Madhya Pradesh High Court
Ramayan Prasad Tiwari vs The State Of M.P on 26 July, 2012
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
Criminal Appeal No.1170/1997
Ramayan Prasad Tiwari
VERSUS
State of Madhya Pradesh
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Shri S.K.P.Varma, counsel for the appellant.
Shri G.S.Thakur, Panel Lawyer for the State/respondent.
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J U D G M E N T
(Delivered on the 26th day of July, 2012) The appellant has preferred this appeal against the judgment dated 24.5.1997 passed by the learned Special Judge, Rewa under SC/ST (Prevention of Atrocities) Act in Special case No.27/1995, whereby the appellants were convicted for offence punishable under section 3 (1) (x) of SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter it will be referred to as 'Special Act') and section 323 of IPC and sentenced for six months' rigorous imprisonment with fine of Rs.500/- and 3 months' rigorous imprisonment. In default of payment of fine, he was to undergo for one month's rigorous imprisonment.
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Criminal Appeal No.1170 of 1997
2. Prosecution's case, in short, is that, on 29.8.1995 at about 9 p.m. in the evening, Bihari (P.W.2) was taking his handcart (Thela) towards his house situated at Village Gurh, Police Station Gurh, District Rewa, the appellant abused him on the basis of his caste and also with obscene words. The complainant Radhika Prasad (P.W.1) stopped him to pressurize his brother Bihari then, the appellant assaulted him by a stick causing him an injury on his back. The complainant has submitted a written report, Ex.P/3 to the Police Station Gurh within 45 minutes. A case was registered. The victim Radhika was sent for his medico legal examination. No visible injury was found on him person. After due investigation, a charge-sheet was filed before the Special Judge, Rewa.
3. The appellant abjured his guilt. He did not take any specific plea. However, no defence evidence was laid from the side of the appellant.
4. After considering the evidence adduced by the prosecution, learned Special Judge convicted and sentenced the appellant in aforesaid manner.
5. I have heard the learned counsel for the parties.
6. Learned counsel for the appellant has submitted that investigation in the case was done by a Head constable which is violative to the Rule 7 of SC/ST (Prevention of
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Criminal Appeal No.1170 of 1997 Atrocities) Rules, 1995 (hereinafter it will be referred to as 'The Rules') and therefore, conviction directed for offence punishable under the Special Act cannot be maintained. Since it is an old case of the year 1995 therefore, no further investigation be directed. A false FIR has been lodged by the victim. No any visible injury was found on him person and therefore, no offence punishable under section 323 of IPC is made out against the appellant. In alternate, it is submitted that the appellant has faced the trial and appeal for the last 17 years and therefore, sentence may be reduced to the minimum.
7. On the other hand, learned Panel Lawyer has submitted that conviction as well as sentence directed by the Special Court appears to be appropriate and no interference is required in the said judgment.
8. After considering the submissions made by the learned counsel for the parties and looking to the evidence adduced by the prosecution, at present it is to be considered that whether the investigation was not done by an officer having rank of the DSP? If yes, what would be the effect of that investigation? Whether the appellant can be convicted for offence punishable under section 3 (1) (x) of the Special Act? Whether the appellant can be convicted for offence
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Criminal Appeal No.1170 of 1997 punishable under section 323 of IPC? And whether sentenced can be reduced?
9. In the present case, the incident took place in the month of August, 1995, whereas the Rules came into force in the month of May, 1995 and therefore, it was required that the investigation must have been done by a police officer equivalent to the rank of DSP. In the present case, the investigation was done by Head Constable Shri Umesh Pratap Singh No.444. Under such circumstances, it is apparent that violation of Rule 7 of the Rules is made out. In this context, the judgment passed by the Single Bench of this Court in case of "Bharat Singh & another Vs. State of Madhya Pradesh", [(2007) (1) MPHT 451] may be referred, in which it was decided that requirement of Rule 7 is to be fulfilled in appropriate manner. If violation of Rule 7 is done then, conviction directed in such a case for offence of the Special Act shall not be maintained. Similalry, in case of "Dhanraj Singh Vs. State of Madhya Pradesh", [(2006) (1) MPJR 70], it is decided by the Single Bench of this Court that Rule 7 is mandatory and if investigation has been done by an officer below the rank of DSP then, entire investigation is vitiated and conviction cannot be maintained. Under such circumstances, in the light of aforesaid judgments passed by this Court, conviction directed for offence punishable under
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Criminal Appeal No.1170 of 1997 section 3 (1) (x) of the Special Act cannot be maintained. The incident took place 17 years back and therefore, at present, it would not be proper that, a fresh investigation may be directed.
10. As far as the offence punishable under section 323 of IPC is concerned, it could be investigated by an officer of any rank and therefore, if investigation is done by a Head Constable then, it makes no difference to the offence. Prosecution witness Bihari (P.W.2) and Radhika (P.W.1) have stated that the appellant assaulted the victim Radhika by a stick on his back. Narbada Prasad (P.W.3) has also stated that he saw the appellant was having a stick and he was abusing the victim. Under such circumstances, by testimony of Narbada Prasad, evidence given by Radhika and Bihari is duly corroborated. Similarly, the testimony of the complainant Radhika is duly corroborated by the FIR lodged by him, within 45 minutes of the incident, whereas place of incident was 2 kms away from the police station. Learned counsel for the appellant has submitted that in medical report, doctor opined that there was no visible injury to the victim but, by such report, no adverse inference could be drawn in the present case. If assault is made by stick without any force then, it is possible that its impact could not have caused any visible injury on the back of the
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Criminal Appeal No.1170 of 1997 complainant but, in causing hurt, it is not necessary that a visible injury be caused. If the victim suffers some pain due to the impact then, it will amount to cause a hurt. Under such circumstances, looking to the testimony of Radhika and Bihari with corroboration of the FIR and statement of Narbada Prasad, it is apparent that the appellant assaulted the victim Radhika by stick for once on his back.
11. If someone has a weapon and he assaults with that weapon then, he should know the result of his overt-act. It is not the case of the appellant that the complainant gave any sudden or grave provocation to him. Similarly, the appellant did not claim any right of private defence. Under such circumstances, the appellant assaulted the victim by a stick without any right of private defence or any sudden or grave provocation. He assaulted the victim after knowing the result of that assault and therefore, it is proved that he caused hurt to the victim voluntarily.
12. Under such circumstances, offence punishable under section 323 of IPC is very well established against the appellant. So far as the sentence is concerned, assault is made in such a manner that no visible injury was caused to the victim. The appellant faced the trial and appeal for the last 17 years. He is the first offender. Under such circumstances, when he remained in the custody for 3 days',
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Criminal Appeal No.1170 of 1997 it would be appropriate that he may be sentenced by imposing some fine only.
13. On the basis of the aforesaid discussion, where the appellant cannot be convicted for offence punishable under section 3 (1) (x) of the Special Act, appeal filed by the appellant is hereby partly allowed. Conviction as well as sentence directed for offence punishable under section 3 (1)
(x) of SC/ST (Prevention of Atrocities) Act is hereby set aside. The appellant is acquitted from the said charge. Conviction for offence punishable under section 323 of IPC is hereby maintained but, sentence is reduced to the period, which he has already undergone in the custody with fine of Rs.500/-. The appellant has deposited the fine of Rs.500/- before the trial Court for other offence and therefore, there is no need to recover the fine amount again. So, there is no need to pass any default sentence.
14. Presence of the appellant is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.
15. Copy of the judgment be sent to the trial Court with its record for information and compliance, if any.
(N.K.GUPTA) JUDGE 26/7/2012 Pushpendra