^ \z HIGH COURT OF CHHATTISGARH, BILASPUR Single Bench: Hon'ble Shri Sunil Kuniar Sinha, J. Criminal Appeal No. 1524/1994 Chhedilal s/o Bishambhar Nai Vs. StateofM.P.(NowCG) JUDGMENT Post for Judgment: 3l /iy2011 Sd/- s"niIKumarSinh Judge a A t i ^T ('• '^ ^' La -\\ ~T HIGH COURT OF CHHATTISGARH. BILASPUR SB: Hon'ble Shri Sunil Kumar Sinha, J Crimjnal Appeal No. 1524 of 1994 APPELLANT RESPONDENT Chhedi Lal S/Q Bishambhar Nai aged about 47 years, resident of Siltara, District Raipur Versus State of M. P. (now CG) (Criminal Appeal u/s 374 (2) of the Code of Critninal Procedure, 19731 Appearance: Shri S. Imtiaz Ali arid Shri Adil Minhaj, Advocates for fhe appellant. Shri U.K.S. Chandel, Panel Lawyer for the State. JUDGMENT (51.10.2011) The following judgment of this Court was delivered by Sunil Kuniar Sinha, J. (1) This appeal is directed against the judgment dated 10th of Novermber, 1994, passed in Special Case No. 144/91 by the Special Judge, Raipur. . (2) ' By the imptighed judgment, fhe appellant has been convicted '•*^ under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes ('Prevention ofAtrocities) Act, 1989 (hereinafter referred to as the 'Special Act') and sentenced to undergo R.I. for 6 months. •^N CRA 1524/94 ^u (3) The facts, briefly stated, are as under:- Complainant - Kheduram Banjare (PW-1) is a member of Satnami Scheduled Castte. On 19.3.1991, he went to the appellant for shaving, as the appellant used to perform the work of Barbar. The allegations are that the appellant refused to shave the complainant on the ground that he is Satnami. He uttered that he would not shave a Chamar as they are of low caste. When the complainant went to the appellant, the appellant was cutting hair of Yashwant Kumar (PW-4). According to the complainant, Bhagvati Verma (PW-2) and Tilakram Verma (PW-3) were also present at the time of incident. The complainant lodged the F.I.R. (Ex. P/l), on which, the offence was registered. The learned Special Judge relied on fhe testimonies of coraplainant- Kheduram Banjare (PW-1) and Tilakram Verma (PW-3) and held that the appellant was liable for punishment under Section 3 (1) (x) of the Special Act. (4) Learned counsel for the appellant argued that it was not established that the appellant was not a member of Scheduled Caste or Scheduled Tribe; complainant -Kheduram Banjare (PW-1) admitted that there was a party bandi in the village and the complainant and Tilateam Verma (PW-3) were the members of one party and the appellant was the member of other party, therefore, ''-» the appellant was falsely implicated on account of village rivalry; -.•^,.,,..tl5.-.S<C.i,.3aKiS^-s»ISK3WimfWSWKK: '\ l«3®Si 1 y ^ jvy CRA 1524/94 •!!| :Ssscss^' ^. the learned Special Judge erred in law in placing reliance on the evidence of Kheduram Banjare (PW-1) and Tilakram Verma (PW-3). •9 (5) On the other hand, Shri U.K.S. Chandel, learned Panel Lawyer appearing on behalf of the State; opposed these arguments and supported the judgment passed by the Special Judge. (6) I have heard learned counsel for the parties at lengfh and have also perused the records of the Special Case. (7) Section 3 (1) (x) of the Special Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, intentionally insults or intin-iidates wifh intent to humiliate a Xtember of a Scheduled Caste or a Scheduled Tribe in any place within pubic view, shall be punishable with imprisonment for a term which shall not be less than six nionths but which may extend to five years and with fine. It is apparent from the above provisions of Section 3 (1) (x) that the complainant should aUege and prove that the accused was not a member of Scheduled Caste or Scheduled Tribe and that the complainant was intentionally insulfed or intim.idated by the accused with intent to humiliate in a place wifhin public view. ".f^'' '4 CRA 1524/94 (8) In case on hand, complainant Kheduram. Banjare (PW-1), nowhere said that the accused- was not a member of Scheduled Caste or Scheduled Tribe. Neither in the F.I.R. (Ex.P/1) nor in the Court deposition, the complainant has deposed about the caste of the appellant/accused. The evidence of Kheduram Banjare (PW-1) would show that he contended that the appellant/accused was a Barber. It is not necessary that a person performing the work of barbar may not be a member of Scheduled Caste or Scheduled Tribe. Unless it is proved that the appellant was not a member of Scheduled Caste or Schediiled Tribe, he cannot be punished for an offence under Section 3 (I) (x). In fact, this is one of the basic ingredients of the aforesaid offence. Please see 12008) 12 SCC 531, Gorige Pentaiah Vs. State ofAndhra Pradesh and others. (9) The learned Special Judge has placed reliance on the evldence of Kheduram Banjare (PW-1) and Tilakram. Verma (PW-3). Kheduram Banjare (PW-1) admitted in the cross examination, paragraphs 7 and 8, that Jhaduram Verma was the Sarpanch of the village at the relevant time and later 6n, Bhanuram Verma becanie the village/Sarpanch. A case relating to claim of crop was pending between'them since I'&st 7-8 years. He very clearly admitt.ed- that Bhagvati Verma (PW-2) and Tilakram Verma (PW-3) were in the party of Bhanuram Verma and the appellant was in the ^ CRA 1524/94 ;? party of Jhaduram Verma. However, he denied that he was tutored by Bhanuam Verma. The learned Special Judge completely lost sight of these facts. It is-an admitted fact thaf when the complainant went to the appellant, the appellant was cutting the hair of Yashwant Kumar (PW-4). This has been admitted by Kheduram Banjare (PW-1) in para 2 of his evidence. Therefore, presence of Yashwant Kumar (PW-4) at the place of occurrence cannot be doubted. Yashwant Kumar (PW-4) did not depose about any such incident, as alleged by the complainat. (10) False reports on the village rivalry on the basis of party bandi are not uncommon. I am of the view that the testimonies of the witnesses should have been examined, keeping in mind, the above facts also, which the Special Judge did not do. There was no reason to not believe the evidence of Yashwant Kumar (PW-4) . If the things would have happened in the manner as have been alleged by the complainant, Yashwant Kumar (PW-4) must have deposed about them. Yashwant Kumar (PW-4) has not been declared hostile. (11) For the foregoing reasons, I am unable to sustain the / Gonvi'ction of th& af)pellant on the above set of evidence. I am of the view that the learned Special JuSge fell into error by convicting the appellant.under'Section 3 (1) (x) of the Special Act,which deserves to be set aside. Ellt^ CRA 1524/94 1 (12) Accordingly, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 3 (1) (x) of the Special Act are set aside. The appellant is acquitted of the charge framed against him. The appellant is on bail. His bail bonds are \ cancelled and surety stands discharged. Sd/- Sunil Kumar Sinha Judge