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2013 DIGILAW 114 (CHH)

MOHAN LAL AGRAWAL v. STATE OF C. G.

2013-03-21

RANGNATH CHANDRAKAR

body2013
JUDGMENT 1. The appellant has preferred this appeal against the judgment of conviction and order of sentence dated 21-12-2004 passed by the Special Judge (Atrocities), Jashpur, in Special Criminal Case No. 26 of 2003, whereby the accused/appellant has been convicted under Section 3 (i) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Act') and sentenced to undergo R.I. for six months and to pay fine of Rs.l 000/- in default of payment of fine to undergo further R.I. for 1½ months. 2. The case of the prosecution, in brief, is that complainant Shanti Bai (PW/2) is a member of Satnami, Scheduled Caste. Sudharshan (PW/4) is husband of Shanti Bai (PW/2) and Balichand (PW/3) is their son. On 18-5-2001 Sudharshan (PW/4) was going to the shop of appellant Mohan for purchasing household goods and when he reached the shop of appellant, appellant told his servants to push him in Mahuva godown, kill him by cutting pieces and throw him in a forest by keeping in a Mahuva bag. Accused/appellant also abused Sudharshan by caste. When Sudharshan did not turn up from the shop of the appellant, then his wife Shanti Bai (PW/2) along with her son namely Balichand (PW/3) went to the shop of appellant and enquired about her husband. At that time, appellant was not present in his shop, but his servants informed her about the incident. She came back to her house and on the next day she again went to the shop of the appellant and asked the appellant about her husband saying that the servants of the appellant informed her that appellant had tried to get detained her husband in godown and requested him to release her husband, then appellant abused her saying " HkkslM+h] pejhu " and pushed her as a result of which she fell down, then her son Balichand (PW/3) woke up her mother. Accused appellant also told her that go and know about your husband in Panchayat. 3. Complainant Shanti Bai (PW/2) along with her son Balichand (PW/3) went to Police Station Bagbahar, Dist. Jashpur and lodged first information vide Ex.P/1 on the basis of which offence was registered against the appellant. During the course of investigation, spot map was prepared vide Ex.P/4, accused was arrested vide Ex.P/5. 4. 3. Complainant Shanti Bai (PW/2) along with her son Balichand (PW/3) went to Police Station Bagbahar, Dist. Jashpur and lodged first information vide Ex.P/1 on the basis of which offence was registered against the appellant. During the course of investigation, spot map was prepared vide Ex.P/4, accused was arrested vide Ex.P/5. 4. After completion of investigation, charge sheet was filed in the court of Chief Judicial Magistrate, Jashpur, in turn committed the case to the court of Sessions from where a case was received on transfer for trial by Special Judge who framed charge punishable under Section 3(i)(x) of the Act. The accused abjured the guilt and pleaded his innocence and false implication. The learned Special Judge after due trial convicted and sentenced the accused/appellant as mentioned in para 1 of the judgment. 5. Learned counsel appearing for the appellant submits that the learned trial Court has erred in appreciating the evidence in its proper legal perspective. The conviction recorded and sentence awarded by the learned Special Judge are contrary to the facts available on record. The prosecution has miserably failed to prove the ingredients of the offence under Section 3(i)(x) of the Act. There is no material on record to establish that the appellant did the act with a view to humiliate the complainant. The Special Judge committed a grave error in not considering the fact that no documentary evidence regarding the caste of the complainant has been produced. Learned counsel further submits that the conclusions arrived at by the special Court are based on presumptions and surmises, therefore, the impugned conviction and sentence passed against the appellants is bad in law and the same deserves to be set aside and the appellants be acquitted of the charges. Learned counsel for the appellant has placed reliance on the decisions of CG High Court in the case of Chhedilal Vs. State of M.P. (Now CG) 2012(2) CGLJ 6 , Mafidar Vs. State of MP. (Now CG) 2011 (2) CGLJ 212 , Horilal and another Vs. State of MP 2011(4) CGLJ 51 , Sharad Kachhi Vs. State of MP 2005 (4) MPHT 30 , Shankar Singh Vs. State of MP MPWN 2005 (II) 21. 6. Per contra, learned counsel appearing for the respondent/State argued the case in support of the impugned order of the Special court. 7. State of MP 2011(4) CGLJ 51 , Sharad Kachhi Vs. State of MP 2005 (4) MPHT 30 , Shankar Singh Vs. State of MP MPWN 2005 (II) 21. 6. Per contra, learned counsel appearing for the respondent/State argued the case in support of the impugned order of the Special court. 7. Having heard learned counsel for the parties, I have perused the records of the special Court and also the impugned judgment. 8. The prosecution in order to prove the guilt against the accused/appellant, examined as many as 5 witnesses. 9. PW/1 Shantibai, complainant has deposed in her evidence that she is Satnami by caste. She knew the appellant Mohanlal. Her husband Sudharshan went to the shop of accused/appellant for purchasing household goods at evening, but he did not turn up from his shop, then she along with her son namely Balichand (PW/3) went to the shop of appellant and enquired about her husband. At that time, appellant was not present in his shop, but his servants informed her about the incident. She came back to her house and on the next day she again went to the shop of the appellant and asked him about her husband saying that the servants of the appellant informed her that appellant had tried to get detained her husband in godown and requested him to release her husband, then appellant abused her saying " HkkslM+h] pejhu " and pushed her as a result of which she fell down, then her son Balichand (PW/3) woke up his mother. She again told him that the cycle and chappals of her husband were lying there, then the appellant again abused her saying " dpj dpj er dj HkkslM+h] pejhu vkSj ckj ckj vk,xh rks rsjs nkar dks rksM+ nwaxk vkSj cksyk fd tkdj iapk;r esa tkdj irk yxk ". On hearing the abuse she felt sad very much. She along with her son Balichand (PW/3) went to Police Station and lodged first information report. She denied the suggestion that she along with her son had not gone to the shop of appellant. She further denied the suggestion that appellant has not abused her by caste. This witness was cross examined at length but nothing appeared contrary to her statements made either before the Court or before the Police. She denied the suggestion that she along with her son had not gone to the shop of appellant. She further denied the suggestion that appellant has not abused her by caste. This witness was cross examined at length but nothing appeared contrary to her statements made either before the Court or before the Police. Thus, this witness corroborated her written report EX.P/1 and remained consistent and unrebutted on material point that she was humiliated by the accused/appellant in a public place. The evidence of this witness is duly corroborated by the evidence of Balichand (PW/3). 10. (PW/3) Balichand also supported the case of prosecution and deposed in a similar fashion. This witness has stated in his cross-examination that Police has not taken his statement vide Ex.D/3. 11. Sudharshan (PW/4) has deposed that he knew the accused/appellant. On the date of incident at about 5-6 p.m., he went to the shop of appellant by cycle for purchasing rice, then appellant Mohan abused him and directed his servants to push him in a godown. He came back to his house after nine days of the incident. 12. From perusal of the evidence of complainant Shanti Bai (PW/2) and Balichand (PW/3), it is clear that both the witnesses remained consistent and unrebutted on the point that the complainant was threatened and humiliated at the shop of the appellant by using filthy abuses. Thus, their statements cannot be held unreliable. 13. On reappraisal of the evidence, it is clear that almost all the prosecution witnesses have supported the case of prosecution that the complainant was humiliated and threatened by the appellant by using filthy abuses at the shop of appellant which is a public place. 14. Hon'ble the Supreme Court in the matter of Swarna Singh and others Vs. State through Standing counsel and another (2008) 8 SCC 435, has observed as under : "24. In our opinion, calling a member of the Scheduled Caste "chamar" with intent to insult or humiliate him in a place within public view is certainly an offence under Section 3(1)(x) of the Act. Whether there was intent to insult or humiliate by using the word "chamar" will of course depend on the context in which it was used. 30. In our opinion, calling a member of the Scheduled Caste "chamar" with intent to insult or humiliate him in a place within public view is certainly an offence under Section 3(1)(x) of the Act. Whether there was intent to insult or humiliate by using the word "chamar" will of course depend on the context in which it was used. 30. In this connection it may be mentioned that in America to use the word "nigger" today for an African-American is regarded as highly offensive and is totally unacceptable, even if it was acceptable 50 years ago. In our opinion, even if the word "chamar" was not regarded offensive at one time in our country, today it is certainly a highly offensive word when used in a derogatory sense to insult and humiliate a person. Hence, it should never be used with that intent. The use of the word "chamar" will certainly attract Section 3(1)(x) of the Act, if from the context it appears that it was used in a derogatory sense to insult or humiliate a member of SC/ST". 15. So far as the case in hand is concerned, there is consistent evidence on record regarding intentional, insult or intimidation with intent to humiliate a member of Scheduled caste. Calling a person by the caste-name "Chamar" with intention of insulting or intimidating or humiliating will also constitute the offence rendered under the section. More so, there is ample evidence on record that the appellant not only used the word "Chamarin" but also abused and threatened the complainant by using other filthy abuses at his shop which is apparently a public place where many persons used to come for purchasing. Thus, after appreciating the evidence on record, it is clear that the case is well made out against the accused/appellant. There is consistent evidence against the appellant about the intentional insult or intimidation with intent to humiliate a member of Scheduled caste in a public place. 16. So far as the arguments advanced by counsel for the appellant regarding proving the caste certificate is concerned, on perusal of the evidence and the record, it is very clear that the appellant has not disputed the caste of the complainant nor any question was put during the cross-examination to rebut her caste. Thus, the appellant was aware of the caste of the complainant. Thus, the appellant was aware of the caste of the complainant. The case laws cited by learned counsel for the appellant are distinguishable from the facts of the present case. 17. Having considered all the facts and circumstances of the case and in the light of principles of law laid down in Swarna Singh (2008) 8 SCC 435 (supra), I am of the considered opinion that the Special Judge has rightly convicted and sentenced the accused/appellant under Section 3(i)(x) of the Act and no interference is called for by this court in the impugned judgment of the Special Judge. 18. For the foregoing, the appeal deserves to be dismissed and is accordingly dismissed. Appeal Dismissed.