Madhya Pradesh High Court
Salman @ Shahrukh vs The State Of Madhya Pradesh on 12 May, 2020
Equivalent citations: AIRONLINE 2020 MP 1357
Author: Anand Pathak
Bench: Anand Pathak
1 Cr.A.No. 993/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
JUSTICE ANAND PATHAK
CRIMINAL APPEAL NO. 993/2017
Salman alias Shahrukh & Anr.
Vs.
State of M.P.
Shri Pawan Kumar Vijayvargiya, learned counsel for the accused-
appellants.
Shri Aditya Singh Ghuraiya, learned PP for the State.
JUDGMENT
(Passed on this 12th Day of May, 2020) Appellants /accursed has filed this appeal under Section 374(2) of Cr.P.C. being aggrieved by judgment of conviction and order of sentence dated 14/07/2017 passed by Special Judge (Atrocities), Sheopur in Special Sessions Trial No. 200050/2015; whereby, appellant No. 1-Salman alias Shahrukh has been held guilty of offence under Section 3 (1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to suffer six month RI with fine of Rs. 1,000/- and in default of payment of fine to further undergo one months RI; whereas, co-accused i.e. appellant No. 2-Ballu alias Shakil has been held guilty of offence under Section 190 of IPC and imposed fine of Rs. 1,000/- and in default of payment of fine to undergo 1 months RI.
2. Case of prosecution, in the case in hand reveals that written complaint has been submitted at the instance of complainant on 23/4/2015 at Police Station Ajak, Sheopur with the allegations that she works as Sweeper in Municipal Council, Sheopur and therefore, she went at Belt 6 Mazaar around 6-7 am in the morning for the work of cleanliness; where, appellant No. 1- Salman alias Shahrukh, who runs Dilkhush Tea Stall was present and when she asked him to 2 Cr.A.No. 993/2017 remove the chairs he put over the main road then he started hurling verbal abuses and made caste aspersions. He removed his shoes to beat the complainant.
3. She left the place and with her family members went to the Police Station Ajak to give complaint against accused Salman alias Shahrukh, where, co-accused Ballu Painter, who was Chairman of the Cleanliness/Hygiene Committee of the council, visited and tried to put pressure over the complainant not to give complaint to the Police. He tried to prevail over the complainant for not filing the complaint and misbehaved with her.
4. On her complaint (Ex. P/2), FIR (Ex. P/8) was registered and after getting the caste certificate of complainant, statement of witnesses were recorded. One of the appellants, Salman alias Shahrukh was arrested and after investigation, charge-sheet was filed.
5. Initially the charge-sheet was filed against the appellant Salman alias Shahrukh only and charge was framed against him. He abjured his guilt, therefore, trial was conducted against him.
6. Later on in the case, trial Court took cognizance under Section 319 of Cr.P.C. against co-accused Ballu alias Shakeel because in examination-in-chief, complainant and other witnesses referred the role of said appellant Ballu alias Shakeel in categorical terms. After taking cognizance, trial Court framed charge against him and accordingly trial Court conducted.
7. Trial Court considered the evidence and rival submissions of the parties and thereafter recorded conviction as referred above; wherein, appellant No. 1 Salman alias Shahrukh was convicted for offence under Section 3 (1)(x) of Atrocities Act with six months RI and 1,000/- fine alongwith default stipulation; whereas, appellant No. 2 Ballu alias Shakeel was convicted only for Section 190 of IPC and fined 1,000/- rupees with default stipulation. Against such conviction, appellants have filed instant appeal.
8. It is the submission of learned counsel for the appellant that 3 Cr.A.No. 993/2017 false case has been registered against them. Appellants did not commit any offence. It is further submitted that looking to the political rivalry, false case has been registered and provisions of Atrocities Act have been misused. He submitted that referring the caste of a person does not amount to commission of offence under Atrocities Act. It is further submitted that complaint and representation given on behalf of complainant on a letter pad of Association indicates that it is a case guided with motive and no allegations in specific terms have been levelled.
9. Learned counsel for the respondent/Sate opposed the prayer and submitted that all witnesses have deposed on oath without any contradiction and omission. He supported the impugned judgment and prayed for dismissal of the appeal.
10. Heard learned counsel for the parties at length and perused the record.
11. In the case in hand trial Court convicted appellant Salman alias Shahrukh for commission of offence under Section 3 (1) (x) of atrocities Act and awarded jail sentence for six months RI and 1,000/- fine whereas, another appellant Ballu alias Shakil was convicted for commission of offence under Section 190 of IPC and awarded sentence of one thousand rupees as fine with default stipulation for both the accused.
12. In the case in hand, complainant (PW/1) lodged FIR (Ex. P/8) on 23/4/2015 at 9.30 am; whereas, incident was of morning around 6- 7 am, therefore, FIR was well within time. Contents of FIR indicate that complainant narrated the story about conduct of appellant Salman alias Shahrukh and appellant No. 2 Ballu alias Shakeel in specific terms. FIR was registered on the basis of a written complaint (Ex. P/2) and said complaint was written by Mahaveer Valmiki 4 Cr.A.No. 993/2017 (PW/4) because he is leader of Union of Sweepers. The said written complaint (Ex. P/2) also narrates the incident in same fashion as of FIR besides that statement of prosecutrix under Section 161 of Cr.P.C. (Ex. P/6) also indicates that she referred the case also ditto as narrated earlier.
13. Although in her FIR and written complaint (Ex. P/2) she did not refer the presence of eye witness Kamlesh but in her statement under Section 161 Cr.P.C. she narrates the said fact. Similarly, in her court statement she narrated the fact of Kamlesh as eye witness although she referred the presence of Mahaveer Valmiki also but as per the statement of Mahaveer himself he came later on. Reference of Mahaveer as eye witness in her Court statement does not demolish the case of prosecution because it may be an exaggeration to include one more witness so that her case may become stronger and only on this pretext case of prosecution and statement of complainant (PW/1) cannot be overlooked and rejected out rightly.
14. In her narration of events, the course of events remained unrebutted through out. She narrated the events in such a manner which is not being dented by the defence to that extent where the case of prosecution would have been treated as full of contradictions and omissions.
15. It is but natural that complainant under the anxiety of injustice meted out to her tried to improve and substantiate the case for taking the case to the logical end and therefore, minor omissions and 5 Cr.A.No. 993/2017 contradictions are to be looked into in factual contours of the case.
16. Here the complainant belongs to weaker section of the society and she is a sweeper, who is working hard to make both the ends meet. Occurrence of incident has never been doubted or dented by the defence in substantial manner. Cross-examinaiton of the complainant/victim (PW/1) nowhere sugest that occurrence of incident was tried to be rebutted by the defence nor any such any attempt has been made in respect of another witness Kamlesh (PW/3).
17. One representation (Ex. D/1) was also given by the Akhil Bhartiya Safai Majdoor Congress, Sheopur M.P. on 5/4/2015 in which subject was written as representation for protection of interest and dignity of Sweepers posted in Nagar Palika (Sheopur). Defence on the basis of such title tried to establish the fact that grievance of sweepers was different. Said title is natural reaction of association because incident was directly related to the interest and dignity of a woman of weaker section of the Society, therefore, Defence has tried to take the misplaced advantage of this representation(Ex. D/1). Rather it substantiates the cause of complainant and ultimately prosecution. Another document (Ex. D/4) which is statement of complainant has been taken in defence by the accused and same also nowhere gives any leverage to the appellant because in said statement also course of event had been specifically mentioned and presence of Kamlesh as eye witness also referred.
6 Cr.A.No. 993/2017
18. If the statement of prosecution witness Kamlesh (PW/3) is seen then it is clear that he was present at the time of incident and he referred the fact in his examination in chief that some other persons were also there. He further referred the fact in his cross-examination in para 4 that he himself called Mahaveer because he is leader of their Society and he wields some influence. He categorically rejected the suggestion of defence in para 5 that he was not present on spot. He categorically denies the said fact and says that he was present at the time of incident.
19. Although, complainant and other prosecution witnesses like Kamlesh (PW/3) and Mahaveer (PW/4) are of same community and Mahaveer is distant relative of complainant and her husband Shyam (PW/2), but this fact does not render the evidence of Kamlesh (PW/3) and Mahaveer (PW/4) as unbelievable or guided with motive.
20. Complainant (PW/1) and Kamlelsh (PW/3) are in unision substantially in respect of occurrence of incident, presence of eye witness, role of the accused persons in categorical terms and later on removal of complainant from the post of Sweeper in Municipal Council. In fact she was removed from the post after this complaint and prior to it, no complaint was registered by the appellant No. 2 against the complainant so as to raise doubt about the motive of complainant. She was not in habit of making complaints against appellants.
21. Although statement of husband of complainant namely, Shyam 7 Cr.A.No. 993/2017 (PW/2) is bit tentative in his Court statement vis-a-vis police statement but he candidly accepts the fact that he was not eye-witness and incident has been narrated by his wife at their home and thereafter he took his wife alongwith Mahaveer to Police Station for lodging the complaint against accused persons. No material contradiction or omission existed in the court statement of Shyam (PW/2) vis-à-vis his police statement. He also narrates the incident as it is, just like the narration finds place in statement of his wife (PW/1).
22. So far as statement of Mahaveer (PW/4) is concerned, he himself admits in his Court statement that he was not present at the time of incident, therefore, his police statement under Section 161 Cr.P.C. refers his presence as eye-witness but such omission is not big enough and in fact the statement referred by the defence (of Mahaveer) as Ex. D/3 indicates that he wanted to refer the name of Kamlesh Valmiki and due to inadvertence or typographical error name has been referred as Mahaveer Valmiki because Mahaveer Valmiki in his police statement cannot refer that Mahaveer Valmiki who was present on the spot intervened and separated the appellants and complainant. Person of such background is not expected to refer the event in "Third Person", where he himself is referring his name by saying that Mahaveer intervened (rc ogkW ij ekStwn egkohj okfYedh us chpcpko fd;k A ). Therefore, it appears that he wanted to say that Kamlesh Valmiki intervened in the matter and separated both the 8 Cr.A.No. 993/2017 parties. Therefore, on this count also defence cannot get any mileage so far as demolition of prosecution case is concerned.
23. All prosecution witnesses specifically referred the role of each individual in categorical terms. Initially, appellant No. 2 Ballu alias Sakeel was not arrayed as accused and charge-sheet had been filed against appellant No. 1 Salman alias Shahrukh only' but later on, on the application under Section 319 of Cr.P.C. of prosecution; name of appellant N. 2 Ballu alias Sakeel included as an accused and charge under Section 190 IPC was framed against him.
24. Investigating Officer - P.K.Saraswat (PW/6) who was SDOP, AJAK at the relevant point of time referred the role of both the accused and admitted in his cross examination. In para 5 he admitted the fact that Ballu alias Sakeel Painter tried to prevail upon the complainant not to lodge complaint against appellant No. 1 Salman alias Shahrukh. Although he further admits that in her police statement (Ex. P/6) complainant did not refer the threat given by Ballu Painter but perusal of Ex. P/6, which is statement of prosecutrix admittedly under Section 161 Cr.PC. taken on 26/4/2015 indicates that she referred the fact about the role of appellant No. 2 Ballu alias Sakeel Painter also in categorical terms.
25. Therefore, said officer was not correct so far as that aspect is concerned. Complainant always referred the role of accused No. 2 Ballu in categorical terms throughout and it appears that police tried to support the appellant No. 2 Ballu initially because of his political 9 Cr.A.No. 993/2017 status and connections and therefore, charge-sheet had not been filed against him. Apparent reasons appear to be the Chair, (in Municipal Council) which appellant No. 2 was holding. He was Chairman of Committee for Cleanliness (Safai Samiti) of Municipal Council, Sheopur and was a corporator, therefore, police might be reluctant or hesitant to include him in the array of accused. But in the considered opinion of this Court his role was of graver and of high magnitude because he tried to assert his post and authority to dissuade the complainant from lodging FIR.
26. In democracy, Democratic Accountability of Public Representative is much higher. Act of appellant No. 1 Salman alias Shahrukh may be spontaneous but the role of appellant No. 2 Ballu alias Sakeel Painter as surfaced through the documents and evidence suggest that it was a well thought of act and he misused his authority. Although they are expected to behave decently with all females, but since complainant belongs to weaker section of society and therefore, public representatives and public functionaries are more expected to have considerate thoughtfulness towards the modesty and integrity of a working woman belonging to SC or ST or in other words, weaker section of the Society.
27. Vide Ex. P/7 Assistant Sub Inspector Mansingh Yadav (PW/5) submitted a report to the SDOP, Ajak in which he found the role of Salman alias Shahrukh in the factual matrix of allegations but he ignored the role of appellant No. 2 and exonerated the appellant No. 10 Cr.A.No. 993/2017 2-Ballu alias Sakeel from the incident. Perusal of said report Ex. P/7 reveals that appellant No. 2 Ballu alias Sakeel was exonerated on very flimsy and extraneous grounds. However role of appellant No. 1 was implicative in said enquiry report also therefore, this Court has sufficient reasons to believe that incident occurred in first phase by appellant No. 1 Salman alias Shahrukh and so far as role of appellant No. 2 Ballu alias Sakeel is concerned, same has been established by the documentary and oral evidence of complainant and other prosecution witnesses.
28. Mansingh Yadav (PW/5) who prepared the initial report (Ex. P/7) in para 4 of cross-examination referred the fact that no witnesses have referred the role of appellant No. 2 Ballu alias Sakeel Painter in respect of threat extended but the said fact is belied by the statement of Ex. D/4, D/5 and D/7 which have been relied by this witness. Ex. D/4, D/5 and D/7 are to be seen in juxtaposition to contents of written report Ex. P/2, (which is the basis of FIR) and FIR itself Ex. P/8. Both these documents contain the fact regarding threat and intimidation given by the appellant No. 2 Ballu alias Sakeel Painter. Even in her supplementary statement (Ex.P/6), complainant and her husband (vide Ex. D/2) taken on 26/4/2015 indicate that role of Ballu alias Sakeel Painter had been specifically mentioned. Therefore, enquiry report of ASI Mansingh Yadav (PW/5) prepared on 25/5/2015 (vide Ex. P/7) is not correct representation of facts and was an attempt to protect the appellant No. 2 Ballu alias Sakeel. 11 Cr.A.No. 993/2017
29. Complainant was a member of Scheduled Castes Community and same has been established from Caste Certificate Ex. P/4 issued by Sub Divisional Officer, Sheopur and both the appellants have nowhere established the fact through oral and documentary evidence that they are also members of SC or ST category. Therefore, their role so far as commission of offence under Section 3 (1)(x) and 190 IPC are hereby confirmed, being established by the prosecution beyond reasonable doubt. Atrocities Act is a socially beneficial legislation meant to protect the weaker sections of the Society and their modesty and dignity cannot be compromised at the whims and fancies of Public Representatives or the persons of community other than weaker sections.
30. No oral evidence was led by the defence and no witness had been examined so as to dent the case of the prosecution or to put forward the theory as tried to be propounded by the defence. In absence of any such eventuality; case of the accused further relegated into the realm of conviction.
31. In fact trial Court took lenient view while awarding minimum jail sentence or fine. But nonetheless this is a sufficient lesson for the perpetrators of offence of such type and this was their first offence, therefore, trial Court took the lenient view.
32. Cumulatively, trial court has rightly considered the evidence led by the parties and in the considered opinion of this Court appeal sans merits. Consequently, judgment dated 14/07/2017 of trial Court 12 Cr.A.No. 993/2017 is hereby confirmed and appeal stands dismissed. Appellants shall have to suffer conviction/sentence as given by trial Court.
Dismissed.
(Anand Pathak) Judge jps/-
JAI PRAKASH SOLANKI 2020.05.12 17:37:15 +05'30'