Horil Prasad and Others vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta, J.—This criminal appeal is preferred by the appellants being aggrieved by the judgment dated 24/7/1996

passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Satna in Special Case No. 86/1994, whereby the appellants were

convicted for commission of offence punishable under Sections 147, 323/149 and 436 of IPC read with Section 3(1)(iii) of SC/ST (Prevention of

Atrocities) Act, 1989 (hereinafter referred to as the ""Special Act"" for the sake of brevity) and sentenced for one year''s RI, six months'' RI and two

years'' RI with fine of Rs. 200/-each. In default of payment of fine, fifteen days'' rigorous imprisonment was also directed. The prosecution''s case,

in short, is that the victims had constructed 50-60 huts in between the villages Patehra and Udaypur on encroaching the Government land. On

27.3.1994 at about 11:00 in the morning 50-60 persons of the villages Patehra and Udaypur came to the spot and they shouted that huts of the

scheduled caste persons be burnt and ultimately the appellants set the huts on fire. Ramcharan (PW-5) had lodged an FIR Ex. P-4 before the

Police Station Maihar District Satna. A case was registered. The entries relating to the revenue record of the concerned land were submitted as

Ex. P-5 and P-6. Assessment of lose was also considered. It was also alleged that in the incident, Ramesh, Ramcharan, Munnibai, Dhundha and

Rani were assaulted. They were directed for their medico legal examination to the Government Hospital, Maihar. Dr. A.M. Tripathi (PW-11)

examined all the injured persons and gave his report Ex. P-10 to P-16. He found that the victims Ramesh, Ramcharan, Munnibai, Dhundha and

Rani had sustained simple injuries. No injury of these victims were found to be grievous. After due investigation, a charge sheet was filed before the

Special Court, Satna against the 44 persons in all.

The appellants-accused abjured their guilt. They did not take any specific plea in the case, but they have stated before the trial Court that the

appellants were not known to the victims. They even did not know the names of the appellants. No test identification parade was arranged by the

police before filing of the charge sheet. The dock identification is not at all identification. The trial Court has chosen seven appellants out of 44

culprits that they committed arson in those huts, but actually the appellants were not the persons, who committed the crime. However, no defence

evidence was adduced.

After considering the evidence adduced by the prosecution, the learned Special Judge, Satna acquitted the other co-accused persons from all

the charges, but convicted the present appellants for commission of offence punishable under Sections 147, 323/149 and 436 of IPC read with

Section 3(2)(iii) of the Special Act and sentenced them as mentioned above.

I have heard the Learned Counsel for the parties.

The Learned Counsel for the appellants has submitted that a mob of 400-500 persons was gathered to the spot to remove the encroachment

and agitation also took place, because the encroachers blocked the land of nistar of two villages Patehra and Udaypur. An order of removal of

encroachment was passed by the revenue authority, and therefore there was no need to the appellants to burn the huts of the victims. None of the

appellants was known to the victims, but the SHO of the concerned Police Station wrote the names of 44 persons in the FIR on his own. Under

such circumstances, it was not established before the trial Court that the appellants were the persons who assaulted the victims or who set their

huts on fire. It is also submitted that the trial Court has not framed the charges of offence u/s 3(2)(iii) of the Special Act. The charges were framed

u/s 3(2)(v) of the Special Act but conviction was directed u/s 3(2)(iii) of the Special Act. The villagers of the villages Patehra and Udaypur had the

objections due to encroachment. It was no concerned with the caste of the encroachers, and therefore the appellants could not be convicted for

the offence u/s 3(2)(iii) of the Special Act.

On the other hand, Learned Counsel for the State has read the para 6 of the judgment passed by the trial Court and has submitted that the

conviction and sentence directed by the trial Court appears to be correct and there is no basis by which any interference is warranted from the side

of this Court.

After considering the submissions made by the Learned Counsel for the parties and looking to the facts and circumstances of the case, it is to be

considered as to whether the appeal filed by the appellants can be accepted on merits? And whether the sentence awarded to the appellants can

be reduced?

In the trial Court so many witnesses were examined as eye-witnesses. Shrichand (PW-2), Saukhilal (PW-3), Sohanlal (PW-4) and Ramcharan

(PW-5) have stated before the trial Court that the appellants were the persons who assaulted them and set their huts on fire, whereas

Ramswaroop (PW-6), Babulal (PW-7), Vinod (PW-8) and Gaya Prasad (PW-9) have stated that the villagers of villages Patehra and Udaypur

came to the spot and they set the huts of the victims on fire. It is apparent that 50-60 huts were set on fire and a great lose was caused to the

victims. By the evidence of the victims and the evidence given by Dr. A.M. Tripathi (PW-11), it is established that the victims Ramesh,

Ramcharan, Munnibai, Dhundha and Rani had sustained injuries in the incident, and therefore an unlawful assembly was created and the members

of the unlawful assembly had assaulted those five victims voluntarily and also set their huts on fire. Therefore, offence under Sections 147, 323/149

and 436 of IPC was done by the mob collected at the spot, who created an unlawful assembly.

So far as offence u/s 3(2)(iii) of the Special Act is concerned, firstly the trial Court has not framed the charges of offence u/s 3(2)(iii) of the

Special Act, and therefore the appellants could not be convicted for that offence. Secondly, it is apparent from the evidence given by the various

witnesses that in the mob collected from the villages Patehra and Udaypur, members of the scheduled caste were also present in that mob, and

therefore it cannot be said that the crime was committed to cause damage to the victims on the basis of their caste. Under such circumstances,

where the crime was not committed on the basis of the caste, then the appellants could no be convicted either for the offence punishable u/s 3(2)

(iii) or 3(2)(v) of the Special Act.

The only question remains in the case that whether the appellants were the members of the unlawful assembly. The prosecution has examined

more than eight eye-witnesses in the case. Some of them told the names of various accused persons, but all of them have admitted that the accused

persons were not known to them by their name. The complainant Ramcharan (PW-5) has admitted in para 5 of his cross examination that on Ex.

P-4 his signature is present, but he did not lodge any FIR before the police. Thereafter, he has stated that he lodged an FIR Ex. P-4, but names of

the accused persons were mentioned in the FIR because those names were told by his companions, but he did not tell the names of such

companions who told the names of the appellants and other persons in the FIR. In this connection, the statement given by the Inspector Bharat

Singh Chouhan (PW-12) is also important. He has admitted that the appellants had done some agitation to remove the encroachment done by the

victims and in that agitation, persons of all the castes had participated. The Administrative Officer including the Inspector Bharat Singh Chouhan

himself gave an assurance to the agitators that encroachment would be removed. He also identified the accused Jagmohanlal and certified it that

Jagmohanlal was a reputed citizen of the village Udaypur. Looking to the evidence given by the Inspector Chouhan (PW-12), it appears that the

names of the accused persons were mentioned in the FIR Ex. P-4 on the basis of their participation in the agitation. Actually it was for the victims

to inform the names of the actual culprits, who assaulted them and set their huts on fire. But the names of the accused persons were not known to

the victims, and therefore it is apparent that the names of the accused persons were mentioned in the FIR by suspicion and intimation given by

some other persons, who did not appear before the Court.

If the complainant did not know the names of the culprits, then it was for the police to write down an FIR against the unknown persons and

thereafter test identification parade must have been arranged so that the victims could identify the culprits, who set their huts on fire. But no test

identification parade was arranged by the police. The trial Court has adopted a peculiar type of procedure while examining the witnesses. Amongst

44 persons, particular witnesses were given an opportunity to select the culprits and thereafter they were asked to tell their names and those names

were written in the deposition sheet. Such type of method is not at all reliable. A witness who is present to depose his statement can locate any

person by fluke. Some of the witnesses had located some of the appellants whereas other witnesses located other appellants, and therefore the trial

Court selected seven persons out of 44 persons as culprits and convicted them.

The method adopted by the trial Court is doubtful and shaky. Such type of identification cannot be relied upon. It is the settled view of the

Hon''ble Apex Court that dock identification is no identification. Under such circumstances, out of 44 alleged accused, the trial Court could not

select the appellants as the culprits, without any basis.

The injured witnesses could not tell the names of the culprits who assaulted them. However, their case diary statements were written with the

name of the culprits, but the names told by them in the Court are different, and therefore by dock identification, it cannot be said that the appellants

were the persons who assaulted the victims or who set their huts on fire. Under such circumstances, due to lapse of identification, a doubt is

created that whether the appellants were the persons who participated in the unlawful assembly and who set the huts of the victims on fire or

assaulted the aforesaid victims. Under such circumstances, on the basis of suspicion, the appellants could not be convicted for any offence. They

were entitled to get the benefit of doubt, and therefore they can not be convicted either for the offence u/s 147 or 323/149 or 436 of IPC.

On the basis of the aforesaid discussion, it is apparent that no offence u/s 3(2)(iii) or 3(2)(v) of the Special Act was constituted against any of

the accused. It is the doubtful situation that the appellants were the members of the unlawful assembly or they assaulted anyone of the victims or

they set the huts on fire, and therefore they are entitled to get the benefit of doubt. They cannot be convicted for the alleged offences.

Consequently, the instant appeal filed by the appellants deserves to be allowed. Therefore, it is hereby allowed. The conviction and sentence

directed by the trial Court for the offence under Sections 147, 323/149 and 436 of IPC read with Section 3(1) (iii) of SC/ST (Prevention of

Atrocities) Act are hereby set aside. The appellants are acquitted from all the charges appended against them by giving them benefit of doubt. The

appellants would be entitled to get the fine amount back if they have deposited the same before the trial Court.

At present the appellants are on bail. Their presence is no more required, therefore it is directed that their bail bonds shall stand discharged. A

copy of this judgment be sent to the trial Court with its record for information and compliance.