Goverdhan vs The State Of Madhya Pradesh
2024 Latest Caselaw 6667 MP

Madhya Pradesh High Court

Goverdhan vs The State Of Madhya Pradesh on 5 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 5 th OF MARCH, 2024
                  CRIMINAL APPEAL No. 109 of 2008

BETWEEN:-
1.    GOVERDHAN, S/O NAGOJI PATLE, CASTE PAVAR,
      AGED 48 YEARS, R/O HIRRI, PERMANENT R/O
      VILLAGE DHADI, P.S. KIRNAPUR, DISTRICT
      BALAGHAT (MADHYA PRADESH)

2.    SMT. NAINESHWARI BAI, W/O GOVERDHAN
      PATEL CASTE PAWAR, AGED ABOUT 40 YEARS,
      R/O HIRRI PERMANENT R/O VILLAGE DHADI, P.S.
      KIRNAPUR     DISTT. BALAGHAT     (MADHYA
      PRADESH)

                                                              .....APPELLANTS
(NONE)

AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION, KIRNAPUR, AJAK, DISTRICT BALAGHAT
(MADHYA PRADESH)

                                                              .....RESPONDENT
(BY MS. VINEETA SHARMA - PANEL LAWYER)

      Reserved     on : 22.02.2024
      Pronounced on : 05.03.2024

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

The judgment passed on 26.12.2007 by Special Judge, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the Act"), Balaghat, in Special Sessions Trial No.46/2007 is under challenge in this

criminal appeal whereunder the appellants were convicted of the offence of Section 3(1)(x) of the Act and were sentenced to undergo rigorous imprisonment for six months and fine of Rs.500/- with a default clause to undergo rigorous imprisonment for one and a half month, in case of non- payment of fine.

2. The summary of the facts involved in this case is that the complainant Nadia was working in Government Hospital, Kirnapur, as nurse on 19.4.2007 when appellants met her in the hospital; complainant was accompanied by pregnant woman Kalitabai and Aanganwadi Karyakarta Sita Soni; appellant Naineshwari Bai got engaged in a dispute with complainant claiming that this

case of delivery was of her and claimed that it was wrong on the part of complainant to bring the pregnant Kalitabai to the hospital without her consent as it would deprive her of legal incentive amount; she became furious on this issue and started giving filthy abuses; she used words which were insulting to the caste of complainant; appellant Goverdhan was also using similar words; the incident was witnessed by Sita Bai, Champa Bai, Sukarti Bai, Kalita Bai and Kanaram; complainant Nadira reported the matter to the police on 26.4.2007 upon which FIR was registered and matter was investigated. After filing of charge-sheet and conclusion of trial, the appellants were convicted and sentenced for the offence of Section 3(1)(x) of the Act.

3 . The grounds raised in this criminal appeal are that the trial court committed an error in convicting and sentencing the appellants on the basis of non-credible evidence; there were material discrepancies in the prosecution case and the trial court totally failed to appreciate the contradictions, omissions and improvements in the testimony of prosecution witnesses; the defence of

appellants was also not considered; only interested witnesses corroborated the prosecution story and relying upon the testimony of such witnesses, which was not worthy of any credit, grave miscarriage of justice was committed by the trial court. It is, therefore, prayed that the appeal should be allowed and the appellants should be acquitted.

4. State has opposed the present appeal on the ground that the impugned judgment warrants no interference. It may be noted that the appellants did not appear on the date of final hearing and submissions made only on behalf of State were heard.

5. Record of the trial court has been perused.

6. Appellants have been convicted for the offence of Section 3(1)(x) of the Act for the reason that the caste certificate of complainant, marked as Ex.P- 5, and seized under seizure memo, Ex.P-4, was not challenged during the cross- examination of complainant Nadira (P.W.5). Further, the appellants have admitted in their examination under Section 313 of Cr.P.C,. that complainant Nadira belongs to Mahar jati which, according to the court, comes within the category of scheduled caste in district Balaghat, State of Madhya Pradesh. Taking these facts into consideration, the learned trial court held that the fact of complainant belonging to the scheduled caste category was proved beyond doubt.

7. On examination of caste certificate, marked as Ex.P-5, it is evident that the said certificate was a photo copy attested by Block Medical Officer but the Block Medical Officer was not examined in this case to prove that this attestation was made after comparing the document with the original caste certificate. It is not explained by the prosecution why the original caste certificate of complainant was not seized and produced.

8 . The photo copy of caste certificate, marked as Ex.P-5, which was allegedly attested by the Block Medical Officer shows that it was issued by Zila Saiyojak, Aadim Jai Kalyan Vibhag, Balaghat. This certificate was issued in the year 1984. There is no notification or circular of Government available in the record of trial court, which would suggest that Zila Saiyojak was ever given the authority to issue caste certificate. Further, this certificate speaks that it was issued without holding any enquiry and it was simply based on the certificates issued earlier by Sarpanch and the Patwari. Again, there is no guideline placed before the trial court or even before the appellate court that Sarpanch and Patwari were authorized in the given period to issue the caste certificate. Therefore, in the absence of a valid caste certificate issued by an authorized person, it cannot be assumed that the complainant belonged to scheduled caste category.

9. The learned trial court has held the caste of complainant proved also on the basis that she was not cross-examined on this fact and also on the validity of caste certificate, marked as Ex.P-5, and there was admission by appellants in answer to question no.1 of their examination under Section 313 of Cr.P.C. that the complainant belonged to Mahar caste. It may be mentioned here that the judgment of Bhagwat Singh v. State of Madhya Pradesh 2006 (1) ANJ (MP) 355 has laid down the course that should be adopted in a trial under the provisions of the Act and that procedure says that the prosecution should file a valid certificate of caste duly issued by an authorized person and mere oral testimony regarding the caste of victim is not sufficient. For this, the decision of 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 not sufficient and the prosecution has also to prove this fact by producing documentary evidence.

10. The Apex Court in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) AIR 2010 SC 2352 that the answers given by the accused to the questions put under Section 313 Cr.P.C. are not per se evidence because firstly, they are not on oath, and secondly, they are not subjected to cross-examination. It is nevertheless subject to consideration by the court to the limited extent of drawing an adverse inference against such accused for any false answers given voluntarily and to provide an additional/missing link in the chain of circumstances.

11. On the basis of above discussion, it is held that prosecution has explicitly failed to prove that the complainant belonged to the category of scheduled caste. Neither it could produce the original caste certificate nor could it show that it was issued by an authorized person. It has been discussed earlier that bare admissions or non-cross examination cannot prove the caste of the victim.

12. Accordingly, no offence under Section 3(1)(x) of the Act is made out in the absence of proof of caste of complainant and accordingly the conviction of appellants under Section 3(1)(x) of the Act is set aside. They both are accordingly acquitted in the case. The fine amount, if any, deposited by the appellants in the case be refunded to them.

13. Appellants are on bail. Their bail-bonds stand discharged.

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

(ANURADHA SHUKLA) JUDGE ps

Date: 2024.03.06 10:36:58 +05'30'