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2013 DIGILAW 125 (MP)

Harlal v. State Of M. P.

2013-01-24

J.K.MAHESHWARI

body2013
JUDGMENT : This appeal is directed against the judgment of conviction dated 23-4-1997 passed in Sessions Trial No. 6/93 by the Second Additional Sessions Judge, Neemuch whereby the appellants were held guilty for the charge under section 147 of Indian Penal Code and also for the charge under section 3(1)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'Prevention of Atrocities Act') and sentenced to undergo one year RI with fine Rs. 1000/- and six months RI with fine Rs. 1000/-, in default three months and one month additional RI for each charges respectively, and both the sentences were directed to run concurrently. 2. The prosecution story as alleged is that on 9-1-1991 at about 3.00 P.M. the incident has taken place in village Guthlai. It was alleged that complainant-Shankar ploughing the disputed fields since last 10-12 years though mortgaged with the accused persons. On the date of incident, he was grazing the cattle along with his sons, namely, Bagdiram and Shivnarain. At that time, accused Mohan asked to leave possession and come out from the field purchased by them. On being said by complainant that the fields were merely mortgaged and they are in possession, then all the accused persons hurled abuses for taking possession and assaulted by means of lathi thereby the complainant and other persons received injuries whereupon the offence under sections 147, 148, 323, 341 and 325 of Indian Penal Code and section 3(1)(v) of the Prevention of Atrocities Act was registered. 3. On filing charge-sheet before the Chief Judicial Magistrate it was committed to the Court of Session. The charges were framed for the offence under sections 147, 148, 323, 325 and 341 of Indian Penal Code as well as section 3(1)(v) of the Prevention of Atrocities Act. The accused persons have abjured their guilt and took a defence of false implication with a view to create pressure and to restrain them from cultivation of land. The trial Court recorded the finding proving the charge under section 3(1)(v) of the Prevention of Atrocities Act because complainant-Shankarlal in his statement described himself to be of sub-caste 'Jatia' which falls in 'Jatav' caste, and no cross-examination has been made however considering the uncontroverted testimony, held that the complainant belong to the Scheduled Caste community. The trial Court recorded the finding proving the charge under section 3(1)(v) of the Prevention of Atrocities Act because complainant-Shankarlal in his statement described himself to be of sub-caste 'Jatia' which falls in 'Jatav' caste, and no cross-examination has been made however considering the uncontroverted testimony, held that the complainant belong to the Scheduled Caste community. It has further been held that the accused persons were trying to wrongfully dispossess the complainant interfering with the enjoyment of the right of use over the land, therefore the charge under section 3(1)(v) of the Prevention of Atrocities Act was found proved. Similarly, as per the evidence brought on record it was observed that the accused persons have tried for rioting by constituting unlawful assembly in prosecution of the common object, however they were found guilty of the said charge, however held guilty for the said charges also. It is made clear here that the charges framed under sections 148, 323, 325 and 341 of Indian Penal Code were not found proved however for the said charges accused persons were acquitted. 4. Shri Vivek Singh with Shri K. K. Gupta, learned counsel representing the appellants has assailed the finding of conviction for the charge under section 147 of Indian Penal Code and submitted that without having the assistance of any substantive charge to commit the offence finding of conviction cannot be recorded. In the present case, the charges under sections 323, 325 and 341 of Indian Penal Code have not been found proved though the charge of section 147 was with the aid of sections 323 and 325 of Indian Penal Code, however merely for rioting, the accused persons cannot be convicted under section 147 of Indian Penal Code. So far as the conviction under section 3(1)(v) of the Prevention of Atrocities Act is concerned, it is submitted by him that the prosecution by unimpeachable evidence has failed to prove that the complainant belongs to scheduled caste community, however mere testimony of the complainant is not sufficient to prove them the members of scheduled caste community. In support of such contention, reliance has been placed on a judgment of the Bombay High Court in the case of Ashok K. Chintawar vs. State of Maharashtra, 2006 Cri.LJ. In support of such contention, reliance has been placed on a judgment of the Bombay High Court in the case of Ashok K. Chintawar vs. State of Maharashtra, 2006 Cri.LJ. 2234 and urged that in absence of certificate of a scheduled caste to which complainant belongs, the conviction cannot be allowed to stand, therefore, prayed that the impugned Judgment may be set aside, allowing this appeal. 5. Per contra Shri Manish Joshi, learned Panel Lawyer appearing on behalf of the respondent/State contends that as per the statement of Shankar Lal (PW-1), it is clear that he is of 'Jatia' sub-caste which falls within 'Jatav' caste and no effective cross-examination has been made by the defence on the said testimony, however relying upon such testimony the conviction has rightly been directed for the charge under section 3(1)(v) of the Prevention of Atrocities Act while for offence under section 147 of Indian Penal Code, it is submitted that after appreciation of evidence to prove the said charge has rightly been recorded, however this Court may look into the matter and pass appropriate order. 6. After hearing learned counsel appearing on behalf of the parties, first of all the issue with respect to proving of the charge under section 147 of Indian Penal Code is required to be dealt with section 147 of Indian Penal Code specifies the punishment for rioting. The rioting has been defined under section 146 whereby it is clear that whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the common object of such assembly then every member is guilty of the offence of rioting. As per the prosecution, it is alleged that in furtherance to the common object, accused persons reached on the field and asked to deliver the possession of the land and assaulted to the complainant side by means of lathi, kicks and fists. It is true that charge under sections 323 and 325 framed against the appellants were not found proved in absence of cogent evidence but by the presence of the appellants causing unlawful assembly has been fully established by the statement of Shankarlal (PW-1), Bagdiram (PW-2), Ramesh alias Rameshwar (PW-3) along with lathi and they reached on the field and asked from complainant to deliver possession. Thus ingredients of rioting specified under section 146 making unlawful assembly by five or more persons has been fully established from the evidence. In such circumstances, trial Court has not committed any error to prove the charge under section 147 of Indian Penal Code against the appellants. 7. Now it is to be examined that to prove the charge under section 3(1)(v) of the Prevention of Atrocities Act, the sufficient material is available on record or not. In this context the definition of scheduled caste and scheduled tribe enumerated under section 2(1)(c) of the Act requires consideration, however it is reproduced as under :- 2. Definition. - (l) In this Act unless the context otherwise requires, - (c) "Scheduled Castes and Scheduled Tribes" shall have the meanings assigned to them respectively under clause (24) and clause (25) of Article 366 of the Constitution. 8. The provision of section 3(1)(v) of the Act is also required to be seen which is reproduced as under :- 3. Punishments for offences of atrocities. - (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, - (v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water. 9. In view of the foregoing facts, it is apparent that if a person of a scheduled caste or scheduled tribe falls under clauses (24) and (25) of Article 366 of the Constitution of India and has been wrongfully dispossessed from his land or premises or interfered with the enjoyment of his rights over the land, premises or water, by the persons not being the member of the scheduled caste or scheduled tribe shall be deemed to have committed the offence to prove the said charge. Clauses (24) and (25) of Article 366 specifies the definition of scheduled caste and scheduled tribe which are reproduced as under :- "366. Definitions. Clauses (24) and (25) of Article 366 specifies the definition of scheduled caste and scheduled tribe which are reproduced as under :- "366. Definitions. - In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say - (24) "Scheduled Castes" means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution; (25) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution." 10. In view of the foregoing, it is clear that such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Articles 341 and 342 be called as scheduled castes or scheduled tribes for the purpose of Constitution of India. Article 341 makes it clear that the President with respect to any State or Union territory and where it is a State after consultation with the Governor by public notification specify the castes, races or tribes or parts of or groups within castes, races or tribes shall be called to be the scheduled castes or scheduled tribes in relation to that State or Union territory as the case may be. In the said context, it is required to be seen that the prosecution has established a case that the complainant belongs to a particular caste or parts of groups or races within the caste which falls within the notified scheduled castes or scheduled tribes to prove the charge under section 3(1)(v) of the Prevention of Atrocities Act at home. In this respect, after going through the record it can safely be observed that the prosecution has not submitted any caste certificate to prove that complainant belongs to the scheduled caste community. As per the statement of Shankar Lal (PW-1) and Bagdi Ram (PW-2) and the investigating officer, it is nowhere described that the complainant is of 'Jatia' sub-caste which falls within 'Jatav' caste notified by the Presidential notification. In the present case, only evidence is of the complainant indicating that he is of 'Jatia' sub-caste which is in 'Jutav' caste is on record. In the present case, only evidence is of the complainant indicating that he is of 'Jatia' sub-caste which is in 'Jutav' caste is on record. It can safely be observed that while putting a defence by the accused under section 313 of Criminal Procedure Code, they had denied the said fact on having no knowledge and the allegation of hurled abuse is incorrect. In view of the foregoing discussion and the evidence brought in the present case, it can safely be held that merely saying by the complainant to state that he belongs to Jatia sub-caste is not enough, it is required to be proved by the prosecution by the cogent and unimpeachable evidence that the complainant falls within the castes, races or tribes or parts of or groups within such castes, races or tribes which has been notified as Scheduled Castes or Scheduled Tribes. In absence thereof, a caste certificate issued by competent authority ought to be produced by the prosecution discharging such burden, therefore the offence as alleged under section 3(1)(v) of the SC/ST Act has not been made out. In this regard it can safely be observed that while specifying the offences under sub-section (i) to (xvi) of section 3 of the Act, it is clear that different act indicating commission of offence has been described and in every sub-section it has been made clear that the action relates to atrocities of a member not being a scheduled castes or scheduled tribes with the member of the scheduled castes and scheduled tribes is punishable. In such circumstances, it is incumbent upon the prosecution to prove that the complainant belongs to scheduled caste or scheduled tribe community and the member not being scheduled caste or scheduled tribe committed any of the offence specified in section 3(1) to (xvii) of the Act. In such circumstances, it can be observed that filing of caste certificate is sine qua non, or the legal or cogent oral unimpeachable evidence specifying the said ingredients ought to be produced to prove the offences of Atrocities Act. My view fortifies, from the judgment of this Court in the case of Bharat Singh vs. State of M. P. reported in 2006(4) MPLJ 171 . Para 4 of the said judgment is relevant which is reproduced as under :- "4. My view fortifies, from the judgment of this Court in the case of Bharat Singh vs. State of M. P. reported in 2006(4) MPLJ 171 . Para 4 of the said judgment is relevant which is reproduced as under :- "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 (PW-1) Rameshwar belonged to the Scheduled Caste or Scheduled Tribe community. In the Court statement Rameshwer (PW-1) has deposed that he belongs to BALAI caste but nowhere 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 (PW-1) and Sobalsingh (PW-2) 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." 11. In the case of Hukum Singh vs. State of M. P., 2003 (2) MPWN 79 , it has been held that the victim must belong either to a scheduled caste or scheduled tribe ought to be established by unimpeachable evidence. On failing to prove by the prosecution, the said charge cannot be found established. In the said context, the judgment of the Bombay High Court in this case Ashok K. Chintawar (supra) is also relevant. In para 6 of the said judgment, the Court has observed as under :- 6. For this purpose the learned counsel for the appellant relied on a judgment of this Court in Ashabai Ganeshrao vs. State of Mah. reported at 1999(2) Mh.L.J. 36 . In that case too the complainant's statement that he belonged to Matang community had not been challenged. Yet the Court held that the prosecution ought to have brought on record caste certificate of the complainant. reported at 1999(2) Mh.L.J. 36 . In that case too the complainant's statement that he belonged to Matang community had not been challenged. Yet the Court held that the prosecution ought to have brought on record caste certificate of the complainant. In the instant case, the accused had specifically denied that the complainant belonged to Madia Tribe and had specially alleged that the complainant belonged to Gowari caste. In view of this, since it was incumbent on the prosecution to establish that the complainant belonged to Scheduled Tribe by unimpeachable evidence, which the prosecution failed to do the conviction under section 3(1)(xi) of the Atrocities Act cannot be sustained." 12. Recently this Court in the case of Tulsiram vs. State of Madhya Pradesh reported in 2012 C.LR. (M.P.) 765 has held that the victim ought to have prove her caste by producing the caste certificate, mere oral evidence is not sufficient to assume that her caste covered under the Act. Similarly, Chhattisgarh High Court in a recent judgment in the case of Asharaf Khan vs. State of Madhya Pradesh, reported in 2013 Cri.L.J. (C.G.) 76 has observed that filing and proving the caste certificate is a sine qua non to prove the offence under the Act. 13. In view of the foregoing legal position, and looking to the prosecution evidence so brought on record, this Court is having no hesitation to hold that the statement of complainant is that sufficient to prove that he belongs to the scheduled caste community and the atrocities regarding offence under section 3(1)(v) of the Prevention of Atrocities Act has been committed with him. It is to be held that mere oral evidence that appellants belong to 'Jatia' sub-caste, which is in the 'Jatav' caste is not enough. It is required to be proved that 'Jatia' caste falls within the castes, races or parts of or groups within the castes specified in the Presidential notification issued under Article 341 of the Constitution of India for the purpose of State or Union Territory as the case may be. In the present case prosecution has not filed any caste certificate issued by the competent authority proving the fact that the complainant belongs to sub-caste Jatia which falls within the Jatav caste notified by the Presidential notification. In the present case prosecution has not filed any caste certificate issued by the competent authority proving the fact that the complainant belongs to sub-caste Jatia which falls within the Jatav caste notified by the Presidential notification. Prosecution has also not brought unimpeachable, cogent, oral evidence of the Investigating Officer to prove the fact that the Jatia sub-caste falls within the caste Jatav, which is notified as a Scheduled Caste for the purpose of State or Union Territory. In absence of the aforesaid legal evidence charge under section 3(1)(v) of Prevention of Atrocities Act is not found proved, even on having the evidence of reaching the appellants on spot and by using hurled abuse for delivery of possession to the complainant. Thus, for the charge under section 3(1)(v) of Prevention of Atrocities Act, the appellants are acquitted. 14. Accordingly the appeal filed by the appellants is hereby allowed in part. The appellants are acquitted for the charges under section 3(1)(v) of Prevention of Atrocities Act and for the charge under section 147 of Indian Penal Code, the finding of conviction is hereby maintained. On the point of sentence, it is seen from the record that all the appellants have undergone the sentence for six days and the sentence under section 147 of Indian Penal Code is not mandatory. Considering the aforesaid, sentence already undergone, by the appellants is sufficient. Thus, the bail bonds of the appellants shall stand discharged.