Parvat Singh vs Khanjuwa

U.C. Maheshwari, J.—The appellant/accused has directed this appeal u/s 374(2) of Cr.P.C. being aggrieved by the judgment dated 1.8.1997 passed by Special Judge, Panna constituted under S.C.S.T. (Prevention of Atrocities), Act (in short "the Act"), in Special Case No. 133/97, convicting and sentencing him in a private complaint filed by the respondent u/s 3(1)(vi) and 3(1)(x) of the Act and u/s 323 of IPC for RI one year with fine of Rs. 1,000/- in first two counts separately while six months RI in last count with a direction to run the jail sentence concurrently. The facts giving rise to this appeal in short are that the respondent herein filed a private complaint against the appellant contending that on 20.8.1992 at About 1:00 O''clock in the noon he was called by the appellant through one Khunda Chamar at his residence. He went to the house of the appellant where he found him to be under the influence of liquor having a rifle of 315 Bore in his hand and in such a condition the appellant asked him to direct his son to do the Harwahi, a type of bonded labour on his field. On refusing the same by the complainant by giving slaps on his face again asked him for the aforesaid. Again on refusing to do such work by his son he was subjected to beating by means of shoes by taking him from his door to the square of the village and thereafter by abusing him in the filthy language with the name of his caste Chamar and Chamra he was threatened saying that he will make him Chamra and during the course of such beating wear clothes of the complainant were also torn. He was also beaten by the backside of the rifle. Consequently on sustaining the injuries he fail down and became unconscious and after gaining consciousness while he was returning on the way he met to Jangalia Chamar (Panch), whom he apprised about the incident and thereafter due to fear of the appellant he remained in the house of Jangalia where he came to know that appellant went to his residence and threatened to his mother saying that if the matter is reported to the police then he will kill him. Subsequent to that complainant/respondent went to the police station and gave a report of the incident on 21.8.1992. In such premises also it was stated that appellant is used to get forcefully unlawful labour from the person of SCST by showing fear in their mind and in continuation of such activities the act was committed by the appellant with the respondent. Subsequent to said report when no action was taken by the police against the appellant, even the medical examination of the complainant was not carried out by the police, on which the complainant proceeded to file the instant private complaint. On filing the aforesaid private complaint in the trial Court by adopting the procedure provided u/s 200 and 202 of Cr.P.C. on establishing the prima-facie circumstance of the above mentioned offence against the appellant the cognizance of the same was taken by the trial Court and the presence of the appellant was secured by issuing the summons and in response of summons the appellant appeared before the Court.

After appearance of the appellant vide order dated 5.12.1996 the charge of Section 3(1)(vi) and 3(1)(x) of the Act and of Section 323 of IPC were framed against the appellant, he abjured the guilt, on which the trial was held. After recording the evidence on appreciation of the same by holding guilty to the appellant under the aforesaid sections he was punished as mentioned above. Being dissatisfied with such conviction and sentence the appellant has come to this Court.

Appellant''s counsel Shri Sidharth Datt, after taking me through the record of the trial Court as well as the impugned judgment said that that on proper appreciation of the evidence led by the prosecution this was not the case of conviction of the appellant but he has been convicted under the wrong premises. In continuation he said that in any case if it is found that on the date of the incident the appellant asked the respondent to direct his son to do the Harwahi unlawful or forcefully on his filed and on refusing by the respondents for the same if the alleged beating was carried out then mere on the basis of such beating or abusing it could not be assumed or deemed that appellant has committed any of the aforesaid offence of the Act, as such offence is related to the son of the complainant/respondent who is not examined in the Court, and in such premises the appellant could not have been convicted by the trial Court. In continuation, he said that the respondent utterly failed to prove the entire alleged incident by independent source of the evidence. Whosoever witnesses have been examined being from the community of the respondent are not reliable. Specifically in view of previous enmity factor between the appellant and respondent without independent corroboration the appellant could not have been convicted. By referring the deposition of P.W. 1 Khanjua, he said that in his entire in chief he has not stated his caste covered under the Act and in the lack of it only on imagination it could not be assumed or deemed that respondent was belonging to the caste covered under the Act. It is apparent fact on record that in order to prove the caste of the respondent no certificate of the appropriate authority has either been produced or proved on record. In such premises the trial Court has committed error in holding that the respondent was belonging to the community covered under the Act. Accordingly if there is suspicion regarding caste of the complainant then the benefit of doubt should be extended to the appellant and prayed for extending the acquittal to the appellant by setting aside the impugned judgment by allowing this appeal.

As no one is appeared on behalf of the respondent/complainant to assist the Court, hence in order to adjudicate this appeal with the consent of Smt. Nirmala Nayak, Government Advocate was directed to assist the Court for adjudication of this appeal. Pursuant to it, in response of the aforesaid argument of the appellant, she by justifying the impugned conviction and sentence of the appellant under the aforesaid sections said that the same being based on proper appreciation of available evidence, is in conformity with law and does not require any interference at this stage for extending the acquittal to the appellant. After perusing the record she fairly submitted that the complainant himself in his entire in chief has not stated that he is belonging to the caste covered under the Act. She also stated that the certificate regarding caste of the complainant/respondent issued by any competent authority, showing that his caste is covered under the Act has, neither been enclosed with the complaint nor proved on record, and prayed for dismissal of this appeal.

Having heard the counsel of the parties keeping in view their arguments after going through the record of the trial Court because of the following reasons, I am of the considered view that the approach of the trial Court holding guilty to the appellant u/s 3(1)(vi) and 3(1)(x) of the Act is not sustainable while the conviction of the appellant u/s 323 of IPC does not require any interference.

True it is that in complaint filed by the respondent u/s 200 of Cr.P.C. in the trial Court he stated himself to be a member of Chamar community which is covered under the Act and even prior to filing the complaint in a report in writing given to the police, which has not been proved by marking the Exhibit, it was stated that his caste is covered under the Act but in order to prove the same no certificate issued by the competent authority, has been produced to show that he is belonging to the caste of Chamar. So it is apparent that such fact has not been proved by the respondent by any admissible documentary or other evidence.

Besides the aforesaid after appearance of the appellant in the trial Court and framing the charge on recording the deposition of the respondent/complainant, he in his entire in chief has not specifically stated that he is from the community of Chamar covered under the Act, he only stated that on refusing the aforesaid direction of the appellant to do the forceful labour by his son in his filed he was subjected to abuses saying that

so in this way also the respondent had failed to prove his caste covered under the Act by the ocular evidence. In the lack of supporting ocular evidence so also in the lack admissible documentary evidence as stated above mere on some weakness of the defence or his counsel as no material question was asked by the defence counsel from the respondent in this regard, it could not be said that respondent has successfully proved that his caste and community is covered under the Act.

It is settled proposition that the provisions of the law should be complied with according to its language and spirit and case should also be proved according to such language. In such premises, in view of the aforesaid discussion on examining the case it is apparent that as per requirement of law the complainant/respondent has failed to prove his caste in the matter. Thus mere on this technical ground the conviction and sentence of the appellant u/s 3(1)(vi) and 3(1)(x) of the Act is not sustainable, hence the approach of the trial Court in this regard is hereby set aside and appellant is acquitted from such charge.

After setting aside the aforesaid conviction and sentence of the appellant u/s 3(1)(vi) and 3(1)(x) of the Act on examining the evidence of Khanjua (A.W. 1), Himmat Singh (A.W. 2), Kadhora (A.W. 3) and Khunda (A.W. 4) I have found that it has been proved beyond reasonable doubt that respondent was called by the appellant at his residence through some Khunda Chamar and when on such call he went to the place of the appellant then he was asked forcefully to direct his son to do the ploughing of his field for which he denied, on which he was subjected to slaps by the appellant on his face and was again asked for the aforesaid agricultural work. Again on denying by the respondent he was subjected to filthy abuses and beating with shoes and legs and as per available evidence he was also beaten by the backside of the rifle. In view of the available evidence instead the offence of the Act the same appears to be covered which is made punishable u/s 374 of IPC but in the lack of framing any specific charge of such section by the trial Court against the appellant and in view of difference in the language of Section 3(1)(vi) of the Act and aforesaid Section 374 of IPC, he could not be held guilty and sentenced u/s 374 of IPC. However, after near about 20 years from the date of the incident, I do not find fit to remand the matter for fresh trial after framing the charge of Section 374 of IPC, as the appellant has already suffered the mental agony of this case for years together and also appeared on various dates in the trial Court as well as before this Court in the present matter. So it is held that in the lack of framing the charge of Section 374 of IPC the appellant could not be held guilty and convicted under such section.

So far the conviction and sentence of the appellant u/s 323 of IPC is concerned, on perusing the deposition of above mentioned all four witnesses namely Khanjua (A.W. 1), Himmat Singh (A.W. 2), Kadhora (A.W. 3) and Khunda (A.W. 4), I have found sufficient evidence against the appellant to carry out the beating of the respondent by him. As alleged due to such beating the respondent sustained some injury which has neither been proved by examining any doctor nor by any MLC report but in any case the offence causing simple hurt to the respondent is made out against the appellant. In such premises, I have not found any scope in the matter for extending the acquittal to the appellant from the charge of Section 323 of IPC. Thus it is held that trial Court has not committed any error in holding guilty to the appellant u/s 323 of IPC, consequently such finding of the impugned judgment is hereby affirmed.

So far the question of sentence awarded against the appellant by the trial Court u/s 323 of IPC is concerned, it is apparent on record that appellant had not suffered the jail sentence or the judicial custody for a single day, as such he remained on bail during trial and subsequent to his conviction awarded jail sentence was suspended by the trial Court and it is further suspended by this Court, pursuant to that he remained on bail in pendency of this appeal. But in the available circumstances of the case after near about 20 years from the date of the incident instead to send him jail by maintaining the awarded jail sentence of this section taking into consideration the circumstance that during last twenty years the appellant has suffered the mental agony of this case and also appeared on various dates in the trial Court as well as before this Court or its authority his awarded jail sentence u/s 323 of IPC is set aside and fine of Rs. 1,000/- is imposed.

In view of the aforesaid discussion, by allowing this appeal in part, appellant is acquitted from the charge of Section 3(1)(x) and 3(1)(vi) of the Act. Consequently, the awarded punishment of such sections are also set aside. While by affirming his conviction u/s 323 of IPC and setting aside the impugned awarded jail sentence he is punished with the fine of Rs. 1,000/-, failing in depositing such fine amount the appellant has to suffer further three months SI. The amount of fine deposited by the appellant u/s 3(1)(x) and 3(1)(vi) of the Act shall be adjusted in the above mentioned imposed fine amount u/s 323 of IPC and remaining fine amount, be refunded to the appellant after proper verification. The bail bond of the appellant is hereby discharged. Till the aforesaid extent the impugned judgment is modified while the other findings of the same are hereby affirmed. Appeal is allowed in part as indicated above.