^^^1^^^ K—^- SfW:' • K& sssa" ',5^&:&S-^ BR vsss^w':. ^sgg^^.' ^^%i^^' ^K^^< MKtn"i ^g^???" ^ i^ ^^ ^s^ ^%^ p—t i »:;liai K^SSSsffW^ 'WSSSSKW ey^ HIGH COURT OF CHHATTISGARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 1526/1996 APPELLANT Nammu Versus RESPONDENT State of Madhya Pradesh Shri Ravi Bhagat counsel for theappellant. Shri Vaibhav Goverdhan PL for the State. CRIMINAL APPEAL UNDER SECTION 374 (1)OF THE CODE OF CRIIVIINAL PROCEDURE JUDGMENT (27.04.2011) This appeal is directed against the judgment and order dated 30.8.1996 passed by Special Judge, Raipur in Special Case No. 173/1996 convicting the accused/appellant for the offence punishable under Section 3 (1) (X) of the Seheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short the "Act") and sentencing him to undergo rigorous imprisonment for six monthS and pay fine of Rs. 500/-, in default of payment of fine to further undergo simple imprisonment for three months. 2. Facts of the case in brief are that on 29.6.1995 a written report Ex. P-1 was made by the complainant Bhukhan Bai (PW-2) who belonged to Satnami caste to Dy. S.P. Scheduled Caste Welfare Cell, Raipur stating that on 22.6.1995 when she had gone to fetch drinking water from the bore well of the village, accused/appellant who belonged to Dheemgr caste had abused her by calling "Chamarin arid also using filthy language againsther.It is also .alleged in the said written complaint that the accused/appellant had said to her that by touching the bore well she had ->^. madeit impure and sgying so he had also thrown away her vessel. tt is alleged in the complaint that first of all she had approached the village Kotwar with her grievance,but he had refused to help her saying that head of the village was against him. It is further alleged by her that she was surviving on dirty water of the pond. It is alleged that in the village Hindus are in'majority whereas the number ofscheduled caste families is sa 'b^t '^'^. ---'^ only 30 and that being so the system of un-touchability is prevailing in a large scale. Based on this written report, FIR (unexhibited) was registered against the accused/appellant for the said offence and after completion of investigation challan was filed by the police on 28.8.1995. 3. So as to hold the accused/appellant guilty, prosecution has examined 06 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 as mentioned above in paragraph No.1 of this judgment. 5. Counsel for the appellant submits that there is inordinate delay of seven days in lodging the FIR which has not been satisfactorily explained by the prosecution. hle submits that the accused does not believe in untouchability and as there was some dispute between the complainant and the appellant over breaking the queue for water, taking advantage of her caste, she has roped the appellant in.a false case. //' 6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below being based on the material available on record are just and proper and call for no interference in this appeal. 7. Prabhu Das (PW-1) - the village Kotwar has stated in his evidpnce that the complainant had informed him that the accused/appellant had abused her at th^ bpre well but she had not disclosed to him as to what abuses were hurled by him at her^Complainant - Bhukhan Bai (PW-2) has stated in her evidence that on the date of incident when she had gone to fhe village bore well to .fetch drinking water, accused/appellant had thrown her vessel and also abused her using filthy language. Accdrding to this witness, pFior thereto also, the accused/appellant had beaten ona Bhagwantin belonging to Satnami caste, over her touching the well. Shehas-.stated that on account of being beaten by the '^ accused/appellant she raised the cries on hearing which her husband Bhagirathi (PW-3), sons Rajkumar (PW-6) and Rajesh (PW-4) and said Bhagwanti (PW-5) reached there and rescued her and then the report was lodged. According to her, the accused/appellant had also called her "Chamarin". In paragraph 5 of her evidence, this witness has stated that when no decision was taken in the village Panchayat, she went to police Station, Bhatapara to lodge the report and when the report was not written on the ground that one Rakesh Verma had telephoned to the police authorities not to register the report, she went to the Scheduled Caste Welfare Cell at Raipur and made the written report. She has admitted that in the village Hindus are more in number than the Satnamis. Bhagirathi (PW-3) - the husband of the complainant has stated in his evidence that on hearing the cries of his wife when he went to the spot, he saw that the accused/appellant was abusing her and then heand the other villagers had intervenedjn the matter. According to this witness, since his childhood the difference between Hindus and Satnamis was prevailing in the village and the Hindus wepe believing in untouchability. He has further stated that in the village the Hindus are more in number than the Satnamis. This witness however has not made any allegation that the accused/appellant had abused his wife in the name of her caste. Rajesh Kumar (PW-4) - the son of the complainant has supported the case of the prosecution. Bhagwantin Bai (PW-5) who also belonged to the Satnami caste has not supported the case ofthe prosecution and has been declared hostile. Raj Kumar (PW-6) - another son of the complainant has supported the version of his mother. Sugreev Gond (DW-1) has stated in his evidence that there was a queue atthe village bore well for water^ftd as said queue was broken by thecomplainant, some dispute had arisen between the village women and the accused/appellantas he hadasked everyone to take water by coming in queue on'which thecomplainant had abused the appellantsaying that the bore welt did hot belong -to his father. 8. Minute examination of the material available on record clearly goes to show that there is .inbrdinate unexplained delay of seven days in lodgirig the report aslhe incident had taken place on 22.6.1995 whereas —^_ the report was lodged on 29.6.1995. Record further shows that first the complainant had approached the village Kotwar (PW-1) with her grievance but the said Kotwar has clearly stated that she had not told him that she was abused by the appellant in the name of her caste. Evidence also goes to show that there was some dispute between the two groups over taking water from the bore well but what had happened on the date of incident is not clear from his evidence,,Bhagwantin Bai (PW-5) who according to the complainant was also subjected to same treatment by the accused/appellant has also no.t supported the case of the prosecution. 9. Thus if the cumulative effect of the evidence collected by the prosecution is taken into consideration, this Court is of the considered opinion that the prosecution has utterly failed to establish that the act attributed against the appellant attracts the provisions of Section 3 (1) (X) of the Act. It has come in the evidence that as the complainant had tried to break the queue for water, there was some altercation between her and the appellant. It has not been proved,.by the prosecution that the appellant being a staunch believer of untouchability was not permitting the complainant to fetch water from the village bore well as she belonged to Satnami caste. Thus the Co6rt below appears to have mistaken the evidence led by the prosecution while convicting the accused/appellant under this special provision. 10. In this view of the matter, this Court is of the view that the findings recorded by the Court below are not in consonance with the material available on record and therefore the sarrte are liabte to be set aside. Thus, the appeal is alloweid. Judgment impugned is hereby set aside. Accused/appellant is /acquitted of the charge levelled against him. Appellant is pnbail. Hisbail bondsstan&'discharged. f IS El1 K-a WK^- ^•' Sd/- p.SamKoshy Judge \ E'^Si K^3@B