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Madhya Pradesh High Court · body

2015 DIGILAW 579 (MP)

Pahelwan v. State of M. P.

2015-05-12

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The appellants have preferred the present appeal being aggrieved with the judgment dated 8.5.1998 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Tikamgarh in Special Case No. 145/1997 whereby the appellants have been convicted of offence under Section 323/34 of IPC and Section3(1)(x) of SC/ST (Prevention of Atrocities) Act (hereinafter referred to as the "Special Act") and sentenced to fine of Rs. 500/- and RI for one year with fine of Rs. 1000/-. In lieu of payment of fine, default sentence was also imposed. 2. The prosecution's case, in short, is that the complainant Banshilal (PW-1), who was the Rural Agricultural Development Officer, Niwadi went to celebrate the festival of Holi at Village Rampura (Police Station Niwadi District Tikamgarh). On 20.3.1992 at about 7:00 PM when the Holi was being celebrated, the complainant Banshilal went on a platform constructed in front of house of Betali Gadariya. The appellants objected and they shouted upon the complainant that being Basore he had no status to stand on the platform. Thereafter all the four persons assaulted him by kicks and fists. On the next day at about 9:30 AM, a written report was given to the Officer of Police Station Niwadi. The victim was sent for his medico legal examination. Dr. N.D. Sharma (PW-8) examined the victim Banshilal at the Community Health Centre Niwadi and gave his report Ex. P-9. Four simple injuries were found to the victim. After due investigation, a charge sheet was filed before the JMFC Tikamgarh, who committed the case to the Special Court. 3. The appellants-accused abjured their guilt. They took a plea that they were falsely implicated in the matter. The complainant was dead drunk at the time of incident and he sustained injuries due to fall. Thereafter the complainant quarrelled with so many persons and thereafter he had lodged a false FIR against the persons with whom he had enmity. In defence Rao Raja Singh (DW-1) was examined. 4. The Special Judge after considering the evidence adduced by the parties convicted and sentenced the present appellant as mentioned above. 5. I have heard the learned counsel for the parties. 6. In defence Rao Raja Singh (DW-1) was examined. 4. The Special Judge after considering the evidence adduced by the parties convicted and sentenced the present appellant as mentioned above. 5. I have heard the learned counsel for the parties. 6. The learned counsel for the appellants has submitted that according to the Rule 7 of the SC/ST (Prevention of Atrocities) Rules, 1995, it was mandatory for the prosecution that the investigation be done by a police officer not below the rank of Dy. S.P., whereas according to the list of witnesses shown in the charge sheet, the investigation was done by a police officer having the rank of Inspector, and therefore in the light of the judgment of the Single Bench of this Court in the case of "Bharat Singh and another Vs. State of M.P." [ 2007 (1) MPHT 451 ], the appellants could not be convicted of any offence under the Special Act. 7. The contention raised by the learned counsel for the appellants is acceptable. According to the Rule 7 of the Special Rules, the investigation was to be done by a police officer not below the rank of Dy. S.P., and therefore in the light of the judgment of the Single Bench of this Court in the case of Bharat Singh (supra), the appellants cannot be convicted of any offence under the Special Act including the offence under Section 3(1)(x) of the Special Act. 8. However, if the merits of the case is considered, then it would be apparent that except the complainant Banshilal (PW-1), all the eye-witnesses namely Nandu (PW-2), Kishan (PW-3), Sitaram (PW-4), Harnarayan (PW-5), Chironjilal Kushwaha (PW-6) and Damma (PW-7) have turned hostile. Other eye-witnesses were of various castes including Kumhar, who comes in the category of Scheduled Caste, but no one supported the story as told by the complainant. Though the eye-witnesses have turned hostile, the sole testimony of the complainant can be assessed carefully. The complainant has stated about the entire story and lodged the FIR Ex. P-1, which was given in writing. According to the complainant, the incident took place with him at about 7:00 PM and he reached to the police station at 10:30 PM and the FIR was lodged thereafter. The prosecution did not prove the document by which the case was registered. P-1, which was given in writing. According to the complainant, the incident took place with him at about 7:00 PM and he reached to the police station at 10:30 PM and the FIR was lodged thereafter. The prosecution did not prove the document by which the case was registered. However, that document is annexed in "B" file of the trial Court at page 1, in which it is mentioned that the FIR was lodged on 21.3.1991 at about 9:30 AM. Though the FIR which was registered by the police was not proved by any officer, the Investigation Officer, who was present in the Court was given up by the Special Prosecutor, but if any document of the prosecution though not proved, is filed, then the prosecution cannot deny that document, and therefore if the document is in favour of the accused, then it can be read against the prosecution. If the complainant has visited the police station at 10:30 PM, then there was no problem to the police to register the case on the basis of his complaint. If the complaint Ex. P-1 lodged by the complainant is perused, then in the entire complaint he did not mention the date and time of the incident. At the end of complaint he has mentioned that the incident took place at 7:00 PM and the same is not mentioned in similar fonts and appears to an addition to the text of the complaint. Under these circumstances, the evidence of defence witness Rao Raja Singh (DW-1) can be accepted that the complainant was drunk, and therefore his FIR was not written by the police and thereafter the FIR was lodged in the morning. If the testimony of the complainant is considered, then it would be apparent that he went to the police station at 10:30 PM, then what was the reason so that his FIR was not registered till morning of the next day. No reason could be shown by the complainant to that effect. Also the Investigation Officer, who registered the FIR was given up by the prosecutor. It appears that the complainant was the Rural Agricultural Development Officer, therefore his written report was accepted and the case was registered by the police, otherwise the FIR should be lodged within one hour, and therefore the belated FIR cannot be considered as a piece of corroborative evidence. 9. It appears that the complainant was the Rural Agricultural Development Officer, therefore his written report was accepted and the case was registered by the police, otherwise the FIR should be lodged within one hour, and therefore the belated FIR cannot be considered as a piece of corroborative evidence. 9. The complainant Banshilal has accepted that the festival was performed in the groups and he was also in the group of the accused persons. If he would have stand on a platform of Betali Gadariya, then it was to be objected by Betali Gadariya and other persons of Gadariya caste, however all the alleged witnesses of various caste including the caste of Kumhar have turned hostile. Nobody supported the prosecution story. There was no enmity between the appellants and the complainant before the incident. Looking to the delay in lodging the FIR, it appears that no such incident took place. It appears that the complainant was drunk and his quarrel took place with so many persons. Under such circumstances, his testimony cannot be accepted that he was insulted on the basis of his caste or he was abused with the words relating to his caste. On the contrary, it appears that he used his caste in lodging the FIR. Under such circumstances, the testimony of the complainant cannot be accepted for the offence under Section 3(1)(x) of the Special Act. The trial Court has committed an error in convicting the appellant for the aforesaid offence. 10. So far as the assault as alleged by the complainant is concerned, it is true that the complainant was assaulted by various persons. He sustained injuries proved by Dr. N.D. Sharma (PW-8). Hence it was for the defence to prove that the complainant was so heavily drunk that he could not locate the actual culprits. If the complainant was not in a position to locate the actual culprits, then there was no enmity of the complainant proved with the appellants so that he would falsely implicate them in the matter. Under such circumstances, the testimony of the complainant Banshilal may be accepted that he was beaten by the appellants by kicks and fists. 11. The defence witness Rao Raja Singh (DW-1) took a plea that the complainant quarreled with Pahalwan etc. Under such circumstances, the testimony of the complainant Banshilal may be accepted that he was beaten by the appellants by kicks and fists. 11. The defence witness Rao Raja Singh (DW-1) took a plea that the complainant quarreled with Pahalwan etc. However, if the statement of Rao Raja Singh (DW-1) is considered, then the complainant blamed Pahalwan that as to why he did not save him with the persons, who were assaulting him. Under such circumstances, it would be apparent that the complainant was in a position to make his complaint against Pahalwan, who did not save him when the appellants were beating him. It is not stated by Rao Raja Singh (DW-1) that the appellants did not beat the complainant. 12. So far as the defence of the appellants is concerned that in celebrating of festival Holi, they were falsely implicated due to enmity, but no evidence was given by anyone that the complainant had an enmity with the appellants. Under such circumstances, when the defence witness Rao Raja Singh has proved that the complainant was conscious at the time of incident and not heavily drunk so that he could not identify the actual culprits and he told about the culprits to one Pahalwan with the allegation as to why he did not save him, and therefore it is proved beyond doubt that the appellants assaulted him causing injuries. The appellants did not take the plea of right of private defence or sudden or grave provocation. The victim sustained four injuries, whereas each of the appellant had participated in the crime. Looking to their conduct where no right of private defence was accrued and no sudden or grave provocation was given by the complainant, it would be presumed that the appellants assaulted the victim voluntarily. The trial Court has rightly convicted the appellants of offence under Section 323 of IPC. 13. So far as the sentence is concerned, the appellants are sentenced with fine for commission of offence under Section 323 of IPC and no further dilution is required in the sentence imposed by the trial Court for that offence. 14. On the basis of the aforesaid discussion, the present appeal filed by the appellants is hereby partly allowed. Their conviction and sentence of offence under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act are hereby set aside. They are acquitted from the aforesaid charges. 14. On the basis of the aforesaid discussion, the present appeal filed by the appellants is hereby partly allowed. Their conviction and sentence of offence under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act are hereby set aside. They are acquitted from the aforesaid charges. However, their conviction and sentence of offence under Section 323/34 of IPC is hereby maintained. The appellants would be entitled to get the fine amount back for the offence under Section 3(1)(x) of the Special Act if they have already deposited the same before the trial Court. 15. 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. 16. A copy of this judgment be sent to the trial Court along with its record for information and compliance.