State of Madhya Pradesh vs Biharilal and Others

N.K. Gupta, J.—The State has preferred the present criminal appeal being aggrieved with the judgment dated 17.9.1998 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Damoh in Special Case No. 2 of 1998 whereby, the respondents have been acquitted from the charge of offences under Sections 294, 323, 506(B) of I.P.C. and Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act (hereinafter it would be referred to as the "Special Act").

The prosecutions case in short is that on 26.3.1997 at about 7.15 p.m the complainant Jawarharlal (PW1) talked with some one in front of Farooq Medical Store, Damoh and thereafter, he started his moped and left the place. In the midway, near Ghantaghar the respondents abused the complainant with words relating to his caste and with obscene words. On instigation of respondent Badri Singh, the remaining respondents threw chilly powder in eyes of the complainant. On shouting of complainant, Narmada Prasad (PW2) and Roshan etc. reached to the spot and thereafter, the respondent Badri gave a threat to the complainant. The complainant went to one Uma Puranik and thereafter, an intimation was given to the Police Station by phone. Soon after the phone call the complainant went to the Police Station Kotwali, Damoh and lodged an FIR Ex.P/1. The complainant was sent for his medico legal examination. Dr. K. K. Tamrakar (PW4) examined the victim at District Hospital, Damoh and gave his report Ex.P/3. After due investigation a charge sheet was filed before the Special Court.

The respondents abjured their guilt. They took a plea that they have been falsely implicated in the matter. In defence some news papers were filed and also Sanjeev Thakur (DW1) was examined.

The Special Judge after considering the evidence adduced by the parties acquitted the respondents from all the charges.

During the pendency of this appeal the respondent No. 1 Badri Singh has expired and therefore, his name was deleted from the cause title of the appeal. The appeal filed by the State turned abated against the respondent No. 1 Badri Singh. Since no one was appearing for the respondents since long Shri G.S. Thakur, Advocate from the High Court Legal Services Committee who, has a vast experience in dealing with the criminal cases was appointed to argue on behalf of the respondents and thereafter, I have heard the learned counsel for the parties.

The learned counsel for the respondents has submitted that the complainant Jawaharlal (PW1) did not file his caste certificate and therefore, in the light of the judgment passed by the single Bench of this Court in the case of "Shankarlal Vs. State of M.P." (2005(1) MPLJ 449) the respondents cannot be convicted of offence under Section 3(1)(x) of the Special Act. Similarly, it is also submitted by the learned counsel for the respondents that the investigation was done by Sub Inspector C.P. Sharma (PW6) which was contrary to the provisions of Rule 7 of the SC/ST (Prevention of Atrocities) Act, 1989 and therefore, the respondents could not be convicted of any offence under the Special Act.

Submissions of the learned counsel for the respondents may be accepted. According to the judgment passed by the single Bench of this Court in the case of Shankarlal (supra), if caste certificate of the complainant is not proved to be issued by any competent officer then caste of the complainant cannot be presumed. Hence the prosecution has failed to prove that the complainant Jawaharlal was a Member of the Scheduled Caste. Similarly, when according to the Rule 7 of the aforesaid Rules investigation was done by the Police Officer not below the rank of D.S.P and in the present case investigation was done by a Sub Inspector therefore, in the light of the judgment passed by the single Bench of this Court in the case of Bharat Singh and Another Vs. State of Madhya Pradesh, (2006) 4 MPLJ 171 , the accused cannot be convicted of offence under the Special Act if Rule 7 of the Special Act is not followed. However, there is no bar to the investigation officer relating to other I.P.C. offences. Hence, the trial Court has rightly acquitted the respondents from the charge of Section 3(1)(x) of the Special Act.

After considering the evidence adduced by Jawaharlal (PW1) and Narbada (PW2) it appears that it is alleged against the respondents they abused the victim with words "Madarchod". However, it appears that a common word could not be told by all of the respondents simultaneously. It was not told against the specific accused that he uttered such words. The words told by Jawaharlal is different as told by Narmada Prasad and therefore, it appears that to make the case cognizable such statement was given by these witnesses. For sake of argument if it is accepted that the respondents told such words then without any obscene action it cannot be said that words spoken in anger were the obscene words. The Special Court has rightly acquitted the respondents from the charge of Section 294 of I.P.C.

Jawaharlal has accepted that after chilly powder went inside his eye, he could not see as to who held him and therefore, according to the FIR Ex.P/1 when the threat was given by someone out of the respondents after the incident of throwing the chilly powder, it was not possible for the complainant to view the respondent, who gave a threat. Hence, when it is not established that out of the four accused persons who, gave a threat then a doubt is created and when a doubt is created then benefit of doubt is to be given to the accused persons. On the other hand if it is accepted that each of the respondents have given such a threat then the incident took place on 26.3.1997 and the complainant Jawaharlal was examined on 22.5.1998 i.e. after 14 months. He did not say that alleged threat given by the respondents was executed and therefore, if threat was given by the respondents then still it does not fall within the purview of criminal intimidation. The trial Court has rightly acquitted the respondents from the charge of offence under Section 506-B of I.P.C.

Jawaharlal (PW1) and Narmada Prasad (PW2) have stated that all the respondents have kept the chilly powder in their hands and they rubbed the chilly power on the eyes of the victim Jawaharlal. If cross examination of witness Narmada Prasad is considered then it appears that he was not present at the spot and he was a cooked witness in favour of the complainant. In FIR Ex.P/1 the complainant did not mention the name of any eye witness. According to the FIR, the complainant was driving a moped and in the midway such incident was caused. According to Narmada Prasad the complainant was about to start his moped and incident took place. According to Jawaharlal when he traveled by moped upto a tree of tamarind the respondents standing below the tree caused such an assault.

Narmada Prasad has stated that the respondents threw the complainant on the ground and thereafter chilly powder was thrown in his eyes when he was lying on the ground. Though it was mentioned in the FIR Ex.P/1 that the respondents threw the complainant on the ground and thereafter, threw chilly powder in this face, no injury was found to the victim relating to him falling on the ground. Looking to the material contradiction between the statements of Jawaharlal and Narmada Prasad and Jawaharlal and FIR, it appears that Narmada Prasad, brother of Jawaharlal was not at all a eye witness. He was a created witness.

So far as the statement of Jawaharlal is concerned, he has accepted in para 22 of his statement that he could not show that who, threw chilly powder in his eyes for the first time. If he received chilly powder in his eyes then thereafter, he could not see any of the culprits. When he could not see that out of the respondents who threw chilly powder in his eyes when he could see then certainly, it appears that he implicated the respondents on the basis of suspicion and enmity. If his moped was stopped by the respondents and thereafter, the chilly would have been thrown in his eyes then he could say about that respondent who, stopped him by throwing him from the motorcycle. It appears that when the complainant was moving on a moped someone threw chilly powder in his eyes and he could not see the actual culprit. Thereafter, he implicated 3-4 persons in the crime. It is highly doubtful to believe the testimony of Jawaharlal that the respondents were the persons who threw the chilly powder in the eyes of the complainant Jawaharlal. The trial Court has rightly acquitted the respondents by giving them the benefit of doubt.

On the basis of the aforesaid discussion, there is no reason to accept the present appeal. There is no reason to make any interference in the impugned judgment. Consequently, appeal filed by the State is hereby dismissed.

The respondents are on bail. Their presence is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged.

Copy of the judgment be sent to the Courts below along with its record for information.