Khemchand vs The State Of Madhya Pradesh
2024 Latest Caselaw 6472 MP

Madhya Pradesh High Court

Khemchand vs The State Of Madhya Pradesh on 4 March, 2024

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 4 th OF MARCH, 2024
                  CRIMINAL APPEAL No. 1176 of 2007

BETWEEN:-
KHEMCHAND, S/O PUNNULAL YADAV, AGED ABOUT 41
YEARS,   R/O VILLAGE CHHIDIYA PALARI, POLICE
STATION LAKHANWADA, DISTT.SEONI (MADHYA
PRADESH)

                                                               .....APPELLANT
(NONE)

AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION AJAK DISTT.SEONI (MADHYA PRADESH)

                                                              .....RESPONDENT
(BY SHRI DILIP SHRIVASTAVA - GOVERNMENT ADVOCATE)

      Reserved     on : 22.02.2024
      Pronounced on : 04.03.2024

      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 against the judgment passed on 11.5.2007 by Special Judge, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (for short, "the Act"), Seoni, in Special Case No.46/2006 holding the appellant guilty of the offence of Sections 294 and 323 IPC and Section 3(1)(x) of the Act and sentencing him to simple imprisonment for two months, simple imprisonment for six months and fine

amount of Rs.500/- and rigorous imprisonment for six months under the respective offences with a further default clause of simple imprisonment for one month, in case of non-payment of fine of Rs.500/-.

2. The brief facts of the case are that complainant Shiv Charan Mangore belonged to scheduled caste category and was working as Panch in Ward No.10; there was a work of road construction undergoing in Ward Nos.9 and 10 and labourers were engaged for that work; appellant Khemchand is the husband of another Panch of Ward No.9, namely Maya Bai; a dispute arose between the appellant and the complainant about the persons to be engaged for the work upon which appellant became furious; he gave obscene abuses and

insulted the complainant by his caste name; another issue involved in this dispute was that the complainant found 50 bags of cement missing and this act of taking account of cement bags by the complainant made the appellant more angry; appellant gave blows with lathi, while his minor sons also joined in this attack and caused injuries to complainant with lathi as well as hands and fists; upon hearing the screams of complainant, his wife came for rescue; she too was insulted by caste name and was pushed down on the ground; she too was assaulted; the labourers present on scene intervened; complainant reported the matter to the police upon which crime was registered and the matter was investigated; upon filing the charge-sheet, the trial followed and under the impugned judgment, appellant was convicted along with his son Bunty alias Pappu. Only appellant was given jail sentence, while benefit of probation was awarded to co-convict.

3. The grounds raised in this criminal appeal are that the findings of the learned trial court are arbitrary and illegal; they are contrary to the material and evidence available on record; they are based upon unwarranted presumptions

and conjectures; the guilt of appellant was not established beyond reasonable doubts; a doubtful story was held as proved; the impugned judgment is patently against the settled principles of law and it, therefore, deserves to be set aside. It is accordingly prayed that the appeal should be allowed and the impugned judgment should be set aside.

4. State has opposed the present appeal.

5. Record of the trial court is perused and arguments only on behalf of State have been heard. No arguments were submitted on behalf of appellant for remaining absent at the stage of final hearing.

6. Prosecution has relied upon the testimony of Shiv Charan Mangore (P.W.1), who is the complainant in the case, his wife Bina Bai (P.W.2), Anita Bai (P.W.3), who was present on the scene as a labourer, Dy.S.P. Heeralal Chaudhary (P.W.4), who wrote the FIR and investigated the matter, and Dr. H. V. Jain (P.W.5), who medically examined the complainant Shiv Charan Mangore and his wife Bina Bai. Maya Bai (D.W.1), Smt. Kamlesh Rai (D.W.2) and Chandan Singh (D.W.3) are the three defence witnesses examined in the case. Exs.P-1 to P-10 and Exs.D-1 to D-4c are the documents submitted in evidence.

7. In this case, appellant was charged for the offence of Section 3(1)(x) of the Act for insulting the complainant Shiv Charan Mangore by his caste

name, who allegedly belonged to scheduled caste. The caste certificate of complainant Shiv Charan Mangore was the most important document to prove this charge, but that document is not included in the list of documentary evidence submitted by the prosecution. The impugned judgment reveals that complainant Shiv Charan Mangore (P.W.1) was not cross-examined on the

point of his caste, therefore, it was held proved that he belonged to scheduled caste category, but beyond that fact there is no evidence available on record to prove the caste of complainant. It may be relevant to note here that during examination of appellant under Section 313 Cr.P.C., question no.1 was asked to him about the caste of complainant and his answer was that he only knows about his caste and is not aware of the caste of complainant, therefore it was not correct to observe in the judgment that the caste of complainant was an admitted fact.

8. It has been held in the judgment of Bhagwat Singh v. State of Madhya Pradesh 2006 (1) ANJ (MP) 355 that the course to be adopted in a trial under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act is that the prosecution should file a certificate of caste or tribe, as the case may be, which is duly issued by an authorized person. In the present case, there is only oral testimony available regarding the caste of victim. The legal proposition held in Manohar Sawai Rathod v. State of Maharashtra 2007 Cr.L.J. (NOC 785) 202 is also relevant here, which has laid down that mere statements of aggrieved person about his caste is no t sufficient and the prosecution has also to prove this fact by producing documentary evidence.

9. On the basis of above discussion, it is held that the prosecution has failed to prove that complainant belonged to the category of scheduled caste and accordingly no offence under Section 3(1)(x) of the Act is made out in the absence of proof of caste of complainant.

10. On the charges of Sections 294 and 323 IPC, the prosecution has relied upon the testimony of complainant Shiv Charan Mangore (P.W.1), his wife Bina Bai (P.W.2) and independent witness Anita Bai (P.W.3). To show the

place of incident, the Investigating Officer has prepared the spot-map, marked as Ex.P-4. It shows that the incident occurred in front of the house of Vinod Suryavanshi and the house of present appellant is just across the road. Thus, it is proved that the incident took place nearby the house of appellant where the complainant reached along with his wife and some labourers.

11. According to the complainant, he was trying to get the work of road construction executed through his labourers and for this, he also counted the cement bags, which were kept in the house of Vinod Suryavanshi for the said construction work. It appears that the action of complainant triggered the dispute and appellant, who was the husband of the Panch of that area, objected to it. There is no document on record to show that the complainant was ever authorized to get the road construction work executed in that area. Further, it has also not been proved by any document that the complainant was authorized to take stock of the construction material available there.

12. The defence has relied upon the testimony of three witnesses in this case and they are the wife of appellant, namely Maya Bai (D.W.1), the Sarpanch of gram panchayat of that village Smt. Kamlesh Rai (D.W.2) and Head Constable Chandan Singh (D.W.3), who was posted at that time in Police Station, Lakhanwada. ExsD-3 and D-4 are also relevant documents to throw light upon the sequence of events. Ex.D-3 is the report lodged by Maya Bai, the wife of appellant, which was lodged on the date of incident itself at 9:05 a.m. while the FIR of the present case was lodged on the same date at 9:30 a.m. In her report, Maya Bai has made allegations that she was abused and assaulted by the complainant and his wife. Sarpanch Smt. Kamlesh Rai (D.W.2) has also corroborated this story. Ex.D-4 is the MLC report of Maya Bai in which she

was found to have sustained multiple abrasions and this medical examination was conducted on the date of incident itself i.e. 14.4.2006.

13. The rival stories claimed by the two sides reveal that the complainant party went to the place where the road construction work was to be done and complainant insisted that the work shall be executed through the labourers brought along with him. He also counted the cement bags available for construction work. It is also established that this area was within the limits of Ward No.9 and complainant was the Panch of Ward No.10. There is no document submitted on behalf of prosecution which would show that complainant had the authority to initiate or supervise that construction work. It appears that he overstepped his jurisdiction and tried to intervene in the construction work which was beyond the territorial limits of his jurisdiction. It shows that he had no authority to intervene or raise any objection about that work. The evidence also shows that the wife of appellant sustained injuries in the incident and these injuries were not explained by the complainant party.

Admittedly, a complaint case has also been registered against the complainant side regarding this incident.

14. Considering the factors that it was the complainant side which was instrumental in starting a dispute that occurred in front of the house of appellant and also the fact that prosecution has failed to rebut the evidence given about the injuries caused to the wife of appellant or to give any reasonable explanation for those injuries, this court is of the opinion that the conviction of appellant under Section 294 and 323 IPC is not sustainable.

15. Accordingly, this appeal is allowed and the appellant is acquitted of all the charges, namely Sections 294 and 323 of IPC and Section 3(1)(x) of the Act. The fine amount, if any, deposited by the appellant be refunded to him.

16. The appellant is already on bail. His bail-bonds stand discharged.

17. Let the record of the court below be sent back along with a copy of this judgment for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Date: 2024.03.05 11:53:45 +05'30'