Madhya Pradesh High Court

CRA/1450/2021 of KISHAN @ KAILASH Vs THE STATE OF MADHYA PRADESH on 29 December 2023

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COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI

IN THE HIGH COURT OF MADHYA PRADESHAT JABALPUR

BEFOREHON'BLE SHRI JUSTICE VINAY SARAFON THE 29[th] OF DECEMBER, 2023CRIMINAL APPEAL No. 1450 of 2021

BETWEEN:-

KISHAN @ KAILASH S/O SHRI NATTHU, AGED ABOUT 28YEARS, OCCUPATION: CASTE GAWALI OCCU. LABOURVILLAGE BORGAON BUJURG P.S. PANDHANA,DISTRICT KHANDWA (MADHYA PRADESH)

(BY SHRI S.S. RAJPUT - ADVOCATE)

.....APPELLANT

AND

THE STATE OF MADHYA PRADESH THRO. P.S.INCHARGE P.S. PANDHANA / AJJAK DISTT. KHANDWA(MADHYA PRADESH).

(BY SHRI NISHANT YADAV - PANEL LAWYER)

.....RESPONDENT

This appeal coming on for hearing this day, th e court passed thefollowing:

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JUDGEMENT

The present appeal has been preferred under Section 374(2) of the Codeo f Criminal Procedure challenging the judgment of conviction and order ofsentence passed by the Special Judge, SC and ST (Prevention of Atrocities)Act, Khandwa in SCATR No. 46/2019, dated 26.02.2021, whereby the learnedSpecial Judge has convicted the appellant and sentenced to undergo 6 months'RI and fine of Rs. 300/- and in default, 1 month's RI for Section 3(1)(r) of theSC and ST (Prevention of Atrocities) Act, 1989, 2 months' RI and fine of Rs.300/- and in default, 1 month's RI for Section 3(2)(va) of the SC and ST

(Prevention of Atrocities) Act, 1989, fine of Rs. 400/- and in default, to furtherundergo 1 month's RI for Section 294 of IPC and fine of Rs. 500/- and indefault, to further undergo 1 month's RI for Section 323 of IPC.

2. Learned counsel appearing on behalf of the appellant submits that thecomplainant has lodged a false report. It is submitted that prosecution has failedto prove the case beyond reasonable doubt. Appellant remained in custodyfrom 18.02.2019 to 19.02.2019. He prayed for acquittal of the appellant.

3. Per contra, the learned Panel Lawyer appearing on behalf of therespondent/State supported the judgment and argued that the witnesses haveduly proved the incident and involvement of the appellant in the offence andprayed that appeal be dismissed.

4. After considering the arguments of both the parties and after perusal ofrecord, it appears that FIR was lodged on 17.02.2019 by Kiran Bai against thepresent appellant at Police Station Pandhana, District Khandwa, registered asCrime No. 31/2019, under Sections 341, 294, 323 and 506 of Indian PenalCode and Sections 3(1)(r)(s) and 3(2)(va) of the SC and ST (Prevention ofAtrocities) Act, 1989 and after investigation, charge-sheet was filed.

5. Prosecution examined seven witnesses. However, defence has notexamined any witness. PW-1 Bhuprendra Singh Raghuvanshi, Reader toS.D.O., has proved the signature of the S.D.O. on the caste certificate issued inthe name of victim. Victim has been examined as PW-2. She narrated theincident and involvement of the appellant in the offence, however, she has notstated anything in respect of intentionally insulting her by the appellant her beinga member of Scheduled Tribe any any place within public view. She simplystated that she belongs to Scheduled Tribe and the appellant was havingknowledge that she belongs Scheduled Tribe. The statement of victim (PW-2)

is not supported by any independent witness. The learned Special Judge afterconsidering the statement of witnesses and material available on record, byjudgment dated 28.02.2020, convicted the appellant and sentenced him as statedhereinabove.

6 . So far as conviction under Section 3(1)(r) of the Act of 1989 isconcerned, it is not enough to state that the accused was having knowledgeregarding the caste of the victim. Knowledge of the caste may be relevant forthe purpose of conviction under Section 3(2)(va) of the Act of 1989 but, it isnot sufficient for the purpose of proving the offence under Section 3(1)(r) ofthe Act of 1989. For the purpose of proving the offence under Section 3(1)(r),it is essential to prove the intention of the act to insult or intimidate with intent tohumiliate a member of Scheduled Tribe in any place within pubic view. Theseingredients are absent in the present case. Even in the examination-in-chief, thevictim has not stated in respect of the requirement of said Section and therefore,the conviction under Section 3(1)(r) of the Act of 1989 is hereby set aside andthe appellant is acquitted from the charge punishable under Section 3(1)(r) ofthe Act of 1989.

7. The offence under Sections 294 and 323 of IPC and Section 3(2)(va)of the SC and ST (Prevention of Atrocities) Act, 1989 are duly proved.Therefore, conviction under Sections 294 and 323 of IPC and Section 3(2)(va)of the Act of 1989 are upheld.

8. However, looking to the fact that the incident took place in the year2019, the prosecution has not brought any past criminal antecedents of theappellant on record, appellant remained in jail from 18.02.2019 to 19.02.2019,no minimum sentence is prescribed either under Sections 294 and 323 of IPC

or under Section 3(2)(va) of the Act of 1989, I deem it proper to reduce the jailsentence awarded to the appellant under Section 3(2)(va) of the Act of 1989 tothe extent of the period which he has already undergone and accordingly, jailsentence is reduced to the period already undergone. However, fine amount isenhanced from Rs. 300/- to Rs. 3000/- under Section 3(2)(va) of the Act of1989. The appellant shall deposit the enhanced fine amount within a period oftwo months from today. The appellant is on bail, his personal bonds and bailbonds be discharged. Accordingly, the appeal is partly allowed.

9. Record of the trial Court be sent back along with copy of the judgment.

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(VINAY SARAF)JUDGE

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