Madhya Pradesh High Court
Lala Bhaiya & Ors. vs The State Of M.P on 24 September, 2012
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Shri Justice N.K.Gupta,J.
CRIMINAL APPEAL NO.306 OF 1997
Lala Bhaiya & others.
Vs.
State of Madhya Pradesh.
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Shri R.K.Shukla, Advocate for the appellants.
Shri S.K.Kashyap, Public Prosecutor for the respondent/
State.
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JUDGMENT
(Delivered on the 24th day of September, 2012) This criminal appeal is preferred by the appellants being aggrieved by the judgment dated 1/2/1997 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Panna in Special Case No.74/1993, whereby the appellants were convicted for commission of offence punishable under Section 3(1)(xiv) of SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Special Act") and sentenced for six months' rigorous imprisonment with fine of Rs.300/- each and one month's rigorous imprisonment in default of payment of fine for each of them.
2. The prosecution's story, in short, is that on 15.9.1993 at about 11:00 AM the victim Gokul (PW-5) with 2 Cr.A.No.306/1997 his grazing bullocks was at Bhatiya (a land which was kept for use of public in general) near the village Devgaon (Police Station Ajaygarh District Panna). At about 11:00 AM the appellants went to the spot and objected as to why his bullocks were grazing in that land. The complainant argued that it was a public land, and therefore the appellants could not raise any objection. Thereafter the appellants assaulted him with kicks & fists and shoes. Shivbalak (PW-6) tried to save his son Gokul, then he was also assaulted by the appellants. The appellants took the victim Gokul to the house of the appellant Lalaram and again he was assaulted there. The bullocks of the complainant were sent to cattle pound. After 4:00 PM in the evening the complainant and his father were released by the appellants. The complainant had lodged an FIR Ex.P-8 at Police Station Ajaygarh on the same day at about 8:30 PM. He was directed for his medico legal examination. Dr.U.K.Gupta (PW-9) examined the injured persons Gokul and Shivbalak and gave his report Ex.P-10A and P-11A. Nine injuries were found on the complainant Gokul. He had a continuous swelling on his back specially in the lumber region, whereas the victim Shivbalak sustained three injuries found by Dr. Gupta (PW-9) and he was also complaining about the pain in his right hand. The complainant had also intimated that he was Kori by caste, and therefore a scheduled caste person, and he was deprived of the use of that place Bhatiya on the 3 Cr.A.No.306/1997 basis of the caste. After due investigation, a charge sheet was filed before the Special Court, Panna.
3. The appellants-accused abjured their guilt. They took a specific plea that neither the complainant Gokul was denied from grazing his bullocks in the Bhatiya nor his bullocks were kept in the cattle pound. On the contrary, Gokul had tried to solve the quarrel between both the bullocks and thereby sustained some injuries. In defence Raja Bhaiya (DW-1), Babbu (DW-2), Babulal (DW-3) and Barra (DW-4) were examined. The appellant Pushpendra also took a plea of alibi, and therefore the Postman Babulal (DW-3) was examined to show that the appellant Pushpendra was in the post office upto 1:30 PM on the date of incident.
4. The learned Special Judge after considering the evidence adduced by the parties acquitted the appellants for commission of offence punishable under Section 3(1)(x) of the Special Act read with Section 149 of IPC, but convicted them for commission of offence punishable under Section 3(1)(xiv) of the Special Act read with Section 149 of IPC and sentenced them as mentioned above.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellants has submitted that the victim Gokul sustained injuries due to quarrel of bullocks. He was never restrained from grazing his cattle in the Bhatiya. His bullocks were never confined 4 Cr.A.No.306/1997 in the cattle pound and no incident took place on the basis of the caste. It is specifically submitted that the complainant implicated so many persons without their fault. Under such circumstances, it is prayed that the appellants be acquitted. In the alternate, it is submitted that the appellants have faced the trial and appeal for last 19 years, and therefore a lenient view may be taken in imposing the sentence looking into their harassment of attending the various Courts in last 19 years.
7. On the other hand, the learned counsel for the State has supported the impugned judgment. He has submitted that the conviction and sentence directed by the trial Court appears to be correct and there is no basis by which any interference may be warranted from the side of this Court.
8. After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered that as to whether the appeal of the appellants may be accepted? And whether the sentence directed against the appellants can be reduced?
9. In the present case Gokul (PW-5), Ramratan (PW-3) and Shivbalak (PW-6) were examined as eye- witnesses. Looking at the evidence given by Shivbalak it appears that he reached to the spot after sometime. However, Ramratan and Gokul have sated that the 5 Cr.A.No.306/1997 complainant Gokul was grazing his bullocks in the public land Bhatiya and thereafter the appellants assaulted him with shoes, sticks and kicks & fists. It is also stated by Gokul that the appellant Ramsuphal assaulted him by the back of an axe. Thereafter Shivbalak came to the spot to save his son Gokul, but he was also assaulted. Ultimately the victims were taken to the house of Lalaram and again they were assaulted in the house. They were confined upto 4:00 PM and thereafter they were released. The appellants took a defence that they did not prohibit the complainant from grazing his bullocks in that land and he sustained injuries due to a quarrel of bullocks. However, two defence witnesses viz. Raja Bhaiya (DW-1) and Babbu (DW-2) were examined in support of the defence story.
10. Looking at the evidence of Dr. U.K.Gupta (PW-9), so many injuries were caused to the complainant. He had a continuous swelling on his back specially in the lumber region. Such injuries could not be caused due to a fall of the complainant in resolving the quarrels of the bullocks. Such injuries could only be caused by a number of assault done by someone on his back and therefore the defence taken by the appellants appears to be unnatural that the victim Gokul sustained injuries due to fall. Similarly, the appellants gave an explanation by the witnesses Raja Bhaiya (DW-1) and Babbu (DW-2) that the complainant Gokul sustained injuries due to fall, but they did not give 6 Cr.A.No.306/1997 any explanation to the injuries caused to the victim Shivbalak. Under such circumstances, it would be clear that witnesses Raja Bhaiya (DW-1) and Babbu (DW-2) are telling a falsehood before the trial Court.
11. By the evidence of Dr. U.K.Gupta (PW-9), the testimony of the complainant Gokul and the victim Shivbalak appears to be trustworthy. However, there are some contradictions between the evidence given by Ramratan, Gokul and Shivbalak and also there is some contradiction between the evidence of the complainant with his FIR Ex.P-8. According to the witnesses, the victims were released at about 4:00 PM in the evening, and therefore they could lodge an FIR soon after the incident, but the FIR was lodged at about 8:30 PM, and therefore the possibility cannot be ruled out that after discussion and conferencing with others, the complainant and his father could have added the names of the accused persons in their FIR otherwise it is proved beyond doubt that the complainant Gokul and his father Shivbalak were assaulted by the appellants.
12. Gokul and Shivbalak have stated that the appellants assaulted the victim Gokul by shoes, but it is nowhere confirmed by the witness Ramratan (PW-3), and therefore it appears that Gokul and his father told the story of assault by shoes to make the case of insult of a person belonging to scheduled caste, but it is not correct. 7 Cr.A.No.306/1997 Similarly, Ramratan, Gokul and Shivbalak have stated in omnibus manner against the seven persons that they assaulted the victim Gokul. Looking at the injuries upon the victim Gokul, it is possible that he was assaulted by 4-5 persons, but it is also possible that the names of the appellants were added by the complainant though they were not present at the spot. Under such circumstances, the testimony of the witnesses Ramratan, Gokul and Shivbalak should be considered with some caution.
13. According to the witness Ramratan (PW-3), appellant Lalaram was present at the spot, who directed others to beat Gokul. He did not state any specific overt-act of any of the particular appellant. He has accepted in para 14 of his statement that he saw the incident taking place at Bhatiya, but he did not visit with the appellants to the house of appellant Lalaram. The complainant Gokul has stated that the appellants assaulted him, but he also alleged in omnibus manner. As discussed above, it is found that none of the appellants had assaulted the victim by shoes, and therefore specific overt-act of the appellants should be told by the victim. Gokul has stated that the appellants Lalaram and Ram Niranjan had sticks and they assaulted by the sticks. He has categorically stated that the appellants Lalaram and Ram Niranjan assaulted him at his soles of feet and appellant Ramsuphal assaulted by back of an axe. But if the details of the statement given by the complainant are 8 Cr.A.No.306/1997 perused, then it is apparent that he has specifically alleged against 3-4 appellants including the appellants Ram Niranjan, Lalaram, Ramsuphal and Lala Bhaiya. He has stated against Lala Bhaiya that he assaulted him by pelting stones. In this context, if the evidence of witness Shivbalak (PW-6) is perused, then he has also stated against the appellants in omnibus manner. He could not say anything against any specific appellants. Under such circumstances, it appears that the witnesses could not tell about specific overt-act of the appellants Pushpendra Singh, Munshilal and Sardar Singh. If these appellants had assaulted either the complainant Gokul or victim Shivbalak, then they should have told their specific overt-act. Looking at the injuries of the complainant Gokul, such injuries could be caused by 4-5 persons, but it was not necessary that all the seven appellants were involved in causing him injuries.
14. The defence witness Babulal (DW-3) has stated that the appellant Pushpendra Singh was a Postmaster in the post office, and therefore it was expected from the appellant Pushpendra Singh that he was occupied with his duties in his duty hours, and therefore the testimony of Babulal (DW-3) can be accepted and it appears that appellant Pushpendra Singh was not present at the time of incident and he was falsely implicated in the matter by the complainant. Similarly, no overt-act of the appellants Sardar Singh or Munshilal is stated by any of the eye- 9 Cr.A.No.306/1997 witnesses, therefore by such statements, it cannot be said that the appellants Sardar Singh and Munshilal were involved in the crime. Since the FIR was lodged with some delay and the complainant had sufficient time to enhance the names of the culprits, therefore possibility cannot be ruled out that the names of the appellants Sardar Singh, Munshilal and Pushpendra Singh were added without their presence. If they would had assaulted the victims, then a particular type of assault should be remembered by the witnesses and a statement could be given of that assault in the trial Court. However, it is proved that the appellants Lalaram, Ramsuphal, Ram Niranjan and Lala Bhaiya assaulted the victims causing them simple injuries.
15. There is no specific charge framed by the trial Court for commission of offence punishable under Section 323 of IPC, however the cause of action of assault was that the complainant was grazing his bullocks on a land Bhatiya and the appellants wanted to deprive him of such a facility. A suggestion was given to the various eye-witnesses that there was an adverse possession of the appellant Lala Bhaiya on that land and he was the owner of the land, and therefore he was prohibiting every one in the village to graze their cattle on that land. Initially it is admitted that it was a Government land. As per the witness Ramratan, that land Bhatiya was kept for funeral purposes, therefore it was a public land and it was for the appellants to prove that an 10 Cr.A.No.306/1997 adverse possession was created by appellant Lala Bhaiya and the complainant was prohibited to graze his bullocks on that land, because the appellant Lala Bhaiya was the owner of the land. But no revenue record was placed before the trial Court to show that the appellant Lala Bhaiya had an adverse possession on that land. It was not established by the appellants that anyone of the village was prohibited to graze his cattle. It is accepted by the witnesses that all the appellants were grazing their cattle on that land, and therefore if that land was of the appellant Lala Bhaiya, then why others were not prohibited from entering their cattle on that field.
16. In the present case, it is established that the complainant Gokul was Kori by caste, and therefore he was a scheduled caste person, which was admitted by the accused persons in their statements under Section 313 of Cr.P.C. whereas it is also established that the appellants were not of scheduled caste or scheduled tribe. Therefore, intention of the appellants is not at all material in the case. It is established that some of the appellants prohibited the victim Gokul to graze his cattle on the land Bhatiya which was a public land whereas the complainant Gokul was of scheduled caste. Therefore offence under Section 3(1)(xiv) of the Special Act is duly constituted against the appellants Lala Bhiya, Lalaram and Ramsuphal and Ram Niranjan. The learned Special Judge has rightly convicted these appellants 11 Cr.A.No.306/1997 for the offence under Section 3(1)(xiv) of the Special Act. However, a doubt is created that the appellants Sardar Singh, Pushpendra Singh and Munshilal were not present at the spot, and therefore their common intention or object cannot be presumed with other appellants. They cannot be convicted for the offence under Section 3(1)(xiv) of the Special Act either directly or with the help of Section 149 or 34 of IPC. The trial Court has erred in convicting these appellants for the offence under Section 3(1)(xiv) of the Special Act read with Section 149 of IPC.
17. So far as the unlawful assembly is concerned, it is not established that more than four persons had participated in the crime, therefore no unlawful assembly was created. However, it is apparent that the appellants had committed the offence under Section 3(1)(xiv) of the Special Act and charges were framed against them for their own deeds as well as the deeds of their co-accused, and therefore they had opportunity to contest for their own liability as well as joint liability. Therefore, if the appellants are convicted for the offence under Section 3(1)(xiv) of the Special Act with the provisions of Section 34 of IPC, then no prejudice would cause to them.
18. So far as the sentence is concerned, the trial Court has imposed minimum sentence upon the appellants. It is true that the appellants have faced harassment for appearing before the various courts in the trial and appeal 12 Cr.A.No.306/1997 for last 18-19 years, but there is no provision in the Special Act that minimum sentence will be reduced on any ground. The overt-acts done by the appellants appear to be grave. After more than 45 years of the Independence if a scheduled caste person is treated in such a manner, then no sympathy can be shown to the culprits. Under such circumstances, the minimum sentence awarded by the trial Court should be maintained.
19. On the basis of the aforesaid discussion, the appeal filed by the appellants Sardar Singh, Munshilal and Pushpendra Singh is allowed. Their conviction as well as sentence for commission of offence under Section 3(1)(xiv) of the Special Act read with Section 149 of IPC is hereby set aside. They are acquitted from all the charges appended against them. They would be entitled to get the fine amount back, if they have deposited the same before the trial Court. Whereas the conviction directed against the appellants No.1 to 4 Lala Bhaiya, Ramsuphal, Lala Ram and Ram Niranjan for commission of offence punishable under Section 3(1)(xiv) of the Special Act read with Section 149 of IPC is converted into the conviction under Section 3(1)(xiv) of the SC/ST (Prevention of Atrocities) Act, 1989 read with Section 34 of IPC, but their sentence directed by the trial Court is hereby maintained. The appellants No.1 to 4 are directed to surrender before the trial Court forthwith so that remaining sentence can be executed against them. 13 Cr.A.No.306/1997
20. At present the appellants Sardar Singh, Munshilal and Pushpendra Singh are on bail. Their presence is no more required, therefore it is directed that their bail bonds shall stand discharged.
21. A copy of this judgment be sent to the trial Court with its record for information and compliance.
(N.K.Gupta) Judge 24/09/2012 Ansari