Subhash Kakade, J.@mdashThe appellant Shankarlal has filed this appeal u/s 374 of Criminal Procedure Code, 1973 being aggrieved by the judgment dated 10.02.1998 passed by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Chhatarpur in Special Case No. 114 of 1996, State of M.P. through P.S. Baxwaha v. Shankarlal, whereby the appellant was convicted u/s 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, here-in-after in short the SC/ST Act and sentencing for rigorous imprisonment of 6 months and fine of Rs. 500/, in default of payment fine to further go to suffer simple imprisonment for 45 days. In short the case of prosecution was that on dated 07.09.1996 at 8:00 a.m. in village Teiyamar when complainant Santu, a member of Schedule Caste, accompanied with Ajuddhi went to the house of appellant Shankarlal to settle the re-payment of amount of Soyabeen, Shankarlal abused Santu by using filthy language with intention that Santu belongs to Scheduled Caste Category by passing remark that (Chamre Sale Teri Je Okat Ki Turn Mere Pass Akar Khada Ho Gaya). Appellant Shankar also beaten complainant Santu by giving a shoe blow on his back, even then complainant Santu asked what is his fault. Appellant Shankar threatened him also that if he will say this incident to anybody or report he will be murdered. Ajuddhi Ahirwar, Jamuna Yadav, Swami Yadav and others were witness the incident. Upon written complaint of Santu, a case was registered against Shankarlal. The investigation Officer went to the place of the incident, prepared spot map, recorded statement of complainant Santu and other witnesses, collected caste certificate and arrested Shankarlal. After due investigation chargesheet was submitted for trial before the learned Special Judge.
2. Learned trial Court framed charges against appellant punishable u/s 3(i)(x) of SC/ST Act and Section 323, 506B of Indian Penal Code who abjured his guilt and claims to be tried.
3. To prove the case, prosecution has filed documents Ex. P/1 to P/5. Apart from this, prosecution has examined Santu (PW-1), Jamuna (PW-2), Swami Prasad (PW-3), Ajuddhi (PW-4) and 3 other witnesses related with the investigation.
4. During the statements u/s 313 of the Criminal Procedure Code, 1973 the appellant denied all the evidence put forth against him and pleaded his innocence. Bandu (DW-1), Lallay Yadav (DW-2) and Dwarka Prasad Yadav (DW-3) were examined as defence witnesses.
5. Learned trial Court after appreciating the evidence available on record of both the parties, held the accused/appellant Shankarlal guilty, convicted and sentenced him as herein mentioned above but, acquitted from the charges punishable u/s 323 and 506B of Indian Penal Code against which respondent/State does not filed any appeal.
6. Dr. Ku. Vijay Bhatnagar, learned counsel for the appellant argued at length and submits that offence punishable u/s 3(i)(x) of the SC/ST Act is at all not made out as necessary ingredients to prove the offence are totally missing in this case. She further submitted that oral version of the prosecution witnesses are contradictory to each other as well as learned trial Court has erred in not accepting the defence version.
7. On the other hand, Ms. Savita Choudhary, learned Panel Lawyer for the respondent submits that after due appreciation of evidence, learned trial Court has found the offence proved against the appellant, which requires no interference, therefore, the appeal filed by the appellant be dismissed.
8. Learned counsel for the appellant drawn attention towards following judgments passed by this Court:--
(One) In the case of
(Two) In the case of
(Three) In the case of
(Four) Also drawn attention towards
9. Now the decisive or acid test is whether on overall facts of the matters accused Shankarlal has intentionally insulted or intimidated the complainant Santu in a place, which was within public view and such insult or intimidation was done with an intention to humiliate the complainant Santu that he belongs to the scheduled caste?
10. Caste of complainant Santu (PW-1) as well as appellant Shankarlal has not been disputed.
11. Root cause of incident, in words of Santu (PW-1) was that his mother were lent Soyabean from appellant in the month of Aashad and as per mutual understanding it was to return in the month of Quanwar. Witnesses of both the parties supported this version of Soyabean transaction.
12. Santu (PW-1) also stated that Shankarlal insisted to repay cost of Soyabean immediately, therefore accompanied with Ajuddhi he went to the house of Shankarlal. He further stated that as per his calculations due amount was Rs. 233/- where Shankarlal was claiming Rs. 245/-. This difference of payment of Rs. 10/- to 12/- was also cause of the incident. Therefore, it is clear that caste has no role in this Soyabean transaction.
13. Hence, during cross examination Santu (PW-1) fairly conceded that except this Soyabean transaction there was nothing wrong between Shankarlal and him.
14. It is clear from the following discussion that there are material variance between the statement given by the complainant Santu (PW-1) in the court and his earliest statement recorded in written complaint Ex. P/2, therefore, his evidence is not reliable.
15. In place of words of written complaint (Ex. P/1) "Chamre Sale Teri Je Okat Ki Turn Mere Pass Akar Khada Ho Gaya". Santu (PW-1) used entirely different words during examination-in-chief that after using filthy words Shankarlal told him "Sale Chamre Tumhe Chune Ka Dharam Nahi Hai", this is a material contradiction.
16. Santu (PW-1) again exaggerated his court statements stating that Shankarlal taunted him that you go to Government (meaning here go to police), Government is helpless to take any action against him. This statement is contradictory to previous version of written complaint (Ex. P/1) that Government do any thing, but, if you wants to live in Teiyamar, you should behave like a Chamar.
17. Complainant Santu (PW-1) admitted these facts that when he reached to police station to report the incident, then a Munshiji directed him to file written report. Therefore, he went to typing shop of Rasheed situated at Baxwaha Bus Stand and then handed over written complaint (Ex. P/1) to Munshiji but nobody read over it to him. He also admits that who added "B to B" and "C to C" portions in written complaint (Ex. P/1) he does not know? Cumulative effect of all these admissions clearly establishes that Santu (PW-1) was not having full knowledge about contains written in complaint (Ex. P/1) which creates serious doubt.
18. Companion Ajuddhi (PW-4), as per Jamuna (PW-2) Bada Choudhary, also used different words in altogether different manner. Ajuddhi (PW-4) stated when Santu was paying Rs. 10/- less, so Shankarlal condemned him and after using filthy words insulted by saying that "Chamar Raat Ko Paise Kyon Nahi Laya Abhi Sabere Kyon Laya Hai". This material contradiction again clears that caste was not factor, it was time factor which annoyed Shankarlal.
19. Ajuddhi (PW-4) admitted this fact that prior to one day Santu was also went to Shankarlal''s residence for repayment, but Shankarlal was not present there. It is also admitted by Ajuddhi (PW-4) that after incident Shankarlal returned the amount to Santu, but, after two days he accepted the amount and Santu repaid total amount. In this series of facts nothing reflects about caste.
20. It was not the case of the prosecution as well as Santu (PW-1) also not uttered a single word about by caste insulting of witness Ajuddhi (PW-4) by accused Shankarlal. But, during examination-in-chief Ajuddhi (PW-4) stated new story that Shankarlal blamed him also that why he accompanied Santu and after using filthy word ordered him "Chamra Murga Ban". He further stated contradictory facts that Shankarlal insulted Santu by saying that "Ki Chamra Tumhe Chamra Ka Chamra Bana Denge", therefore, his evidence cannot be relied upon.
21. As an eyewitness Jamuna (PW-2) during examination-in-chief stated that after beating by shoes, Shankarlal insulted Santu by saying that "Tumhe Chamar Ka Chamar Kar Denge". During cross examination Jamuna (PW-2) admitted this fact that complaint Santu narrated entire story to him, therefore, testimony of Jamuna (PW-2) is in the category of hear-say witness, that too not reliable due to contradictory versions.
22. Santu (PW-1) admitted that village temple is having land. According of this land every year is also admitted by Januna (PW-2), Swami Prasad (PW-3) and Ajuddhi (PW-4). Ajuddhi (PW-4) also admits that Swami Prasad (PW-3) and accused Shankarlal were among many other tenderers. Swami Prasad (PW-3) denies this fact for himself but admitted that his brother was among the tenderers. These facts establishes Swami Prasad''s interest in auctioning of temple''s land.''
23. Swami Prasad (PW-3) all the way stated exaggerated statements, firstly, that he heard voice of Santu from the house of Shankarlal "Kakka don''t beat me I apologies". Secondly, but, he was silent spectator of the incident Thirdly, Shankarlal intimidated Santu by saying that "Chamar Ite Kaise Aya, Santu Turn Murga Bano, Mai Tumhe Chamar Ka Chamar Bana Denge". It is pertinent to mention here that in police statement (Ex. D/2) of Swami Prasad (PW-4) nothing reveals regarding these exaggerated statements, therefore, evidence of Swami Prasad (PW-4) also does not inspire confidence. hence not reliable.
24. From the statement of Santu (PW-1) companion Ajuddhi (PW-4) and other witnesses it is clear that the incident took place in the Aangan of the Shankarlal''s house. Looking to mentioned facts and circumstances there is noting on record that Santu was insulted or intimidated at the place within the public view. For the purpose of humiliation the matter must be communicated to some person other than the person concern whom it is addressed. In the case in hand, even if accepting every word narrated by the Santu and Ajuddhi to be a gospel truth ingredient of humiliation in the public view is not made out.
25. On basis of typed complaint (Ex. P/1), Shri O.P. Mittal (PW-7) investigated the case and after completion Shri R.S. Dwivedi (PW-6) registered First Information Report (Ex. P/4). Patwari Raghunath Sour (PW-5) prepared Najari Mouka Naksha (Ex. P/3), therefore, these 3 are formal witnesses.
26. On looking to the averments made in written complaint Ex. P/1 and above discussed statement of prosecution witnesses, it appears that there was a dispute on the early repayment of cost of Soyabean transaction, there was also dispute of Rs. 10/- to 12/- regarding the payment of amount between the parties and because of these disputes applicant Shankarlal had insulted and intimidated the complainant Santu. It does not appear that the applicant Shankarlal had intimidated or insulted the complainant Santu with intent to humiliate him because of he being a member of scheduled caste. Merely utterance of word "Chamra" without there being any intention to insult or humiliate a member of scheduled caste shall not make out the offence u/s 3(i)(x) of SC/ST Act.
27. Considering from all angles the facts of the present case, in the light of above citations, prosecution failed to prove beyond all reasonable doubts that appellant Shankarlal committed any act of insult or humiliation towards the complainant Santu who belongs to Scheduled Caste and, therefore, prosecution failed to bring home the charge punishable u/s 3(i)(x) of SC/ST Act, therefore, the appeal preferred by the appellant succeeds and is allowed and he is acquitted from this charge. Therefore, the appeal preferred by the appellant Shankarlal is allowed and he is acquitted from the charge of Section 3(i)(x) of the SC/ST Act.
