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Madhya Pradesh High Court · body

2015 DIGILAW 245 (MP)

Padmanish v. State of M. P.

2015-02-27

N.K.GUPTA

body2015
JUDGMENT: N.K. Gupta, J. 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 18.9.2002 passed by the Special Judge under the SC/ST (Prevention of Atrocities) Act, Waraseoni in Special Case No. 4 of 2002 whereby the appellant has been convicted of offence under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act (hereinafter referred to as the "Special Act") and Section 323 of I.P.C. and sentenced to two years rigorous imprisonment with fine of Rs. 1000/- and six months rigorous imprisonment with fine of Rs. 1000/-. Both the sentences to run concurrently. Default sentence was also imposed. 2. The facts of the case in short are that the complainant Bajirao (PW1) had lodged a written report at Police Station, Waraseoni on 25.11.2001 that at about 3.30 p.m. when he was taking rest in his house situated at Ward No. 4 of Waraseoni, one of his previous student knocked the doors. In the meantime, the appellant told the previous student that he did not require any permission and it was a house of "dedh" so go inside without knocking. When the complainant Bajirao opened the door and asked that student who abused him, then he told the name of the appellant Padamnish. When Bajirao asked the appellant as to why he abused then Padamnish assaulted him by sticks for two times. The complainant has made allegations in the FIR against Gudda, brother of the appellant. A case was registered. The victim was sent for his medico legal examination to Civil Hospital, Waraseoni where he was examined by Dr. Mr. Manoj Pandey (PW4). Dr. Pandey gave a report Ex. P/6. He found three injuries to the victim. Those injuries were on left shoulder, right scapular region and on left lower back. After due investigation, a charge sheet was filed before the JMFC, Waraseoni who, committed the case to the Special Court and ultimately, it was transferred to the Special Judge, Waraseoni. 3. The appellant abjured his guilt. He took a plea that the complainant was tenant in the house of his father and he was in habit to lodge false reports. He has also submitted that the complainant did not lodge any complaint before the Tribal Welfare Department. In defence Sadiq Khan (DW1) and Principal Ramesh Thakre (DW2) were examined. 4. 3. The appellant abjured his guilt. He took a plea that the complainant was tenant in the house of his father and he was in habit to lodge false reports. He has also submitted that the complainant did not lodge any complaint before the Tribal Welfare Department. In defence Sadiq Khan (DW1) and Principal Ramesh Thakre (DW2) were examined. 4. The Special Judge after considering the evidence adduced by the parties acquitted the co-accused Guddu in toto. The appellant was also acquitted of offence under Section 452 of I.P.C. but, convicted and sentenced as mentioned above. 5. I have heard the learned counsel or the parties. 6. In the present case Bajirao (PW1), Amrapali (PW2), Santosh Kumar (PW3) and Digamber Bhoier (PW7) were examined as eye witnesses. Out of them Santosh has turned hostile whereas, Amrapali, niece of the complainant Bajirao has stated that initially she was inside the house and she could not hear the initial abuses etc. However, Digambar Bhoier has confirmed the incident as told by the complainant. However, he has accepted in para 5 and 6 of his cross examination that after the incident the complainant Bajirao went to the Central Bank and met with his friend J.S. Choure, who, was Manager in the Central Bank and thereafter, Digamber Bhoier was called in the Chamber of Shri Choure and asked whether he was the person who, went to meet Bajirao and when he accepted then he was examined by the SDOP, Waraseoni one week after such meeting. It is strange that an old student came to meet the complainant Bajirao, a teacher, then certainly he must have an introduction of that student from the very beginning. Possibility cannot be ruled out that the complainant with the help of his friend Shri Choure has created a witness in his favour. If Digamber Bhoier would have visited the house of Bajirao to meet him then certainly he would have tried to save his old teacher and his name should have been known to the complainant Bajirao from the very beginning. 7. Secondly Digamber Bhoier did not know the appellant from the very beginning and therefore, he could not know the name of the appellant. Police did not arrange any test identification parade and Digamber Bhoier told the name of the appellant in the Court without any basis. 7. Secondly Digamber Bhoier did not know the appellant from the very beginning and therefore, he could not know the name of the appellant. Police did not arrange any test identification parade and Digamber Bhoier told the name of the appellant in the Court without any basis. Hence possibility cannot be ruled out that Digamber Bhoier was duly tutored by the complainant Bajirao. A doubt is created that Digamber Bhoier was not the person who, visited the house of Bajirao and therefore, testimony of Digamber Bhoier cannot be believed. 8. The complainant Bajirao did not see the person who abused him with words on the basis of his caste. It was intimated by a student that Bajirao had stated such words. When it is doubtful that Digamber Bhoier (PW7) was the student or who indicated against the appellant then testimony of the complainant Bajirao in this context is nothing but a hearsay evidence which cannot be relied upon and therefore, the prosecution has failed to prove that the appellant was the person who, abused the victim on the basis of his caste. The trial Court has committed an error in convicting the appellant of offence under Section 3(1)(x) of the Special Act. 9. It is true that the complainant Bajirao was a tenant in the house of the father of the appellant and there was tenancy dispute between the parties. However, the testimony of Bajirao can be accepted that when the appellant was blamed that he assaulted the complainant Bajirao by a stick. The complainant has immediately lodged an FIR Ex. P/1 at Police Station, Waraseoni. His story was duly confirmed by Dr. Manoj Pandey (PW4). In his MLC report Ex. P/6, three injuries were found to the victim Bajirao which could have been caused by the appellant. Hence, it is proved beyond doubt that the appellant caused hurt to the victim Bajirao. 10. If the appellant was blamed by the complainant Bajirao that he abused the complainant Bajirao with words relating to his caste then such allegation was not so grave so that the appellant would have been provoked. Hence, it is proved beyond doubt that the appellant caused hurt to the victim Bajirao. 10. If the appellant was blamed by the complainant Bajirao that he abused the complainant Bajirao with words relating to his caste then such allegation was not so grave so that the appellant would have been provoked. After causing one assault, he could understand the result of his overt act and therefore, it is apparent that the appellant assaulted the victim Bajirao without any right of private defence or sudden or grave provocation with the knowledge of result of his overt act and therefore, it is proved beyond doubt that the appellant had voluntarily caused hurt to the complainant Bajirao. The trial Court has rightly convicted the appellant of offence under Section 323 of I.P.C. So far as the sentence is concerned, it appears that the appellant was the first offender at that time and was falsely blamed that he abused the complainant with words relating to his caste. He has faced the trial and present appeal for last 13 years. Under such circumstances, it would be appropriate that he be not sent to the jail for offence under Section323 of I.P.C. He remained in the custody for a day during the trial and therefore, it would be proper to reduce the jail sentence to the period for which he remained in the custody. Since a maximum fine is imposed upon the appellant, no further enhancement can be done on the fine amount. 11. On the basis of the aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. His conviction as well as his sentence of offence under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act are hereby set aside. He is acquitted from that charge. However, conviction of offence under Section 323 of I.P.C. is maintained. His jail sentence is reduced to the period for which he remained in the custody. No change in the fine amount. The appellant shall be entitled to get the fine amount of Rs. 1000/- back for the offence under Section 3(1)(x) of the Special Act. 12. At present the appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. 13. Copy of the judgment be sent to the trial Court along with its record for information and compliance.