.•^*f-!<-- f'"%- ~\'v "®S31|j •^Ss^'' In;;'^^•.'^••-' 1:':A'^'\o9 s ^s'wwr Bhaskar Prasad Joshi & another. State of Chhattissarh ^-' POST FOR PRONOUNCE1MENT OF JL7DG\'IE.NI Sd/- Sd/- R.N. Chandrakar Judge 'd>. ^ Criminat Appea! No.S4 of 2003 Bhaskar Prasad Joshi, S/o Upendra Nath Joshi, aged about 38 years . 2. Kaiiash Pandey, S/o Trinal about 36 years Both R/o Baniyagaon, P.S. Bast^r (CG) ihanpuri, Distt. State of Chhattisgarh, Through:- District Magistrate, Jagdalpur, Distt. Bastar Criminai appea! u/S. 374 (2) of the Criminal Procedure Code (SB:_H<?n'bte Mr. Ranganath Chandrakar, ^ Present Shri Praful! N. Bharat, counse! for ths appeiiai Shri A.V. Sridhar, Panet Lawyer for the State (Oeiivsred on this *§> day pf Juiy, 2009) 1) This appea! has been preferred by the appeiiants against the judgrnent of conviction and order of sentence dated 9-1-2003 passed by the !earned tria! Court !R Sessions Tria! No. 409 of 2002, wherebv the accusedi'appeliants have been convicted under Section 323 read with section 34 of indian Penal Code (for short the 'iPC') as weii as under Section 3 (1) (x) ofthe SchsduSed Casfes and Scheduied Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Act') and sentenced to undergo R.i.' for six months and to pay a fine of Rs.500/- each s.nci in default of payment of fine to undergo further R.!. for one month and to undecgo R.! for ons year and to pay a fine of Rs.TOOO/- sach, In default of payment oftine to undergo further Rl forthree months, respectiveiy. £»•-,. WMW ^w (2) The cas®»pftheprosecution, in brief, is that the complainant, namely, Bir Singh is a member of Scheduled Tribe Community, being a Bhatra by caste. On 11.06.2002 at 11.00 P.M, 1ie was sleeping in his house. At thattime, the accused/appellants Bhaskar "Prasad Joshi and Kailash P^ndey came there, woke him up and askej) him to sign the proposalregarding appointment of Manager in the Primary Forest Prciduce Society. It was alleged that when the ,'<-. complainant refusedto do so the appellants got furious and caught hold of his collar, pushed him and slapped. On 16.06.2002, the complainant todged a written complaint (Ex.P-1) in the Police Station (S.C. & S.T) Jagdalpur. The police after recording his statement under Section 161 of Cr.P.C. on 05.07.2002, arrested the accused/appellants on 09.07.2002. (3) After completion of investigation, chargesheet wassubmitted in the competent court which committed the case to the Special Gourt. The Special Judge framed charges punishable under Section 323 read with 34 of IPC and Section 3(1)(x) of the Act. Both the accused persons abjured the guilt and pteaded their innocsnce and false implication. The learned Speciat Judge after due trial convicted and sentenced both the accused/appellante as mentionedin para 1 of the judgment. (4) Learned counsel appearing for the appellants submitted that the learned trial Court has erred in appreciating the evidence in its proper legal perspective. The F.I.R. is inordinately delayed and no explanation is offered in this regard. It was further submitted that learned trial Court has erred in relying on the solitary testimony of Bir Singh (RW-l)when the same is not supported by any jndependent witness. The trial Court should have seen and held that Bir Singh (PW-1) had materiallyimprovised his statements. It has also erred in holding that the non-comptiance of mandatory provisibns is within the domain of jnvestigatingofficer. It was further submitted thatthe learned trial Court had y:w "l^ i /' errqneously held that normally the delay occurred in making the F.I.R. as the complainant flrst consults with other people ora Pahcji^yat isconvened whereas in the present case no such evidence was led by the prosecution. Even then learned triat Courthas given the finding on presumptions and surmises.It should have seen and held that Bir Singh (PW-1) admits that the post of Manager is reserved for Scheduled Tribe and h^nce there was no occasion forthe appellants to'forc^hfimtosignthe resolution for appointment as both ofthe appellants belongtoGeneral Caste. (5) Learned counsel for the appellants further submits that the trial Court should have seen and held that Bir Singh (PW-1) admits that Renudhar Kashyap had asked him t6 depose according to the report so as to get money from Government. He argued that the trial Court should have seen and held that the present is a Gase arising out of occurrence took place on 11.06.2002 at about 11.00 p.m. in village Kesharpal and on the same day i.e. 11.06.2002 another crime at about 1 1 p.m. in village Turpura is said to be committed; the distance between thetwo villages is notsuchthat a person can reach the other viitage within 1 hour. It was argued thatthetrial Court oughtto have held that there is no cogent evidenee to show that any injury was caused to the complainant and there is also no evidence on record to show that the appellants had intentionallyinsulted the complainantin a public place. Learned counsel further submits that the conclusions arrived at by the trial Court are based on presumptions and surmises and the grounds mentioned in the aforesaid, amongstothers, the impugned conviction and sentence of the appellante are bad in law and the same deserve to be set asideand hence the appellants be acquittedof the charges. 6) Per contra, learned counsel appearing for the respondent/State argued the case in support ofthe impugned order ofthe lower.court. y! win ^ w lllll ^ 7) Having heard learned counsel forthe parties,l have perused the records bf the trial Court and also the impugned judgment . 8) In order to prove the charges, the prosecutiQnexamined as many as 5 witnesses and placed sixdocuments (Ex.P-1 to Ex.P-6) on record. 9) Bir Singh (PW/1) in his deposition stated that on 1 1-6-2002 at 11.00 p.m. both the accused/appellants came to his house and asked himtosign ori paper by stating "Bhatra sale". ^Fhen he refused to do so.then the accused appellant Bhaskar PrasadJoshi c^ught hold of BirSingh's left hand and thereafter the complainant Bjr Singh cried. On hearingthe cries of Bir Singh, Daso (PW/2), "who ia-the son of Bir Singh and Amru (PW©)came out, thereafter, the accused/appellants went away. The complainant Bir Singh (PW/1) in para one of his statement deposed that he did not knowthe accused present in the court.however, he knewthe namesofthe accused persons. He also statedthatfte wentto Police Station forlodging written complaint (Ex. P/1). BirSingh (PW/1) in psira 4 of his crossexamination stated that he lodged report in Police Station on thenext dayofthe incident. 1-te also stated that he did not know thafwho wrote the written complaint (Ex.P/1). ^ 10) Daso (PW/2) whft iSsori of Bir Singh (PW/1) in his deposition stated that on hearing cries of his.father Bir Singh (PW/1) he came out^andsaw both the persons whose namea^He did not know. He furtherstated that boththe accused/app^llants fprGect ftis father to sign the paper, but his father refused to do so. He fyrther stateain his cross examination that he did :knot kno* the narrtesofboththeaccusedVperson&.who^cameatriighttillhisdeposition. ^ 11) Amru (PW/3) in his deposition stated that two persons came on motor- cycle and caught hold oftMe hand of Bir Singh.to ^gnlhe papers. He further stated that Bir Singh ttad not disclosed the names ofiboth the persons, fciut disclosed that both theyersonsare Brahmins. l-t&;also stated in his cross ;examination that it istruetnat BirSingh (PW/1) had notdisclosedthe namesof •^ Jiiii K »s l.ilii /' both the persons, therefore, he did not knowthe namesof both these persons, who cameat night. '- 12) F.J. Minz (PW/4) in his deposition stated that on the basis of written complaint (Ex.P/1) filed by the complainant Bir Singh (PW/1) he marked the same to Sub Inspector Kripram khande for enquiry on 17-6-2002. After completion of enquiry of coraplairit, he lodged first information report (Ex.P/3) on29-6-2002. .. <i^: 13) D.R.S. Uike (PW/5) in his depdsition stated that he prepared map (Ex.P/4) and arrested accused/appellants Bhaskar Prasad Joshi and Kailash Pandey vide Ex.P/5 and P/6). In view of the statement made by PW/4, it is clear that he marked the written comptaint forenquiry on 17-6-2002 which was mentioned in the written complaint, butthe receiptof the information was mentioned as 16-6-2002/29-6-2002. It is not possible that D.R.S. Uike (PW/5) received the written complaint on 17-6-2002 and he has mentioned in first information report (Ex.P/3) the date of receipt as 16-6-2002. If we read both the dates, it would be clear that certainly Station House OfRcer had mentioned the datewrongly either in written complaint or in first information report. 14) The statement of Bir Singh (PW/1) has not been corroborated by the statement of Daso (PW/2) and Amru (PW/3) because both these witnesses had denied that they did not know the names of both the persons who came at night. Itis also disputed that the incident took place on 11-6-2002, but the reportwas lodged on 16-6-2002/29-6-2002 in Police Station Jagdalpur. Delay in lodging the report was not explained by thecomplainant Bir Singh (PW/1) neither in his statement nor in written complaint. By this way, explanation of delay in lodging the first information reportand written complaint may not be reliable, which create^ doubt. :d liti if r ]il:f 15) Hon'ble the High Courtof M.P.jn the matter of Jashrath Singh and '>., another vs. State of M.P., reported in 2007 (1) Vidhi Bhasvar 49, observed as under: "10. To constitute an offence under Section 3 (1) (x) of the Act? it is necessary that whoever: not being a member of a Scheduled Caste intentionally insults or intimidateswith intent to humiliate a member of a Scheduled Caste or a Scheduled Tn'be in any place within public vj^w. The words "intentional", "insult" and "humiliatio'n" have been used in this section but they have not b^en defined in the act. As per Webster Dictionary("theword"intent" means having the mind bent on an object, "intentional" means do.ne purposely. The term "intentional" has been used to relation to act done by or with intention, which means to do wrong with in tent. As perlaw Lexicon, a person who, by this declaration, act or omission, had caused another to betieve a thing to be true and to act upon that belief, must be held to have done so "intentionally" within the meaning of the Statute. As per Webster, "to insult" is to treat with abuse, insolence, or contempt; to commit an indignity offered to another whether by act or by word isknown as "insult". An insuit is an indolent attack. As per Webster, in common parlance the word "humiliation" means to lower the dignity of, painfully humbling , the state of being humble and free from pride; As per Oxford dictiohary "humiliate" means to cause a person to feel disgrace, humble condition or attitude of mind, In the background of the definition of the aforesaid words, to prove the offence underthe aforesaid section, it is necessary that there must be an element of intentionally committing the insult or intimidating with intent to humiliate a member of Scheduled Caste and for that the evidence of the witness should be consistent and reliable. When there is caste-based rivalry between the parties and hatred against the members of appellant community, the evidence has to be scrutinized carefully and there should be very cogent and independent evidence of causing insult intentionally." 16) So far as the present case is concerned, there is no consistent evidehce on record regarding intentional, insult or intimidation with intent to humiliate a member of Scheduled Tribe. Merely calling a person from the caste-name without the proof of any intention of intentionally insulting or intimidating or humiliating will also not constitute the offence rendered under the section. More <i--K: :t- f- 7 so, none of the witnesses has deposed that why the abuses were given, whether there was any wordy quarrel between them and it has also not been explained that how the dispute arose between the parties and who initiated it. 17) Thus, after appreciating the evidence on record, it is clear that no case of commission of any crime is made out against the accused/appellants. There is no consistent evidence against them about the intentional insult or intimidation with intent to humiliate?a member of Scheduled Tribe. ,•'- 18) Having considered all the.facte.and circumstances of the case and in view ofthe aforesaid discussion, 1 am ofthe consideredopinion that no offence is made out underSection 323 read with section 34 of the IPC and Section 3 (1) (x) ofthe Act, againstthe accused/appeltants. The trial Court has erred in considering the evidence of the witnesses. 19) Accordingly, the appeal is allowed. The judgment ofthe trial Court is set aside and the accused/appellants are acquitted of the charges leveled against them. The appellants are on bail and their bail bonds stand discharged.The appellants are directed to be set at liberty forthwith, if not required, in any other offence. I Sd/- R.N. Chandrakar Judge