PILLOO KACHHI Vs. STATE OF M P

JUDGEMENT

(1.) THIS appeal is directed by the appellant under section 374 of the Cr.P.C being aggrieved by the judgment dated 18.10.2001 passed by the Special Judge, Chhatarpur (constituted under the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act (in short `the Act') in Special case No.9/01 whereby he has been convicted under section 323 of the IPC and under Section 3(1)(x) of the Act with a direction to undergo for RI six months with fine of Rs.250/- separately in each of such section, in default of depositing the fine, additional jail sentence of 15 days on each count has been awarded. The sentences are directed to run concurrently.

(2.) THE facts giving rise to this appeal in short are that on dated 23.9.2000 at about 6.30 in the evening at P.S. Gulganj, complainant Mohan (P.W.1) lodged the FIR contending that yesterday night, he accompanied with Bhajju Kondar and the appellant, went to village Gulganj to see the `Notanki' (Drama). After viewing the same, at about 6 O' Clock in the morning when they were returning, on the way near river Paniyari of village Majgava, some hot talk took place between Bhajju and the appellant in which one said to another that "you are my son and I am your father", on which appellant became angry and said to Bhajju that he being from lower caste how could be his father and, in continuation, he gave a blow of stick on the head of Bhajju resultantly, he sustained the injury with bleeding. THEreafter, he accompanied with Kallu and Kurra Gadariya came to the police station for lodging the report. It is also stated that on account of simple thing appellant has beaten to Bhajju. On such factual matrix the offence of section 307 of the IPC and section 3(1)(x) of the Act was registered against the appellant. THE injured was sent to hospital where his MLC report was prepared. On completion of investigation the appellant was charge sheeted for the offence of section 307 of the IPC and section 3(2)(v) of the Act. On evaluation of the same, on framing the charge of section 307 of the IPC and in alternate section 3(ii)(v) and section 3(1)(x) of the Act, the appellant, abjured the guilt, on which, the trial was held. On appreciation of the evidence, by acquitting the appellant from the offence of section 307 of IPC and section 3(ii)(v) of the Act, he was held guilty for the offence of section 323 of the IPC and section 3(1)(x)of the Act and punished with the above-mentioned sentence. Being dissatisfied with such conviction and sentence, the appellant has come to this court with this appeal.

(3.) AFTER hearing the counsel at length, keeping in view their arguments, I have carefully gone through the evidence led by the prosecution as well as the exhibited papers of the charge sheet so also the impugned judgment. It is apparent fact in the FIR itself that on the way near some river on account of some simple dispute some hot talk took place between the appellant and the victim Bhajju due to that the alleged incident was happened otherwise it is apparent that the appellant accompanied with victim went to see the Notanki (drama) and they were also returning accompanied each other. So, in such premises, prima facie it could not be deemed that there was any disputed between them on account of caste of the victim which is covered by the Act. Keeping in view this prima facie story of the prosecution, on examining the evidence of Bhajju (PW 2) as well as Mohanlal (PW1) then it appears from the deposition of victim Bhajju that the alleged incident was not committed by the appellant with intention to humiliate him on account of his caste covered under the Act. It is apparent fact that the complainant Mohanlal has not supported the prosecution case as well as the averment of the FIR (Ex.P/1). On the contrary he turned hostile. So firstly in such circumstance conviction of the appellant under section 3(1)(x) of the Act is not sustainable. Such conviction is also not sustainable on the count that the prosecution has utterly failed to prove the caste of the victim by any cogent and reliable document issued by the competent authority like Caste Certificate or the order of any such authority. In the lack of such evidence, in the available factual matrix, mere on the oral deposition of the witness, such fact could not be deemed to be the proved fact. So, the benefit of such thing also goes to the appellant. In such premises, the appellant is acquitted from the charge of section 3(1)(x) of the Act.