been proved by any admissible evidence or by examining the Tahsildar, from whom the alleged Certificate (Ex.P.9) was obtained by the investigation agency. In the lack of proving the original FIR mere on the basis of the report of registration of offence, the appellants could not have been convicted. He further argued that the caste of the complainant has not been proved by any admissible evidence or by examining the Tahsildar, from whom the alleged Certificate (Ex.P.9) was obtained by the investigation agency. Accordingly, the prosecution has also failed to prove the caste of the complainant covered with the Act. He further said that in any case, keeping in view the previous enmity factors between the parties if the case is examined, then it is apparent from the record that the deposition of the complainant Mulayam Kori (PW-1) with respect of the aforesaid offence of section 3(1)(x) of the Act, is not supported by the other witnesses including the alleged eye witnesses Purushottam Chanpuriya (PW-2) and Guddu (PW-4). With these submissions, he prayed for extending the acquittal to the appellants by allowing this appeal. 5. On the other hand, responding the aforesaid arguments Shri Umesh Pandey, learned Govt. Adv. by justifying the impugned conviction and sentence of the appellants said that the same being based on proper appreciation of the evidence is in conformity with law and does not require any interference for extending the acquittal or other benefits to the appellants. He fairly conceded that the caste certificate of the complainant placed on the record has not been proved by examining the concerning Tahsildar, who issued the same with his signature and prayed for dismissal of this appeal. 6. Having heard the counsel, keeping in view their arguments, after perusing the record along with the impugned judgment, due to following reasons, I am of the considered view that the impugned conviction of the appellants is not sustainable under the law. 7. As per record, along with the charge-sheet the caste certificate of the complainant Mulayam Kori (PW-1) issued by the Tahsildar in which his case Kori and sub-caste Kabirpanthi has been stated was filed. But at trial such certificate has not been proved by examining the aforesaid Additional Tahsildar, who issued the same. The same is marked as exhibit on record by Head Constable Balwan Singh (PW-6). Mere marking the exhibit on a paper is not sufficient to hold that such document has been proved on record. But at trial such certificate has not been proved by examining the aforesaid Additional Tahsildar, who issued the same. The same is marked as exhibit on record by Head Constable Balwan Singh (PW-6). Mere marking the exhibit on a paper is not sufficient to hold that such document has been proved on record. A document should be proved by the relevant witnesses and in the lack of it, such document could not be deemed to be proved. So, in such circumstances, it is held that the certificate regarding caste of the complainant has not been proved on record, Pursuant to it, in the lack of cogent and admissible evidence showing the caste of the complainant, it could not be deemed that the caste of the complainant covered under the Act, has been proved by the prosecution. 8. True it is, on the question of the caste, the complainant Mulayam has not been properly cross-examined on behalf of the appellants, but on account of such lacunae the prosecution could not be benefited. As per settled proposition of law the prosecution is duty bound to prove all material facts of the case by cogent and admissible evidence and as per aforesaid discussions the prosecution has failed to prove the caste of the complainant whether he is covered under the Act or not. Therefore, only on this technical ground, the appellants deserve for acquittal from the aforesaid charge. 9. Apart the above, in view the other arguments of the Senior Counsel on examining the case, it is apparent fact on record that the original FIR the report in writing was neither produced nor proved on the record. The MLC report of the complainant was also prepared on 8-10-1993, near about after twenty days from the date of alleged incident and the crime was registered on 9-10-1993. In such circumstances, the story put forth by the prosecution becomes suspicious. 10. It is also apparent on record that on the basis of some report in writing dated 8-10-1993, the complainant was sent to hospital where on the same day his MLC report was prepared and thereafter, on 9-10-1993, the crime was registered. As per MLC report, the alleged injuries sustained by the complainant was found to be caused within 48 hours from the time of medical examination on 8-10-1993. As per MLC report, the alleged injuries sustained by the complainant was found to be caused within 48 hours from the time of medical examination on 8-10-1993. In such premises, in the lack of proving such report in writing given by the complainant on record, the MLC report (Ex.P./10) would not have been connected with the present matter and in such premises, there is no option with the Court except to hold that the case of prosecution being suspicious on the facts against the appellants, the impugned conviction of them could not be sustained at this stage. So, in such premises also, the appellants deserve for extending the acquittal in the matter. 11. Besides the aforesaid, on examining the case further from the evidence, it is apparent that on account of grazing the cattle of the appellant No. 1 on the field of the complainant there was previous enmity between them and in view of such enmity factor unless the story put forth by the complainant is supported by any of the Independent witnesses, the appellants could not be convicted in the matter as laid down by the Apex Court in the matter of Bir Singh and others vs. State of Uttar Pradesh, reported in AIR 1978 SC 59 . 12. The witness Purushottam Chandpuria (PW-2) and Guddu (PW-4) were cited by the prosecution as eye witnesses, but on recording the depositions said Guddu (PW-4) turned hostile and did not state anything against the appellants incriminating them with the alleged offence while, Purushottam Chandpuria (PW-2), had not stated anything to show that any of the appellants had abused the complainant with intention to humiliate him on account of his caste or otherwise. So, the story put forth by Mulayam (PW-1) has not been supported by any of the aforesaid independent witnesses. So, in such circumstances also, the appellants deserve for extending the acquittal. 13. In view of the aforesaid, this appeal is allowed and the impugned judgment of conviction and sentence is hereby set aside and the appellants are acquitted from the aforesaid charge of section 3(1)(x) of the Act. The bail bonds of the appellants are hereby discharged. The amount of fine, if deposited, then the same be refunded to the appellants after proper verification. 14. Appeal is allowed.