Babu Lal Aghariya vs State of Madhya Pradesh

Pritinker Diwaker, J.—This appeal is directed against the judgment dated 5.2.1993 passed by Additional Special Judge, Raigarh, in Special Criminal Case No. 48/1992 convicting the accused/appellant for the offences punishable under Sections 294 and 323 IPC and Section 3(1)(10 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short "the Act") and sentencing him to undergo rigorous imprisonment for two months u/s 294 and 323 IPC each and to undergo rigorous imprisonment for six months and pay fine of Rs. 500 u/s 3(1)(10 of the Act.

Case of the prosecution in brief is that on 17.10.1992 at about 2.10 p.m. FIR (Ex.P-4) was lodged by one Munaibai (since deceased) alleging that on the previous night accused/appellant came in front of her house and abused her using filthy language. Thereafter, the appellant again came there and when she went to inform the police about the incident of previous night, accused/appellant met her, abused her and also subjected her to beating in presence of Suritram (PW-2), Luturam (PW-3) and Ghanshyam (PW-4).

So as to hold the accused/appellant guilty, prosecution has examined 07 witnesses in support of its case. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

After hearing the parties the trial Court has convicted and sentenced the accused/appellant for the offences as mentioned above.

Heard counsel for the parties and perused the material available on record including the judgment impugned.

Counsel for the appellant submits that the appellant has been falsely implicated in the case and as the complainant/victim who has been allegedly abused and assaulted by the accused/appellant herself has not been examined by the Court below on account of her death during the pendency of trial, conviction of the accused/appellant for the offences mentioned above cannot be sustained.

On the other hand counsel for the respondent/State supports the judgment impugned and submits that though the complainant has not been examined in this case on account of her death during trial, there are eyewitnesses to the incident who have categorically stated that the complainant was abused and beaten by the accused/appellant with the help of belt and therefore the judgment impugned being just and proper need not be interfered with.

During the pendency of the trial complainant Munai Bai died and therefore her statement before the Court could not be recorded. Suritram (PW-2) - one of the eyewitnesses to the incident has stated in his evidence that on 17.10.1992 in between 10 and 11 a.m. when he was in his shop, accused/appellant came on his bicycle, stopped the complainant on the road, abused her using filthy language and also assaulted her by giving two blows with the belt. Luturam (PW-3) who is also one of the eyewitnesses to the incident, has stated in his evidence that the complainant was abused by the appellant and also assaulted by him with the help of belt as a result of which she had started weeping. Ghanshyam - the Kotwar of the village (PW-4) has stated that on the date of incident the complainant had come to him and narrated the entire story to him. According to this witness, while the complainant was narrating the incident to him, appellant came there, abused her and beaten her with the help of rubber of tyre.

Record shows that there are material contradictions and omissions in the statements of these witnesses. I.L. Thakur, Naib Tahsildar (PW-5) is the person who had produced the caste certificate of the complainant vide Ex. P-3. S.S. Bhagat (PW-6) - the Investigating Officer has supported the case of the prosecution. Dr. P.K. Tripathi (PW-1) who had examined the complainant has not found any injury on her body. However, he has stated that the victim was complaining pain.

Minute scrutiny of the evidence makes it clear that though abusive language was used by the accused/appellant against the complainant, it was not in the name of her caste nor it was used with an intention to insult or humiliate her on account of her belonging to a particular caste. To have a ready reference Section 3(1)(x) of the Act is reproduced as under:

3(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

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

From the record it appears that none of the witnesses has stated that the complainant was abused by the accused/appellant with an intention to insult or humiliate her in the name of her caste and thus the basic legal requirement for convicting the accused under this special provision is missing in this case. That being so, the conviction and sentence of the appellant u/s 3(1)(10) of the Act is hereby set aside. As regards conviction u/s 323 IPC and the resultant sentence imposed on the appellant, even the doctor who had examined her has stated that no injury was found on her body and in this view of the matter his conviction under this Section can also not be maintained and it is accordingly set aside. So far as conviction of the appellant u/s 294 IPC is concerned, the record shows that the complainant was abused by the accused/appellant and the eyewitnesses to the incident have also supported the case of the prosecution. Thus there appears to be no illegality in the judgment impugned convicting and sentencing the accused/appellant u/s 294 IPC and accordingly conviction and sentence under this section are maintained.

Counsel for the appellant submits that the appellant has already remained in jail for about 4 months and 20 days. In this view of the matter, the appellant need not surrender before any Court.

With the aforesaid observations the appeal is partly allowed.