Madhya Pradesh High Court
Dinesh Singh vs The State Of M.P. on 20 December, 2023
Author: Hirdesh
Bench: Hirdesh
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 20th OF DECEMBER, 2023
CRIMINAL APPEAL No. 411 of 2003
BETWEEN:-
DINESH SINGH S/O SHRI RAM SINGH, AGED ABOUT 37
YEARS, R/O VILLAGE RAJGARH, POLICE STATION
SIRMORE, DISTT. REWA (M.P.)
.....APPELLANT
(BY SHRI A.J. MATHEW - ADVOCATE )
AND
THE STATE OF M.P. THROUGH POLICE STATION:
SIRMORE, DISTRICT REWA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SHAHRUKH RIAZ - PANEL LAWYER )
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Reserved on : 04.12.2023
Pronounced on : 20 .12.2023
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This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the Court passed the following:
ORDER
1. This appeal has been filed by the appellant under Section 374 (2) of
Cr.P.C. against the judgment dated 28.02.2003 passed in Special Case No.
10/ 2002 by Special Judge (Atrocities), Rewa. By the impugned order, the
trial Court has convicted the appellant under Section 323 of IPC and
sentenced him to one year R.I. He has further been convicted under
Section 3(i)(x) of the S.C./ S.T. Act and sentenced to 1 year R.I. and fine
of Rs.500/-; in default 6 months R.I. Appellant has also been convicted
under Section 451 of IPC and sentenced to 1 year R.I. and fine of Rs.500/-;
in default 6 months R.I and also under Section 332 of IPC and sentenced to
undergo 1 year R.I. and fine of Rs.1,000/-; in default 6 months R.I.
2. As per the prosecution story, on the date of the incident i.e.
5.12.2001 at about 1:30 p.m., the appellant has gone to Prathmik
Pathshala, Raigarh, Tehsil Sirmore, District Rewa and abused the
complainant Rajbahoran Saket. It is stated by the prosecution that the
present appellant Dinesh Singh had assaulted the complainant when he was
doing his official work. It is also alleged that when one Harish Prajapati
had come to stop the quarrel then the petitioner had also abused him
(Harish).
3. FIR was Iodged by complainant Rajbahoran Saket at Police Station
Sirmore upon which the police Station Sirmore took up the investigation
and after conducting investigation registered offences punishable under
Sections 451, 353, 323 294 of the IPC and also under Section 3(i)(x) of the
SC/ ST Prevention of Atrocities Act 1989 against the present appellant.
Thereafter police filed the charge-sheet before the competent court of law
where the charges under Sections 451, 353 , 323 and 332 of the IPC and
also under Sections 3(i)(x) of the SC/ ST Prevention of Atrocities Act were
framed against the present appellant.
4. The appellant denied the aforesaid charges and pleaded non guilty.
Thereafter, the trial Court took evidence of the witnesses and convicted the
appellant as aforesaid.
5. Being aggrieved by the aforesaid judgment, the appellant filed this
appeal.
6. Learned counsel for the appellant submits that the judgment of the
trial Court is based on conjectures, surmises and presumptions. It is
submitted that material available on record does not indicate that the above
mentioned offences are made out against the present appellant. The
appellant is innocent and has been falsely implicated in the present case
due to earlier political enmity. It is submitted that there is considerable
delay in lodging the F.I.R. for which no reasonable explanation has been
offered by the prosecution. It is further submitted that P.W.2 Kishankant
Dwivedi and P.W.5 Vijay Kumar Singh who were said to be the eye-
witnesses have denied the incident. P.W.5 Vijay Kumar Singh was declared
hostile by the prosecution. It is submitted that no injuries were found on
the body of the complainant. No medical report was produced by the
prosecution before the trial Court. On these grounds, the appellant prays
for setting aside the impugned judgment and acquittal from the charges.
7. Learned counsel for the State supported the impugned judgment
passed by the trial Court and prayed for dismissal of the appeal.
8. The question before this Court is whether the trial Court wrongly
convicted the appellant and appeal may be accepted.
9. The first question arises whether charge of Section 3(i)(x) of the SC/
ST Prevention of Atrocities Act 1989 is proved against the appellant or not.
In order to establish the aforesaid charge, it is essential to prove that the
complainant belongs to Scheduled Caste or Scheduled Tribe community
and criminal force was used on him by a person who is not a member of
Scheduled Caste or Scheduled Tribe. Learned counsel for the State has
submitted that the accused appellant has admitted in his examination under
Section 313 of the Criminal Procedure Code that complainant is 'Chamar'
by caste. He has not challenged the caste of the complainant. Therefore,
prosecution was not obliged to lead any evidence regarding the fact
whether the complainant belonged to S.C or S.T. community or not.
10. In the testimony of complainant he has admitted that he is 'Chamar'
by caste and appellant admitted this fact. He has not said that he is a
member of SC or S.T. or whether his caste is included in the list of S.C.
caste. The prosecution has not led any evidence to the effect that 'Chamar'
is the caste which has been included in the list of S.C. or S.T. community.
In the absence of any such evidence, this fact cannot be taken for granted
that complainant belongs to the S.C. or S.T. community. As being one of
the essential ingredients, this fact was required to be proved beyond any
reasonable doubt by the prosecution. In the present case, prosecution has
neither filed any certificate of the complainant to demonstrate that he
belongs to S.C or S.T. community nor he was examined by any competent
authority to prove that complainant belongs to S.C. or S.T. community,
therefore, trial Court committed error in holding the appellant guilty under
Section 3(i)(x) of the SC/ ST Prevention of Atrocities Act 1989. In view of
the aforesaid discussion, appellant is absolved of the charge under Section
3(i)(x) of the SC/ ST Prevention of Atrocities Act 1989.
11. The appellant has also been held guilty under Sections 323, 451 and
332 of the I.P.C. In this regard, learned counsel for the appellant submitted
that there are several omissions and contradictions in the statements of
prosecution witnesses. Independent witnesses have not supported the
prosecution story and have declared hostile by the prosecution.
12. In this regard perusal of the statement of complainant P.W.1
Rajbahoran reveals that on 5.12.2001 he was doing his official work in his
school where appellant came and abused him and assaulted him by chair.
On the spot, Harish Prajapati, Smt. Vishnukanta Dwivedi and Vijay Kumar
Singh were present. P.W.1 complainant was cross examined by the
complainant at length. In his lengthy cross-examination, complainant
Rajbahoran remained intact and was supported by P.W.3 Harish Kumar
Prajapati.
13. On perusal of the evidence of P.W.3 Harish Kumar Prajapati, it is
found that he remained intact in his cross-examination. It is true that P.W.2
and P.W.5 have not supported the prosecution story. The evidence of P.W.1
and P.W.3 reveals that they are reliable and trustworthy. It is settled law
that it is not always necessary that each and every prosecution witness
should support the prosecution story. In the present case, P.W.1
Rambahoran's evidence is reliable, cogent and trustworthy and it is
supported by P.W.3 Harish Prajapati. After taking into consideration the
totality of the evidence adduced by the parties, this Court agrees with the
findings of the trial Court so far as holding the appellant guilty under
Sections 323, 451 and 332 of IPC.
14. In view of the aforesaid discussion, the appellant is acquitted of the
charge under Section 3(i)(x) of the SC/ ST Prevention of Atrocities Act
1989, but his conviction by the trial Court under Sections 323, 451 and 332
of IPC is upheld.
15. In the present case, the appellant was 37 years old at the time of the
incident and record of the trial Court does not show that he was earlier
convicted in any case, so it means that the appellant is first offender. He is
an earning member of his family and he quarrelled with complainant on a
minor issue. He has been regularly appearing before the concerned Court
on the dates so fixed . At this juncture, after twenty years if he sent to jail
then animosity between the parties will further increase and the appellant
may become hard criminal in the company of hard criminals in jail. If
adequate compensation is paid to the complainant for injury, then purpose
of justice shall be fulfilled.
16. As far as the sentence is concerned, in Ved Prakash Vs. State of
Haryana, AIR 1981 SC 643, Hon'ble Apex Court has held that sentencing
an accused is a sensitive exercise of discretion and not a routine or
mechanical prescription acting as a hunch. The social background and
personal factors of the crime-doer are very relevant.
17. In view of the aforesaid, instead of directing the appellant to undergo
remaining part of jail sentence, this Court directs that appellant be released
under Section 4(1) of the Probation of Offenders Act, 1958 on his entering
into a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand
Only) before the trial Court along with one surety in the like amount for a
period of three years from the date of this judgment on condition that he
shall maintain peace in the society and display good behaviour. In case he
violates the aforesaid condition within the stipulated period, the trial Court
shall be at liberty to cancel the aforesaid personal bond and surety and
appellant shall be arrested to undergo the remaining part of the jail
sentence as per the impugned judgment of the trial Court. Personal bond
and surety shall be furnished by the appellant before the trial Court within
thirty days from the date of this judgment.
18. Under Section 5 of the Probation of Offenders Act, the appellant is
directed to pay total compensation of Rs. 5,000/- (Five Thousand Only)
before the trial Court within one month from today, which shall be payable
to the complainant. The deposited fine amount shall be adjusted from the
compensation.
Accordingly, the appeal stands partly allowed.
C.C. as per rules.
(HIRDESH)
JUDGE
Vikram
