Brijesh Patel Vs State of Chhattisgarh

This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 22.10.2009 passed by Special Judge under Scheduled Caste & Scheduled Tribe (Prevention of Atrocities Act), Surguja, District- Surguja (C.G.) in Sessions Trial No. 72/2008, wherein the said Court convicted the appellant and sentenced him as under :-

¶17

2

¶18

Conviction	Sentence
Under Section 3 (1) (x) of The Scheduled Castes And The	R.I. for 02 years with fine amount of Rs. 1,000/- in default of payment of
Scheduled Tribes (Prevention of Atrocities)Act, 1989.	fine, to undergo additional R.I. for 06 months.
Under Section 325 of the Indian Penal Code.	R.I. for 02 years with fine amount of Rs. 1,000/- in default of payment of fine, to undergo additional R.I. for 06 months.

¶19

(All the substantive sentences shall run concurrently)

¶20

Brief facts of the case are that the complainant- Bhaiyyaram belongs to Gond community and he lives in Govindpur village, P.S. Ramkola, District-Surguja (C.G.) and looks after the welfare of his family by doing agriculture work and he also looks after the Ashram of Rajmohini Devi which is situated in Govindpur village, where he serves as a Minister of that Ashram. Prior to five months of the date of incident i.e., 18.05.2007, dispute of the complainant was going on with the accused Brijesh regarding unauthorized possession of the land belonging to Rajmohini Devi. On the date of incident, i.e., 18.05.2007, the accused/appellant came to drink the water of the well situated near the aforesaid Ashram and he immediately began to remark by addressing the people that they have become too arrogant and he started abusing the complainant on his caste using filthy language and the appellant was asking them that don’t they know who he was and then he threatened to kill the complainant. Thereafter, the appellant in a fit of rage, assaulted the complainant with a wooden stick and injured him on his left leg, left temple. At the time of assault, Sarpanch Lalchand Singh and Sahadeo have intervened to rescue the complainant from the appellant as they were present there at that time. The aforesaid assault and abuse was committed by the appellant in the presence of other

¶21

3

¶22

people on the basis of complainant’s caste. Thereafter, the complainant- (PW-3) Bhaiyyaram lodged a written report at Police Station- Ramkola vide Crime No. 17/07 for the offence under Sections 294, 506, 323 of IPC and Section 3(1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and on the basis of the said report, the FIR was lodged against the appellant vide Ex.P/1. Thereafter, the complainant was sent to Community Health Center Pratappur for treatment and a medical report of his injuries was obtained. An X-ray report of the complainant was also obtained, which revealed a fracture.

¶23

During the investigation, a wooden stick was seized from the accused/appellant in the presence of witnesses, a spot map was prepared by the investigating officer vide Ex. P/6 and as the complainant belongs to Gond community, caste certificate of the complainant was taken on record confirming his Scheduled Tribe status, the said caste certificate was obtained by the Tahsildar, Wadrafnagar. Statements of the witnesses were recorded and the appellant after found guilty for the said offences, was arrested.

¶24

After completion of due and necessary investigation, a charge-sheet was led before the court of Judicial Magistrate First Class, Pratappur (Surguja) thereafter, on 22.07.2008, the matter was committed to the learned Special Judge, SC & ST (Prevention of Atrocities) Act, 1989, Surguja, District Surguja (C.G.) and the learned Special Judge convicted the appellant under Sections 294, 325 & 506-II of the I.P.C. and under Section 3 (1) (x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989.

¶25

4

¶26

In order to bring home the guilt, the prosecution has examined as many as 05 witnesses to prove its case against the appellant. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C., in which he denied all the incriminating circumstances appearing against him in the prosecution case and pleaded his innocence and false implication in this case. However, in his defence the appellant adduced 02 witnesses.

¶27

The learned trial Court after hearing the counsel for the respective parties and after appreciating the oral and documentary evidence acquitted the appellant of offence under Sections 294 & 506-II of IPC, but convicted the appellant and sentenced him as mentioned in opening para of this judgment. Hence, the present appeal.

¶28

Learned counsel for the appellant submits that the impugned judgment of conviction is against the facts, law and circumstances of the case. The learned Special Court failed to consider the fact that there is hardly any reliable evidence to warrant the conviction of the appellant beyond all reasonable doubts. The learned Special Court should have considered that the prosecution has failed to prove the guilt of the appellant beyond all reasonable doubts. The learned Special Court ought to have considered that offence under Section 325 of the I.P.C & under Section 3 (1) (x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, have not been proved in this case. The learned Special Court should have taken it into consideration that the complainant Bhaiyaram Gond (PW/04) has categorically stated in his deposition that the appellant has only assaulted him and he has not abused him. Therefore, conviction of the appellant under Section 3 (1) (x) of the Scheduled Castes & Scheduled Tribes (Prevention of

¶29

5

¶30

Atrocities) Act is not made out against the appellant. He has further stated that there was some dispute between the complainant and the appellant due to which the accused had lodged a report against him. The learned Special Court ought to have considered that the other witnesses namely Sahdeo (PW/03) has also stated in his police statement that the allegations made by him have not been written and he is unaware of the reason, i.e., the witness is making allegations for the first time before the Court. The learned Special Court failed to consider that the Doctor P.L. Verma (PW/02) has stated that the X-Ray plate regarding fracture does not bear the name of the person, whose X-Ray plate was exhibited before the Court. The doctor further opined that the injuries can be caused due to falling on the ground. He further submits that the whole case is based upon the conjectures and surmises. The judgment of conviction against the appellant is very harsh and not according to law. So, the impugned judgment is liable to be set aside and appellant deserves to be acquitted of all the charges.

¶31

Alternatively, he submits that if this Court ultimately comes to the conclusion that the conviction under Section 325 of IPC as imposed by the trial Court is just and proper, considering the fact that the incident took place in the year 2007, this appeal is pending since 2009, the appellant is now aged about 40 years; he remained in jail for more than 20 days and he did not misuse the liberty while being on bail and no useful purpose would be served in again sending him to jail, therefore, in the interest of justice, it would be appropriate if the sentence imposed upon him may be reduced to the period already

¶32

6

¶33

undergone by him.

¶34

Ex-adverso , learned counsel for the respondent/State supporting the impugned judgment submits that the learned trial Court properly appreciated the oral and documentary evidence and rightly convicted the appellant. Therefore, the judgment impugned does not suffer from any irregularity or infirmity warranting interference by this Court in the instant appeal.

¶35

I have heard learned counsel for the parties and perused the material available on record with utmost circumspection.

¶36

It is quite vivid from record of learned Trial Court it framed charges against the appellant for offence punishable under Sections 294, 325 & 506-II of I.P.C. and Section 3 (1) (x) of SC & ST (Prevention of Atrocities) Act, 1989 and after appreciating the oral and documentary evidence, the learned trial Court acquitted the appellant of offence under Section 294 & 506-II of IPC, but, thereby convicted and sentenced the appellant under Section 325 of the I.P.C. & Section 3 (1) (x) of SC & ST (Prevention of Atrocities) Act, 1989.

¶37

The prosecution has filed caste certificate of the complainant vide Ex. P/05 which was issued by the Tahsildar on 14.09.2007 and in the present case the F.I.R. was lodged on 18.05.2007, as such It is clear from this certificate that it was obtained after lodging of the F.I.R.

¶38

While dealing with the issue where the caste certificate was issued after the occurrence of incident, the High Court of Madhya Pradesh observed in the matter of Babulal Patel Vs. The state of M. P . order dated 15.05.2024, passed in Criminal Appeal No. 648 of 2004 , held in paras 6,7 & 8 as under:-

¶39

7

¶40

6. The learned trial court has convicted the accused for the offence of Section 3(1)(x) of the Act and for this, reliance has been placed upon the provisional caste certificate of complainant, marked as Ex.P-2. It was issued by Tahsildar on 18.12.2002 and contents thereof reveal that it was issued temporarily while the incident of the present case occurred on 8.12.2002, therefore, it is clear that this provisional caste certificate was obtained from Tahsildar after the date of incident.

¶41

7. The circular issued by General Administration Department of Madhya Pradesh Government dated 30.6.2001 with No.F.7-32/2000/s very relevant here because it came into existence prior to the issuance of provisional certificate of Ex. P-2 in this case. This circular makes it clear that the practice of issuing provisional caste certificate is being stopped henceforth and only in exceptional circumstances, the provisional caste certificate would be issued. Those exceptional circumstances have also been discussed in the circular itself and they are:

¶42

(1) for seeking admission in an education institute. (2) for applying for a Government job. (3) for appearing in an interview. (4) for applying in a Government scheme.

¶43

Under only these four exceptional conditions and that too when the caste certificate is required immediately, the provisional caste certificate was supposed to be issued; for it an application is duly supported with the affidavit and the reason of urgency was to be made. The circular further clarifies that the validity period of this caste certificate would be maximum six months and all such cases in which provisional caste certificate is issued shall be enquired into within the prescribed timeframe and if the applicant is not found to be entitled to the certificate, his provisional caste certificate would be cancelled.

¶44

8 . The above discussed circular was in enforcement when the provisional caste certificate of complainant, marked as Ex.P-2, was issued by Tahsildar. This caste certificate was issued to prove the caste of complainant in a criminal case. Obviously, the purpose of issuing this provisional caste certificate was not covered under the circular of 30.6.2001. Thus, the learned trial court was in error in relying upon the caste certificate of Ex.P-2 which was issued in flagrant violation of the existing circular of Madhya Pradesh Government dated 30.6.2001. In the light of this observation, it is held that the caste of complainant was not duly proved in the case by any credible document.

¶45

In the light of above cited judgment, and in the present case also it is quite vivid from caste certificate vide Ex. P/05 that this is an temporary certificate and this certificate is valid for only 06 months and it is further

¶46

8

¶47

clear from the record of learned trial Court that no proper caste certificate of the complainant issued by the competent officer was filed by the prosecution, as a consequence, prosecution has failed to prove this fact that the complainant belongs to the Scheduled Caste or Scheduled Tribe. So, conviction under Section 3 (1) (x) of SC & ST (Prevention of Atrocities) Act, 1989 is not sustainable, as such, findings recorded by the learned trial Court in this regard are set aside and the appellant is acquitted of the charge under under Section 3 (1)(x) of SC & ST (Prevention of Atrocities) Act, 1989.

¶48

Complainant Bhaiyyaram (PW-04) stated that on the date of incident, the accused/appellant assaulted him by wooden stick and as a result of the assault, he sustained injuries on his thighs, back and right shoulder. He then lodged F.I.R. vide Ex. P/01.

¶49

Dr. P.L. Verma (PW-02) examined the complainant Bhaiyyaram on 18.05.2007 and finds contusion on his left thigh, right shoulder and left side of temple and he advised the complainant for X-ray vide his report Ex. P/02 and on 03.09.2007 the constable no. 158 of Police Station Ramkola brought two X-ray plates before him and after examining the same he found fracture on left femur bone and he gave his report vide Ex. P/03.

¶50

Sahdeo (PW-03) supported the statement of the complainant Bhaiyyaram that he saw accused assaulting the complainant by wooden stick. The learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the appellant under Section 325 of IPC. Thus, the conviction of the appellant punishable under Section 325 of IPC is hereby affirmed.

¶51

As regards sentence part of the appellant, it is clear that incident took

¶52

9

¶53

place in the year 2007, the appellant has already remained in jail for more than 20 days and the appeal is pending since 2009. At the time of incident, the appellant was aged about 22 years old and nearly more than 16 years have rolled by since then, appellant is now aged about 40 years; while being on bail, he did not misuse the liberty, therefore, this Court is of the opinion that the ends of justice would be served if he is sentenced to the period already undergone by him for the offence punishable under Section 325 of IPC.

¶54

In the result, the appellant is acquitted of the offence punishable under Section 3 (1)(x) of SC & ST (Prevention of Atrocities) Act, 1989. While maintaining the conviction of the appellant under Section 325 of IPC, his jail sentence is reduced to the period already undergone by him. The impugned judgment stands modified to the above extent.

¶55

Accordingly, the criminal Appeal is partly allowed. However, the fine amount imposed by the Trial Court shall remain intact.

¶56

The appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provision of Section 481 of BNSS, 2023.

¶57

The trial court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

¶58

Sd/-

¶59

JUDGE

¶60

U.K. Raju

Brijesh Patel v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Brijesh Patel v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Smt.Rukmani Pathak Vs State of Chhattisgarh

Vikas Jangam @ Vicky Vs State of Chhattisgarh

Bhairav Mishra @ Mogli Vs State of Chhattisgarh

Sant Ram and Other Vs State of Chhattisgarh

Heera Prasad Sahu Vs State of Chhattisgarh

Sewak Ram Khunte Vs State Of Chhattisgarh