Santosh vs The State Of Madhya Pradesh
2022 Latest Caselaw 4258 MP

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  IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                       BEFORE
          HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                         ON THE 28TH OF MARCH, 2022
                     CRIMINAL APPEAL No.2561 of 2005

   Between:-

    SHRI SANTOSH S/O GENDALAL
    MALAKAR AGED ABOUT 32
    YEARS,  R/O JHUGGI-JHOPDI,
    NARMADA    NAGAR,   POLICE
    STATION   NARMADA   NAGAR
    KHANDWA, DISTRICT-KHANDWA
    (M.P.)
                                                                     ......APPELLANT
   (BY SHRI NARESH SHARMA, ADVOCATE )

    AND

   THE   STATE               OF       MADHYA
   PRADESH.
                                                                      ...RESPONDENT


   (BY SHRI RAMJI PATEL, PANEL LAWYER FOR STATE AND
   SHRI MOHAMMAD MOHSIN WALI, ADVOCATE FOR
   COMPLAINANT)
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       This appeal coming on for orders this day, Justice Dinesh Kumar
Paliwal, passed the following:
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                              JUDGMENT

This appeal is directed against the judgment of conviction dated 24.11.2005 passed in Special Criminal Case No. 44/2004 (State of MP Vs. Santosh Kumar Malakar) by Special Judge the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Act 1989 Khandwa (hereinafter referred to as POA Act) whereby the appellant has been held guilty for the offence under Section 3(1)(10) of the POA Act and sentenced to undergo R.I. for 6 months and fine of Rs. 500/- and in default of fine further 15 days S.I. and sentenced to undergo R.I. for 1-1 month respectively for offence under Sections 323 and 506(B) of IPC and all the sentences were directed to run concurrently.

2. It is admitted that complainant/injured and appellant have entered into compromise before this Court as result whereof appellant has been acquitted of offence under Sections 323 and 506(B) of IPC vide order dated 23.03.2022. This judgment is being passed with regard to the conviction and sentence awarded under Section 3(1)(10) of the POA Act.

3. The prosecution story as alleged is that on 03.10.2004 at around 2:30 pm in the weekly market at Narmda Nagar, Dev Karan (PW-3) along with Rajendra Chouhan (PW-6) was realizing money from the shops installed there. When they reached on the Santosh's shop and gave him Rs. 5 receipt for panchayat, Santosh Kumar Malakar uttered filthy word related to mother and sister and caught hold collar of his shirt and slapped him. He further stated that Balai Chamar never come on my shop for realization of money. Matter was pacified by Prem Lal (PW-4) and Sunil (PW-5). He also threatened him to kill. Same day, Dev Karan (PW-3) lodged an FIR in

police station Narmda Nagar Khandawa at FIR No. 255/04 for commission of offences under Sections 323, 294, 506 of IPC and 3(1)(10) of the POA Act.

4. On filing of charge sheet before the JMFC Khandwa it was committed to the Court of Special Judge Khandwa. The charges were framed for the offences under Sections 3(1)(10) of the POA Act and 323 and 506 (B) of IPC. The accused abjured his guilt and took a defence of false implication. The trial Court recorded the finding proving the charge under Sections 323, 506(B) of IPC and 3(1)(10) of the POA Act.

5. Shri Naresh Sharma, learned counsel for the appellant has assailed the finding of conviction for the charge under Section 3(1)(10) of the POA Act and submitted that prosecution by unimpeachable evidence has failed to prove that the complainant Dev Karan belongs to scheduled caste community. Mere testimony of the complainant is not sufficient to prove him the members of scheduled caste community. In support of his contention, learned counsel has placed reliance on Harlal Vs. State of MP ILR (2013) MP 1440 and Ashok and others Vs. State of M.P. ILR (2015) MP 2475 and urged that in the absence of certificate of a scheduled caste to which complainant belongs, the conviction cannot be allowed to stand. He has therefore, prayed that the impugned judgment may be set aside, allowing this appeal.

6. Per contra Shri Ramji Lal, learned Panel Lawyer appearing on behalf of the respondent/State has submitted that that as per the statement of of Dev Karan (PW-3), it is clear that he is a member of Balai sub caste which falls within 'Chamar' caste. No effective cross-examination has been

made by the defence on the said testimony, however, relying upon such testimony he has been rightly convicted under Section 3(1)(10) of the POA Act.

7. After hearing learned counsel appearing on behalf of the parties it is to be examined that to prove the charge under Section 3(1)(10) of the POA Act, the sufficient material is available on the record or not . In this context the definition of scheduled caste and scheduled tribe enumerated under Section 2(1)(c) of the Act requires consideration, however it is reproduced as under:-

2. Definition.-(1) In this Act unless the context other wise requires,-

(c) "Scheduled Castes and Scheduled Tribes" shall have the meaning assigned to them respectively' under clause (24) and clause (25) of article 366 of the constitution.

8. The provision of the Section 3(1)(10) of the POA Act is also required to be seen which is reproduced as under.:-

3. Punishments for offence of atrocities.- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

(x) Intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

9. Dev Karan (PW-3) in his testimony has deposed that he is of Balai Caste, when he reached on the Santosh's shop and gave him

panchayat receipt of Rs. 5, he uttered him filthy words related to mother and sisters and gave 2-3 slap and stated that Balai never come again on my shop. He had lodged the FIR. The aforesaid evidence of Dev Karan finds support from the evidence of Sunil (PW-5) who has deposed that Santosh Kumar Malakar was abusing Dev Karan that he belongs to Balai Samaj.

10. In his cross examination Dev Karan has admitted that he belongs to Balai caste. He has refused the suggestion offered by the learned counsel for the defence that accused had not called him by the caste.

11. In this case, it could not be over looked that caste was not a reason for the incident of marpeet between Dev Karan and Santosh Kumar Malakar and offence was not committed by him due to the caste of complainant. In fact, the dispute was over payment of Rs. 5/- panchayat receipt. Therefore, only on the basis of uttering of the word Balai never come again of my shop can not be said that the appellant Santosh Kumar Malakar insulted the complainant Dev Karan on the basis of his caste. In Ashok Vs. State of MP ILR (2015) MP 2475, it has been held by this Court that if some one has been called by name of his caste without an intention to insult and humiliate a member of scheduled caste then no offence under Section 3(1)(10) of the POA Act is made out.

12. In the light of the aforesaid judgment of this Court, trial Court has committed an error in convicting the appellant of the offence under Section 3(1)(10) of the Act.

13. In this case, it also can not be over looked that prosecution has not produced any evidence on record to prove that Dev Karan belongs to

Balai caste as no caste certificate issued by the competent authority has been produced and proved by the prosecution. Therefore, merely on the basis of oral evidence that complainant belongs to Balai caste is not enough. It is required to prove that Balai caste falls within the caste specified in the presidential notification issued under Article 341 of the Constitution of India. In the case of Harlal Vs. State of M.P. ILR (2013) MP 1440 it has been held that "in the present case prosecution has not filed any caste certificate issued by the competent authority proving the fact that the complainant belongs to sub cast Jetia which falls within the Jatav caste notified by the presidential notification. Prosecution has not brought unimpeachable, cogent, oral evidence of the Investigating Officer to prove the fact that the Jatia sub caste falls within the caste Jatav, which is notified as a Scheduled Caste for the purpose of State or Union territory. In absence of the aforesaid legal evidence charge under Section 3(1)(10) of Prevention of Atrocities Act is not found proved."

14. In this case, it does not appear that accused Santosh Kumar Malakar insulted the complainant Dev Karan with intention to humiliate him because of his being a member of scheduled caste. Merely utterance of the word "Balai never come again on my shop" in the fit of rage without there being an intention to insult or humiliate a member of scheduled caste no offence under Section 3(1)(10) of the Act is made out.

15. On the basis of aforesaid discussion and having taken into consideration the evidence of Dev Karan (PW-3) and Sunil (PW-5). It is clear that caste was not a reason for the incident that took place between complainant and appellant and in such circumstances learned trial Court

was not justified to convict the appellant for commission of offence under Section 3(1)(10) of the Act. Thus I am of the view that learned trial Court has committed an error in convicting the appellant for that.

16. Accordingly this appeal filed by the appellant is hereby allowed, impugned judgment of conviction and order of sentence by learned trial Court is set aside. The appellant Santosh Kumar Malakar is acquitted of the charge under Section 3(1)(10) of the POA Act. The bail bond of the appellant Santosh Kumar Malakar stands discharged.

17. A copy of this judgment along with trial Court record be immediately sent down to the Court of Special Sessions Judge SC/ST (Prevention of Atrocities) Act Khandwa.

(DINESH KUMAR PALIWAL) JUDGE

L.R.

Digitally signed by LALIT SINGH RANA Date: 2022.03.28 15:02:11 +05'30'