Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 1598 (RAJ)

Moti Ram v. State

2022-05-17

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT : PUSHPENDRA SINGH BHATI, J. 1. This criminal appeal under Section 374(2) IPC has been preferred against the judgment dated 22.05.1993 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases (District and Sessions Judge), Balotra, District Barmer in Sessions Case No. 9/92, whereby the accused-appellant was convicted for the offences under Sections 3(1)(x) of the SC/ST (Prevention of Atrocities) Act and Sections 341 and 352 IPC; for the offence under Section 3(1)(x) of the SC/ST Act, the accused-appellant was ordered to undergo six months rigorous imprisonment and a fine of Rs. 500/- in default of payment of which, he was to undergo further two months rigorous imprisonment; for the offence under Section 352 IPC, he was ordered to undergo one month’s simple imprisonment and a fine of Rs. 200/- in default of payment of which, he was to undergo further one month’s simple imprisonment and for the offence under Section 341 IPC, a fine of Rs. 100/- was imposed upon him, in default of payment of which he was to undergo additional one month’s simple imprisonment; all the sentences were ordered to run concurrently. 2. Learned counsel for the accused-appellant submits that as per the prosecution story, the alleged incident in question had occurred on 21.11.1991 at about 08:00 p.m. at Burhaan Ka Tala, when complainant-Danaram Meghwal was going from his Well (Bera) towards his house; at that time, accused-appellant Motiram b/c Jat, who was under the state of grave intoxication, came and intercepted the complainant; while asking the complainant as to from where he was coming, the accused-appellant grabbed his neck and slapped him and while doing so, the accused-appellant also abused the complainant, who belonged to the Scheduled Caste community, with caste-based abuses. 2.1 Learned counsel further submits that further, as per the prosecution story, during the course of the alleged incident, upon hearing the cries of the complainant, Asraf, Jugtaram Meghwal came to the rescue of the complanant and save him from further assault, on the part of the accused-appellant. 2.1 Learned counsel further submits that further, as per the prosecution story, during the course of the alleged incident, upon hearing the cries of the complainant, Asraf, Jugtaram Meghwal came to the rescue of the complanant and save him from further assault, on the part of the accused-appellant. 2.2 Learned counsel also submits that after the aforementioned alleged incident, a report was lodged by the complainant before the Police Station, Sedwa, whereupon a case was registered by the police and the investigation started; thereafter, the accused-appellant was arrested by the police and after investigation, the charge-sheet was filed before the learned trial court against the accused-appellant for the offences under Section 3(1)(x) of the SC/ST Act and Section 323/341 IPC; upon such charges being denied by the accused-appellant, he was made to stand the trial, and the trial accordingly commenced. 2.3 Learned counsel also submits that after conclusion of the trial, the learned trial court convicted and sentenced the accused-appellant, as above, vide the impugned judgment dated 22.05.1993; hence, the present appeal has been preferred by the accused-appellant assailing the said judgment of conviction and order of sentence. 2.4 Learned counsel for the accused-appellant harped upon the delay in lodging the FIR, as the alleged incident took place on 21.11.1991 at about 08:00 p.m. whereas the FIR in connection therewith was lodged on 22.11.1991 at 12:30 p.m. and thus, on that count alone, the version of the complainant is not only an afterthought but also concocted; this is more so when, no sufficient and satisfactory explanation was forthcoming from the side of the complainant before the learned trial court, for such delay in lodging the FIR. 2.5 Learned counsel also submits that in the statement under Section 313 Cr.P.C. the accused-appellant had taken a plea of alibi, on count of the fact that on the date of the alleged incident, he was not at all present at the place of the said incident, as he was attending the engagement ceremony of his niece (elder brother’s daughter) on 20.11.1991 in the village, and stayed thereat upto 22.11.1991; thus, as per learned counsel, there was no question of the accused-appellant being present at the spot of the alleged incident, and hence, on that count alone, the implication of the accused-appellant in this case is apparently false. As per learned counsel, the plea of alibi was also substantiated by the evidence placed on record before the learned trial court and the testimony of the key defence witnesses. 2.6 Learned counsel also harped upon the fact that at certain point of time, a theft of huge number of pipes belonging to the Water Works Department of the State, was committed at Chouhtan, wherein after investigation by the police, the present complainant-Danaram, alongwith Asraf (PW-5) and other persons were arrayed as accused; for such implication of the complainant and Asraf, they were carrying doubt in their mind, that the present accused-appellant, who at the relevant time, was the employee of the Water Works Department, must have submitted a complaint against them, on connection with the aforementioned theft of pipes. 2.6.1 Thus, as per learned counsel, under the aforesaid misconception, there occurred an animosity between the accused-appellant and the complainant and Asraf and thus, to settle the personal scores with him, the complainant has submitted the complaint in question against the accused-appellant, thereby abused the process of law; hence, the impugned judgment of conviction and order of sentence against the accused-appellant cannot be sustained in the eye of law; this is more so, when in view of the said backdrop, the testimony of the key prosecution witnesses, including Asraf (PW-5) cannot be believed, as they could not be treated as independent witnesses, rather they were interested witnesses. 2.7 Learned counsel further submits that even if the prosecution story is believed, as alleged, then also in the ordinary course, by no stretch of imagination, it cannot be presumed that while the accused-appellant allegedly was subjecting the complainant to assault and caste-based abuses, the complainant would not have resisted such an alleged illegal act of the accused-appellant; this is more so when, there is no evidence placed on record before the learned trial court, which could show any such resistance by the complainant, which cannot be believed in the facts and circumstances of the case. 2.8 Learned counsel also harped upon grave inconsistencies between the prosecution story and the statements rendered by the key prosecution witnesses i.e. eye-witnesses, namely Jugta Ram and Asraf, who as per the prosecution story, they reached the place of the alleged occurrence after ten minutes and at that time were at a distance of 100 paundas; it is highly improbable that in the dark hours of November i.e. 8 o’clock, they have seen the whole occurrence clearly, as alleged; it is also highly improbable that the alleged incident which lasted for about 10 minutes, would have not been resisted by the complainant; this is more so even the shirt of the accused-appellant, being worn by him at the time of the alleged incident, remained intact. 2.9 Thus, as per learned counsel, the aforementioned backdrop clearly reflects various inconsistencies between the prosecution case and the statements of the prosecution witnesses, including the eye-witnesses; the same thus, clearly shows that the criminal proceedings were launched against the present accused-appellant just to settle personal scores, while abusing the process of law, that too under the provisions of the SC/ST Act. 2.10 Learned counsel for the accused-appellant therefore, submits that the conviction and sentence awarded to the accused-appellant by the learned trial court vide the impugned judgment is unsustainable in the eye of law, as the same lacks, amongst others, appreciation of the evidence available on record, for the purpose of charging and convicting the accused-appellant for the offence under the SC/ST Act, in particular. 3. Learned counsel for the accused-appellant relied upon the following judgments: 3.1 Gorige Pentaiah vs. State of A.P. and Others, (2008) 12 SCC 531 wherein the Hon’ble Apex Court made the following observations: “In the instant case, the allegation of respondent No. 3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No. 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law. The question before us is - whether the case of the appellants comes under any of the categories enumerated in Bhajan Lal (supra)? Is it a case where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in entirety, do not make out a case against the accused under Sections 420, 467 and 120B IPC? For determination of the question it becomes relevant to note the nature of the offences alleged against the appellants, the ingredients of the offences and the averments made in the FIR/complaint. A three judge Bench of this Court in Inder Mohan Goswami and Another vs. State of Uttaranchal and Others, AIR 2008 SC 251 : MANU/SC/7999/2007 has examined scope and ambit of Section 482 of the Criminal Procedure Code. The court in the said case observed that inherent powers under Section 482 should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be fully justified in preventing injustice by invoking inherent powers of the court. In our considered opinion, filing of such a frivolous complaint in the instant case is a total abuse of process of law. Consequently, we set-aside the impugned judgment passed by the High Court and quash the complaint emanating from Crime No. 281 of 2004, Police Station, Uppal, Hyderabad.” 3.2 Kusum Lata vs. State and Others in Crl. In our considered opinion, filing of such a frivolous complaint in the instant case is a total abuse of process of law. Consequently, we set-aside the impugned judgment passed by the High Court and quash the complaint emanating from Crime No. 281 of 2004, Police Station, Uppal, Hyderabad.” 3.2 Kusum Lata vs. State and Others in Crl. Appeal No. 686/2012 (Delhi H.C.) decided on 03.03.2016 wherein the Hon’ble Delhi High Court observed as under: “18. The SC/ST Act was enacted as the laws like the Protection of Civil Rights Act, 1955 and provisions of the Indian Penal Code was found inadequate to arrest the commission of atrocities against members of Scheduled Castes and Scheduled Tribes. A special legislation to check and deter crimes committed by non-Scheduled Castes and Scheduled Tribe members thus became necessary. The statement of objects and reasons of the Act reads: “Despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on the mass, killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes.” 19. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on the mass, killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes.” 19. The SC/ST Act was enacted with a laudable object to protect vulnerable section of the society. Sub-Clauses (i) to (xv) of Section 3(i) of the Act enumerate various kinds of atrocities that might be perpetrated against Scheduled Castes and Scheduled Tribes, which constitute an offence. However, Sub-Clause (x) is the only clause where even offending “utterances” have been made punishable. The Legislature required ‘intention’ as an essential ingredient for the offence of Insult “intimidation” and “humiliation” of a member of the Scheduled Casts or Scheduled Tribe in any place within “public view.” Offences under the Act are quite grave and provide stringent punishments. Graver is the offence, stronger should be the proof. The interpretation which suppresses or evades the mischief and advances the object of the Act has to be adopted. Keeping this in view, looking to the aims and objects of the Act, the expression “public view” in Section 3(i)(x) of the Act has to be interpreted to mean that the public persons present, (howsoever small number it may be), should be independent and impartial and not interested in any of the parties. In other words, persons having any kind of close relationship or association with the complainant, would necessarily get excluded. I am again in agreement with the interpretation put on the expression “public view” by learned brother Mr. Justice B.A. Khan. The relevant portion of his judgment reads as under: “I accordingly hold that expression within “public view” occurring in Section 3(i)(x) of the Act means within the view which includes hearing, knowledge or accessibility also, of a group of people of the place/locality/village as distinct from few who are not private and are as good as strangers and not linked with the complainant through any close relationship or any business, commercial or any other vested interest and who are not participating members with him in any way. If such group of people comprises anyone of these, it would not satisfy the requirement of 'public view' within the meaning of the expression used.” 20. If such group of people comprises anyone of these, it would not satisfy the requirement of 'public view' within the meaning of the expression used.” 20. In the light of the above discussion, one part of the first question under reference, namely “What is the correct and real meaning of expression “public view” occurring in Section 3(i)(x) of SC/ST (POA) Act, 1989,” stands answered.” 22. In Swarn Singh and Others vs. State, 2008 (4) RCR (Crl.) 74 (SC) also it was held that for a public view some members of the public should be there and they should not be the relatives and friends of the complainant. In view of the same, the expression “public view” has to be interpreted to mean that public person present should be independent and impartial and not interested in any of the parties. It goes without saying that PW-2 Surender Singh and PW-3 Rajesh Lata are husband and sister of the complainant and, therefore, they cannot be termed to be independent and impartial. Moreover, according to Smt. Rajesh Lata she had come to the house of the complainant alongwith a friend of her father. The friend of father of the witnesses would have been an independent witness but he was not examined by the prosecution. The independent witnesses of the locality have not supported the case of prosecution and when examined by ASI Bhupender Singh during the course of his investigation, all of them stated that although a quarrel had taken place between the complainant and the accused but no caste related remarks or words were used against the complainant. That being so, learned Additional Sessions Judge rightly came to the conclusion that the prosecution had failed to prove that offence under Section 3(i) (x) of the Act was made out and the accused were entitled to benefit of doubt.” 3.3 Learned counsel also placed reliance on the judgment rendered by the Hon’ble Apex Court in Pradeep Kumar vs. State of Haryana, 2020 SCC Online P&H 671 and submits that the Hon’ble Apex Court held that when the prosecution fails to prove the essential ingredient of the offence i.e. insult should be intentional. 3.4 Learned counsel further submits that there are a catena of judgments wherein the Hon’ble Apex Court held that for an allegation under Section 3(1)(x) of the Act of 1989 must be corroborated by an independent witness, in whose presence the complainant was alleged abused. 4. On the other hand, learned Public Prosecutor, while opposing the aforesaid submissions made on behalf of the accused-appellant, submits that the inconsistencies between the statements of the prosecution witnesses (particularly eye-witnesses) and the prosecution story, as tried to be pointed out on behalf of the accused-appellant, have not been found to be proved before the learned trial court, and rightly so, particularly for invocation of the provisions of the SC/ST Act. 4.1 Learned Public Prosecutor further submits that the plea of alibi, as taken by the accused-appellant before the learned trial court, was also not found to have been proved, by placing cogent evidence in support thereof, before the learned trial court. Thus, as per learned Public Prosecutor, the learned trial court has duly appreciated the evidence placed before it as well as the overall facts and circumstances of the case, before passing the impugned judgment of conviction and sentence against the present accused-appellant, with a finding that the prosecution has been able to prove its case beyond reasonable doubt. 5. After hearing learned counsel for the parties as well as perusing the record of the case, and the judgments cited at the Bar, this Court finds that even if the delay in filing the complaint is ignored, then also, the inconsistencies as pointed out by the learned counsel for the accused-appellant, even if minor, are discernible on the face of the record. 6. This Court is also conscious of the stringent provisions as contained in the SC/ST Act and the Indian Penal Code and the legislative intent behind the said enactment. However, this Court finds that the record of the case, including the statements of the witnesses and the complainant coupled with the prosecution story, clearly speaks of contradictions between them. It is settled law that the contradictions even if minor cannot be put into action to convict and sentence any person for the concerned offence; even if there is an iota of minor consistency, the same would cast a serious doubt upon the prosecution story, and thus, the benefit thereof would certainly go in favour of the accused. 7. It is settled law that the contradictions even if minor cannot be put into action to convict and sentence any person for the concerned offence; even if there is an iota of minor consistency, the same would cast a serious doubt upon the prosecution story, and thus, the benefit thereof would certainly go in favour of the accused. 7. This Court is further conscious of the fact that the sentence awarded by the learned trial court vide the impugned judgment dated 22.05.1993 for the conviction in question is for a maximum term of six months rigorous imprisonment, as the conviction for the offences under the SC/ST Act as well as under the IPC were ordered to run concurrently; such sentence was however, suspended by this Hon’ble Court vide order dated 17.06.1993 in S.B. Criminal Misc. Bail Application No. 200/93. 8. The judgments rendered by the Hon’ble Apex Court and the Hon’ble Delhi High Court, as cited on behalf of the appellant-doctor, in Gorige Pentaiah (supra) and Kusum Lata (supra) respectively, squarely apply to the facts and circumstances of the present case. 8.1 In Gorige Pentaiah (supra) the Hon’ble Apex Court after analyzing ‘public view’ as under Section 3 (1) (x) of the SC/ST Act, held that the ingredients for the offence were not made out in the complainant of the said case and in the absence of the same, the criminal trial must not proceed. 8.2 In Kusum Lata (supra) the Hon’ble Delhi High Court also discussed ‘public view’ as under the SC/ST Act and analysed the object the said Act. 9. Thus, in the peculiar facts and circumstances of the present case, this Court finds it a fit case for acquittal of the present accused-appellant. 10. Resultantly, the present appeal is allowed. Accordingly, the conviction of the appellant as recorded vide the impugned judgment dated 22.05.1993 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases (District and Sessions Judge), Balotra, District Barmer in Sessions Case No. 9/92 is quashed and set aside. The appellant is acquitted of the charges levelled against him. The appellant is on bail; he need not surrender. His bail bonds stand discharged accordingly. All pending applications also stand disposed of. Record of the learned court below be sent back forthwith.