HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinkér Diwaker) Crimina! Appeal No. 404 of 1996 APPELLANT Paras Ram s/o Bhukhu Ram Devangan VERSUS State of Madhya Pradesh Shri Prakash Mishra counsel for the appeHant. Shri Vaibhav Goverdhan PL for respondent/State, RESPONDENT CRIMINAL APPEAL UNDER SECTION 374 12} OF THE‘CODE OF V' CRIMINAL PROCEDURE. ' ..J U.D,~G M E NOT (20 .07.201 0) This appeal is directed against the judgment and order dated 09.02.1996 passed by Special Judge, Raipur, ih Special Case No. 25/1996 convicting the accused/appellant under Section 3 (1) (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and sentencinghim to undergo rigorous imprisonment for six months and pay fine of Rs. 100, in defauit of payment of fine to further undergo simple imprisonment for one month. 2. Case of the prosecution in brief is that on [28.9.1991 a written report (Ex. P-i) was lodged by the complainant namely Nain Sas (PW-1) alleging that on 24.9.1991 when he had gone to the shop of the accused/appellant to take a bicycle on hire, he was abused by him andsix other persons saying “Bhég Ja Re Sale Cham'ar" and refused to give bicycle to him. On the basrs of this written report FIR (unexhibited) was registered on r‘ 26101991 against seven accused persons including the present appellant. 3.’ So as to hold the accused persons guilty, the prosecution has ii examined as many as 07 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 charge levelled against them and pleaded their innocence and falSe implication in the case. This apart, Jogi Ram (DW-1) has also been examined by the defence in support ofits case. ‘2 _ After hearing the parties the trial Court has acquitted the other accused persons of the charge Ievelled against them but convicted and sentenced the accused/appeHant as mentioned above. 4. Heard counsel for the parties and perused the material available on record including the judgment impugned. 5. 6. Counsel for the accused/appellant submits that even if the entire case of the prosecutionais taken as it is, ingredients of Section 3 (1) (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act are not attracted to the present case. He submits that as per the evidence of complainant‘the incident had taken place inside the shop of the accused/appellant which by no stretch of imagination can be termed as public view. He submits that there was no intention on the part of the accused/appellant to insult, humiliate or intimidate the complainant in any manner. He further submits that prosecution has utterly failed to prove the act that the complainant belongs to scheduled caste community as no document such as caste certificate has been filed by the prosecution. He submits that when on the same set of evidence the other accused persons have been acquitted by the Court below, the appeilant is also entitled for acquittal. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the appellant had abused the complainant in his shop and at that time two other accused persons were also present there, therefore, it can easily be said that the incident had taken place within the public view. He submits that though‘there is no documentary evidence in respect of the caste of the complainant, it has been admitted by the defence witness Jogiram (DW-1) that the complainant belongs to scheduled caste community and therefore, the convrction of the accused/appellant Is fully Justified 8. Nain Das (PW 1) has stated in his eVidence that on the date of incident as his mother was ill and he was reqUired‘to go to purchase medicines for her, he had gone to the shop of the accused/appellant to take the bicycle on hire son of the accused/appellant told him that there was no bicycle in his shop Meanwhile the accused/appellant also came there and when the complainant requested him also for the same saying f A , that as so many bicycles were there in the shop and that he was required to go to purchase the medicines for his ailing mother he again requested him for the same, the accused/appellant refused for giving the bicycle to him and started abusing him in the name of his caste saying that “Sale Chamar Tujhko Cycle Kiraye Par Nahin Dunga”. According to this witness, the other accused persons present there had also abused and beaten him. This witness has stated that even his father, who had tried to intervene in the matter, was assaulted by them. Complainant has stated that thereafter one Chhedu Satnami who was sitting in a nearby hotel came there and saved his father from the clutches of the accused persons. Meanwhile, three persons namely Lakhan, Moti and Bhajan also came there and saved him and pacified the matter. According to this witness, after a while the police came and put him in the lock up but he was released in the evening. Chhedu Ram (PW-2) has stated that when he was sitting in a hotel, he saw that the complainant and his father were being assaulted by the accused persons'Statement of this witness appears to be full of contradictions and omissions. Lakhan (PW-3) has also supported the case of the compiainant saying that the entire incident had taken place in the shop of the accused/appellant. Ram Lal (PW-4) has stated that there was some dispute between the complainant and the accused persons. Moti (PW-5) and Samay Das (PW-6) have also supported the case of the complainant. 9. What emerges from the evidence available on record is that the incident had taken place inside the shop of the accused/appellant and none of the witnesses has stated that it has taken place in public view. Further, the court statement of the complainant appears to be inconsistent from that of FIR lodged by him and the statement recorded under Section 161 of the Code of Criminal Procedure. More so, the prosecution has not filed any document such as caste certificate etc. which is a sine qua non in the cases of like nature, to show that the applicant was a ‘member of scheduled caste community. This apart, as one of the. witnesses has stated that there was some dispute between the complainant and the accused‘persons, possibility of false implication can also not be ruled out. Further, there is unexplained inordinate delay in lodging the FIR as the incident had t'aken place on 24.9.1991 but the written report was made to the police on 28.9.1991 and based on that FIR was registered on km k. "