CRA/2401/2006 of BABLOO SINGH @ HARSHWARDHAN SINGH Vs THE STATE OF MADHYA PRADESH on 2 February 2024

JUDGMENT

T his criminal appeal has been preferred against the judgment ofconviction and sentence passed on 29.11.2006 by Special Judge, the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989(hereinafter referred to as "the Act"), Rewa, in Special Case No.34/2006whereby the appellants were held guilty of offence of Section 324/34 IPC andSection 3(1)(x) of the Act and were convicted to six months rigorousimprisonment and fine amount of Rs.1,000/- for each of the offence, with adefault stipulation to undergo simple imprisonment of six months, in case ofnon-payment of fine.

2. The brief facts of prosecution case leading to conviction of appellantsare that on 24.4.2005 at around 5:00 p.m. complainant Ram Sajeevan alias Rajuwas on his way to the house of Mohan Jaiswal for repaying him the amount ofRs.2,000/- but he was wrongfully restrained by appellants Bablu Singh, SanjaySingh, Haricharan Singh and their companions, who reached the place in twoMarshall vehicles; their companion Harshwardhan Singh gave filthy abuses tothe complainant and made exhortation to assault the complainant; all theappellants and their companions started physically assaulting the complainant;they were abusing with obscene remarks and were also insulting him by hiscaste name; in this physical assault, Harshwardhan Singh, Haricharan Singh andSanjay Singh gave him blows with dandas, causing him head injury and alsoinjuries on the hand; the intervention of villagers made the appellants and theircompanions to flee away, but before leaving the place they gave life threats tothe complainant; they also robbed him of Rs.3,000/-, which he was having in hispocket; on the next morning, complainant gave a written complaint upon whichCrime No.9/2005 was registered in Police Station, AJK, Rewa, and the matterwas investigated. After filing the charge-sheet, the trial was held and theappellants were convicted but their companion Vinod Kumar Jaiswal wasacquitted in the case.

3 . The grounds raised in this criminal appeal are that the finding ofconviction passed by the trial court is illegal and perverse; it is against theevidence available on record; it was not considered by the trial court that theprosecution had failed to prove its case beyond reasonable doubt; the FIR inthe case was lodged with considerable delay; the vehicles allegedly used by theappellants were not seized; there was no material evidence to hold the appellantsguilty of Section 3(1)(x) of the Act; Surendra Kumar Prajapati (P.W.10) hadcontradicted his own version, therefore his evidence could not have been thebasis for rendering the finding of conviction; Dr. Atul Singh (P.W.12) did notsupport the prosecution version and, in his opinion, the injuries sustained bycomplainant could have been caused due to falling down on a pointed stone. Itis, therefore, prayed that the appellants, being of young age and first offenders,be given the benefit of provisions of Section 4 of the Probation of OffendersAct or considering the evidence on record, their conviction be set aside andthey be acquitted.

4. Learned counsel for the State has opposed the appeal by submittingthat from the prosecution evidence, guilt of appellants is clearly proved and,therefore, the trial court did not commit any error in finding the appellants guiltyfor the aforesaid offence. A prayer for rejection of the appeal was accordinglymade.

5. As no one has appeared on behalf of the appellants, therefore, thearguments on behalf of State have been heard. Also the judgment and record ofthe court below have been perused.

6. The appellants in this case have been convicted for the offence ofSection 3(1)(x) of the Act but upon examining the record of trial court it is evident that no certificate of caste of complainant Ram Sajeevan was producedin evidence by the prosecution. It has been held in the judgment of BhagwatSingh v. State of Madhya Pradesh 2006 (1) ANJ (MP) 355 that the courseto be adopted in a trial under the provisions of the Act is that the prosecutionshould file a certificate of caste or tribe, as the case may be, which is dulyissued by an authorized person.

7. The prosecution has relied upon the testimonies of complainant RamSajeevan (P.W.1), Chandra Shekhar Saket (P.W.2), Brahspat (P.W.3), Seetan(P.W.6), Mohanlal (P.W.7), Surendra Kumar Prajapati (P.W.10), RamashraySahu (P.W.11) and Rajkumar Jaiswal (P.W.13) to prove that the complainant isa member of scheduled caste category. It has been held in the case ofManohar Sawai Rathod v. State of Maharashtra 2007 Cr.L.J. (NOC785)202 that mere statements of aggrieved person about his caste is notsufficient and the prosecution is required to prove this fact by producingdocumentary evidence.

8. The trial court has observed in para 2 of its judgment that it is anadmitted fact that appellants are the members of upper caste while thecomplainant is a member of Scheduled Caste. It appears that this observation ismade on the basis of answer given to Question No.1 during their examinationunder Section 313 Cr.P.C. by the appellants.

9. It has been held by the Apex Court in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) AIR 2010 SC 2352 that the answersgiven by the accused to the questions put under Section 313 Cr.P.C. are notper se evidence because firstly, they are not on oath, and secondly, they are notsubjected to cross-examination. It is nevertheless subject to consideration bythe court to the limited extent of drawing an adverse inference against such accused for any false answers given voluntarily and to provide anadditional/missing link in the chain of circumstances. Further, it has been heldby the Apex Court in Ashok Kumar v. State of Haryana (2010) 12 SCC350 that conviction cannot be based merely on the statements made underSection 313 Cr.P.C. The proper use of this examination is to give opportunityof explanation to the accused and appreciate the evidence led by prosecutioneither to accept or reject it. Any admission made under Section 313 Cr.P.C.cannot act as a substitute for the evidence of prosecution.

10. In the light of these facts and the limited scope of answers offered byaccused under their examination, this court is of the opinion that the trial courtwas in error in holding the caste of complainant proved solely on the basis ofadmission made by the appellants. The trial court did not undertake to examinewhether the appellants had sufficient occasion to get acquainted with theancestry and the caste of complainant. Thus, in the absence of proof by theprosecution regarding the fact that complainant belonged to Scheduled Castecategory, the finding of conviction given under Section 3(1)(x) of the Actcannot be upheld.

11. All the three appellants have been convicted for the offence ofSection 323/34 IPC and for this, the trial court has relied upon the testimoniesof complainant Ram Sajeevan (P.W.1), Chand Shekhar Saket (P.W.2),Brahspati Saket (P.W.3), Sheetal (P.W.6), Mohan Jaiswal (P.W.7), Julfilal Saket(P.W.8), Surendra Kumar Prajapati (P.W.10), Ramashray Saket (P.W.11) andRajkumar Jaiswal (P.W.13). Further, the statements of Dr. Atul Singh (P.W.12)have also been relied upon for the injuries sustained by complainant RamSajeevan. It may be mentioned here that Chandra Shekhar Saket (P.W.2) has admitted in para 5 that he did not witness any incident of assault and he merelysaw an injury on the head of complainant. Although it is claimed by him thatwhen he reached the place of incident, the appellants were present there but hehas failed to claim that any assault was made by the appellants. Brahspat Saket(P.W.3) too did not witness any assault. According to him, he only saw bloodoozing out from the head of complainant and had no knowledge how this injurywas caused. Sheetal (P.W.6) and Mohanlal (P.W.7) have given similar kind oftestimonies.

12. Julfilal Saket (P.W.8) is the real brother of complainant and he toodid not witness any incident. According to him, he was informed about it by thecomplainant. It has also been claimed by him that he reached the spot onreceiving the information and then brought the complainant to home. RajkumarJaiswal (P.W.13) has also not given any statement about witnessing the assault.According to him, when he reached the spot he saw appellant Babloo Singhwas using filthy language for complainant Ram Sajeevan and was helping him toget up from the ground. According to this witness, he did not see any otherappellants on the spot.

1 3 . Two prosecution witnesses, namely Surendra Kumar Prajapati(P.W.10) and Ramashray Sahu (P.W.11), have corroborated the prosecutionstory to some extent. According to Surendra Kumar Prajapati, the complainantwas standing in the shop when appellant Babloo Singh arrived there in hisvehicle; Babloo Singh slapped him twice; appellant Haricharan Singh was sittingin the vehicle; Sanjay Singh and Vinod Singh later came on spot; Vinod wasgiving filthy abuses. According to this witness, the villagers rushed to the spotbut nowhere this witness has claimed that besides giving those two slaps, anyinjury was caused to complainant by any of the appellants. According to Ramashray Sahu (P.W.11), on hearing the noise he reached the spot where hefound a bleeding wound on the head of complainant but did not see anyoneassaulting the complainant. According to this witness, he heard from thevillagers that appellants had caused this injury to the complainant but it is notdisclosed, who that informant was.

14. The testimonies of these prosecution witnesses reveal that they havegenerally not corroborated the fact of witnessing any of the appellants giving ablow with danda to the complainant Ram Sajeevan as claimed by him in hiswritten complaint, marked as Ex.P-1. Witness Surendra Kumar Prajapati(P.W.10) has stated on oath that he saw appellant Babloo Singh giving twoslaps to the complainant but written complaint, Ex.P-1, is silent on injuriescaused to the complainant by slapping him.

15. The trial court has observed in para 14 of its judgment that in MLCreport, marked as Ex.P-12, Medical Officer Dr. Atul Singh (P.W.12) foundinjury on the head of injured-complainant Ram Sajeevan (P.W.1) to be anincised wound while complainant Ram Sajeevan (P.W.1) had claimed that hewas caused head injury with a danda, which is a hard and blunt object.Considering this contradiction the trial court held that even with a blow withdanda, an incised wound can be caused on the head which has a hard surfacebeneath the skin and such an injury would not appear to be a lacerated wound.On the basis of this assessment, it was held by the trial court that injury on thehead of complainant was caused by a hard and blunt object although itappeared to be an incised wound and for this, the appellants were convictedunder Section 323/34 IPC.

16. While holding the appellants guilty of said offence, the trial court completely ignored the fact that no other witness corroborated complainantRam Sajeevan (P.W.1) on the fact of causing him injury with a blow of dandaon the head. As many as 13 witnesses were examined in this case, includingsubstantial number of eyewitnesses, still the statements of Ram Sajeevan(P.W.1) did not find any corroboration from a single witness about the headinjury caused to him with a blow of danda. This shows that even the statementsof complainant Ram Sajeevan (P.W.1) need to be carefully examined.

17. According to Ram Sajeevan (P.W.1), he had contested the electiono f Parshad (Councillor) from Ward No.24 and appellants Haricharan andSanjay Singh are residents of the same Ward. It is mentioned in para no.7 ofwritten complainant, marked as Ex.P-1, that the appellants were asking thecomplainant not to contest the election from that Ward and they were evengiving him threats. This shows that the complainant Ram Sajeevan (P.W.1) hadpolitical enmity with the appellants from before the date of incident. Despite thisenmity between the two sides, the statements of complainant Ram Sajeevan(P.W.1) have not found due support from other witnesses. Further, the fact ofslapping by appellant Babloo Singh has not been mentioned in the writtencomplaint, marked as Ex.P-1.

18. In the light of this appreciation of evidence, the court does not findreliable evidence on record to hold the appellants guilty of the offence ofSection 323/34 IPC. Accordingly, the prosecution case is not found to havebeen established through credible evidence, therefore finding of appellants guiltyof the offence of Section 323/34 IPC and Section 3(1)(x) of the Act cannot beconcurred with. They are accordingly acquitted of the offence of Section323/34 and Section 3(1)(x) of the Act.

19. The appellants are already on bail. Their bail-bonds stand discharged.

20. Let a copy of this judgment be sent to the trial court along with itsrecord for information and necessary compliance.

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(ANURADHA SHUKLA)JUDGE

Digitally signed by PRASHANT SHRIVASTAVA Date: 2024.02.03 11:24:02 +05'30' Adobe Reader version: 11.0.8