Sahadev and Another vs State of Chhattisgarh

Gulam Minhajuddin, J.—This appeal has been filed by the appellants u/s 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 28th September, 2001 passed by Special Judge, Bastar at Jagdalpur, in S.T. No. 146/2001 convicting the appellants u/s 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and 506-II, 341 and 294 of the Indian Penal Code and sentencing each of them to undergo RI for one year, RI for six months, fine of Rs. 100/- and Rs. 300/- respectively. In default of payment of Rs. 100/- and Rs. 300/-, they have to undergo SI for seven days and SI for fifteen days respectively. In addition to the substantive sentence of imprisonment, each of the appellants has been sentenced to pay a fine of Rs. 700/- and Rs. 500/- respectively for the offence under sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and 506-II of the Indian Penal Code, with default stipulation. Case of the prosecution, in brief, is that on 6-2-2001 complainant Nirakar, who is a pujari, was performing puja in the village. He asked the band party to play band at the place of puja first, whereupon appellant Suleman and Mata being annoyed moved away from there. After performing puja, at about 7 p.m., while Nirakar was coming back to home along with the band party, at that time, the appellants waylaid him and abused him filthily in the name of mother and his caste. They also threatened him to kill and assaulted him with stick and slapped him. Report of the incident was lodged by complainant Nirakar at Scheduled Caste Welfare Police Station, Jagdalpur, whereupon FIR was registered under Cr. No. 2/2001. Complainant Nirakar was sent for medical examination to Maharani Hospital, Jagdalpur, where he was examined by Dr. Mahendra Mahilang and medical report Ex. P/1 was given.

During investigation, spot map Ex. P/4 was prepared. One bamboo stick was seized from accused Sahdev as per Ex. P/3 and statements of the witnesses were recorded. After completing usual investigation, charge-sheet was filed against the accused persons for the offence punishable under sections 341, 294, 506B of the IPC and section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "the Act, 1989") before the Chief Judicial Magistrate, Jagdalpur, who, in turn committed the same to the Court of Sessions, from where it was received on transfer by learned Special Judge, Jagdalpur, for trial.

On charge being framed under sections 341, 294, 506B of the IPC and section 3(1)(x) of the Act, 1989, the accused/appellants denied the charge and pleaded innocence and false implication. The prosecution in order to prove guilt of the accused/appellants examined as many as seven witnesses. On being examined u/s 313 of Cr.P.C., the appellants denied the circumstances appearing in evidence against them and stated that they are innocent and have been falsely implicated. They examined Lakhuram and Sukhram as DW-1 and DW-2 in their defence.

However, learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the appellants, as mentioned above.

Heard learned counsel for the parties, perused the record of the trial Court as well as the impugned judgment.

Learned counsel for the appellants has contended that no offence u/s 3(1)(x) of the Act, 1989 can be said to have been made out because the complainant is the member of Scheduled Tribe and admittedly, the appellants, being members of Mehra community, are the members of Scheduled Caste. In this connection, he has drawn attention of this Court towards section 3(1)(x) of the Act, 1989, which is as under:

Punishments for offences of atrocities. -- (1) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe, --

(i) xxxxx xxxx xxxx

(ii) xxxx xxxx xxxx

............

............

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

Further, learned counsel for the appellants has drawn attention of this Court towards the Constitution (Scheduled Castes) Order, 1950, issued by the President in exercise of powers conferred by clause (1) of Article 341 of the Constitution of India, after consultation with the Governors and Rajpramukhs of the States concerned, in the schedule of which in Part XXIII, at SI. No. 33, Mahar, Mehra, Mehar, have been shown as Scheduled Caste in relation to the State of Chhattisgarh.

Learned counsel for the appellants has further contended that none of the witnesses examined on behalf of the prosecution have stated that the complainant was ever wrongfully restrained or intimidated by the appellants and as such, on the basis of evidence, no offence under sections 341 and 506 of the IPC have been proved against the appellants.

On the other hand, learned counsel for the State has supported the impugned judgment of conviction and order of sentence.

Complainant Nirakar (PW 2) and Trilochan (PW 3) as well as Ogarsen (PW 4) have admitted that they belong to Bhatra caste, which is a scheduled tribe, whereas the appellants belong to Mehra caste. As such, there is clear admission on the part of complainant and other prosecution witnesses that the appellants belong to Mehra caste, which has been shown as scheduled caste in Part XXIII of the Constitution (Scheduled Castes) Order, 1950, in relation to the State of Chhattisgarh. Therefore, in view of the provisions of section 3(1)(x) of the Act, 1989, the alleged offence u/s 3(1)(x) of the Act, 1989 cannot be said to have been committed by the appellants because they themselves are members of Mehra community, which is notified as scheduled caste in relation to the State of Chhattisgarh as per the Constitution (Scheduled Castes) Order, 1950.

So far as offences under sections 341 and 506-II of the IPC are concerned, neither complainant Nirakar (PW 2) nor other prosecution witnesses Trilochan (PW 3) or Ogarsen (PW 4), has stated that the complainant was ever restrained or intimidated by the appellants. In view of this, offence under sections 341 and 506-II of the IPC also cannot be said to have been proved against the appellants.

So far as offence u/s 294 of the IPC is concerned, complainant Nirakar (PW 2) as well as Trilochan (PW 3) have stated that the appellants had used abusive words, which caused annoyance to them i.e. Nirakar (PW 2) and Trilochan (PW 3). The statements of these witnesses on this point have not been challenged in their cross-examination. As such, on the basis of evidence adduced, offence u/s 294 of the IPC stands proved against the appellants beyond reasonable doubt and the finding recorded by the trial Court in this regard cannot be said to be suffering from any illegality, warranting interference by this Court. In the result, the appeal is allowed in part. The appellants are acquitted of the charge under sections 341, 506-II of the IPC and 3(1)(x) of the Act, 1989. However, conviction of the appellants u/s 294 of the IPC and the sentence imposed thereon are hereby maintained. The impugned judgment is modified to the above extent. The fine amount imposed under sections 341, 506-II of the IPC and 3(1)(x) of the Act, 1989, if deposited by the appellants, shall be refunded to them.