IN TH3 HIGH COUKT OP MADHYA FRADESH /E JABALPUR. Cr.A. 7 CS /96 CF0000060990 APPSLLANTS RESPONDENI ; 1. Rarachancir.a scn of BisAulal Mishra, „ aged 40 years., 2. Dinesh I^ishra son of Bisahulal t'Sishra, aged 3S' years. 3. Ajay son of Ramawtar Mishra, aq)?'<3 28 years. All cnltivators and residsnts of vlllage Chhotekoni. Police Station KoDi, Distriet Bilaspiir. -Versus- ; The State of M.P. ^ \ < CRIMINAL APPEAL UNDER SECTION 374(2) CODB OF CRIMIKAL PROCEDUR! CONVICTION SENTTSNCS :^...--L-.—^3-Z-' r'•^ HI6H COURT OF CHHArriS^RIjAT BII-^SPUR iinola Bench ; Hon'ble Mr. Justic®Pritinker biwaker Criminal Appeai N0. 7k9of 199k RESPON&ENT Versus Stote of Madhya Pradesh (now Chhattisgarh) Shri Vivek Sharmo., counse! for th®dppellants. Shri NeeraJ Mehta, Panel Lawyer for the State. CRIMINAL APPEAL UNDER SECUON 374 (2) OF THE COOE OF CRIMINAL PROCE&yKt JUDSMENT (19.03.2010) This appeai '<s directed against the impugned judgn'ent dsted 17.4.1996 passed by Specla! Judge, Bilaspur in Specio! Cnmina! Case No. 33/1995 convictiHg the cccused/appeNants for the offences punish<A>le undsr Sections 3 (i)(x5 of the Scheduied Costes and the Scheduied Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act} and 426 of the Indioi Pena! Code and sentencing them to undergo rigorous imprisonment for 6 months and fine of Rs.250/-, in defcutt of poymsnt of fine to furt-her undergo simpl®imprisonmsnt for" one month u/S 3 (i)(x) of the Act,to pay fine of Rs.250/-, tn defautt of payment of fine to further undergo simple imprisonment for one month to each of the appet!ants u/S 426 2. Brief facts of the cas®are thol' on 28.11.1994 a writtsn report (Ex.P-1) was lod§ed by complainont Deulatram (PW-l) alleging in it thflEt on 27.11,1994 at about 4 pm when he- was in his house, al! the. accused persons coiTne there, caited him in the courtyard had abused him and some fiithy lan^jage was used ^ <i? by caliing him "Chamor". He furt'her' aijeges that his boundary wafl was demoiished by the appellants. On the basis of this written report, F.I.R. (Ex.P-5) dated 16.2.1995 wo.s registered against the occused/appsllants. After inyestigation, the appellonts were prosecuted for the offenc®punishable under Sections 3 (i)(x) of the Sche.du!ed Castes and the Scheduled Tribes (Prevention of Atrocities) Aci, 1989 and 426 of the 3. So as to ho!d the accused/oppellants gui.'ty, prosecution has examined 03 witnesses in support of its case. Statements of the accused/appellants were also recorded under Sectipn 313 of the Code of Criminal Procedure m which they denled the chor^es levstSed against them ond pleaded their inngcence and false impllcffli'ion in the co.se. This apart, witness nojnety Umesh Chond Mishro (DW-1) has also been exomined by the defence in suppori' of it-s case. 4. After hearin9 the parties the tria! Court- has convicted and sentenced the accused/appe!!ants for the offences as mentioned above. 5. Hecrd counse! for ths porties and perused the materia! available on record includjng the judgment impugned. 6. Counse! for the appellcnts submits that prosecution has fai!ed to file any document showing the fo.et that complainant DauicrtTcm belongs to the Scheduled Caste. He submits that in absence of such cert-ifica+e/document or any admissih'e evidence to that effect, oppetlo/its cannot be conyicted for the offence punishabje under Sections 3 (i)(x) of the -Scheduled Castes and the 5cheduled Tribes (Preyention of Atrocities) Act. He furt-her submits that on 27.1.1990 itseif the complaint was made by the comptainant which was duiy sntered in the Rojnamcha Sanha vide Ex.P-5 ond in the said complaint there is no mention of word 'chamcs'" and jt has a!so not been alleged that the boundary wall of the complainant was dsmolished by the accused/appellants. He further submits that there are mort'erial controdictions in the stort-ement of the complainant and no explomation has been offered by him. He furthsr submits that ©,R.Dhurve (PW-3) Investigation Officer has categorically stated that no document m respect of the caste of the complainant wag given to him. He also submits that in respecf- of the offence mischief, nothing has been seized from th.e spot to show thert- any jroperty woe damaged and. therefore, no offence under Section 426 of the Indian Pena! Code is mo.de out o.90.inst the appeltonts. H®furl'her submits that o.s per the F.I.R. ond th®written report- lod9ed by the complainant, incident was witnessed by Rajarom ond Unis Isai whereas both these witnesses have not been examined. 7. On the other hond coLnsel for the State supported the impugned judgment, however, he admits thort- prosecution has not fited cniy document showing the cast'e of th®eomptairunt. 8. I havs heard counsel for th®perties and perused the mat'erial avaitable on record. 9. Admitt-ediy, the {rosecution has not filed any document to show the caste of the comptainant which is sine qua mn for convicting any person in relcrt-ion to the offenc®punishable under the provision of Scheduted Caste &. Scheduled Tribe (Preventionof Atrocities) Act. Furt'hermore, in the Rojnamcha Sanha dart-ed 27.11.1994, there is no mention of word "Chamor" and it appears thcrt whilg making a writt-en rqsort, the complainant must have given o. sufficient thought ond thcrt- is 4 ^ why the said word "Choroar" hcs been mentioned in tte written report. From the record it is also clear thal' even the noime oft appellants hwe not bsen mentioned in the complaint whereas in the written report name of three appellants hav®;been mentioned. In the written report complainant states thcrt his boundary wall was damaged by the oippellants whereas no such statement in the complaint was there in the Rpjnqmcha Saffihc and rather it has been alleged in the Rojnomcha Sanha thcri^ appellants have collected certain wood cmd bricks of yeyya Mandal. 10. In respect of the offence under Section 426 pf;the Indian Penal Code, there is no evidence on record to prove thart' ony property was damaged. Mischief has been defined jn "the Section 425 of the Indian Penat Code in the following manner :- 425 Mischief. - Whoever with intent to cause, or knowing that he is likely to cause, wrongfut loss or dcmage to the publie or to any pei^on, caused the destruction or cny propert'y, or any . such change in any propert'y or in the situation thereof as desl'roy or diminishes its value or utility, or affect-s it injuriously, commits " mischief Explanation Z It is not essentiat to the offerBe of mischief thot the offender shoutd mtend to cause loss or damage to the owner of fhe property injured or destroyed. li is sufficient -if he intends to cause. or knows thcrt he is likely 'to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2. Mischief moy becommitted by an act affecting property belon9iiag to the person t who commits the act, or to that person ond others jointly. y 1 6 , In th®case in hand there is no evidence- whstsoever that dny wrongful joss or damage has been caused to th-e public or anyone or any property has been destroyed. 11. In view of the above, offence under Section 426 of the Indian Penal Code is "ot mad® out against the appetfonts. Moreover, there ore moteria! contradictions and omissions in the stcEtement of ths complainant. The. so-ca!!ed eye witnes-ses ho.ye not been examined dnd considering al! the aspect of the case, the entir^ prosecution story becomes doubtfui. The prosecution hcs ufterly failed to prove its case beyond reasonabte doubt and therefore th®oppeltants are entitled for the benefit of doubt. 12. In th.e resjlt, the appea! is ajlowed. Impugned judgmsnt dated 17.4.1996 is hereby set asi6e. Accused/appellants are acquitted of the charges levelled agoinst them. Th^ are on bai!. Bail bonds furnished by them stand discharged. ^ _ — p^r^raker 3ud9e