s ^' IN THS HIGH COURT OF M.ADHYA PRADSSH AT JAB^PUR Criminal Appeal No. <=S-3r€ of 1995 Appe.lla.nt 88 v • j>^ ^i^- ^^SSb ,^*^11 ,^^^^'"""'"^ t- ^ ^.^^ :z.^ l^ Khamnan^ aged 60 years^ son of Shri. Bhaglrathi? 2» Ishwar^aged 24 years^" son of Shri Dovaram Sahu; 3< Sajjee Ram^ aged 38 years^ ° son of Shri Peelurain? 4» Tukaram^ aged 40 years^ son of Shri Rai Singh Sahu; l" 5^ Gareeba^ aged 25 years^ son of Shri Tilakram Sahuj ' All residents of- villa.ge Kareli K'hurd^ P^SeMaga.rload^ District Raipur^M^P, versus Respondentss The State of Ma-3hya Pradesh CRIMINAL.APPEAL UNDER SSCTION 374-(2) OF,,THS_CODE._OF CRIMINAL PRO'CEDURfi, 197 3 "•.^ ^ / , HIGH COURT OF CHHATTISSARH AT BILASPUR Single Bench : Hon'bJe Mr. Justice Pritinker DJwaker CriminaJ ApDeal No. 296 of 1995 APPELL^NTS RESPONDENT Khamhan and others. Versus State of Madhya Pradesh Shri Arun Kochor counsel for the appeilants. Smt. Smita <$hai Pane! Lawyer for the State. CRIMIN^L APPEAL UNDER SECTION 374 C2) OF THE CObE OF CRIMINAL PROCEDURE JUDSMENT (03.02.2011) This appeai is directed against the impugned judgment and order dated 13.2.1995 passed by Speciaj Judge, Raipur in Special Case No. 303/1991 convicting the accused/appellants under Section 3 (1) (xv) of the Scheduied Caste <& Scheduled Tribe (Prevention of Atrocities) Act ond sentencing each of them to undergo rigorous imprisonment for six months. 2. Case of the prosecution in brief is that on 1.7.1991 the report was lodged by Dahru Ram (PW-1) di^ing in it that on that doy the accused/appejiants had entered in his enclosure {Baadi} and damaged the crop of vegetQbles ond flowers and dso beoten him. On the basis of this report, entry was made m the Rojnamcha Sanha vide Ex.P-1 and after investigation, on 24.7.1991 F.I.R. (Ex.P-5) was registered against seven accused persons under Sections 294/34 and 325 of the Indian Penai Code and Section 3 (1) (xv) of the Scheduled Caste A Scheduled Tribe (Prevention of Atrocities) Act. After investigation c/?^//<?/? was filed on 7.9.1991 under Sections 294, 147,148, 325 of the IPC ond 3 (1) (xy) of the Scheduled Caste & Scheduied Tribe (Prevention of Atrocities) Act. While (5) '^. framing the charge, court beiow has framed the charge onjy under Section 3 (1) (xv) of the Schedujed Caste d Scheduied Tribe (Prevention of Atrocities) Act against the accused/appeilants. 3. So as to ho!d to accused persons guiity, prosecution has examined seven witnesses in support- of its case. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges jeveiied against them and pleaded their innocence and false implication in the cose. Aparl- from this, witnesses namely AAohan Lai Sohu (DW-1) and BalurGm (DW-2) have QJSO been examined by the defence in support of its case. 4. During trial two Qccused persons noimely DcajGrGm ond Roop Singh have expired ond by the impugned judgment the learned trial Courl" has convicted and sentenced the remaining accused/appejlants as mentioned above. Hence this appeal, 5. Counsel for the appeilants submits that the iQnd in question beiongs to the appeJJants and as the same was ijlegojjy encroached by the compiainant, the appeljants were requesting him to vacate the some and to grab the land of the accused/appeflants, faise report has been lodged by the complainant. He submits that there is noevidence on record to show that the comp!ainant belongs to Scheduled Tribe category and no caste ceri-ificate whatsoever KQS been produced by the prosecution and the appellotfits had not admitted the fact of the caste of the compSainant. It has been furt-her argued that in the F.I.R. lodged by the compiainant, there is no mention by him about his caste. He submits that in the facts & circumstances of the case, prosecution was obliged ^, - r,- to produce the reievant evidence inciuding caste certificate of the compldnant. He furt-her submits that there is no evidence on record to show that the act dl^eci to have been done by the accused/appellant was done with an intention and knowledge that the compiainant bejongs to Scheduled Tribe category and, therefore, aiso the accused/appejjant cannot be convicted under .Section 3 (1) (xv) of the Schedujed Caste & Scheduied Tribe (Prevention of Atrocities) Act. 6. On the other hond supportinq the impugned judgment it has been argued by the Stat®counsej that the impugned Judgment is in accordance with iaw and there is no infirmity in the same. 7. I have heard counsei for the porties and perused the materiai avGilable on record incjudin9 judgment impugned. 8. Complainant Dahru Ram (PW-1) has stated in his evidence that he belong to 'Nagarchi' caste which comes under the category of Scheduied Tribe community. He has stated that sometime In the month of July, dt about 8-9 pm accused/appelhnts had entered in his enclosure {Baadi) <md damaged the crop of his vegetabjes and flowers and when he tried to protest, Gccused/appeliants had stated that the said jand bejongs to them and not to the father of the complainant. He has stated that thereofter, occused/appeilant No. 2 ~ Ishwar gave him biow of jathi as a resuit of which he sustained injuries. In cross-examination, this witness has admitted the fact that iand where he had put the fencing does not beiong to him nor he had taken any permission from the accused/appeilants. He has stated that at the time of incident heand his wife were present and then the report was iodged. ,. •sas, Kanchon (PW-2) - wife of the compiainQnt has stated in her evidence thaton the date of incident the accused/oppellants had entered her enclosure and damaged the same and the accused/appellant No. 2 nameiy Ishwar assaujted her husband by mecuis of club. Paras Ram (PW-3) has made aimost similar statement as hos been made by complainant ond her wife but he also admits that land beiongs to one of the occused/appe}lant. Ram Sdhai Konooje (PW-6) - Head Constabje has stated in his evidence that he hod made entry in the Rojnamcha Sanha No. 503. Surojbhan Singh Rana (PW-7) - Investigation Officer has supported the case of the prosecution. 9. Minute exomination of the evidence of the witnesses mokes it ciear that the prosecution has utterly failed to prove the caste of the complainant and no document whatsoever including caste certificate has been filed and the Qppellants have not odmitted the fact that the compldnant belongs to Scheduled Tribe category. Furthermore, there is no evidence on record to show that the act alleged to have been done by the accused/appelloint was done with an intention and knowledge that the complainant beiongs to Scheduled Tribe category. AAerely because some crops of the compiainant have been damoged, the provision of Scheduled Caste di Scheduled Tribe (Prevention of Atrocities) Act would not be attracted automatically. Further there is no eyidence on record that in any manner the accused persons have forced the compJGinant to ieave his house, village or place of residence ond thus essentid ingredients for convicting the accused/Gtppeliants under Section 3 (1) (xv) of the Scheduled Caste <& Scheduted "M^. '% rfc...-:,.'! 'N ;^^;:'. ' 4. ';l '~":, '' ..^ :^-. %^:-'.^ "^^^^v" '^ x Tribe (Prevention of Atrocities) Act is ajtogether missing in this case. 10. To conclude, the appeai is allowed. Impugned judgment dated 13.2.1995 is hereby set aside. Appellant is acquitted of th®charges levelled against him. Since appellant is aiready on bail, his baii bonds stand discharged. Sd/- Pritinker Diwaker Judge