Friday, 14 April 2017

When offence under SC &SC Atrocities Act is not made out?

I have given thoughful consideration to the rival
submissions and gone through the material available on
record.
As per written report (Ex.P3) there were two
witnesses who saw the whole incident. Those two witnesses
have been examined as Sikander Ali (PW-2) and Dev Kishan
(PW-6). Sikander Ali (PW-2) states that he saw only a crowd
and does not speak anything more about incident. Dev kishan
(PW-6) states about the occurrence of the incident which
happened with regard to parking of the vehicle but does not
corroborate the incident of beating or abusing by caste. He
saw both of them only having hot talks. Both Sikander Ali
(PW-2) and Dev Kishan (PW-6) were declared hostile .
Nanak Chand (PW-9) and Mukesh (PW-5) have also
been examined as eye-witnesses by the prosecution. They
have also turned hostile and states nothing about incident.6
Radhey Shyam (PW-3), in his statement has
narrated the incident as it is mentioned in Ex-P3. He further
states that he was subjected to medical examination.
Sonograpy was suggested but he did not get it done. On the
contrary, Dr.R.K.Sharma (PW-4) who medically examined
Radhey Shyam, has stated that he did not find any visible
injury on the person of Radhey Shyam. On complaint made by
Radhey Shyam about pain in his abdomen, suggested
sonography. In cross-examination, he stated that on
sonograpy, no injury was found in the abdomen.
It is a sine qua none that intentional insult or
intimidation with intent to humiliate a member of Scheduled
Caste or a Scheduled Tribe, is to be made at any place within
public view. Here in the instant matter, as per prosecution
story the incident occurred at public place i.e. a tea shop. But
none of persons present there, has stated that in their view,
Radhy Shyam (PW.3) was intentionally humiliated or insulted.
As such, charge under Section 3(1)(X) is not found proved.
So far charge of using criminal force is concerned,
nobody has corroborated that appellant used any criminal
force during the incident. Dev Kishan (PW-6) has stated that
both of them were having hot talk only.
Reportable
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JAIPUR BENCH JAIPUR
S.B. Criminal Appeal No.111/1995
Ram Kishan Mangilal 
State of Rajasthan.

Dated:14.09.2016

MR. JUSTICE VIJAY KUMAR VYAS

Citation: 2017 CRLJ(NOC)72 Raj



The appeal has arisen out of judgment dated
30.01.1995 passed by Special Judge SC/ST (Prevention of
Atrocities) Act cases, Kota in Sessions case No.106/1993,
whereby appellant has been convicted for offence punishable
under Section 3(1)(X) of Scheduled Caste & Schedule Tribes
(Prevention of Atrocities) Act, 1989 (hereinafter referred to
as the Act of 1989) and sentenced to undergo six months2
simple imprisonment and fine of Rs.500/-; in default of
payment thereof, to further undergo one month simple
imprisonment. Appellant has also convicted for offence u/s
352 IPC and sentenced to undergo on month simple
imprisonment.
In brief, the facts are that on 26.11.1992 at 12.30
a.m., complainant Ram Kishan submitted a written report
(Ex.P3) before police stating inter alia that he belongs to
Megwal (Scheduled Caste) community. On 25.11.1992 at about
11.30 p.m. when he was taking tea on the shop of Abdul Gani,
appellant Ram Kishan came there riding on Luna vehicle and
asked him in abusive language to remove his vehicle. When
complainant was moving his vehicle, he told him Chamaria and
rushed to beat him. When he tried to flee away, he restrained
him and beat with fists & kicks. Somehow, he managed to get
away from there. Dev Kishan Gurjar and Sikander Ali were
there who have seen the incident. Formal FIR No.238/1992
(Ex.P4) was registered at police station Kunadi (Kota). After
due investigation, a charge sheet was filed against the
appellant. Learned trial court charged him for offence under
Section 3(1)(X) of the Act of 1989 and Sections 352 and 3233
IPC. Appellant denied the charges and claimed trial. In all,
eight witnesses were examined by the prosecution. Five
documents were exhibited. Appellant-accused was examined
under Section 313 Cr.P.C., whereupon he stated the
prosecution witnesses to be false and that he did not beat or
abuse Radheshyam. Manglia (DW-1) was examined.and two
documents were exhibited in defence. Learned trial court,
after hearing the parties, convicted and sentenced vide
impugned judgment the appellant, as stated above.
Learned counsel for the appellant submits that
both the eye-witnesses Dev Kishan (PW-6) and Sikander Ali
(PW-2) have turned hostile who were named in FIR.
Prosecution examined Nanak Chand (PW-1) and Mukesh (PW-
5) also as eye-witnesses. They have also turned hostile.
Statement of Radhey Shyam (PW-3) is not credible one. He
reported in FIR and stated before trial court that he was
beaten by kicks and fists and medical examination was also
conducted. Prosecution has examined Dr. R.K.Sharma (PW-4),
who conducted the medical examination of Radhey Shyam. He
has stated that he did not find any visible injury on the body
of Radhey Shyam. When he was complaining pain in abdomen,4
he suggested sonograpy. Radhey Shyam (PW-3) has stated in
statement that he did not get sonograpy done, whereas
Dr.R.K.Sharma (PW-4) stated in cross-examination that on
sonograpy, no injury was found in the abdomen.
Learned counsel further submits that Radhey
Shyam (PW-3) was suggested in cross-examination that there
is a dispute with regard to cultivation of land with Manglia,
who used to get his land cultivated through appellant Ram
Kishan on sharing basis. Though Radhey Shyam (PW-3) has
denied any such fact, yet Manglia (DW-1), who was examined
in defence, has corroborated this story and further he has
stated that there is a litigation pending between him and
Radhey Shyam. Thus, enmity has been proved by defence side
and due to such enmity Radhey Shyam (PW-3) falsely
implicated the appellant in this matter. Learned counsel has
referred Kailash Chandra vs. State of Rajasthan 2003(1) WLC
(Raj.) 401, Rupa Ram vs. State of Rajasthan and Ors. 2003(4)
WLC (Raj.) 320 and M/s. Shree Agencies through its partners
vs. Poonam Chand Banthis (deceased) through Lrs. 2004 (1)
WLC (Raj.) 195.
Learned Public Prosecutor submits that Dev5
Kishan (PW-6) has corroborated the incident, though he has
turned hostile with regard to fact of abusing by caste and
otherwise. FIR was lodged immediately after the incident.
There are no reasons to disbelieve the statement of Radhey
Shyam (PW-3).
I have given thoughful consideration to the rival
submissions and gone through the material available on
record.
As per written report (Ex.P3) there were two
witnesses who saw the whole incident. Those two witnesses
have been examined as Sikander Ali (PW-2) and Dev Kishan
(PW-6). Sikander Ali (PW-2) states that he saw only a crowd
and does not speak anything more about incident. Dev kishan
(PW-6) states about the occurrence of the incident which
happened with regard to parking of the vehicle but does not
corroborate the incident of beating or abusing by caste. He
saw both of them only having hot talks. Both Sikander Ali
(PW-2) and Dev Kishan (PW-6) were declared hostile .
Nanak Chand (PW-9) and Mukesh (PW-5) have also
been examined as eye-witnesses by the prosecution. They
have also turned hostile and states nothing about incident.6
Radhey Shyam (PW-3), in his statement has
narrated the incident as it is mentioned in Ex-P3. He further
states that he was subjected to medical examination.
Sonograpy was suggested but he did not get it done. On the
contrary, Dr.R.K.Sharma (PW-4) who medically examined
Radhey Shyam, has stated that he did not find any visible
injury on the person of Radhey Shyam. On complaint made by
Radhey Shyam about pain in his abdomen, suggested
sonography. In cross-examination, he stated that on
sonograpy, no injury was found in the abdomen.
It is a sine qua none that intentional insult or
intimidation with intent to humiliate a member of Scheduled
Caste or a Scheduled Tribe, is to be made at any place within
public view. Here in the instant matter, as per prosecution
story the incident occurred at public place i.e. a tea shop. But
none of persons present there, has stated that in their view,
Radhy Shyam (PW.3) was intentionally humiliated or insulted.
As such, charge under Section 3(1)(X) is not found proved.
So far charge of using criminal force is concerned,
nobody has corroborated that appellant used any criminal
force during the incident. Dev Kishan (PW-6) has stated that
both of them were having hot talk only.
Manglia (DW-1), examined on behalf of defence,
has stated that he and Radhey Shyam are having a land
dispute. Some litigation is also pending between them.
Appellant Ram Kishan cultivated his land on sharing basis. On
cross-examination, he has denied that there must be some
quarrel between Radhey Shyam and Ram Kishan with regard to
the land of the wintess.
In view of the evidence rendered by defence and
after going through cross-examination of the witnesses of
the prosecution, the defence story of previous enmity cannot
be accepted to be proved. However, since prosecution has
failed to prove both the charges for which the appellant has
been convicted and sentenced by learned trial court, the
appeal deserves to be allowed.
Therefore the appeal is allowed. Judgment dated
30th January, 1995 passed by learned Special Judge, SC/ST
(Prevention of Atrocities) Act cases, Kota is set aside.
Appellant is acquitted of the charges under Section 3(1)(X)
and 352 IPC.
Keeping in view, however, the provisions of
Section 437-A of the Code of Criminal Procedure, accused
appellant Ram Kishan is directed to forthwith furnish a person
bond in the sum of Rs.20,000/- and a surety bond in the like
amount, before the Deputy Registrar (Judicial) of this Court,
which shall be effective for a period of six months to the
effect that in the event of filing of Special Leave Petition
against this judgment or on grant of leave, the said appellant,
on receipt of notice thereof, shall appear before the Supreme
Court.
(VIJAY KUMAR VYAS),J.
Dheeraj/13
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