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Madhya Pradesh High Court · body

2016 DIGILAW 699 (MP)

Lakhanlal v. State Of M. P.

2016-08-16

S.K.PALO

body2016
JUDGMENT : This appeal under section 374 of the Criminal Procedure Code has been preferred by the appellants challenging the judgment dated 9th November, 1998 passed by Sessions Judge and Special Judge under SC ST (POA) Act, 1989 (for brevity Act, 1989) in Special Case No. 79/96 whereby the appellants have been convicted for offence under section 3(1)(x) of SC ST (POA) Act and sentenced to six months R.I. and for offence under section 323 sentenced to fine of Rs.200/- only. 2. Prosecution story in brief is that, the complainant Ramsiya (PW 2) was the Assistant Teacher at Primary Government School, Badrakha. At about 5:00 p.m. when he was sitting outside the school along with Kamta Prasad (PW 3), appellant Lakhan Lal and his brother appellant Jagdish came there and abused him by obscene words, uttering his caste name. When Ramsiya stopped them, accused/appellants slapped him. When Kamta Prasad intervened, accused/appellants threatened the complainant of his life. On his report (Ex. P/2) lodged at police station Parwalia. After completion of investigation, charge-sheet has been filed. 3. Learned Special Court (under the Act, 1989) framed charges for offence under section 3(1)(x) of Act, 1989 and under sections, 294, 323, 506 (part 2) of Indian Penal Code. The accused abjured guilt and pleaded innocence. It is not disputed that the complainant is the Assistant Teacher in the school. 4. On behalf of the appellants, it is argued that the appellants are innocent and they have falsely been implicated. The learned trial Court has not appreciated the evidence in the proper perspective. 5. Learned Panel Lawyer for the State opposed the contentions of the appellants and making reference to the incriminating pieces of evidence on record submitted that the conviction was well merited and the impugned judgment does not warrant interference. 6. It would be appropriate to mention here that the appellants have been acquitted for the offences under sections 294 and 506 (part 2), Indian Penal Code. The appeal is, therefore, with regard to section 3(1)(x) of the Act, 1989 and section 323 of Indian Penal Code. 7. On perusal of the record, it is found that the complainant Ramsiya (PW 2) has stated that accused Ramlakhan came to the school at 5’O clock in the evening when he was sitting outside the school along with Kamta Prasad (PW 3). He abused him and on his protest slapped him. 7. On perusal of the record, it is found that the complainant Ramsiya (PW 2) has stated that accused Ramlakhan came to the school at 5’O clock in the evening when he was sitting outside the school along with Kamta Prasad (PW 3). He abused him and on his protest slapped him. At the same time, younger brother of the appellants Jagdish also came there. He also abused the complainant Ramsiya and slapped him. When Kamta Prasad intervened, the accused persons abused the complainant by his caste name. Kamta Prasad (PW 3) also stated that both Lakhanlal and Jagdish came one after the another. They abused him and when they were stopped, they slapped the complainant Ramsiya. 8. In this context when we peruse the medical evidence adduced in this case, it is found that the statement of these witnesses do not found support by the medical evidence. According to Dr. Yashwant Kale (PW 1), he examined the complainant Ramsiya on 5-8-1996. It is to be noted that the incident took place on 4-8-1996. The medical officer has examined him and prepared M.L.C. report Ex. P/1 on 5-8-1996. He observed four injuries :— (i) Haematoma over left temporal region (ii) Contusion over left cheek (iii) Contusion over left scapula and (iv) Contusion over left thigh All these injuries have been inflicted by hard and blunt object within 24 hours of the examination. 9. The complainant (PW 2) has only said that the accused persons slapped once to him. But the medical report shows that there are four injuries. The nature and extent of injury does not tally with the statement of the complainant Ramsiya (PW 2) and Kamta Prasad (PW 3). 10. It is also observed that Vimal Dubey, the Sub-Inspector of Police (PW 4) has lodged the report on the following day i.e. 5-8-1996. Distance from the place of incident to the police station is hardly 3 kms. The complainant has not given any explanation for the delay in lodging the report. 11. G. S. Kushwaha, the Inspector (PW 7) has prepared the spot map and recorded the statement of witnesses. The record does not show that the investigation was conducted by a police officer not below the rank of D.S.P. as mandated in Rule 7 of the M.P. SC ST (POA) Rules 1995, framed under the Act, 1989. 11. G. S. Kushwaha, the Inspector (PW 7) has prepared the spot map and recorded the statement of witnesses. The record does not show that the investigation was conducted by a police officer not below the rank of D.S.P. as mandated in Rule 7 of the M.P. SC ST (POA) Rules 1995, framed under the Act, 1989. The complainant has stated that he is member of “Jatav” caste which belongs to the Scheduled Tribe Category. However, no document has been produced in this regard. 12. In the case of Bharat Singh and another vs. State of M.P reported as 2007 (1) M.P.H.T 451 , this Court has propounded that :— “(i) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989), Section 3(1)(x) — Penal Code (45 of 1860), Section 294 — Accused persons allegedly threw stones and hurled abuses at the complainants Rameshwar and Sobal Singh in the name of their caste; namely, Balai-Chamar — No cogent and reliable evidence was adduced by the prosecution that the complainants belonged to Scheduled Caste or Scheduled Tribe community — Rameshwar (P.W.1) stated in his Court evidence that he belonged to Balai caste, but nowhere he stated that his caste fell within the category of Scheduled Caste or Scheduled Tribe —The accused/appellants admitted that the complainants belong to Balai community but this was not sufficient to establish that the complainants belonged to Scheduled Caste or Scheduled Tribe community — Held, caste certificate issued by Competent Authority that complainants belonged to Scheduled Caste had not been filed — Filing of caste certificate was sine qua non. (ii) Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, Rule 7 — Investigation was done by SHO, who was not Deputy Superintendent of Police — The requirement of Rule 7 is not only that the offence under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police, but also that he shall be specially appointed by the State Govt. or Director General of Police or Superintendent of Police or Competent Authority for the purposes of investigating the case — The investigation in the present case was made in non-compliance of Rule 7. or Director General of Police or Superintendent of Police or Competent Authority for the purposes of investigating the case — The investigation in the present case was made in non-compliance of Rule 7. (iii) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1955, Rule 7 — Prevention of Corruption Act (2 of 1947), Section 5 — There is conflict of opinion in the decisions of the High Courts as to the effect of non-compliance of Rule 7 on the finding, sentence or order of Criminal Court — It is, however, clear that the provisions of Rule 7 of the Rules and of section 5 of the Prevention of Corruption Act, 1947 are not in pari materia — Not only this, prejudice was caused to the accused/appellants in this case because investigation was done in violation of Rule 7 by a Police Officer inferior to Deputy Superintendent of Police and by one who had not been duly appointed by Superintendent of Police — Conviction and sentence of the appellants held to be, therefore, not sustainable.” 13. In the result on the basis of the aforementioned legal and factual analysis this Court is of the view that the provision and sentence of the appellants passed by the learned trial Court under section 3(1)(x) of the Act, 1989 and 323 of Indian Penal Code is not sustainable and is, therefore, set aside. 14. The appellants are acquitted from the offences punishable under section 3(1)(x) of the Act, 1989 and section 323 of Indian Penal Code. The appellants are on bail. Their bail bonds are discharged. 15. Copy of the judgment be sent to the learned trial Court.