Madhya Pradesh High Court
Heeru @ Aashish Pandey vs The State Of Madhya Pradesh Judgement ... on 21 December, 2012
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT, JABALPUR
SINGLE BENCH
PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA
CRIMINAL APPEAL NO.2185/2005
Heeru @ Aashish Pandey and two others
Vs.
State of Madhya Pradesh
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For the appellants No.1 & 2 : Shri J. L. Mishra, Advocate.
For the appellant No.3 : Ku. Manisha Shrivastava,
Advocate, High Court Legal
Services Authority.
For the respondent/State : Smt. Pratibha Mishra, Panel
Lawyer
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JUDGMENT
(Delivered on the 21st day of December, 2012) The appellants have preferred this appeal against the judgment dated 15.10.2005 passed by the learned Special Judge under the SC/ST (Prevention of Atrocities) Act, Katni in Special Case No.10 of 2003 whereby the appellants are convicted for offence punishable under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act (hereinafter it will be mentioned as the "Special Act) and section 323 of I.P.C and sentenced for six months rigorous imprisonment with fine of Rs.500/- and fine of Rs.300/- respectively. In default of payment of fine, one months and 20 days rigorous imprisonment was directed respectively. 2
Criminal Appeal No.2185/2005
2. The prosecution's case in short is that on 9.6.2002 the victim Mihilal (PW4) and Ramcharan (PW5) were coming back from the marriage ceremony arranged at the house of Patwari Harchatlal Choudhary (PW2) at Village Itaura (Police Station Barhi, District Katni) and at about 4.30 p.m they stopped in front of Pan Shop of Chandrabhan Tiwari, then the appellants and 15-20 other persons started quarreling with them on the basis of their caste and also assaulted them. Thereafter, the appellants and such persons went to the house of Harchatlal and destroyed so many things in his house. A bullock cart and one motor cycle was also damaged. A written report was submitted by the complainants which was registered by the Police at Police Station, Barhi. The injured persons were sent for their medico legal examination. Dr. Jasuja (PW10) examined the victim Mithilal at Government Hospital, Katni and gave his report Ex.P/3. He found a lacerated wound on his left forehead whereas no visible injury was found to the victim Ramcharan.After due investigation a charge sheet was filed before the JMFC, Katni who, committed the case to the Special Court, Katni.
3. The appellants abjured their guilt. They did not take any specific plea but, they have stated that they were innocent. Rajkumar Tiwari (DW1) was examined as a defence witness.
4. The learned Special Judge after considering the evidence adduced by the parties acquitted the appellants for offence punishable under Section 506-B of the I.P.C but convicted them for offences punishable under Sections 323 of I.P.C and 3(1) 3 Criminal Appeal No.2185/2005
(x) of the Special Act.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellants no.1 and 2 submits that both the victims did not tell about the fact that the incident took place on the basis of the caste or the appellants abused them on the basis of caste and therefore, no offence punishable under Section 3(1)(x) of the Special act is made out. The FIR was lodged in a routine form typed by some law knowing person. Soon after the incident the FIR was not prepared but when some destruction was caused in the house of Harchat, then Harchat who was the Patwari got the FIR Ex.P/2 prepared and the genesis of the crime as mentioned in favour of the victim. There is a lot of contradiction between the version of the FIR and the statements given by the witnesses. The appellants are convicted without any basis and therefore, it is prayed that the appellants may be acquitted.
7. The appellant no.3 was not appearing in the Court from so many days. He could not be traced even with the help of the surety and therefore, Ku. Manisha Shrivastava, Advocate was appointed from the panel of Legal Services Authority to defend the case of the appellant no.3 and to act as amicus curie. The learned counsel for the appellant no.3 has also submitted that there was no role of the appellant no.3 in the crime. She supported the contention adduced by the appellants no.1 and 2.
8. On the other hand the learned Panel lawyer has supported the judgment passed by the trial Court and it is prayed 4 Criminal Appeal No.2185/2005 that the appeal may be dismissed.
9. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellants can be accepted ? And whether sentence directed against the appellants can be reduced ?
10. The incident took place in two parts. Firstly a quarrel took place in front of a Pan Shop and after some time the appellants went to the house of the complainant Harchatlal (PW2) and damaged his property including a motor cycle. There is no allegation against the appellants that the second incident was done on the basis of the caste or any abuses uttered by the appellants on the basis of the caste at that time. It is apparent that the second incident was a reaction relating to the first incident and therefore, for consideration of offence punishable under Section 3(1)(x) if the Special Act only first part of incident is relevant. In that part Mihilal (PW4), Ramcharan (PW5) were the victims and eye witnesses. Santosh Kumar (PW7) examined as an eye witness for the first incident whereas, Harchatlal (PW2), Ram Milan (PW3) and Sokhilal Choudhary (PW6) were examined as eye witnesses of the second incident. In the cross examination, witness Santosh Kumar (PW7) has accepted that when the incident took place in front of the Pan Shop he was not present and the incident which took place in the house of Harchatlal, he saw the incident. Under such circumstances, it is apparent that Santosh Kumar is an eye witness of the second incident though he 5 Criminal Appeal No.2185/2005 claimed to be an eye witness of the first incident in the beginning.
11. Hence except for the witnesses Mihilal (PW4) and Ramcharan (PW5) no witness is examined for the first incident. The witnesses telling about the first incident are hearsay witnesses and therefore, their testimony has no value. Mihilal (PW4) has mentioned in the FIR Ex.P/2 that the appellants asked about his caste and thereafter, he was assaulted but in his evidence before the trial Court he did not say anything about the quarrel which took place on the basis of the caste. He also refused that he gave any typed report to the Police. Similarly Ramcharan (PW5) could not say about the genesis of the crime as to how the quarrel started. He was declared hostile by the prosecution and he accepted that in the case diary statement he told the Police that he was assaulted on the basis of the caste. The witness Ramcharan did not accept that such incident took place which was mentioned in his case diary statement whereas the case diary statement given by this witness cannot be taken as a substantial piece of evidence. Case diary statement of a witness can be used only for contradiction and omission. If a witness tells a different story in the case diary statement but does not tell such a story before the Court then due to his admission that he gave such a statement to the Police, it cannot be said that he told the same story before the Court unless he repeats the story in the Court. In para 15 of the cross examination the witness Ramcharan has accepted that the appellants did not abuse by any other words except with some filthy abuse. He accepted that initially they 6 Criminal Appeal No.2185/2005 tried to lodge a FIR at Police Station Gadh and thereafter, a written report was given to the Police Station AJK, Katni. The FIR Ex.P/20 lodged by five complainants including Harchatlal Patwari. The incident took place on 11.6.2002 whereas the FIR was submitted to the Police on 12.6.2002. The application was addressed to the S.P. Katni. It appears that FIR was lodged with delay and it was prepared by some law knowing person and therefore, FIR loses its value. If the entire statements of Mihilal and Ramcharan are considered then it would be clear that none of the appellants abused them on the basis of the caste. Similarly a quarrel did not take place on the basis of the caste. No body asked them about their caste. These witnesses were suggested that, they spit pan on the leg of one accused and therefore, quarrel started. In this connection Shri Raj Kumar (DW1) was examined who has clearly stated that the spit of Pan was dropped on the leg of Sanjay Tiwari and thereafter, a quarrel took place. Though such suggestion was not accepted by Mihilal and Ramcharan but it is very much clear that neither the quarrel started on the basis of the caste nor the appellants abused the victims Mihilal and Ramcharan on the basis of the caste and therefore, no insult of these two persons was caused on the basis of the caste. No offence punishable under Section 3(1)(x) of the Special Act is made out against the appellants. Learned Special Judge has committed an error in convicting the appellants for that offence.
12. Looking to the statements given by Mihilal and 7 Criminal Appeal No.2185/2005 Ramcharan it appears that the appellants assaulted these two persons. Dr. Jasuja (PW10) found a lacerated wound to the victim Mihilal whereas the victim Ramcharan was complaining about the pain but no visible injury was found. According to the defence witnesses a quarrel took place between the parties. If Mihilal spitted pan on the leg of the complainant Sanjay Tiwari it was not a case of sudden or grave provocation or any right of private defence so that the appellants could assault the victims. It is also apparent that in reaction the appellants and other 25 persons went to the house of Harchatlal Patwari and destroyed his valuables and damaged the property. Under such circumstances, the evidence of Mihilal and Ramcharan is acceptable that the appellants assaulted them without any cognate reason. As it is considered that no right of private defence accrued to the appellants, no sudden or grave provocation was given by any of the victims then it is apparent that the appellants assaulted the victims Mihilal and Ramcharan voluntarily causing them hurt. Hence the learned Sessions Judge has rightly convicted the appellants for offence punishable under section 323 of I.P.C.
13. So far as the sentence is concerned each accused person remained in the custody for more than seven days. Only fine is imposed by the trial Court for offence punishable under section 323 of I.P.C. There is no ground so that advantage of probation may be given to any of the appellants. No counter appeal is filed by the prosecution for enhancement of the sentence whereas the trial Court has imposed some fine for that offence 8 Criminal Appeal No.2185/2005 upon the appellants. Under such circumstances, the sentence directed by the trial Court for offence punishable under Section 323 of the I.P.C appears to be appropriate and no change is required in the sentence. On the basis of the aforesaid discussion the appeal filed by the appellants is hereby partly allowed. The conviction as well as the sentence directed for offence punishable under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act is hereby set aside. The appellants are acquitted from the charges of the said crime whereas the conviction as well as the sentence directed by the trial Court for the offence punishable under Section 323 of I.P.C is hereby maintained against the appellants. The appellants have already deposited the fine amount before the trial Court.
14. Appellants no.1 and 2 are on bail and their presence is no more required. Hence it is directed that their bail bonds shall stand discharged. Presence of the appellant no.3 is also not required and therefore, if any perpetual warrant is issued then it may be called back without its service.
15. It is my duty to extend special thanks to Ku. Manisha Shrivastava, Advocate who assisted the Court for appellant no.3 as amicus curie from High Court Legal Services Authority.
16. Copy of the judgment be sent to the trial Court along with its record for information.
(N.K.GUPTA) JUDGE 21.12.2012 bina 9 Criminal Appeal No.2185/2005