Deepak vs The State Of Madhya Pradesh
2023 Latest Caselaw 21196 MP

Madhya Pradesh High Court

Deepak vs The State Of Madhya Pradesh on 13 December, 2023

Author: Vivek Agarwal

Bench: Vivek Agarwal

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                             ON THE 13 th OF DECEMBER, 2023
                                              CRIMINAL APPEAL No. 50 of 2009

                           BETWEEN:-
                           DEEPAK S/O S/O SHRI BABULAL LODHI, AGED ABOUT
                           21 YEARS, R/O KACHCHI BARANG, HEERAPUR, THANA
                           HARVELI, DISTT. BALAGHAT (MADHYA PRADESH)

                                                                                         .....APPELLANT
                           (BY SHRI SANJAY SARWATE - ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH DISTT. BALAGHAT
                           (MADHYA PRADESH)

                                                                                       .....RESPONDENT
                           (BY SHRI VINAY SHARMA - PANEL LAWYER)

                                 Th is appeal coming on for hearing this day, t h e court passed the
                           following:
                                                              ORDER

This appeal is filed by appellant Deepak being aggrieved of judgment

dated 10th November, 2008 passed by the Special Judge under Atrocities Act, Balaghat in Special Sessions Case 44/2008 whereby the learned Special Judge has convicted the present appellant for offences punishable under Sections 324, 294 and 3(1)(x) of S.C./S.T. (Prevention of Atrocities) Act with one year, one month and six months R.I. respectively and fine of Rs. 500/-, in default,

additional Rigorous Imprisonment of 11/2 months.

It is submitted that case under Section 3(1)(x) of S.C./S.T. Act is not made out. It is submitted that appellant has already spent four months of

incarceration.

Reliance is placed on the Coordinate Bench judgment of this High Court in Onkar Patel @ Omkar Vs. State of M.P. (2020) CriLJ 4231 to point out that Supreme Court in the case of Gorige Pentaihah Vs. State of A.P. (2008) 12 SCC 531 has held that to bring home the case under the provision of SC/ST Act, the complainant ought to have alleged that the accused is not a member of SC/ST community.

It is submitted that firstly there is no such allegation in the F.I.R. that the accused is not a member of the SC/ST community. Secondly, the incident did not take place within the public view. Thirdly, so called eye-witness Vasudev

and Surendra Lodhi have turned hostile. They have not supported the prosecution case whereas Manish Kumar who happens to be real brother of the victim has admitted in para 7 of the cross-examination that he had not seen the incident. No marpeet had taken place in front of him.

Reading from the evidence of Manish Kumar, it is submitted that it is a case of false implication, in as much as, Manish Kumar has admitted that about three years prior to his appearing in the witness box, there was a fight between

him and the accused on 15th August.

It is submitted that when this date is corelated, then it is evident that due to rivalry between the parties, scuffle had already taken place, then with a view to frame the accused appellant, F.I.R. was lodged.

Shri Vinay Sharma, learned Panel Lawyer supports the impugned judgment.

I have gone through the judgment as well as the evidence of material witnesses.

PW-6 Vasudev whose name has been taken by victim Anoop Mahar

(PW-11) along with Surendra and Sachin so also Manish have turned hostile. Philip Ingle PW-7 has also not supported the prosecution case. Surendra Lodhi has also turned hostile and has not supported the prosecuton case.

As discussed above, Manish Kumar has admitted his old rivalry between the accused appellant and has also admitted that he has not seen the incident.

Therefore, it is evident that conviction under Section 3(1)(x) is contrary to the ratio of the judgment of Supreme Court in Gorige Pentaihah (supra) and that cannot be sustained in the eyes of law, for the reason that neither public view has been proved nor another ingredient that the non-applicant was a member of the community not belonging to SC/ST.

Thus conviction under Section 3(1)(x) is set aside. The appeal is allowed to that extent. Since, appellant has already undergone four months imprisonment, the finding of conviction under Sections 324 and 294 of I.P.C. recorded by the Trial Court is affirmed but the sentence under these sections is reduced to the period already undergone by him subject to payment of additional fine amount of Rs.1,000/- to be deposited before the Trial Court and to be disbursed in favour of the injured/victim. As the appellant was on bail, therefore, his bail bonds are discharged.

Accordingly, this appeal is partly allowed.

Record of the Court below be sent back.

Certified copy as per rules.

(VIVEK AGARWAL) JUDGE vy