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2012 DIGILAW 60 (MP)

Pappu @ Bharatsingh v. State of M. P.

2012-01-13

A.K.SHRIVASTAVA, S.R.WAGHMARE

body2012
JUDGMENT A.K. Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 29.1.2010 passed by learned Special Judge [the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,], Shajapur in Special Criminal Case No. 145/2008 convicting appellant under sections 452, 326 IPC read with section 32 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "the SC/St Act") and thereby sentencing him to suffer imprisonment as mentioned in the impugned judgment including the life imprisonment this appeal has been filed by the appellant under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief the case of the prosecution is that injured-complainant Ashabai lodged first information report in the police station that she is the resident of village Khedawad and used to earn livelihood by dancing and singing. She also lived with appellant as his wife for nine months. Last year, during the festival of Holi since appellant quarreled with her, she came back to the house of her brothers and is living with them. Appellant Pappu Singh was insisting her to accompany him but she was not willing to go. On this point, appellant came to the house of her brother where she was living with them and firstly he tried to kill her by Katta fire but any how she was saved and did not receive any injury. A case of that incident is still pending. On 15.10.2008 in the night when she along with her children Vishal and Mayuri, as well as along with nieces Neha, Minakshi and nephew Vikas, was sleeping at the terrace, at that juncture, appellant Pappu came at that place and kept his leg over her chest and thereafter sat over her and by a sharp-edged knife chopped her nose. When she screamed and tried to rescue herself, she also received some injury on thumb of her left hand. After chopping her nose, appellant jumped from the roof and fled from the place of occurrence. On being screamed by her, his brother Bhagwansingh and sister-in-law arrived at the spot. The children who were lying with her have also seen the incident. The appellant by chopping her nose has disfigured her face. 3. After chopping her nose, appellant jumped from the roof and fled from the place of occurrence. On being screamed by her, his brother Bhagwansingh and sister-in-law arrived at the spot. The children who were lying with her have also seen the incident. The appellant by chopping her nose has disfigured her face. 3. On the basis of report, a case was registered under section 326, 452 IPC and also under section 3 (2) (v) of the SC/ST Act. 4. After completion of the investigation a charge-sheet was submitted in the committal Court which committed the case to the Special Judge. 5. The learned Special Judge framed the charges punishable under sections 452, 326 of IPC and also under section 3 (2) (v) of SC/ST Act, which the appellant denied and requested for the trial. 6. The prosecution thereafter examined its witnesses and also proved the documents. The defence of the appellant is of false implication and the same defence he set forth in his statement recorded under section 313 CrPC. 7. The learned Trial Judge on the basis of the evidence collected by the prosecution found the charges to be proved and eventually convicted the appellant for the offence punishable under sections 452, 326 IPC read with section 3 (2) (v) of the SC/ST Act by passing the impugned judgment of conviction and order of sentence. 8. In this manner this appeal has been filed by the appellant. 9. The contention of the learned counsel for the appellant is that in the present case the evidence of the prosecution is not reliable. Further it has been contended by him that since nowhere it has been proved that the injured complainant is the member of the Scheduled Caste and the Scheduled Tribe community and further that appellant is not the member of that community, hence his conviction under section 3 (2) (v) of the SC/ST Act cannot be sustained. It has also been put forth by him that since the evidence is not cogent and therefore, the charges are not proved and therefore appellant be acquitted from all the charges. 10. On the other hand, learned Public Prosecutor argued in support of the impugned judgment and prayed that this appeal be dismissed. 11. Having heared learned counsel for the parties we are of the considered view that this appeal deserves to be allowed in part. 12. 10. On the other hand, learned Public Prosecutor argued in support of the impugned judgment and prayed that this appeal be dismissed. 11. Having heared learned counsel for the parties we are of the considered view that this appeal deserves to be allowed in part. 12. In the present case, the prosecution has examined Ashabai (PW-I), who is an injured witness, her brother Bhagwansingh (PW-2) and Minakshi (PW-3) in order to prove that appellant by knife chopped her nose. 13. On going through the testimony of injured Ashabai (PW-I) we find that she resided with appellant as his wife for nine months, however, on account of his misbehaviour as well as he happened to quarrel with her and was also causing marpeet to her, after leaving him she started living in village Khedawad along with her brothers. Specifically this witness is saying that eight days prior to the Diwali festival when she was sleeping at their roof, the appellant came during the odd hours in the night and chopped her nose. She has further stated that her daughter and other children were also sleeping nearby her and have seen the incident. In para-3 of her statement she has further stated that when she tried to rescue herself, her thumb of left hand also received cut injury. This witness thereafter raised hue and cry, as a result of which Bhagwansingh and Pramilabai arrived at the spot. The children also woke up and they also saw the incident. According to her, the appellant was forcibly trying to keep her and although she was declined to live with him, therefore, earlier to the present incident he also tried to kill her by a gunshot but anyhow she was escaped and thereafter the appellant has committed this incident. This witness was cross-examined at length but she remained vivid during her cross-examination and nothing has been carved out to disbelieve her. 14. The testimony of the victim is corroborated by the testimony of her brother Bhagwansingh (PW-2) who was sleeping in his room and he woke up on hearing the shriek of her sister, and when he opened the door he found that appellant jumped from the terrace and was running away from his house. Thereafter, this witness went to her sister and she narrated the entire incident to him. This witness also noticed that the nose of her sister was chopped. 15. Thereafter, this witness went to her sister and she narrated the entire incident to him. This witness also noticed that the nose of her sister was chopped. 15. Similarly, the other witness Minakshi (PW-3) has also deposed that on hearing the shriek of her aunt she woke up and found that appellant was chopping her nose. 16. The witnesses Bhagwansingh (PW-2) and Minakshi (PW-3) were also cross-examined at length by defence counsel but nothing carved out in order to disbelieve them. The testimony of the witnesses is also corroborated by the evidence of Dr. R.K. Saxena (PW-6) who found the following injuries on the person of Ashabai (PW-I); they are; (i) incised wound 2.5x1 cm over nose while thickness central to left nostril; (ii) incised wound 1 1/4 x l ½ x ½ cm over upper lip; and (iii) incised wound 1 ½ cm x ½ cm X 1/4 cm over left thumb According to the doctor, injury No. 1 was grievous in nature and other two injuries were simple in nature. 17. Another important witness is Kiran Lashkarkar (PW-4) who is the Investigating Officer and on lodging of the report he came to the spot and also seized the chopped piece of the part of the nose of the injured. 18. Hence, from the statement of the injured Ashabai (PW-l) and other witnesses it is proved that appellant has caused injury to Ashabai and by chopping her nose a part of it was severe and her face was also disfigured. The testimony of the victim and other witnesses is also corroborated by medical evidence and hence we are of the view that learned Trial Court did not commit any error in holding that appellants has committed the offence under section 326 IPC. Since the appellant has committed this offence inside the house of the injured he has also committed the offence under section 452 IPC and he has been rightly convicted by learned Trial Court for this offence. 19. We have also seen the sentence part of the impugned judgment passed against the appellant. The appellant has been sentenced to 10 years' R.I. under section 326 IPC apart from fine while a sentence of 3 years' R.I. has been awarded to the appellant under section 452 IPC apart from the fine. 19. We have also seen the sentence part of the impugned judgment passed against the appellant. The appellant has been sentenced to 10 years' R.I. under section 326 IPC apart from fine while a sentence of 3 years' R.I. has been awarded to the appellant under section 452 IPC apart from the fine. Since the nose of victim was chopped and her face has been disfigured, the sentence awarded to him has rightly been awarded. 20. However, according to us, the charge under section 3 (2) (v) of the SC/ST Act has not been proved by the prosecution. In order to constitute the offence under this provision it is imperative on the part of the prosecution to prove that the victim is the member of the Scheduled Caste and Scheduled Tribe community and further the accused is not the member of either Scheduled Caste or the Scheduled Tribe community. The prosecution is also obliged to prove that the accused has committed the offence punishable for imprisonment for a term of 10 years or more against a person or property on the ground that such person is a member of the Scheduled Caste and Scheduled Tribe or such property belongs to such member. The injured complainant Ashabai (PW-1) has not at all stated that she is the member of either Scheduled Caste or Scheduled Tribe community although she has stated that by caste she is Bhanumati. However, she has not at all stated that Bhanumati caste belongs to scheduled caste or scheduled tribe. No document has been proved in order to indicate that the persons belonging to Bhanumati caste are of scheduled tribe or scheduled caste community. Even if for the sake of argument it is hereby held that the members of Bhanumati caste are the members of the scheduled caste/scheduled tribe community, since it has not at all been proved by the prosecution that appellant is not the member of the either scheduled caste or scheduled tribe community and further there is no evidence on record that because the victim Ashabai (PW-1) being the member of the scheduled caste/scheduled tribe community her nose was chopped, since she belongs to that community we are of the considered opinion that the offence under section 3 (2) (v) of the SC/ST Act is not proved. Hence, conviction of appellant under this provision is hereby set aside and he is acquitted from the said charge. 21. Resultantly, this appeal succeeds in part. The impugned judgment passed by learned Trial Court convicting the appellant under section 3 (2) (v) of the SC/ST Act is hereby set aside and he is acquitted from the said charge However, his conviction and sentence awarded to him under section 452, 326 IPC is hereby affirmed. Asif Warsi for appellant; B.L. Yadav, Public Prosecutor for respondent/State.