y^'\ M iiJS&' 1 '^^ :'^,.,S3lt t^4^ If-tM'] '^ ^DDeilants Bhaskar Prasad Joshi & another. State of Chhattisgarh POST FOR PRONOLTNCEA'IENT OF J Sd/- R.N. Chaudrakar Judge Sd/- y :& .^' issSfwsssssss^ ipp^ll^HLS yp^y rini I^T H^ flNM^.PTTL^^^FM ^..T RH .&: W^^^l 1 ^F' ^r^rFi-Esai.la?i. i i i-^^^i'^.r^ j-'i. E QtL.A'f' Cr5m|nedl_Ai3pea! No.93 of 2003 Bhaskar Prasad Joshi, S/o Upendra Nath Joshi, aged about 38 years. Kailash Pandey, S/o Trinath Pandey, aged about 36 years Both R/o Baniyagaon, P.S. Bhanpuri, Distt. B^star (CG) Versus OT Through:- District Magistrate, Jagdaipur, DistS. Bastar Crimina! aopeal u/S. 374 (2) of the Crimina! Procedurs Code (SB: Present: Shri Prafull N. Bharat, counsel for the appeliants. Shri A.V. Sridhar, Panel Lawyer for the State. (Deiivered on this <8 day of Juiy, 2009) 1) This appeai has been preferred by the appellants against the judgment of conviction and order of sentence dated 9-1-2003 passed by the iearned trial Court in Sessions Trial No. 408 of 2002, whereby the accused/appeiiants have been convicted under Section 323 read with section 34 of Indian Penal Code (for short the 'IPC') as well as under Sectlon 3 (1) (x) ofthe Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herelnafter referred to as the 'Act') and sentenced to undergo R.l. for six months and to pay a fine of Rs.500/- each and in default of payment of fine to undergo further R.l. for one month and to undergo R.i for one year and to pay a fine of Rs.1000/- each, in defauit of payment offine to un.dergo further Rl forthree months, respectively. '^ t^'^^;;^^^"^^^ (2) The case of the pros^cution, in brief, is that the complainant, Salmdar Bhatra is a member of Scheduled Tribe Community, being a Bt caste. On 11.06.2002 at 10.80 P.M, he was sieeping in his house. time, the accused'appell.ants Bhaskar Prasad Joshi and Kailash Pandey there, woke hirn up and asked him to sign the proposal regarding appoii of Manag©rin the Primary ForestProduce Society. It was alleged that •/-f. ,'A; the complainant refused to do so'the appellants got furious and caught hi his coiiar, pushed him and slapped. On 16.06.2002, the complainant written complaint (Ex.P-1) in the Poiice Station (S.C. & S.T) Jagdalpur poiice after recording his statement under Section 161 of Cr.P.C 05.07.2002, arrested the accused/appellants on 09.07.2002. At that came when hold of iged a r. The .C. on -•"\ (3) After completion of investigation, charge sheet was submitted in the competent court which committed the case to the Specia! Court. The Speciai Judge framed charges punishab'e under Section 323 read with 34 of IPC and Section 3(1}(x) of the Act. Both the accused persons abjured the guilt and pieaded their innocence and faise implication. The learned Special Judge after due trial convicted and sentenced both the accused/appellants as mentioned in para 1 ofthejudgment. (4) Learneti counse! appearing for the appe!lant3 submitted that the iearned fria! Court has erred in appreciating the evidence in its proper tegal perspective. The FJ.R. is inordinately delayed and no explanation is offered in this regai-d. !t was further submitted that learned trial Court has erred in relying on the solitary testimony of Salinder (RA/-1) when the sarne is not supportecl by any independent witness. The trial Court should have seen and he!d that Saiinder (PW-1) had materia!!y improvised his statements. It has also erred in holding •that the non compliance of mandatory provisiohs fs within the domain of ; in'/estigating officer. It was further submitted that the learned trial Court had itf: —- ^5.-<\. f taa^ 1 -'?,- ^ ':-^\-^^-v^^s^^ erroneousiy held that normally the delay occurred in making She F.1.R. as the •k,, complainant first consults with other people or a Panchayat is convened whereas in the present case no such evidence was 'ed by the prosecution. Even then learned trial Court has given the finding on presumptions and surmises. it shouid have seen and held that Salinder (PW-1) admits that the post of.Manager is reseryed for Scheduted Tribe and hence there was no occasion for the appellants to fjirce him to sign the resolution for appointment as both ofthe appellants belong to General Caste. (5) Learned counsel for the appellants further submits that the tria! Court should 'nave seen and held that Salinder (PW-1) admits that Renudhar Kashyap had asked him to depose according to the report so as to get money from Government. He argued that the trial Court shouid have seen and held that the prssent Is a case arising out of occurrence took place on 11.06.2002 at about 10 p.m. in village Turpura and onthe same day i.e. 11,06.2002 another crime at about 11 p.m. in village Kesharpal is said to be committed; the distance between the tA'o villages is not such that a person can reach the other village •within 1 hour. !t was argusd that the tria! Court ought to have held that there is no cogent evidence to show that any injury was caused to the complainant and there is also no evldence on record to show that the appellants had intentionally insuifed She complainant in a pubiic place. Learned counsel further submits that the conciusions arrived at by the trial Court are based on presumptions and surmises and the grounds mentioned in the aforesaid, amongst others, the impugned conviction and sentence of the appeliants are bad in law and the same deserve to be set aside and hence the appeliants be acquitted of the charges. 6) Per contra, ieamed counsei appearing for the respondent/State argued the case in support ofthe impugned order ofthe lower colirt. -LI- -^mw^ 7) Having heard leamed counsel for the parties, 1 have perused the records •>., of the trial Court and aiso the impugned judgment. 8) In order to prove the charges, the prosecution examined as many as 5 witnesses and placed Ex.P-1 to Ex.P-6 the documents on record. 9) Saiinder (PW/1) deposed in his evidence that on 11-6-2002 at 10.00 p.m. when he was sieeping in his house, accused/appellants Bhaskar and <i, Kails.sh of Baniyagaon came by Motorcycle, called h'm like "Saiindai-", and \. woke him up. Thereafter, the accused/appellants asked him to sign the proposal regarding appointment of Manager in the Primary Forest Produce Society. When he refused to do so, both the accused/appellants annoyed, caught hold of his right hand and also abused. When Cheti Bai (PW/2), wife of Salindar (PW/2) and Jagdev Ram (PW/3) came out , the accused/appeHant went a'A'ay. Complainant Salinder (PW/1) aiso stated that h®iodged report (Ex.P/1) in Poiice Station, Jagdalpur. 10) CheSi Bai (PW/2) deposed in her statement that she did not identify the a.ccused persons present in the court. She also s'tated that Jagdev Ram also came out at the time of incident, but, this witness has not corroborated the statement of Saiinder (PW/1) about caught hold of Salinder's right hand. Jagdev Ram (PW/3) has a!so not stated about caught hold of Salinder's right 11) Jagdev Ram (PW/3) in his cross examination stated that he dld not know the accused/appellants before the incident. Salinder (PW./1) Sold him thatthese persons were Bhaskar Prasad Joshi and Kailash Pandey. By this way, the statements of Cheti Bai (PW/2) and Jagdev Ram (PW/3) have not been corroborated by the statement of Salinder (PW/1) about caught ho!d of Saiinder's right hand. 12) Written Report (Ex.P/1) was submitted by Salinder-(PW-l) and FIR •(Ex.P/3) was lodged by F.J. Minz (PW-4) who corroborated the statement of PW-1 Salinder, because written comolaint (Ex.P/1) wag signed by Saiinder ^ *-3' '••'.'w^^s.'s---1,^ (PW/1), but the particuiars of the receipt were not mentioned in the written compiainf.. By this way, it'cannot be said that this particular written complaint (Ex.P/1) was presented to SHO, Police Stafion, Jagdalpur. It is aiso disputed that the incident took place on 11-6-2002, but the report was iodged on 16-S- 2002/29-6-2002 in Police Station, Jagdalpur. Delay in iodging the report is not explained by the complainant Salinder (PW/1) neither In his statement nor in vi'ritten compiaint. By this wa^, explanation of delay in todging the first information report and written comfitaint may not be reiiabie, which creates 13) Another witness, namely, D.R.S. Uike (PW./5) only stated that he prepared a map (Ex.P,'4) and arrested the accused/appellants Bhaskar Prasad Joshi and Kailash Pandey vide Ex.P/5 & P/6, Thls witness admitted in his cross examination that it is true that in Ex.P/1 there was no mention of the name of the witnesses. He also admitted that written compiaint was not presented before him. He only recorded the statement of the witnesses. 14) In view of the aforesaid statement made by D.R.S. Uike (PW/5), it is aiso ciear that C.heti Bai (PW/2) and Jagdev Ram (PW/3) have not been rnentioned in written complaint as witness. On this ground, the statement o'f Salinder (PW/1) is not worth credence, because when Salinder (PW/1) reported the matter in writing before the Station House Officer, Jagdalpur, which was reported after five days oftiie incident, he has not mentioned the names of the witnesses and has not explained the delay in written comp!aint before Pollce Station, Jagdalpur. On this ground also, the statement ofSalinder (PW/1) cannot be reiied upon. ' . 15) Hon'ble the High Court of M.P. in the matter of Jashrath Singh and another vs. State of M.P., reported in 2007 (l)Vidhi Bhasvar 49, obseived asunder: "10. To constitute an offence under Section 3 (1) (x) of the Act, it is necessary that whoever, not beinga member of a Scheduled Caste intentionally insults .^./ -& •.5iJE},fcg,sfe;g; or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within p'ubiic view. The words "intsntionai", "Insuit" and "humiliafion" have been used in this section but they have not been defined in the act. As per Webster Dtetionary, the word "intent" means having the mind bent pn an object, "intentional" means done 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 per law Lexicon, a person who, by this declaration, act or omission, had caussd another to belisve a thing to be true and to act u^on that belief, must be heid to have done so "inteatiortally" 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 is known as "insutt". An insutt is an indolent attack. As per Webster, in common parlance the word "humiliation" means to lower the dignity of, painfully humbling , thestate of being humble and free from pride. As per Oxford dictionary "humiliate" means to cause a person to feei disgrace, humbte condition or attitude of mind. In the background of the definition of the aforesaid words, to prove the offence under the aforesaid section, itis necessary that thers 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 reliabie. When there is caste-based rivalry betwesn the parties and hatred against the members of appellant community, the evidence has to be scrutinized carefully and ihere should be very cogent and independent evidence of causing insult intentionalfy." e ^ -'"\ So far as this case is concerned, there is no consistent evidence 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 intentionaily insulting or intimidating or humiliating will also not constitute the offence rendered under the section. More so, none of the witnesses has deposed that why the abuses were given, whether there was ahy wordy quarrel between them and it has also not been expiained that how the dispute arose between the part'!es..and who initiated it. 17)' Thus, after appreciating t'ne evidence on record, it is clear that no case of commission oT any crime is made out against the accussd/appeilants. Thsre is r /.' iY. te -I BIS'S'^SNiSB^aSsSg no consistent evidence against them about the intentional insult or intimidation with intent to humiiiate a member of Scheduied Tribe. 18) Having considered all the facts and circumstances of the case and in view ofthe aforesaid discussion, i am ofthe considered opinion that no offence is made out under Section 323 read w'ith Section 34 of iPC and Section 3 (1) (x) of the. Act, against the accused/appellants. The trial Court has erred in considering the evidence of the witnesses. 19) Accordingly, the appeal is'aliowed. Thejudgment ofthe tria! Court is set aside and the accused/appellants are acquitted of the charges leveled aga'nst them. The appeilants are on bai! and their bail bonds stand discharged. The appeliants are directed to be set at iiberty forthwith, if not required, In any other Sd/- . R.N. Chandrakar Judge :"->,•:'-: • ?".£l|lj ^iSitiSiisiH -?^a;*$ss^;