HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No. 140 of 1993
Babu Lal Aghariya
...Petitioners
VERSUS
State of Madhya Pradesh
...Respondents
! Shri Roop Naik counsel for appellant
^ Shri Neeraj Mehta PL for respondent/State
Hon. Mr. Justice Pritinker Diwaker
Dated:12/03/2010
: Judgment
CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF
CRIMINAL PROCEDURE.
J U D G M E N T
(12.03.2010)
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 under Section 3
(1) (10) of the Act.
2. 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).
3. 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 under section 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.
4. After hearing the parties the trial Court has
convicted and sentenced the accused / appellant for
the offences as mentioned above.
5. Heard counsel for the parties and perused the
material available on record including the judgment
impugned.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.”
11. 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 under Section 3 (1) (10)
of the Act is hereby set aside. As regards
conviction under section 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 under Section 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 under Section 294
IPC and accordingly conviction and sentence under
this section are maintained.
12. 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.
13. With the aforesaid observations the appeal is
partly allowed.
Judge