1 HIGH COURT OF JUDICATURE AT JABALPUR (M.P.) SINGLE BENCH Criminal Appeal No. 1197/2009 Mannu @ Mool Chandra and another Vs. State of Madhya Pradesh Shri Manish Tiwari, learned counsel for the appellants. Shri R.S. Shukla, learned PL for the State. Date of hearing: 18/01/2011 Date of Judgment: 25/04/2011 J U D G M E N T Appellants have preferred this appeal under Section 374(2) of the Code of Criminal Procedure, being aggrieved by the judgment dated 26/5/2009 passed in Special Case No. 27/2008 by Special Judge, Atrocity, Panna, whereby the appellant No.1, Mannu @ Moolchand has been convicted under Section 324 of IPC and sentenced to undergo rigorous imprisonment for 6 months and fine of Rs. 2,000/-, with default stipulations and appellant No.2, Shri @ Rohit has been convicted under Section 294 of IPC and sentenced by fine of Rs. 1,000/- and also convicted under Section 3(1)(x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as 'the Act') and sentenced to undergo rigorous imprisonment for 6 months and fine of Rs. 1,000/- , with default stipulations respectively. 2 2. Prosecution case in short was that complainant Sipahi Chaudhary (PW11) was the Sarpanch of village Rampur Khajuri. On 1.6.2008 at about 7.00 a.m. when he was at his home, Dinesh Tiwari, Shiv Adiwasi and Mijaji Burman have informed him that appellant Rohit extracted pipe from the machine of water tanker, therefore supply of water is affected. On this information complainant Sipahi Chaudhary alongwith villagers went to the house of Dwarka Maharaj and told him that his grandson Rohit Mishra extracted the pipe from the machine of water tanker, therefore supply of water is affected. At this juncture, appellant Rohit having a lathi, abused the complainant Sipahi Chaudhary by using word “Chamra” and told him that how he come to his house and tried to assault him but he was caught hold of by the villagers. At the same time appellant Mannu @ Mool Chandra having an axe came there and gave an axe blow on the head of complainant Sipahi Chaudhary but he was caught by Gyasi Adiwasi (PW9) and Daduram (PW2). 3. It is further alleged that co-accused Bharat Mishra (since acquitted) also abused the complainant Sipahi Chaudhary (PW11). Complainant Sipahi Chaudhary lodged the first information report (Ex.P/16) at about 9.30 a.m. at Police Station Shahnagar, Panna. On the report of complainant Sipahi Chaudhary, a crime was registered and he was sent for medical examination. 3 4. After usual investigation, appellants and other co-accused were charge sheeted before the Chief Judicial Magistrate, Panna, who committed the case to the Special Judge, Atrocity. Learned Special Judge framed the charges against the appellants under Sections 294, 324/34, 506-II of IPC and Section 3(1)(x) of the Act. Appellants abjured the guilt and pleaded false implication on the basis of previous enmity. They examined Dwarka Prasad Mishra (DW1) and Bharatlal Mishra (DW2) as defence witnesses in their favour. 5. On appraisal of evidence on record, trial Court convicted and sentenced the appellants as mentioned hereinabove. Hence this appeal. 6. Learned counsel for the appellants submitted that trial Court committed illegality in not appreciating the evidence on record in its proper perspective. He further submitted that despite the fact that most of witnesses have not supported the prosecution case and only interested witnesses have supported the prosecution, the trial Court committed error in placing the reliance on the testimony of interested witnesses, therefore he prays for setting aside the impugned judgment and conviction and sentence recorded against the appellants by the trial Court and further prays for acquittal of the appellants. 7. On the other hand, learned counsel for the State has supported and justified the impugned 4 judgment and finding of the Trial Court. 8. I have perused the impugned judgment, evidence and other material on record. 9. Complainant Sipahi Chaudhary (PW11) deposed that appellants belong to Brahmin caste. He further deposed that he being a Chaudhary caste comes under the list of Scheduled Caste. He further deposed that there was a drought condition in the month of June 2008 and government provided amount for supplying water to the public by tanker. He further stated that on fateful day at about 7.00 a.m. when he was at his home, Mijaji, Dinesh, Shivcharan Adiwasi came to his house and informed him that appellant Rohit extracted the pipe from the machine of the water tanker. On the aforesaid information he alongwith Dinesh Tiwari (PW4), Shiv Adiwasi, Mijaji Burman (PW3), Gyasi (PW9), Daduram (PW2) etc. went to the house of Dwarka Mishra and told him that his grandson extracted the pipe from the machine then Dwarka called Rohit. He further deposed that Rohit came there with a lathi, abused him by saying “Chamra” how he came to his house and tried to assault him but he has been caught hold of by Gyasi (PW9). At the same time, appellant Mannu @ Mool Chandra came with an axe, abused him and assaulted on his head by means of an axe, for which he become unconscious and fell down and then ran away from the spot and lodged a report Ex.P/16. He further deposed that he was sent for medical 5 examination. 10. Dr.Pawan Dwivedi (PW12) supported the version of the complainant and deposed that he found an incised wound of 1” x ½” on the head of complainant Sipahi Chaudhary and opined that the injury may be caused by hard and blunt object and prepared the report Ex.P/17. He admitted that injury may be caused, if injured fell down on the pointed stone. It is true that Mijaji Burman (PW3) and Daduram (PW2) have not supported the version of complainant Sipahi Chaudhary. 11. Daduram (PW2) deposed that appellant Mannu @ Mool Chandra assaulted the complainant by lathi. In this way he partly supported the complainant and presence of Mannu has been established by his statement. 12. Ghanshyam Mishra (PW5) also partly supported the version of complainant and stated that appellant No.2, Rohit came there having a lathi and told the complainant that “Maadarchod Chamra” but he was caught hold of by Gyasi (PW9) and appellant Mannu @ Mool Chand assaulted the complainant by lathi. 13. Ramprasad Vishwakarma (PW6) deposed that appellant Rohit called the complainant “Maadarchod Chamra” and Mannu assaulted the complainant by lathi. 6 14. Gyasi Adiwasi (PW9) supported the complainant up to the extent that appellant Shri @ Rohit abused him and tried to assault him but he was caught hold of by him and Daduram (PW2). He further supported that appellant Munni assaulted the complainant by lathi. 15. Badri Prasad Tiwari (PW10) also deposed that appellant Mannu @ Mool Chandra assaulted complainant Sipahi Chaudhary by a lathi. 16. Despite extensive cross-examination complainant Sipahi Chaudhary (PW11) undeviated regarding the assault by appellant Mannu by an axe though he admitted that he lodged the report after two hours. He further admitted that a road has been constructed on the land of accused persons and they have objected that construction but only on the basis of aforesaid admission the complainant cannot be disbelieved. The version of complainant regarding assault by sharp object like an axe has supported by medical evidence of Dr. Pawan Dwivedi (PW12) and further supported by FIR Ex.P/16. The presence of appellant Mannu has been duly established by the hostile witnesses like Daduram (PW2), Ghanshyam (PW5), Rm Prasad Vishwakarma (PW6), Ram Prasad Mishra (PW7) and Gyasi (PW9). Despite they turned hostile on the point of weapon of offence and they stated that Mannu used a lathi to assault complainant Sipahi Chaudhary. In these circumstances, trial Court had not committed any illegality in recording the 7 conviction under Section 324 of IPC against the appellant No. 1 Mannu @ Mool Chandra and same is affirmed. 17. As discussed above that complainant Sipahi Chaudhary (PW11) deposed that he being a person of Chaudhary caste came under the Scheduled Caste. Same fact was corroborated by Daduram (PW2) and Dinesh Tiwari (PW4) and appellant/accused Shri @ Rohit also admitted in his statement under Section 313 of Cr.P.C. On this basis of these facts, trial Court arrived at the conclusion that complainant Sipahi Chaudhary was a member of Scheduled Caste. Chaudhary is not a caste but it is only a title and prosecution is duty bound to prove the fact that complainant Sipahi Chaudhary is belonging to a particular caste which came under the list of Scheduled Caste by producing the evidence regarding particular caste and not regarding title and it may be proved by producing a certificate from the competent authority. In these circumstances prosecution has not filed any certificate on record as well as complainant himself and other witnesses have not deposed regarding the caste of complainant except the word that complainant being a Chaudhary comes under the Scheduled Caste. In these circumstances, prosecution failed to prove the fact that the complainant Sipahi Chaudhary was a member of Scheduled Caste which is an essential ingredient of offence under Section 3(1) (x) of the Act. 8 18. Resultantly, trial Court committed illegality in convicting the appellant No. 2 Shri @ Rohit under Section 3(1)(x) of the Act. However, it is proved on record by the evidence of complainant Sipahi Chaudhary that primarily appellant Rohit abused him by saying “Maadarchod Chamra” and this fact is supported by Gyasi (PW9), who went with the complainant at the house of appellant and further corroborated by FIR Ex.P/16 and Ghanshyam (PW5)and Ram Prasad Vishwakarma (PW6) also supported the fact. In this way, trial Court rightly convicted the appellant No. 2 Shri @ Rohit under Section 3(1)(x) of the Act and same is affirmed. 19. During the course of argument, learned counsel for the appellants submitted that the appellant No.2 Shri @ Rohit is a young boy of 20 years of age and appellant No.1 Mannu @ Mool Chandra is also a young man of 32 years of age, therefore, in the event of conviction, ends of justice would be met if they be convicted for jail sentence already undergone and fine amount may be enhanced. 20. In the result, appeal of appellant No. 2 Shri @ Rohit is partly allowed and his conviction and sentence recorded under Section 3(1)(x) is set aside and he is acquitted of the same but his conviction and sentence recorded under Section 294 is hereby affirmed. Appeal of appellant No. 1 Mannu @ Mool Chandra is partly allowed. His conviction recorded under Section 324 of IPC is hereby affirmed but 9 considering the facts and circumstances of the case, and age of the appellant No.1, ends of justice would be met if he be convicted for jail sentence as already undergone for 2 days and fine amount is enhanced from 2,000/- to Rs. 10,000/-. In the event of default he will suffer further simple imprisonment for one month. 21. Appellants are on bail. Their bail bonds and surety bonds stand cancelled. Appellant No. 1 Mannu @ Mool Chandra is directed to deposit the fine amount within two months from the date of judgment. 22. Record of the trial Court be sent back alongwith copy of this judgment immediately for compliance and necessary action. (G.S. SOLANKI) JUDGE ravi