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2023 DIGILAW 6 (CHH)

Pilla Bai, W/o. Sukhlal v. State Of Chhattisgarh

2023-01-05

NARENDRA KUMAR VYAS

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JUDGMENT : 1. The appellants have preferred the appeal against the judgment of conviction and order of sentence dated 19th March, 2003 passed by Special Judge under Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 at Bastar, District Jagdalpur in Sessions Trial No. 523/2003 whereby the appellants have been convicted under Sections 294, 323/149 of the Indian Penal Code and Section 3 (1)(x) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth “SC & St Act”) and sentenced to undergo RI for one month, u/S 294 IPC, to undergo rigorous imprisonment for six months with fine of Rs.500/-, u/S 323/149 IPC and to undergo RI for one year & six months with fine of Rs.500/-, u/S 3(1)(x) of the SC/ST Act with further default stipulations. All the sentences are directed to run concurrently. 2. Since appellant No. 1 – Pilla Bai has already expired, therefore, this criminal appeal so far relates to appellant No. 1 – Pilla Bai is concerned, stands abated. 3. Perusal of the record would go to show that on the basis of written complaint (Ex.P-10) filed by Victims namely Rupnath (PW-2) & Fulo Bai (PW-4), FIR (Ex. P-14) has been registered against the present appellants & other co-accused persons under Sections 147, 341, 323 & 294 of the IPC & Section 3 (1) (x) of the SC/ST Act, before the Police Station Bhanpuri, District Bastar. After usual investigation and after collecting material, final report for commission of offence under Sections 147, 341, 323 & 294 IPC & Section 3(1)(x) of the SC/ST Act has been submitted before the Chief Judicial Magistrate, Jagdalpur, who in turn committed the case to the Special Judge, SC/ST Act, Bastar, which was registered as Session Trial No. 523/2003. 4. In order to bring home the guilt of appellants, the prosecution has examined as many as 8 witnesses namely- D.R.S. Uike (PW/1), complainant - Rupnath.(PW/2), Chakkar (PW/3), Fulobai (PW/4), Babulal (PW/5), Dayaram Baghel (PW/6), Dr. K.S. Paikra (PW-7) & S.N. Shukla (PW-8). Statement of accused/appellants have been recorded under Section 313 Cr.P.C., in which they denied the allegation leveled against them and pleaded innocence and false implication. Apart from this, one defence witness namely Lakhmuram Kashypa (DW-1) has also been examined. K.S. Paikra (PW-7) & S.N. Shukla (PW-8). Statement of accused/appellants have been recorded under Section 313 Cr.P.C., in which they denied the allegation leveled against them and pleaded innocence and false implication. Apart from this, one defence witness namely Lakhmuram Kashypa (DW-1) has also been examined. Learned trial Court, after appreciating the evidence and material available on record, vide its judgment dated 19.03.2004 has held that appellants have committed the aforesaid offences and thereby convicted and sentenced them for the offences as mentioned in opening paragraph of the judgment. 5. Being aggrieved and dissatisfied with the aforesaid judgment of conviction & order of sentence, instant criminal appeal has been preferred by the appellants challenging the same. This court while admitting the instant appeal on 08.04.2004, has granted bail to the appellants and since then they were regularly appearing before the concerned trial Court. 6. Learned counsel for the appellants would submit that the appellants have been falsely implicated in this case, as there is some dispute between the appellants & victim on petty issues. He submits that the appellants are now the old aged persons and they are regularly appearing before the trial Court in compliance of the bail order dated 08.04.2004 and subsequently before this Court also. He would submit that the offence under Section 3(1)(x) of the SC/ST Act is not made out against the appellants, as in the instant case, caste certificate of the victims has been issued by the Sarpanch of the village, which was taken into consideration by the trial Court while convicting and sentencing the accused/appellants under Section 3(1)(x) of the SC/ST Act whereas the said certificate is of no avail to the prosecution, as it has not been issued by the competent authority in view of the judgment of Hon’ble the Supreme Court in the matter of Ku. Madhuri Patil v. Addl. Commissioner, Tribal Development, reported in AIR 1995 SC 94 wherein the competent authority for issuance of caste certificate is Sub Divisional Officer. He would also submit that even the Sarpanch, who has issued the caste certificate (Ex.P-11), has not been examined by the prosecution to prove the said caste certificate. Madhuri Patil v. Addl. Commissioner, Tribal Development, reported in AIR 1995 SC 94 wherein the competent authority for issuance of caste certificate is Sub Divisional Officer. He would also submit that even the Sarpanch, who has issued the caste certificate (Ex.P-11), has not been examined by the prosecution to prove the said caste certificate. He would further submit that so far as appellant's conviction under Sections 294 & 323 read with Section 149 of the IPC is concerned, they are not challenging the conviction of the accused/appellant and would confine their arguments to sentence part of the impugned judgment only. He would further submit that the appellant No. 2 -Janak Bai, appellant No. 3- Savitri Bai, appellant No. 4- Dharmendra, appellant No. 5- Banshilal, appellant No. 6- Tulsa Ram and appellant No. 7- Ashok Kumar were arrested on 19.08.2003 and they have been released on bail on the same day and after conviction, they remained in jail and this Court has granted bail to them on 08.04.2004, thus, the appellants remained in jail for 19 days. 7. Learned counsel for the appellants would further submit that so far as conviction of the appellants under Section 294, 323 read with 149 IPC is concerned he is not pressing the appeal on merit and would pray for reduction of jail sentence which is already undergone by the appellants. 8. Learned counsel for the appellants would submit that so far as the offence under Section 3(1)(x) of the SC/ST Act is concerned, the prosecution has failed to prove its case beyond reasonable doubt and in this regard he to referred the judgment of the Madhya Pradesh High Court in the matter of Mukesh v. State of M.P. reported in 2016 (3) MPWN 106 and would pray for allowing the appeal. 9. Learned counsel for the State would submit that caste Certificate issued by the Sarpanch is a valid document, on the basis of which, caste of the victim has been determined by the trial Court for convicting the appellant under the SC/ST Act and the caste certificate has validly been proved by prosecution, therefore, the order impugned does not suffer from any irregularly or infirmity warranting interference by this Court in the instant appeal. 10. I have heard learned counsel for the parties and perused the material available on record. 11. 10. I have heard learned counsel for the parties and perused the material available on record. 11. To prove the caste of victim – Rupnath, the prosecution has filed caste certificate (Ex.P-11) issued by the Sarpanch of Gram Pannchayat, Sonarpal, Block Bastar namely Dayaram Baghel (PW-6), who has stated in his evidence that Superintendent of Police Mr. D.R.S. Uike has visited to their village and has asked for issuance of caste certificate of victim – Rupnath, s/o Manduram, therefore, he has issued caste certificate in favour of victim – Rupnath, as he belonged to his village and he is well known to him. He also stated that no record pertaining to the caste i.e. Scheduled Caste, or Scheduled Tribe or other caste is being maintained by the Gram Panchayat, Sonarpal. 12. In view of above, this Court has to see whether caste certificate (Ex.P-11) issued by the Sarpanch is valid document to establish the caste of the victim. 13. For better understanding, the issue raised in this appeal, it is expedient for this Court to examine relevant provisions of the SC/ST Act, 1989 and the relevant provisions of Constitution of India are extracted which read as under:- “Definition.-(1) in this Act unless the context other wise requires,- (c) “Scheduled Castes and Scheduled Tribes” Shall have the meaning assigned to them respectively’ under clause (24) and clause(25) of article 366 of the constitution.” 14. The provision of of Section3(1)(v) of the Act is also required to be seen which is reproduced as under:- “3. Punishments for offences of atrocities.-(1) whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water:” 15. In view of the foregoing facts, it is apparent that if a person of a scheduled caste or scheduled tribe falls under clause (24) and (25) of Article 366 of the Constitution of India and has been wrongfully dispossessed from his land or premises or interfered with the enjoyment of his rights over the land, premises or water, by the persons not being the member of the scheduled caste or scheduled tribe shall be deemed to have committed the offence of prove the said charge. Clause (24) and (25) of Article 366 specifies the definition of scheduled caste and scheduled tribe which are reproduced as under:- 366. Definitions.- In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say- (24) “Scheduled Caste” means such Castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution; (25) “Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution; 16. From perusal of the Article 366 of the Constitution of India, it is clear that such castes, races or tribes or parts of groups will be deemed to be scheduled castes or scheduled tribes who are within such castes, races or tribes as are deemed under Article 341 and 342 of Constitution of India. The Article 341 of the Constitution of India makes it clear that the President with respect to any State or Union territory and where it is a State after consultation with the Governor by public notification specify the castes, races or tribes or parts of or groups within castes, races or tribes shall be called to be the scheduled castes or scheduled tribes in relation to that State or Union territory as the case may be. In the said context, it is required to be seen that the prosecution has to establish a case that the complainant belongs to a particular caste or parts of groups or races within the caste which falls within the notified scheduled castes or scheduled tribes to prove the charge under Section 3(1)(v) of the Prevention of Atrocities Act at home. 17. In this respect, after going through the record it can safely be observed that the prosecution has not submitted any caste certificate to prove that complainant belongs to scheduled tribe community as the investigating officer has not filed any document to prove that the complainant belongs to Gond which is scheduled tribe. The prosecution has examined Dayaram Baghel(PW06), Sarpanch who has exhibited the caste certificate of the complainant dated 02.06.2003 whereas the incident took place on 01.06.2003. The prosecution has examined Dayaram Baghel(PW06), Sarpanch who has exhibited the caste certificate of the complainant dated 02.06.2003 whereas the incident took place on 01.06.2003. It can safely be observed that while putting a defence by the accused under Section 313 of Cr.P.C. they had denied the fact that victim Roopnath, Chakkar, Phoolbai belong to scheduled tribe. They have also denied that Dayaram Baghel (PW/6) has issued caste certificate of Roopnath. Even in the complaint (Ex. P/10), the complainant Roopnath has nowhere stated that the appellants abused them knowingly that the victim belongs to schedule tribe. The victim Roopnath was examined as PW-2 but he has not stated in his court statement that the appellants knowingly abused them with their castes. It can safely be held that merely saying by the complainant that he belongs to Gond is not enough, it is required to be proved by cogent and unimpeachable evidence that the complainant falls within the castes, races or tribes or parts of groups within such castes, races or tribes which has been notified as Scheduled Castes or Scheduled Tribes. In absence thereof, a caste certificate issued by competent authority ought to be produced by the prosecution discharging such burden, therefore, the offence as alleged under Section 3(1)(v) of the SC/ST Act has not been made out. The caste certificate issued by the Sarpanch which has been issued after the date of incident on 02.06.2003 cannot be a valid document to prove the caste of the complainant. In this regard it can safely be observed that while specifying the offences under sub-Section (1) to (xvi) of Section 3 of the Act, it is clear that different act indicating commission of offence has been described and in every sub-Section it has been made clear that the offence relating to atrocities of a member whoever not being a member of a Scheduled Castes or Scheduled Tribes is punishable. In such circumstances, it is incumbent upon the prosecution to prove that the complainant belongs to Scheduled castes or Scheduled Tribes community and the member not being Scheduled caste or Scheduled Tribes committed any of the offence specified in Section 3(1)to (xvii) of the Act in such circumstances, it can be observed that filing of caste certificate is sine-qua-non, or the legal or cogent oral unimpeachable evidence specifying the said ingredients ought to be produced to prove the offences of Atrocities Act. In this regard, the Madhya Pradesh High Court in the case of Bharat Singh Vs. State of M. P. reported in 2006(4) MPLJ 174 para 4 has held as under:- “4. After hearing the learned counsel for the parties and perusing the entire record, this Court is of the considered view that the conviction of the appellants is not sustainable because the prosecution has failed to establish by adducing cogent and reliable evidence that the comlainant (PW01) Remeshwar belonged to the Scheduled Caste or Scheduled Tribe community. In the Court Statement Rameshwar (PW-1) has deposed that he belongs to BALAI caste but no-where he has stated that his caste falls within the category of scheduled caste or scheduled Tribe. None of the prosecution witnesses has stated so though the appellants have admitted that the complainant belong to BALAI Community but that itself is not sufficient to establish that the complainant belonged to the scheduled caste community. Learned trial Court, without any evidence on record, has held in para 8 of the judgment that the complainant Rameshwar (PW-1) and Sobalsingh (PW- 2) belong to the Scheduled caste community. The authority to prove that the caste of the complainant Rameshwar falls within the category of Scheduled Caste. Filing of caste certificate is sine-qua-non.” 18. In the case of Jukum Singh Vs. State of M.P. 2003(2) MPWN(79 ), it has been held that the victim must belong either to a scheduled caste or scheduled tribe ought to be established by unimpeachable evidence. On failing to prove by the prosecution, the said charge cannot be found established. In the said context, the judgment of the Bombay High Court in this case Ashok K. Chintawar Vs. State of Maharastra reported in 2006 CGLJ (2234) is also relevant. In para 6 of the said of the judgment, the court has observed as under: “6. For this purpose the learned counsel for the appellant relied on a judgment of this Court in Ashabail Ganeshrao Vs. State of Mah. Reported at MANU/MH/0505/2000: 1999(2) Mah. L. J. 36. In that case too the complainant’s Statement that he belonged to Matang Community had not been challenged. Yet the Court held that prosecution ought to have brought on record cast certificate of the complainant. State of Mah. Reported at MANU/MH/0505/2000: 1999(2) Mah. L. J. 36. In that case too the complainant’s Statement that he belonged to Matang Community had not been challenged. Yet the Court held that prosecution ought to have brought on record cast certificate of the complainant. In the instant case, the accused had specifically denied that the complainant belonged to Madia tribe and had specifically denied that the complainant belonged to Madia tribe and had specifically alleged that the complainant belonged to Gowari caste. In view of this, since it was incumbent on the prosecution to establish that the complainant belonged to Scheduled Tribe by unimpeachable evidence, which the prosecution failed to do the conviction under Section 3(1)(xi) of the Atrocities Act cannot be sustained.” 19. Madhya Pradesh High Court in the case of Tulsiram Vs. State of Madhya Pradesh reported in 2012 C.L.R.(M.P.) 765 has held that the victim ought to have proved her caste by producing the caste certificate, mere oral evidence is not sufficient ot assume that her caste covered under the act. Similarly, this Court in a recent judgment in the case of Ashraf khan Vs. State of Madhya Pradesh, reported in 2013 Cr.L.J. (CG)76 has observed that filing and proving the caste certificate is a sine-qua-non to prove the offence under the Act. 20. The Madhya Pradesh High Court again in the matter of Ashok and Others Vs. State of M. P. reported in ILR (2015) MP 2475 has held at paragraph 13 which reads as under:- 13. Similarly, when it is not proved that the offence committed by the appellants was committed due to the caste of the complainant, therefore, only uttering the word “Chamra”, it cannot be said that the appellants inswulted the complainant on the basis of his caste. In this connection the judgment passed in the case of “Anil Kumar Pandy V. Daulat Prasad”, [MMANU/MP/0181/2005: 2005(4) MPLJ 467 ] may be referred, in which it is held that if someone has been called by name of his caste without any intention to insult or humiliate a member of scheduled casts, then no offence under Section 3(1)(x) of the Special Act is made out. In the light of the aforeasid judgment, the trial Court has committed an error in convicting the appellants of offence under Section 3(1)(x) of the Special Act.” 21. In the light of the aforeasid judgment, the trial Court has committed an error in convicting the appellants of offence under Section 3(1)(x) of the Special Act.” 21. The procedure for issuance of caste certificate has been well prescribed by the Hon'ble Supreme Court in the matter of Ku. Madhuri Patil (supra) which laid down the forum and procedure for issuance of/assailing caste certificate and the status of candidate. Thus, in view of the aforesaid dictum of Hon’ble the Supreme Court, the aforesaid caste certificate has no evidentiary value, as it has not been issued by incompetent authority and the prosecution has failed to discharge his burden to prove the caste as discussed above. Apart from this, from the perusal of evidence available on record, it is evident that the appellants have not abused the complainants in filthy language knowing that they belong to Scheduled Tribe Community. This can be fortified from the bare perusal of the statement of the victim – Rupnath. 22. Considering the law laid down by the Hon’ble Supreme Court evidence, material on record, it is quite vivid that the prosecution has failed to prove the caste of the victim beyond reasonable doubt, therefore, the conviction of the appellants for commission of offence under Section 3(i)(x) of the SC/ST Act and imposition of fine, is set aside and the appellants are acquitted from this charge. 23. So far as offence under Section 294 of the IPC and 323 of IPC is concerned, it is clearly proved by the prosecution beyond reasonable doubt as the doctor (PW-7) has clearly deposed about the injuries sustained by the complainant and there is no effective cross-examination on this point and thus, the appellants have been rightly convicted for commission of offence under Sections 294 & 323 for one and six months respectively, both to be run concurrently. Thus, this Court is of the firm view that the offences under Sections 294, 323/149 of the IPC is made out against the appellants, therefore, the conviction of the appellants under Sections 294 & 323 is hereby maintained. 24. From the record, it is quite vivid that incident took place in the year 2003 and thereby more than 19 years have been elapsed; appellants were regularly appearing before the trial Court after releasing on bail by this Court vide order dated 08.04.2004. 24. From the record, it is quite vivid that incident took place in the year 2003 and thereby more than 19 years have been elapsed; appellants were regularly appearing before the trial Court after releasing on bail by this Court vide order dated 08.04.2004. Further the appellants are the residents of District Bastar and they have already attended this court as and when required by this Court. The appellants are reported to have remained in jail for about 19 days, whereas the maximum punishment which has been imposed upon the appellants is of six months only, therefore, in the peculiar facts and circumstances of the case, ends of justice would be served if the sentence imposed by the trial Court is reduced to the period already undergone by them. It is stated that the fine amount has already been deposited. However, in lieu thereof, fine of Rs.1,000/- imposed by the trial Court is enhanced to Rs.2,500/- to the each appellant for the offences under Sections 294, 323/149 of the IPC. The additional amount of Rs.1,500/- would be deposited by the accused/appellants before the trial Court within three months from the date of receipt of copy of this order and the same shall be payable to the victim as compensation. 25. Accordingly, the criminal appeal is partly allowed. The appellants are reported to be on bail. His bail bond shall continue for a further period of six months from today in view of Section 437-A of Cr.P.C.