Ajay @ Ashish Usrathe vs The State Of Madhya Pradesh
2023 Latest Caselaw 21931 MP

Madhya Pradesh High Court

Ajay @ Ashish Usrathe vs The State Of Madhya Pradesh on 20 December, 2023

Author: Anuradha Shukla

Bench: Anuradha Shukla

                                 1
     IN THE HIGH COURT OF MADHYA PRADESH
                 AT JABALPUR
                          BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                  ON THE 20 th OF DECEMBER, 2023
                 CRIMINAL APPEAL No. 1882 of 2006

BETWEEN:-
1.    AJAY @ ASHISH USRATHE, S/O ASHOK USRATHE,
      AGED    ABOUT    23  YEARS, R/O VILLAGE
      SAMNAPUR, P.S. SAMNAPUR, DISTRICT DINDORI
      (MADHYA PRADESH)

2.    AMIT @ MINTU USRATHE, S/O ASHOK USRATHE,
      AGED   ABOUT    20  YEARS, R/O VILLAGE
      SAMNAPUR, P.S. SAMNAPUR, DISTT. DINDORI
      (MADHYA PRADESH)

                                                              .....APPELLANTS
(BY SHRI SANDEEP KUMAR DUBEY - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH

                                                              .....RESPONDENT
(BY MS. PREETI SINGH - PANEL LAWYER)

      Heard on        : 13.12.2023

      Pronounced on: 20.12.2023

      This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
                                JUDGMENT

This criminal appeal has been preferred with a prayer to set aside the judgment dated 20.9.2006 delivered by Special Judge, Mandla, in Special Case No.17/2006 whereby both appellants were convicted for the offence of Section 323 IPC and appellant Ajay was also convicted for the offence of Section 3(1)

(x) of SC/ST (Prevention of Atrocities) Act. Under these convictions, both the appellants were sentenced to fine amount of Rs.500/- for the offence of Section 323 IPC and appellant Ajay was sentenced to six months rigorous imprisonment and fine amount of Rs.500/- for the offence of Section 3(1)(x) SC/ST (Prevention of Atrocities) Act. For each default, the appellants were ordered to suffer additional rigorous imprisonment of one and a half months.

2 . Brief facts of the prosecution case are that complainant Sheshrao Ahirwar is the member of Scheduled Caste; he had gone to the house of appellant Ajay on 12.1.2006 at around 7:00 p.m. requesting to put the electricity connection on; when he returned to his room, both the appellants entered

therein; they gave him filthy abuses and insulted him by his caste name; when complainant objected to it, appellants physically assaulted and caused injuries to him; the wife of complainant was not there; on her return, complainant went to Police Station, Samnapur, on 14.1.2006 and lodged the report at Crime No.3/2006. The matter was investigated and the charge-sheet was filed. In the ensuing trial, both the appellants were convicted and sentenced as aforesaid.

3 . The grounds raised in this criminal appeal are that the court below failed to appreciate the evidence in correct perspective; on same set of evidence, appellant no.2 was acquitted of the charge of Section 3(1)(x) SC/ST (Prevention of Atrocities) Act; there was a delay of two days in lodging the FIR without any reasonable explanation for this delay; there was no evidence that appellant no.1 had any intention to insult the injured; the caste certificate issued in favour of complainant was not a valid one as it was issued by Sarpanch, who was not a competent authority; appellants were not aware about the caste of the complainant; no independent witness supported the prosecution story; the real brother and the wife of complainant also failed to give support to this story. It

is, therefore, prayed that the appeal be allowed and the appellants be acquitted or be given benefit of Probation of Offenders Act.

4. On the other hand, learned counsel for the State has vehemently opposed the present appeal and has prayed for its rejection.

5. Both the parties have been heard and the record has been perused.

6. The conviction of appellant Ajay alias Ashish Usrathe under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act is based on the certificate of caste, marked as Ex.P-1. That certificate has been issued by the Sarpanch of concerned Gram Panchayat. Whether Sarpanch was competent to issue the certificate or not has not been considered by the learned trial court. In para 33, the court has observed that there is an admission regarding the caste of complainant in the examination of appellant conducted under Section 313 of Cr.P.C. but that admission itself would not be sufficient to prove that the complainant belonged to Scheduled Caste. The relevant questions asked in examination of accused are that "complainant Sheshrao Ahirwar states that he belongs to Scheduled Caste and his certificate is Ex.C-1 and witnesses state that complainant is of Scheduled Caste." The appellants were asked to answer these questions. Obviously, the answer to these questions would be in affirmative because Sheshrao Ahirwar as well as witnesses had actually stated that complainant belonged to Scheduled Caste. No direct question was asked to

the appellants whether they admitted the fact that the caste of complainant was of the category of Scheduled Caste. Their admission is, thus, about the statements made by the witnesses and complainant and there is no admission about the caste of complainant, therefore the observation made by the learned trial court in para 33 about the admission of caste by appellant is not based on

correct appreciation of evidence.

7. The certificate relied upon by complainant regarding his caste was issued by Sarpanch who was not authorized for this purpose, therefore this court is of the opinion that the grounds raised by the appellants before this court is a valid one about the authenticity of caste certificate, marked as Ex.P-1. Since there is no other reliable evidence available on the record of trial court regarding the caste of complainant, therefore conviction of appellant Ajay alias Ashish Usrathe for the offence of Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act is not sustainable. He is accordingly acquitted of the charge.

8. Both the appellants have been convicted for the offence of Section 323 IPC for causing injury to complainant Sheshrao Ahirwar. Incidentally, there is no corroborative oral evidence to support the statements of complainant Sheshrao Ahirwar (P.W.4) on this point. The wife of complainant, namely Smt.Rai Kumari (P.W.3), was not present at the time of incident. She merely states what has been narrated to her as she came back to the house 3-4 days after the incident. Davesh (P.W.1) has claimed that he has no knowledge about the incident. Govind Choudhary (P.W.2) is the relative of complainant and he too has expressed his personal ignorance about the incident. His claim is that he only heard about it from the complainant.

9. These statements reveal that none of the prosecution witnesses, despite some of them being close relatives of complainant, have supported the oral testimony of Sheshrao Ahirwar (P.W.4), who is the injured victim in this case. It is an admitted fact that there was a dispute existing between the two sides prior to this incident, therefore statements of complainant Sheshrao Ahirwar need close scrutiny.

10. FIR, Ex.P-3, is lodged by complainant wherein he has claimed that

both the appellants had entered into his room simultaneously and attacked him jointly. According to FIR, he was assaulted with hands and fists and also by slippers. In his court testimony, he claims the use of stone for causing him injury and he also claims that appellants did not come together and they entered into his room one after another and that too with some lapse of time. The incident allegedly occurred on 12.1.2006 while the report was lodged on 14.1.2006. The reason for delay has been claimed to be severe body pain on account of injury sustained in the incident, but MLC report of complainant, though not marked in evidence, does not reflect infliction of any such injury which would have detained him for two days in his house. All the injuries were of the nature of abrasion which, according to doctor, were superficial in nature and could have been caused by rubbing against a rough and hard surface. Therefore, taking into consideration the MLC report, though not exhibited in evidence, the explanation given by complainant for delay in lodging the FIR does not appear to be fair and reasonable.

11. Having considered the fact that there was a previous enmity between the parties, the statements of complainant not finding any support from the statements of any other witnesses, the alleged injuries have not been proved by medical evidence and the delay of almost two days in lodging the FIR is not reasonably explained, the conviction of appellants under Section 323 IPC cannot be upheld.

12. Accordingly, this appeal stands allowed and the appellants are acquitted in the case. Their bail-bonds are discharged. The fine amount, if any, deposited by them be refunded to them.

13. Let a copy of this judgment be sent to the trial court along with its

record for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Date: 2023.12.22 17:27:49 +05'30'