Madhya Pradesh High Court
Bhasma @ Omkar vs The State Of M.P. on 17 May, 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 17 th OF MAY, 2024
CRIMINAL APPEAL No. 2072 of 2003
BETWEEN:-
BHASMA @ OMKAR, S/O RAM GARIB LODHI, AGED
ABOUT 30 YEARS, OCCUPATION: BIDI BANANA, R/O
VILLAGE MAKHAURA, POLICE STATION MAJHGAWAN,
TEHSIL SIHORA, DISTRICT JABALPUR (MADHYA
PRADESH)
.....APPELLANT
(BY MS. VINEETA SHARMA - AMICUS CURIAE)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION, SCHEDULED CASTES AND THE SCHEDULED
TRIBES (PREVENTION OF ATROCITIES) ACT 1989,
JABALPUR
.....RESPONDENT
(BY SHRI P. CHATTERJEE - PANEL LAWYER)
Reserved on : 15.05.2024
Pronounced on: 17.05.2024
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court delivered the following:
JUDGMENT
This criminal appeal has been preferred to challenge the judgment
delivered on 5.12.2003 by the Special Judge, Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act 1989 (for short, "Act"),
Jabalpur, in Sessions Trial No.126/2003 whereby the appellant (hereinafter
referred to as "accused") was convicted of the offence of Section 3(1)(x) of the
Act and was sentenced to six months rigorous imprisonment and a fine of
Rs.500/- with additional simple imprisonment for one month, in case of non-
payment of fine.
2. The facts relevant for the decision of this criminal appeal are that on
19.9.2002 complainant Achchelal Kori was in the refreshment shop of Laxman
where the accused arrived and started assaulting him with his shoe; the persons
sitting in that shop, namely Rajendra and Laxman, asked the accused to stop
this assault upon which he replied that if the complainant lodges the report in the
police station, he would even kill him; on the next day, complainant got the FIR
registered against the accused in Police Station, Majhgawan; the matter was
investigated and the charge-sheet was filed. In the trial, the accused was
convicted as aforesaid but at the same time he was acquitted of the offence of
Section 323 IPC under the impugned judgment.
3. The grounds raised in this criminal appeal are that the prosecution story
was not supported by independent witnesses, namely Laxman Prasad (P.W.2)
and Mahendra Kumar Shrivastava (P.W.4). Dr. R. K. Pandey (P.W.6) found
only one injury of swelling in the toe, which was simple in nature, and could
have been caused on account of falling on the ground; the accused has already
undergone a period of one month against the sentence awarded to him under the
impugned judgment; he is labour class illiterate person; the complainant was his
close relative. It was, therefore, prayed that the appeal should be allowed and
the accused should be acquitted.
4. State has opposed the present appeal claiming that no interference is
warranted in the impugned judgment.
5. Counsel for both the parties have been heard and the record has been
perused.
6. The prosecution has relied upon the testimony of complainant Achchelal
(P.W.1), witnesses Laxman Prasad (P.W.2), Sub-Inspector Dilip Shrivastava
(P.W.3), Mahendra Kumar Shrivastava (P.W.4), Deputy Superintendent of
Police N. N. Jharia (P.W.5) and Dr. R. K. Pandey (P.W.6). Witnesses Laxman
Prasad (P.W.2) and Mahendra Kumar Shrivastava (P.W.4) denied to have seen
the incident, thus, there is no corroboration of prosecution story in their
testimony. Only complainant Achchelal (P.W.1) has claimed that he was
insulted by his caste name by the accused. Now, this court has to examine
whether the prosecution has been able to prove that complainant Achchelal
(P.W.1) belonged to scheduled tribe category.
7. The prosecution has relied upon the caste certificate, marked as Ex.P-2.
This certificate has been issued by the Sarpanch who was never an authorized
person to issue caste certificate. Thus, the document of Ex.P-2 does not have
any evidentiary value to prove that the complainant Achchelal (P.W.1) belonged
to scheduled tribe category.
8. The learned trial court has held the caste of complainant proved also on the
basis that he was not cross-examined on this fact and also on the ground that
there was admission by the accused in answer to question no.2 of his
examination under Section 313 of Cr.P.C. that the complainant belonged to
scheduled caste category. 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/tribe duly issued by an authorized person and mere oral
testimony regarding the caste/tribe of the 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/tribe is not sufficient and the prosecution
has also to prove this fact by producing documentary evidence.
9. On the basis of foregoing discussion, this court comes to the conclusion
that the prosecution has failed to prove the offence of Section 3(1)(x) of the
Act against the accused. According to the impugned judgment, accused was
convicted only for this offence. Therefore, his conviction and sentence are set
aside and this appeal is allowed.
10. The accused is on bail. His bail-bonds stand discharged. The fine
amount, if any, deposited by the accused be refunded to him.
11. Let a copy of this judgment along with its record be sent to the trial court
for information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
ps
Date: 2024.05.20 12:40:34 +05'30'
