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Madhya Pradesh High Court · body

2015 DIGILAW 275 (MP)

Prahlad v. State of M. P.

2015-03-09

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The appellants have preferred the present appeal being aggrieved with the judgement dated 23.12.1999 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Narsinghpur in Special Case No.35/1999 whereby each of the appellant has been convicted of offence under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act (hereinafter referred to as "Special Act") and Sections 323,342 and 147 of IPC and sentenced for six months - RI with fine of Rs.500/-, six months - RI, four months - RI and six months. All the sentences were directed to run concurrently. 2. The prosecution's case, in short, is that on 23.8.1998 complainant Lakhan Singh (PW-1) went to a Paan shop of the appellant No.7 Mulam. Incidentally he touched the plate of Paan (betel leaf), and therefore the appellant No.7 shouted at him because the complainant being a scheduled caste member touched the plate of Paan. Thereafter on 24.8.1998 the appellant No.7 called a Panchayat at Panchayat Bhawan Belkhedi. Complainant Lakhan Singh along with his companions Atari @ Puran (PW-6), Arjun Singh (PW-5), Kumer Singh (PW-4) and Bhikam @ Bhola (PW-3) went in the Panchayat. In Panchayat the appellants abused complainant Lakhan Singh with the words dependent upon the caste of the complainant. All the appellants assaulted him by kicks and fists. The appellants also assaulted Atari @ Puran, Arjun Singh, Kumer Singh and Bhikam @ Bhola. The victims had been confined in the Panchayat Bhawan by the appellant Prahalad. Kotwar Bhikam Singh (DW-1) had informed to ASI Ummed Singh Rajput (PW-12) of Police Station Themi, who went to the spot and released the victims. A Dehati Nalishi (Ex.P-1) was recorded and the victims were sent for their medico legal examination. Dr. B.K.Saxena (PW-7) had examined the victims Lakhan Singh, Atari @ Puran, Arjun Singh and Kumer Singh at District Hospital Narsinghpur and gave his respective reports Ex.P-4 to P-7. He found simple injuries to these persons, whereas Dr. Alok Kumar Shrivastava (PW-11) examined the victim Bhikam and gave his report Ex.P- 10. After due investigation, a charge sheet was filed before the Special Judge. 3. The appellants abjured their guilt. They took a plea that it was not a case of untouchability. The complainant Lakhan Singh and his companions were jobless persons, who were often taking Paan and tea etc. from the various vendors without any payment. After due investigation, a charge sheet was filed before the Special Judge. 3. The appellants abjured their guilt. They took a plea that it was not a case of untouchability. The complainant Lakhan Singh and his companions were jobless persons, who were often taking Paan and tea etc. from the various vendors without any payment. The appellant Mulam demanded the price of Paan, then complainant Lakhan Singh threw the entire showcase of Paan on earth and caused damage. In the Panchayat the complainant etc. were advised to live in the township in a proper manner, but they started scuffling and shouting. None of the appellants assaulted the complainant and his companions. In defence Bhikam Singh (DW-1) was examined. 4. After considering the evidence adduced by the parties, the Special Judge has convicted and sentenced the appellants as mentioned above. 5. I have heard the learned counsel for the parties at length. 6. After considering the submissions made by the learned counsel for the parties and going through the evidence adduced by the parties, it would be proper to consider the overt-act of the appellants one by one. It is alleged by the witnesses Lakhan Singh (PW-1), Kumer Singh (PW-4), Arjun Singh (PW-5), Atari @ Puran (PW- 6) and Halke Singh (PW-10) that after the incident took place at Panchayat, appellant Prahalad Singh confined these four persons inside the Panchayat Bhawan and locked on the door. However, Hiralal (PW-2) and Suresh Kumar (PW-8) have turned hostile. They did not state about the act of wrongful confinement. Punabai (PW-9) was not at all eye-witness. She has stated about the entire story on the basis of information received from her son Santosh, whereas Santosh was not examined. The witnesses Lakhan Singh, Atari & Puran, Kumer Singh etc. have stated that it was the appellant Prahalad himself who called the police, but if the statements of ASI Ummed Singh Rajput (PW-12) and Bhikam Singh (DW-1) are examined, then it would be apparent that Ummed Singh Rajput reached the spot on the information given by Bhikam Singh, who was the Kotwar of the Village. Ummed Singh Rajput who supported the prosecution story, did not state that he opened the lock of Panchayat Bhawan or released the complainant and his companions. If the appellant Prahalad had confined the victims in the Panchayat Bhawan, the trial Court would have convicted only the appellant Prahalad for that offence. Ummed Singh Rajput who supported the prosecution story, did not state that he opened the lock of Panchayat Bhawan or released the complainant and his companions. If the appellant Prahalad had confined the victims in the Panchayat Bhawan, the trial Court would have convicted only the appellant Prahalad for that offence. The Special Judge has convicted all of the appellants for the offence punishable under Section 342 of IPC. However, looking to the evidence of ASI Ummed Singh Rajput and Kotwar Bhikam Singh, it appears that the witnesses have stated a falsehood that they had been confined in Panchayat Bhawan. If they would have been confined, then certainly the rescuing officer must have mentioned that fact in the memo prepared by him or he could say orally that he rescued the victims from the Panchayat Bhawan. Under these circumstances, the prosecution has failed to prove that any of the appellant had confined the victims and committed a crime under Section 342 of IPC. 7. So far as the offence under Section 3(1)(x) of the Special Act is concerned, the insult of concerned victim may be considered in two parts. Firstly, for the incident which took place at the Paan shop of the appellant Mulam and secondly the insult caused in the Panchayat. So far as the first incident is concerned, Lakhan Singh (PW-1) has stated that he touched the plate of Paan, and therefore the appellant Mulam shouted upon him as he being a scheduled caste member, was not permitted to touch the Paan plate. Witnesses Arjun Singh, Kumer Singh, Atari @ Puran and Halke have claimed that they were also present at the time of first incident, however it would be apparent from the FIR Ex.P-1 and the case diary statements of these witnesses that except Lakhan Singh, no one was present at the spot of first day's incident and Lakhan Singh had informed all his companions about the incident. According to witness Lakhan Singh, the incident which took place on the first day was between Lakhan Singh and appellant Mulam and no other appellant was present at the time of first incident. Hence for the first incident, except the appellant Mulam, the remaining appellants could not be convicted of offence under Section3(1)(x) of the Special Act and the Special Judge has committed an error in convicting all the appellants for the aforesaid offence. 8. Lakhan Singh etc. Hence for the first incident, except the appellant Mulam, the remaining appellants could not be convicted of offence under Section3(1)(x) of the Special Act and the Special Judge has committed an error in convicting all the appellants for the aforesaid offence. 8. Lakhan Singh etc. have stated that only a mistake was committed by Lakhan Singh that he touched the plate of Paan, which he was not permitted to touch due to his caste. If the cross examination of these witnesses and statements of reliable witnesses like Hiralal (PW-2) and Kotwar Bhikam Singh (DW-1) are considered, then it appears that Lakhan Singh and his companions were jobless persons. They were habitually taking Pann and tea etc. from the various shops without making any payment. It would also be apparent that on the first day of the incident, quarrel took place not only because the victim Lakhan Singh touched the plate of Paan, but also damaged the entire showcase of Paan and threw it on the ground. Lakhan Singh and his companions have accepted that they were taking Paan and tea from various shops of that locality and they never made any complaint to the police that they were not permitted to tough the plate of Paan or such things or such type of untouchability was practiced done by the shop keepers. The complainant did not lodge any FIR on 23.8.1998 with respect to the first incident. 9. Also in the Panchayat Bhawan the Sarpanch or someone else could not call a Panchayat in support of untouchability, and therefore the testimony of Hiralal and Kotwar Bhikam Singh is acceptable that the Panchayat was called because Lakhan Singh had caused damage to the Paan shop of appellant Mulam and it was not called because Lakhan Singh touched the plate of Paan in the shop of appellant Mulam. Hence if the victim Lakhan Singh damaged the showcase of Paan shop of appellant Mulam, then it cannot be said that the appellant Mulam insulted the victim Lakhan Singh on the basis of his caste. On the contrary it is established that Lakhan Singh and his companions were provided with Paan by the appellant Mulam regularly without any discrimination of the caste. Therefore, the prosecution could not prove that in the first incident appellant Mulam had caused any insult to complainant Lakhan Singh on the basis of his caste. 10. On the contrary it is established that Lakhan Singh and his companions were provided with Paan by the appellant Mulam regularly without any discrimination of the caste. Therefore, the prosecution could not prove that in the first incident appellant Mulam had caused any insult to complainant Lakhan Singh on the basis of his caste. 10. So far as the facts of second incident are concerned, it is made clear that Panchayat was not called in support of the act of untouchability done by the appellant Mulam, but it was called because Lakhan Singh who damaged the showcase of Paan of appellant Mulam so that the compensation may be settled, and therefore it cannot be said that the appellants who present in the Panchayat, were guilty of insulting caused to victim Lakhan Singh by calling of Panchayat on the basis of his caste. Similarly, it appears from the statement of these witnesses that the incident of assault took place because the complainant Lakhan Singh and his companions not only shouted in the Panchayat, but Lakhan Singh did not accept that he caused damage to the showcase of Paan of appellant Mulam, and therefore if any of the appellant has participated in the act of assault caused upon these 4-5 persons including Lakhan Singh, then that act of assault does not fall within the purview of insult of those persons on the basis of their caste. 11. Lakhan Singh, Atari @ Puran, Kumer Singh and Halke have stated solely against the appellant Prahalad that he abused the complainant Lakhan Singh with the words relating to his caste, and directed other appellants to assault. However as discussed above, the assault if caused, was due to misbehaviour of Lakhan Singh etc. in the Panchayat. In this context if the Dehati-Nalishi (FIR) Ex.P-1 is perused, then it is mentioned in it that the appellant Prahalad shouted with the words "Is gaon ke chamra garragain hein, jan se maar dalo", hence the allegation was made against only appellant Prahalad that he told such words. However, in the cross examination Bhikam @ Bhola has accepted that he was out of Panchayat Bhawan and he could not know exactly what happened in the Panchayat Bhawan. However, in the cross examination Bhikam @ Bhola has accepted that he was out of Panchayat Bhawan and he could not know exactly what happened in the Panchayat Bhawan. It is apparent from the evidence adduced by the prosecution specially given by the Kotwar Bhikam Singh and Hiralal (PW-2) that complainant Lakhan Singh and his companions were often taking Paan and tea without making any payment and Bhikam Singh (DW-1) has stated that on the date of incident Lakhan Singh etc. were making riot in the village in a drunken condition, and therefore he informed the police through Sarpanch Sakun Bai. It is strange that the Investigation Officer did not examine Sakin Bai to reach upon the correct conclusion. It is true that investigation was done by Dy.S.P. M.C.Mishra (PW-13), but he did not give any explanation as to why he did not examine the Sarpanch Sakun Bai. 12. ASI Ummed Singh Rajput was suggested that one Govind Rajput was his relative, who kidnapped a girl and the matter was raised by the appellant Prahalad, and therefore a false case has been prepared by Ummed Singh Rajput. However, Ummed Singh Rajput has denied such allegations in the cross examination, but he has accepted that when the incident of kidnapping took place, he was at Chhindwara, which indicates that Govind was his relative and appellant Prahalad had raised the case against Govind Rajput, therefore the possibility cannot be ruled out that ASI Ummed Singh Rajput was annoyed with appellant Prahalad only. The conduct of Ummed Singh Rajput as depicted in the document appears that he had recorded the ante-timed Dehati-Nalishi Ex.P-1. As per the document Ex.P-1, the incident took place at about 11:00 AM and the Dehati Nalishi was recorded at about 11:30 AM. The Police Station Themi was hardly 10 kms away and ASI Ummed Singh Rajput did not explain as to why the FIR was recorded at 6:35 PM whereas he could reach the Police Station Themi within half an hour. Hence the FIR Ex.P-11 would have been lodged at 12:30 PM in the noon, but it is recorded at 6:35 PM. Ummed Singh Rajput did not give any explanation as to why he did not register the case and kept it pending for more than six hours. Hence the FIR Ex.P-11 would have been lodged at 12:30 PM in the noon, but it is recorded at 6:35 PM. Ummed Singh Rajput did not give any explanation as to why he did not register the case and kept it pending for more than six hours. The possibility cannot be ruled out that Ummed Singh Rajput went to the spot on a phone call given by Sarpanch Sakun Bai that the victims were making riot in the township then Ummed Singh Rajput took these four persons with him and after having discussion with the alleged victims he thought to lodge the FIR against the appellants but at that time since the FIR register of his Police Station was already filled up and there was no possibility to lodge ante-timed FIR, then he had no option except to record the Dehati Nalishi by showing that it was lodged at 11:30 AM. If the FIR was lodged at 11:30 AM at the spot in the shape of Dehati-Nalishi, then the case could be registered at 12:00 or 12:30 PM on the same day, however the case was registered at 6:30 PM. Hence it would be apparent that Ummed Singh Rajput took the complainant Lakhan Singh etc. on the information given by Sarpanch Sakun Bai and after consulting he prepared a case against the appellant Prahalad and others after 4-5 hours. 13. In this context, the judgement of Hon'ble the Apex Court in the case of "Mohanlal Gangaram Gehani Vs. State of Maharashtra", (: AIR 1982 SC 839 ) may be referred in which it is held that if FIR appears to be ante-timed, then entire case turns disbelievable. In the case of "Awadesh Vs. State of Madhya Pradesh", (: AIR 1988 SC 1158 ) the Hon'ble the Apex Court has held that the Investigation Officer has recorded the Dehati Nalishi and the document sent for registration at a particular time, whereas the spot of incident was only 2 kms away from the police station, then the FIR should have been registered soon after recording of Dehati Nalishi and if it is not done, then it shall be presumed that the FIR was lodged after delay with deliberation. The facts of the present case squarely falls within the purview of law laid down by Hon'ble Apex Court in the case of Awadesh (supra). 14. The facts of the present case squarely falls within the purview of law laid down by Hon'ble Apex Court in the case of Awadesh (supra). 14. If the FIR was lodged with delay and with due deliberation between ASI Ummed Singh Rajput and Lakhan Singh etc. and it is also apparent that Ummed Singh Rajput took Lakhan Singh, Atari @ Puran, Kumer Singh, Arjun Singh etc. with him to take action against them as they made riot in the Panchayat, but after 4-5 hours he registered a case against the appellants whereas the Sarpanch Sakun Bai was not examined by the police though she was the person, who called the police. Hence it appears that a false case of offence under Section 3(1)(x) of the Special Act was registered. According to the Kotwar Bhikam Singh (DW-1), none of the appellants has abused the victim Lakhan Singh with the words relating to his caste. Also if the examination-in-chief of victim Lakhan Singh (PW-1) is minutely perused, then he did not state that the appellant Prahalad told any words relating to his caste, whereas his companions have stated that Prahalad directed the remaining appellants to assault Lakhan Singh etc. on the basis of his caste. If Prahalad would have stated such words against Lakhan Singh, then such words would have been remembered by Lakhan Singh and he must have told about such words before the trial Court. However, after his examination, the mistake committed by Lakhan Singh would have been located, and therefore witnesses Bhikam @ Bhola, Kumer Singh, Arjun Singh, Puran etc. who were examined four months after examination of Lakhan Singh have incorporated such words in their statements. Hence, it is highly doubtful that the appellant Prahalad had abused the victim Lakhan Singh with the words relating to his caste, and therefore even the appellant Prahalad could not be convicted of offence under Section 3(1)(x)of the Special Act for the second incident. The Special Judge has committed an error in convicting the appellants of offence under Section 3(1)(x) of the Special Act. 15. So far as the offences under Sections 323 and 147 of IPC are concerned, discussion of fact relating to these two offences can be done simultaneously. Lakhan Singh, Kumer Singh, Arjun Singh, Puran etc. have stated that the appellants assaulted him and they have implicated as many as 10 appellants. 15. So far as the offences under Sections 323 and 147 of IPC are concerned, discussion of fact relating to these two offences can be done simultaneously. Lakhan Singh, Kumer Singh, Arjun Singh, Puran etc. have stated that the appellants assaulted him and they have implicated as many as 10 appellants. In this context, if the medical report of Dr. B.K.Saxena (PW-7) are examined, then it would be apparent that he did not find any visible injury to Lakhan Singh, Atari @ Puran and Kumer Singh. These three victims were complaining of pain, but no visible injury was found. It is stated by these witnesses that they were assaulted by juta and chappal, but it is strange that no such injury was found to them. Dr. Saxena found that victim Atari @ Puran was complaining of pain on his right side of back and that pain was due to boil and that was not due to assault. If they would have assaulted by juta and chappal, then they should have received some visible injury. The possibility cannot be ruled out that they did not sustain the visible injury and they complained of pain to impress Dr. Saxena. However, no injury was found on victim Lakhan Singh, Puran and Kumer Singh. According to Dr. Saxena in his MLC report Ex.P-6, he found five injuries to Arjun Singh and the possibility cannot be ruled that Arjun Singh was brutally assaulted. If the statements of witnesses including Arjun Singh are considered, then the witnesses could not specifically allege against any of the appellants that any of them assaulted the victim Arjun Singh. Arjun Singh in his examination-in-chief has accepted that he did not know that who assaulted him. He sustained five injuries and if he was assaulted in the Panchayat, then certainly he should know that who caused such five injuries to him. His ignorance about such assault create a doubt that he did not receive any injury in the Panchayat, but he was beaten by the police when he was in custody for four hours before recording of FIR. When witness Arjun Singh could not establish that who assaulted him in the Panchayat, then certainly none of the appellants can be convicted of offence under Section 323 of IPC for the injuries caused to victim Arjun Singh. 16. When witness Arjun Singh could not establish that who assaulted him in the Panchayat, then certainly none of the appellants can be convicted of offence under Section 323 of IPC for the injuries caused to victim Arjun Singh. 16. Since victims Lakhan Singh, Kumer Singh and Puran did not sustain any visible injury and looking to the allegations made by them, if they were assaulted by the appellants, then they must have sustained visible injuries, therefore their testimony cannot be accepted in absence of corroboration from the medical report and it appears that none of the appellants had assaulted the victims Lakhan Singh, Puran or Kumer Singh. Since Arjun did not state about the assailant that who assaulted him and there is possibility that he was being assaulted at Police Station, a doubt is created that Arjun was not at all assaulted by the appellants and if doubt is created, then benefit of doubt is to be given to the appellants. It is also strange that if the Panchayat was called to take action against the complainant Lakhan Singh, then certainly if the appellants had thought to teach a lessen to the victims, then certainly they would have assaulted the victim Lakhan Singh in a brutal manner and such injuries would have been caused to the victim Lakhan Singh, but surprisingly Lakhan Singh received no visible injury on his body. Hence it is not proved beyond doubt that any of the appellant assaulted any of the victim including Lakhan Singh and Arjun Singh. 17. On the basis of the aforesaid discussion, it is not proved beyond doubt that any of the appellant had assaulted any of the victim, then none of them can be convicted of offence under Section 323 of IPC either directly or with the help of Section 34 or 149 of IPC. When it is not established that five or more persons have done any crime of assault etc. at a time, no unlawful assembly was constituted and no one can be convicted of offence under Section 147 of IPC. 18. On the basis of the aforesaid discussion, the trial Court has committed an error in convicting the appellants of offence under Sections 147, 323/149, 342 of IPC and Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act. Hence the appeal filed by the appellants appears to be acceptable. Consequently, it is hereby accepted. 18. On the basis of the aforesaid discussion, the trial Court has committed an error in convicting the appellants of offence under Sections 147, 323/149, 342 of IPC and Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act. Hence the appeal filed by the appellants appears to be acceptable. Consequently, it is hereby accepted. The conviction and sentence directed by the trial Court against the appellants for the aforesaid offences are hereby set aside. They are acquitted from the aforesaid charges and they would be entitled to get the fine amount back, if they have deposited the same before the trial Court. 19. At present the appellants are on bail, and their presence is no more required, therefore it is directed that their bail bonds shall stand discharged. 20. A copy of this judgment be sent to the trial Court along with its record for information and compliance.