Kailash Lodhi vs State of Madhya Pradesh

Law clearly expects the appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment but by cross-checking the reasoning of the evidence on record. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place, when the appeal is posted for hearing. This is the requirement of the Code of Criminal Procedure on a plain reading of sections 385-386 of Cr.P.C.

Law does not enjoin that the Court shall adjourn the case, if both the appellant and his lawyer are absent. In the case of Bani Singh and Others Vs. State of U.P., AIR 1996 SC 2439, the Apex Court while dealing with Section 386 of Cr.P.C held that when appellant and his lawyer are absent on appointed for hearing, the Court is not bound to adjourn the case, but should dispose of appeal on merits. The dismissal of appeal simpliciter for non-prosecution is not contemplated.

In a similar case of K.S. Panduranga Vs. State of Karnataka, 2013 Cr.L.J 1665 the Apex Court has held that it cannot be said that the Court cannot decide a criminal appeal in the absence of the counsel for the accused, even if the counsel does not appear deliberately or shows negligence in appearing.

This criminal appeal is pending since 1999, but none appeared on behalf of the appellant. Therefore, in view of aforesaid enunciation of law, this appeal is being decided.

The appellants preferred this appeal under Section 374 of the Cr.P.C assailing the judgment dated 28.07.1999 decided by Special Judge under SC/ST (Prevention of Atrocities) Act, 1989 (for brevity "Act, 1989"), Narsinghpur, in Special Case No.03/99, wherein the appellants have been convicted for offences under Sections 3 (I) (IV) and 3 (I) (X) of the "Act, 1989" and sentenced each to undergo six months rigorous imprisonment with fine of Rs.500/- and in lieu of fine two months additional rigorous imprisonment for each offences. Besides, the appellants have also been convicted for offence under Section 323 / 34 of I.P.C and sentenced to three months rigorous imprisonment each and convicted for offence under Section 325 of I.P.C and sentenced to one year rigorous imprisonment with fine of Rs.500/- and in lieu of fine additional rigorous imprisonment for three months each.

The prosecution story in brief is that on 26.11.1994 the complainant- Hansi Bai (PW 3) along with her son Tulsiram (PW 2) were transporting bricks by means of a bullock cart to village Dovi on the government road. The appellants- Sheikh Wahid and Sheikh Sardar stopped them and did not allow to take the bullock cart. They insulted Tulsiram (PW 2) by calling his caste name, for he belonged to Scheduled Caste. The appellants also hurled abuses by obscene words. The appellants inflicted injury to Hansi Bai (PW 3), Tulsiram (PW 2). Hansi Bai (PW 3) sustained fracture on the left wrist. Hansi Bai (PW 3) and his son Tulsiram (PW 2) and Dhaniram (PW 4) due to fear entered into the house of Babu Lal Chaudhary and hidden themselves to escape the beating of accused persons. The accused persons abused them and also damaged the house of Babu Lal, Gunda Harizan, Dhanni Harizan, Saraswati Harizan witnessed the incident. Hansi Bai (PW 3) went to Police Station Tendukheda to lodge report, but no report was lodged. Therefore, she went to the Police Station AJK, Narsinghpur and submitted a written complaint Ex. P/6 on 27.11.1994. She was sent for medical examination. After preliminary investigation Ex. P/11, report was lodged on 04.12.1994. Subsequently, after investigation charge sheet has been filed.

Learned trial Court framed charges under Sections 3 (I) (IV) and 3 (1) (X) of the "Act, 1989" and under Sections 323 / 34 and 325 and 506- B of I.P.C against the appellants. The appellants abjured guilt. According to them Salim the son of Sheikh Wahid was going to the school. On the way, ox of Tulsiram inflicted injury to him by means of its horn. The accused persons came to the house of Tulsiram to make complaint. Dhaniram (PW 4) the brother of Tulsiram (PW 2) inflicted injury to appellant- Sheikh Wahid by means of axe. He lodged report. Because of the injury, he sustained eleven stitches. He was admitted in Narsinghpur Hospital. As a counter blast, the complainant has lodged this false report against the appellants.

The appellants have assailed the judgment on the ground that the learned trial Court failed to ascertain the cause of the incident. Prosecution failed to establish the offence. No Revenue Officer or Sarpanch have been examined. There was no motive for the incident. The F.I.R was lodged ten days after the incident. The statements of the defence witnesses were not taken into account. The injury received by the appellant Sheikh Wahid has not been explained by the prosecution. There is no independent eye witnesses who have been examined. Therefore, the appellants are entitled for acquittal.

Learned G.A for the respondent/State vehemently opposed the contentions and submitted that the appellants have been convicted by the learned trial Court after proper assessment of the evidence adduced. There has been sufficient evidence to establish the commission of the offence. Referring the pieces of evidence adduced by the prosecution, learned G.A for the respondent/State submitted that the learned trial Court has rightly considered the evidence. Therefore, the judgment impugned do not call for any interference.

Perused the record. The explanation of the defence version is that they had gone to complain about the injury caused to Salim son of appellant- Sheikh Wahid in the house of Tulsriram (PW 2). Dhaniram (PW 4) caused the injury by means of an axe to appellant- Sheikh Wahid. Because of which, he sustained head injury. Eleven stitches were done. In this regard the statement of Nehal Singh (DW 1) is of no avail as he says that he reached the spot after the incident. Dr. Suraj Prasad (DW 2) examined appellant- Wahid on 26.11.1994. On the right side of his head, there was a lacerated wound of 2x ½"x 1/4th size. X-ray was advised. His report is Ex. P/2. According to the medical officer, the injury was caused by hard and blunt object. Dr. Brij Mohan Agrawal (DW 3), has treated the appellant- Wahid Khan on 27.11.1994. His bed head ticket is Ex. P/3. He was discharged from the hospital on 09.12.1994. X-ray report Ex. D/5 does not have any bony injury.

Chotte Lal Patel, (DW 4) the Head Constable, Police Station Tendukheda has stated that on the report of Wahid Khan, Roznamcha Sanha No. 631 has been lodged which is Ex. D/6. Wahid Khan sustained injury on his head. He also admits that on the report of Shanti Bai, wife of Tulsiram (PW 2), Roznamcha Sanha No. 629 has been lodged against the appellants. The above evidence discloses that the report has been lodged against the appellants- Sheikh Wahid and Sheikh Sardar, as Roznamcha Sanha 629 whereas Wahid Khan lodged the report as Roznamch Sanha No. 631. According to Wahid, he received injuries by Dhaniram (DW 4) by means of axe. But this statement is not supported by the medical evidence. According to medical report, Ex. D/2, Wahid sustained lacerated wound on the right side of his head, which is caused by hard and blunt object and not by any sharp object. He claimed to have received injury by means of axe which has been inflicted by Dhaniram (PW 4). But the same is not supported by the medical evidence.

On the other hand, Hansi Bai (PW 3) in her cross- examination has made it clear that when she and her son Tulsiram (PW 2) and Dhaniram (PW 4) tried to save themselves and entered into the house of Babulal for hiding themselves, the appellants tried to enter into the house of Babulal and damaged his house. According to her, when the appellants tried to enter into the house of Babulal, Sheikh Wahid sustained injury on his head accidentally due to "malega" (the upper portion of roof of the hut). This explanation seems to be more plausible.

In this background, the evidence of the prosecution witnesses may be analyzed. According to Hansi Bai (PW 3), Tulsiram (PW 2) and Dhaniram (PW 4) are her sons. At about 4.00 pm, they were shifting the bricks with the help of a bullock cart. When the bullock cart was passing through the government land, the accused persons abused them by obscene words and called them "Chamra"etc. The accused persons also tried to injure them. The appellant- Wahid caused injury on her hand by means of lathi. She sustained a fracture. Dhaniram (PW 4) came there. The accused persons inflicted injury to Tulsiram (PW 3) and Dhaniram (PW 4). All of them then went into the house of Babulal to save themselves. Appellants threatened them of their lives. Shanti Bai wife of Tulsiram (PW 2) also came to the spot and saw the incident. Dhaniram (PW 4) has supported the prosecution story. Tulsiram (PW 2) was throughout with Hansi Bai (PW 3). Tulsiram (PW 2) also stated that he along with Hansi Bai (PW 3) and Dhaniram (PW 4) went into the house of Babulal and saved themselves.

Dr. Preetam Singh Lal examined Hansi Bai (PW 3) and found an abrasion 3"x 1/4th" on the left hand and a swelling 3"x2" on the left ankle. X-ray was advised for the injuries. His M.L.C report is Ex. P/2. Dr. S.K. Maheshwari (PW 1) has proved the report Ex. P/1 wherein he has stated that on the left Ulna bone of Hansi Bai (PW 2) was found fractured. Dr. Chandradhar Singh (PW 8) has stated that on the left shoulder, Tulsiram (PW 2) sustained injury and Dhaniram (PW 4) sustained abrasion on the right shoulder.

These injuries were caused by hard and blunt object. These injuries were simple in nature. Ex. P/4 and P/5 are the M.L.C reports. These injuries were examined on 06.12.1994 after about ten days of the incident. However, if the injuries caused to Dhaniram (PW 4), Tulsiram (PW 2) is not considered, may not be believed. But injury sustained by Hansi Bai (PW 3) has been promptly examined and proved by the medical reports.

The written complaint Ex. P/6 filed by Hansi Baithe at AJK Police Station, Narsinghpur on 27.11.1994 and, subsequently, she was sent for medical examination by means of requisition Ex. P/2 A and the panchnama, spot map Ex. P/8 and the pieces of bangles seized from the spot Ex. P/9 if cumulatively considered establish the prosecution story. Bhuvan Kant Pathak, the In-charge of Police Station Tendukheda received the report of Hansi Bai (PW 3) Ex. P/6 and later after the medical reports etc has registered the offence by lodging Ex. P/11. Hargovind Singh, the Head Constable has recorded the statements of Saraswati Bai and other witnesses.

The above analysis of evidence proves that offence has been committed under Section 323 / 34 and 325 of I.P.C against the appellants for causing simple injury to Tulsiram (PW 3) and Dhaniram (PW 4) and grievous injury to Hansi Bai (PW 3). However, it would be appropriate to mention that no caste certificate issued by competent officer has been submitted by the prosecution. In this regard the case of Bharat Singh Vs. State of M.P., 2006 (4) M.P.L.J, 171 wherein a Co-ordinate Bench of this Court has held as under:-

" (a) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989). Section 3 (1) (x), Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules. 1995, Rule 7 and Penal Code, Section 294- Accused persons- appellants allegedly threw stones and hurled abuse at complainants in the name of their caste, namely, Balai- chamar-Prosecution failed to establish by adducing cogent and reliable evidence that the complainant belonged to the Scheduled Caste or Scheduled Tribe community- In the Court statement he deposed that he belonged of BALAI caste but nowhere he has stated that his caste falls within the category of Scheduled Caste or Scheduled Tribe- Though the appellants 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- Caste certificate from competent authority not filed- Investigation was done by SHO contrary to Rule 7- Conviction and sentence of appellants is therefore, not sustainable, 1999 (3) 582."

(b) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, Rule. 7-

Provision is mandatory- Only those Deputy Superintendent of Police, specially appointed by the State Government or the Director of Police or the Superintendent of Police or the competent authority for the purposes of investigation the case, under the Act can investigate the offence under the Act- Investigation against appellants done by inferior officer of the police, than the Superintendent of Police duly appointed as per the provisions under Rule 7 has caused prejudice to the appellants because the Investigating Officer did not obtain the certificate from the competent authority to establish that the complainant belongs to the Scheduled Caste or Scheduled Tribe Community."

On the above premises, the appellants are deserve to be acquitted for offence under Section 3 (i) (iv) and 3 (i) (x) of the "Act, 1989." So far as the offence under Sections 323 / 34 and 325 of I.P.C are concerned the conviction and sentenced passed by the learned trial Court is maintained. Copy of the judgment be sent to the learned trial Court along with original report immediately for securing the presence of the appellant and to suffer the sentence.