j^>r'*<"^. f if' '^ \•? "tg&s."y .^:/;?<c'v') S.;£.^'>•-:"-. ,^\'^'" ' Appellants HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKAR.. J Cnmiiial Appea!J<lo^359 of 2000 Suritram and others f^ Vs. Respondent TheState of Chhattisgarh. POSTFORPRONOUNCEMENTOF JUDGMBNT R.N. GhaR'drakar '.y /- o/ Sd/- .SL'-y-10-2009 -t~l HIGH COURT OF CHHARTTISGARH AT BILASPUR AppeUan^ Accused iS^ BiT ?-p Criminal Appeal No.359/2000 1. Suritram, son of Ganesh Ram Sahu, aged about 37 years, R/o Chhatwan, P.S. Pithoura, Distt. Raipur (MP) (Now Chhattisgarh) 2. Chhabilal, S/o Tijaulal Sahu, aged about 25 years, R/o Chhatwan, P.S. Pihtoura, Distt. Raipur (MP) (Now Chhattisgarh). 3. Anjor Singh, S/o Fulo Kewat, aged about 35 years, R/o Chhatwan, P.S. Pithoura, Distt. Raipur (MP) (Now Chhattisgarh) 4. Gangadhar, Son of Dhaneshram Sahu, aged about 20 years, R/o Chhatwan, P.S. Pithoura, Distt. Raipur (MP) (Now Chhattisgarh). 5. Premlal, S/o Sunhar Kanwar, aged about 50 years, R/o Chhatwan, P.S. Pithoura, Distt. Raipur (MP) (Now Chhattisgarh). 6. Ramlal S/o Sunhar Kanwar, aged about 55 years, R/o Chhatwan, P.S. Pithoura, Distt. Raipur (MP) (Now Chhattisgarh). 7. Phagsingh, S/o Hiradhar Sahu, aged about 45 years, R/o Chhatwan, P.S. Pithoura, Distt. Raipur (MP) (Now Chhattisgarh). 8. Bhojram, S/o Janku Kumhar, aged 35 years, R/o Chhatwan, P.S. Pithoura, Distt. Raipur (MP) (Now Chhattisgarh). 9. Ganeshram S/o Pochan Kewat, aged about 36 years, R/o Chhatwan, P.S. Pithoura, Distt. Raipur (MP) (Now Chhattisgarh) 10. Rathram, S/o Jageshwar Sahu, aged about 25 years, R/o Chhatwan, P.S. Pithoura, Distt. Raipur (MP) (Now Chhattisgarh) Versus Respon^ent State of M.P. Chhattisgarh (Now Chhattisgarh), through Police Station (Scheduled Caste & Scheduled Tribe) Raipur District Raipur (MP) (Now Chhattisgarh) WkS'SW^^S~2':3lS-i?S; ;;-.t.;;^-;'?'^-s'..-^^-^ Cnminal appea! u/S. 374 (2) ofthe Crimjnal Procedure Code {SBLHon'ble Mr Ranganath Chandrakar, J. 2k Present: Shri Rajesh Pandey, counsel for the appellant. Shri Sameer Behar Panel Lawyer for the State. JUDGMENT (Delivered on this2-1^day of October, 2009) The appellants have preferred this appeal against the judgment of conviction and order of sentence dated 10-1-2000 passed by the learned Special Judge, Raipur, in Special Case No. 137 of 1998, whereby the accused/appellants have been convicted under Section 3 (i) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Act') & under Section 147 of the IPC and sentenced to undergo R.l. for six months and to pay fine of Rs.500/- each in default of payment of fine to undergo further Rl for one month under Section 3 (i)(x) of the Act and to undergo Rl for three months under Section 147 of the IPC. Both the sentences are directed to run concurrently. 2) The case of the prosecution, in brief, is that on 22-10-1997 at about 12 noon in village Chhatwan when the complainant Bajram and his brother Pardesi were bathing in Hathi Pathra pond of the village, the accused/appellants came there and started abusing them collectively by saying "safe chamar ho, ham logon ke kehne se nahi mane, isi ghat me nahate ho, sale hamere ghat ko chhut kar rahe ho. Bhago sale chamar, nahi to marenge". Besides this, they hurled more filthy language and were also ready to beat them. They further abused them by saying that "po/a tyohar kesamay ko bhul gaye, ghar me hagna muthna karte the.Phir gande pani ko peena chahte ho sale, gay- bail ko gharme bandhwana chahte ho". The complainant Bajram and his brother Pardesi fled away from there due to fear and lodged 9^ the written complaint in Special Police Station, Raipur vide Ex.P-1 on 26.10.1997. They mentioned in the report that earlier also the accused/appellants raised objection for bathing in Hathi Pathra pond. It was also mentioned in the report that once the accused/appellants surrounding the house of Ramlal abused him and the people of Satnami community were ostracized. The complainant further mentioned that he lodged the report of the incident on 23-10-1997 at Police Station Pithora which was not entertained. On the basis of aforesaid report of the complainant, FIR (Ex.P/2) was registered and site map Ex.P/3 was prepared. Thereafter, the statements of the witnesses were recorded, accused/appellants were arrested. (3) After completion of investigation, charge sheet was filed in the Specia! Court. The Special Judge framed charges punishable under Section 147 ofthe IPC and under Section 3(i)(x) of the Act. The accused abjured the guilt and pleaded their innocence and false implication. The learned Special Judge after due tria! convicted and sentenced the accused/appellant as mentioned in para 1 of the judgment. (4) Learned counsel appearing for the appetlant submits that the learned trial Court has erred in appreciating the evidence in 'rts proper legal perspective. The conviction recorded and sentence awarded by the teamed Speciat Judge are contrary to the facts available on record. The prosecution has miserably failed to prove the ingredients ofthe offence under Section 3(i)(x) ofthe Act and 147 of the IPC. Thus, the appellants are entitled for the benefrt of doubt. There is no material on record to estabiish that the appellant did the act with a view to humiliate the complainant. The Special Judge committed a grave error in not considering the fact that no documentary evidence regarding the caste of the complainant has been produced. The learned trial Court though held in para 14 of the judgment that there was party bandi between the appellants and the complainant and the enmity was going on between the parties since tong, did not consider that the appellants have been falsely implicated in the case due to ^ 'rS'''^ ''-^-'^- s?fw^-i:-^^ wss9!ss^y "-'••"—•-^^y bad blood. He further submits that the learned special Court committed a grave error in not considering the evidence of defence witness Faguram Kanwar who clearly stated that on the date of incident, the complainant were abusing the appellants. He further submits that almost all the prosecution witnesses have deposed that even after the alleged incident the complainant were still using the pond for bathing and other purposes. Learned counsel further submits that the conclusions arrived at by the special Court are based on presumptions and surmises, therefore, the impugned conviction and sentence passed against the appellants is bad in law and the same deserves to be set aside and the appellants be acquitted of the charges. 6) Per contra, learned counsel appearing for the respondent/State argued the case in support of the impugned order of the Special court. 7) Having heard learned counsel for the parties, 1 have perused the records of the special Court and also the impugned judgment. 8) The prosecution in order to prove the guilt against the accused/appellant, examined as many as 10 witnesses. 9) PW/1 Bajram Kosaria, the complainant has stated in his deposition that on 22-10-1997 at about 12 noon when he was bathing in Hathi Pathra pond, the accused appellants came there and hurled filthy abuses by saying "Achhut sale Ci-iamar, hamare ghat ko achhut kar raha hai. Ek bar tum apne bap ke pass thana gaye the to tumhara bap hamara kya bigad liye aur jao tumhare bapke pass thana hamara kya bigad lenge. Bagho chamar sale nahe to jan se mar denge." On this, he left the place without saying anything. He further stated that prior to this incident the appellants had surrounded the whole people of Satnami community and ostracized them. They were also stopped to feteh water from the hand pump and grazing their cattle in the village due to which they were compelled to use the dirty water from fields and the streams. He further stated that due to this incident, he felt humiliated and lodged the report Ex.P/1 in Special Police Station, Raipur. He admitted his signature from its "A A ,/ ^^•S'^^^5^ jp;-i;-^^"'.:-3:R5a ^S-SsKrSS to A part. He also stated that on the basis of his written report, FIR Ex.P/2 was registered by the Special Police Station, Raipur, in which he admitted his sighatures from its "A to A part". He further submitted that the Police prepared the spot map and they still did not use the Hathi Pathra pond due to fear. This witness was cross examined at length but nothing appeared contrary to his statements made either before the Court or before the Police. Thus, this witness corroborated his written report Ex.P/1 and remained consistent and unrebutted on material point that he was humiliated by the accused/appellants in a public place. 10) PW/2 Ashok Kumar also supported the prosecution case and deposed that on the date of incident between 12-1 pm. white he was bathing along With his wife Ahilya Bai and brother Roopdhar Satnami in another "ghat" at a distance of 100 ft., the appellants came and hurled filthy abuses at complainant Bajram by saying " Sale chamar, hamare ghat me nahakar achhut kardiye". The appellants threatened the complainant to beat and did not allow him to bath in the said pond due to which the complainant fled away from the spot. He further stated that hearing the filthy language, they felt humiliated. This witness was also cross examined at length but he remained consistent to his statement and denied the suggestion that because of party bandi in the village the appellants were implicated in a false case. Thus, it is clear that this witness has also corroborated the version ofthe complainant Bajram (PW/1). 11) PW/3 Roopdar Satnami also corroborated the prosecution story and stated in his deposition that on the date of incident while he was bathing along with his brother Ashok Kumar and sister-in-law Ahilya Bai in Hathi Pathra pond, the appellants came there, abused the complainant and his brother by using — filthy abuses as also threatened them to commit marpit. This witness clearly supported the version of the written complaint made by the complainant Bajram though there is some omission in view of his Police Statement Ex.D/1. Thus, this witness cannot be treated unreliable. ^ •-a.j.ap' ^Q 12. PW/4 Mehattar Satnami and PW/5 Smt. Ahilya Bai have also corroborated the prosecution case and made the statements regarding the incident. Both the witnesses remained consistent and unrebutted on the point that the complainant and his brother were threatened and humiliated in Hathi Pathra pond by using filthy abuses. Thus, their statements cannot be held unreliable despite there being some contradictions and omissions which are immaterial in the facts and circumstances of the case. 13. PW/6 Pardesi Ram, the brother of the complainant also corroborated the version of Bajram (PW/1) and stated in his deposition that on the date of incident i.e., 22-10-2007 at about 12 noon, when he was bathing in Hathi Pathra pond along with his brother, the accused/appellants came there and hurled filthy abuses as mentioned in the deposition of Bajram (PW/1). He further stated that looking to the attitude and behaviour of the appellants they fled away from the ptace of incident. !n his cross examination, though he admitted the fact that prior to and after the incident the members of Satnami community were using the said pond and admitted some improvements in his statements, he denied the suggestion that the appellants did not abuse him and the complainant and the report against the appellants was lodged due to old animosity. Thus, the case of the prosecution is also corroborated by this witness and only on the ground of previous enmity, this witness cannot be held unreliable. 14 PW/7 J.R. Dahariya, SHO, Special Police Station, Raipur corroborated the written complaint Ex.P/1 and FIR Ex.P/2 and admitted his signatures as well as the signature of complainant Bajram Kosariya. PW/8 H.P. Shukla, DSP who prepared the site plan Ex.P/3 and recorded the statements of the witnesses, deposed that he recorded the statements of the witnesses as stated out by them, without adding or deleting anything with his own. 15) PW/9 Pratipal Singh, Sub Inspector, Police Station Bagbehara also corroborated the version of PW/10 Dashrath Decate, DSP, Special Police '%*. 1 Station, Raipur, and stated in his deposition that during investigation he arrested Jagbandhu Kalar vide Ex.P/4 and the statements of witnesses Ashok Kumar, Roopdhar and Ahilya Bai were recorded by PW/10, Dashrath Decate, DSP, Special Police Station, Raipur and so as the deposition of PW/10. 16) On reappraisal of the evidence, it is clear that almost all the prosecution witnesses have supported the case of prosecution that the complainant and his brother were humiliated and threatened by the appellants by using filthy abuses in Hathi Pathra pond which is a public place. It is pertinent to mention here that there was previous enrnity between the parties due to casteism and party bandi for which proceeding uhder Sections 107 /116 of the Cr.P.C., was initiated against the parties as is also admitted by the defence witness Faguram Kanwar. Thus, it cannot be ruled out that due to previous enmity the complainant and his brother were humiliated by the appellants. 17) Hon'ble the Supreme Court in the matter of Swarna Singh and others vs. State through Standing counsel and another, reported in (2008) 8 SCC 435 has observed as under". 24. In our opinion, calling a member of the Scheduled Caste "chamar" with intent to insult or humiliate him in a place within public view is certainly an offence under Section 3(1 )(x) of the Act. Whether there was intent to insult or humiliate by using the word "chamar" will of course depend on the context in which it was used. 30. In this connection it may be mentioned that in America to use the word "nigger" today for an African-American is regarded as highly offensive and is totally unacceptable, even if it was acceptable 50 years ago. In our opinion, even if the word "chamar" was not regarded offensive at one time in our country, today it is certainly a highly offensive word when used in a derogatory sense to insult and humiliate a person. Hence, it should never be used with that intent. The use of the word "chamar" will certainly attract Section 3(1)(x) of the Act, if from the context it appears that it was used in a derogatory sense to insult or humiliate a member of SC/ST". •fsss'- 5^ ^£t@i^^^U iffe^s-sa^ Rfe(Sts:s<£S'S "•••••-"-B;"=2;£^a 18) So far as the case in hand is concerned, there is consistent evidence on record regarding intentional, insult or intimidation with intent to humiliate a member of Scheduled caste. Calling a person by the caste-name "Chamar" with intention of insulting or intimidating or humiliating will also constitute the offence rendered under the section. More so, there is ample evidence on record that the appellants not only used the word "Chamar" but also abused and threatened the complainant and his brother by using other filthy abuses in Hathi pathra pond which is apparently a public place where many persons were bathing. Apart from this, it is also evident that there was previous enmity between the parties regarding casteism. Thus, after appreciating the evidence on record, it is clear that the case is well made out against the accused/appellants. There is consistent evidence against them about the intentional insuit or intimidation with intent to humiliate a member of Scheduled caste in a public place. 19) So far as the offence u/s 147 ofthe IPCis concerned, it is clearfrom the evidence on record that the appellants were more than five in number and they came on the spotwith the common objectto insult or intimidate the complainant and his brother to humiliate them. Thus, the case under Section 147 ofthe IPC is also made out against the appellants. 20) Having considered all the facts and circumstances of the case and in the light of principles of law laid down in Swarna Singh (supra), 1 am of the considered opinion that the Special Court has rightly convicted and sentenced the accused/appellants under Section 147 ofthe IPC and Section 3 (i) (x) of the Act and no interference is called for by this court in the impugned judgment of the Special Court. 21) For the foregoing, the appeal deserves to be and is accordingly dismissed. ..r<. i.haRs Judse n i8,-!: