Partly allowed

Barjya v. State

Rajasthan HC3 Jul 2023CRLA/194/1995

Case brief

AI extract

What is this about?

This appeal challenged conviction for atrocities under the SC/ST (POA) Act alleging humiliation of an SC community member. The High Court held that conviction requires proof of specific caste-based humiliation intent and a public place occurrence. Due to lack of evidence on intent, inconsistent victim caste proof, and non-public place, the Court acquitted one appellant and dismissed the other.

What did the court decide?

Accused Barjya @ Brij Mohan acquitted of offence under Section 3(1)(3) of SC/ST (POA) Act; conviction set aside. Accused Murari @ Krishna Murari appeal dismissed; conviction upheld.

Barjya Vs State — Caste Atrocities | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Appeal No. 194/1995

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Barjya @ Brij Mohan S/o Dwarka Lal

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Murari @ Krishna Murari S/o Dwarika Lal

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Both Residents of Ratariya, P.S. Anta, Dist. Baran

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----Appellant

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Versus

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State of Rajasthan, through PP

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----Respondent

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For Appellant(s) : Mr. Shubham Kumar Sharma for Mr. R.K. Agarwal, Senior Advocate For Respondent(s) : Mr. Imran Khan, PP

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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Date of Order Reserve:12/05/2023 Date of Pronouncement:03/07/2023

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REPORTABLE

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Present appeal is preferred u/s 374(2) CrPC aggrieved from judgement dated 05.04.1995 passed by Special Court, SC/ST (POA) Act Cases, Baran in Sessions Case No.182/94 convicting the accused appellants under sections 323, 342 IPC and Section 3 of the SC/ST (POA) Act, 1989 and further sentenced the appellant Barjya @ Brij Mohan with simple imprisonment for a period of 6 months and fine of ₹200/- and to further undergo simple imprisonment of 1 month in default of payment of fine and released the appellant Murari @ Krishna Murari on probation of good conduct under Section 360 CrPC.

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[CRLA-194/1995]

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(2 of 11)

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Briefly stated, on 14.08.94, on a written report Ex P-1, an FIR No. 224/94 (Ex P-2) was lodged by Mr. Kamlesh Mehar against the accused appellants alleging that on the previous day i.e. on 13.08.94 around 11.00 am when the complainant was all alone in his house, he was called upon by the mother of one Samudra Singh to their house where he was tied with ropes until 3 pm. Later, the accused appellant Murari @ Krishna Murari untied him and beat him and Birjya shaved his head. It was also alleged that Birjya blackened the complainant’s face after which Murari @ Krishna Murari tied him, started beating him which was witnessed by the entire village. Lastly, both the accused appellants left the complainant after throwing him in a river.

¶19

After conducting the investigation, the police submitted the chargesheet and the trial court framed the charges under Sections 342, 323 IPC and Section 3(1)(3) of SC/ST (POA) Act against appellants. A total number of 11 witnesses were examined by the prosecution and seven documents were exhibited. The appellants were examined under Section 313 Cr.P.C. and they opted to file defence evidence and in defence, they exaimned two witnesses after hearing both the parties, learned trial court had convicted as aforesaid. Hence, this appeal.

¶20

Learned counsel for appellant submitted that in this case both witnesses PW-1 Samudra Singh and PW-2 Kamlesh were child witnesses and bare perusal of aforesaid manner of examination clearly indicated that no care was taken by learned trial court while examining child witnesses. He further submitted

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[CRLA-194/1995]

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(3 of 11)

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that PW-1 and PW-2 were tutored witnesses and whatever they had deposed is not factually correct. He further submitted that a written report submitted by PW-2 clearly indicated that for the incident of 13.08.1994, report was filed on 14.08.1994 and delay was not explained. Moreover this report was submitted at the behest of certain individuals having enmity with appellants. He referred the sequence of events and submitted that it was mother of PW-1 Samdura Singh on whose behest PW-1 and PW-2 went to shop of appellant and further the sequence which was mentioned in Ex.P-1 was not narrated by PW-1 and PW-2 in their deposition. He submitted that there was no evidence to substantiate ingredients of offence under Section 3 of SC/ST (POA) Act. He submitted that PW-3, PW-5, PW-6, PW-7 and PW-8 were not eyewitness and they had not seen any part of incident therefore in this case no eye-witness was produced by the prosecution.

¶24

Learned counsel for appellant relied upon the judgment of Hitesh Verma Vs. State of Uttarakhand AIR 2020 SC 5584

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and submitted that any offence under the SC/ST (POA) Act is not established merely on the ground that the informant or victim is a member of SC community unless it is established that there is an intention to humiliate a member of SC/ST community for reason that he belongs to said caste. He further referred the evidence in light of judgment of Hon'ble Supreme Court to submit that unless the offence is committed in public place within public view then only any person can be held guilty else not. He further cited the judgments of Dinesh @ Buddha Vs. State of Rajasthan AIR 2006 SC 1267 and Ramdas Vs. State of Maharashtra AIR 2007 SC 115 and submitted that unless there is any evidence to

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[CRLA-194/1995]

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(4 of 11)

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establish that victim, a member of SC/ST community was subjected to humiliation and insult, the provisions under Section 3 cannot be attracted. He further referred the evidence on record to contend that in this case not a single iota of evidence was led by the prosecution to establish the fact that PW-2 Kamlesh, complainant belongs to SC community and being a SC community person, he was tortured and humiliated by appellant Barjya @ Brij Mohan. He further submitted that in this case learned trial court had failed to appreciate the legal position before convicting the appellant Barjya @ Brij Mohan, therefore, the order of conviction is bad in eye of law.

¶29

Aforesaid contentions were opposed by learned Public Prosecutor.

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Heard learned counsel for appellant and learned Public Prosecutor. Perused the record and also the judgments cited by learned counsel for appellants.

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In this case, learned trial court had convicted appellant Barjya @ Brij Mohan for offence under Section 3 (1)(3) of SC/ST (POA) Act but convicted Murari @ Krishna Murari under Sections 342 and 323 IPC. A serious contention was raised in favour of Barjya @ Brij Mohan to buttress that offence under the SC/ST (POA) Act is not established in this case. So, firstly we are dealing this issue.

¶32

The SC/ST (POA) Act was enacted by the Parliament of India to prevent atrocities and hate crimes against the Scheduled Castes and Scheduled tribes and to provide special courts for trial of such offences and for relief and rehabilitation of the victim of such offences and for matters connected therewith or incidental

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[CRLA-194/1995]

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(5 of 11)

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thereto. In Section 2(a) of SC/ST (POA) Act, 'atrocity' is defined as an offence punishable under Section 3 of the SC/ST (POA) Act. When we look at Section 3 of the Act, which was amended by Act No.1 of 2016 w.e.f. 26.01.2016 provides punishment for offences of atrocities. On date of incident in present case i.e. 13.08.1994, Section 3(1)(3) of SC/ST (POA) Act reads as under:

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"Whoever not being a member of SC/ST community, forcibly removes the clothes from the person of a member of SC/ST community or parades him naked or with painted face or body, any similar act which is derogatory to human dignity shall be punishable with imprisonment for a term which shall not be less than 6 months to which may extent to 5 years and with fine." 10. The question before us is whether aforesaid charge was proved against Barjya @ Brij Mohan. 11. In this case, the victims PW-1 Samudra Singh aged about 12 years and PW-2 Kamlesh aged about 13 years were child witnesses. The competency of a witness is the condition precedent to the administration of oath or affirmation but under Section 118 of Indian Evidence Act, every person is considered as competent witness unless the court considers that he is prevented so due to any reason.

¶37

For a child witness, normally the courts conduct "vior dire test" under which the court before examination puts certain preliminary questions to the child, which bears no connection with the case so as to judge the child's competency and understanding. Suppose, the child is capable of answering those questions properly and deposes in a smart manner, then child is considered as a competent witness after which then the Court decides

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[CRLA-194/1995]

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(6 of 11)

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whether to administer oath to the child or not. Hon'ble Supreme Court in the case of Teher Singh Vs. State of Punjab AIR 1973 SC 1347 observed that in rural areas it is difficult to think alot for 13 years of child though they are capable of understanding the sequence of oath and necessity to speak the truth. Further we can refer observation in case of Zareena Khan Vs. State of Assam 1992 CrlJ 773 wherein it was observed that trial court is best judge in the matter of deciding the competency of such witnesses as trial court has opportunity to see and notice their demeanor and record the evidence before scrutinizing such evidence for acceptance as testimony.

¶41

In case of State Vs. Allen 70 Wn.2d 690 (1967) five factors were outlined to determine competency of child witness and it was further observed that in absence of any of them it renders the child incompetent to testify and these are:-

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(i) an understanding of the obligation to speak the truth on the witness stand,

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(ii) the mental capacity at the time of occurrence concerning which he is to testify, to receive an accurate impression of it,

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(iii) memory sufficient to retain an independent recollection of the occurrence,

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(iv) the capacity to express in words his memory of occurrence,

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(v) the capacity to understand simple questions about it. 14. In view of the aforesaid, it can be said just because witness happens to be a child, his evidence cannot be rejected in toto on this ground alone, however, the trial court must be cautious

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[CRLA-194/1995]

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(7 of 11)

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enough to see that an innocent person is not punished solely acting upon the testimony of child witness as the children are easily susceptible for tutoring, therefore, in every case, it is duty of the court to ensure that witness, who is child, and examined as competent witness is deposing as a natural witness. In this regard, again we must refer the judgment of Hon'ble Supreme Court in case of Suresh Vs. State of U.P. AIR 1981 SC 1122 , wherein testimony of a five year old child was found to be admissible as he was able to comprehend and understand the questions of the given issue, thus conviction can be based where child is witness of truth and not of imagination.

¶50

In this case on the basis of aforesaid when we look at testimony of PW1 and PW2, though learned Trial Court had not asked any preliminary question to the witnesses, but as per Section 118 of Indian Evidence Act, PW1 and PW2 were competent enough to depose regarding incident, as they were alleged victims in the matter. Though learned Trial Court had not conducted "Vior dire test", therefore, in absence of aforesaid, testimony of PW1 and PW2 cannot be disregarded but we have to properly scrutinize the evidence of PW1 and PW2.

¶51

In this matter, FIR was registered on 14.08.1994, whereas the incident was of 13.08.1994 and in this Ex.-P1, no eye-witness was named. The only name referred by PW2 was that on call of mother of PW1, PW2 visited the home of Samudra Singh, wherein he was tied with rope which was untied by Murari @ Krishna Murari, then Barjya @ Brij Mohan cut his hair and blackened his face and then both of them paraded them in entire village before attempting to throw in river. PW2 in his deposition, has improved

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[CRLA-194/1995]

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(8 of 11)

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his statement and stated that he was tied with rope by Murari @ Krishna Murari and further hanged on an angle, wherein Samudra Singh was also hanged, then his hair were cut by Barjya @ Brij Mohan and his face was blackened and on both sides of his shirt, it was written as 'thief' and paraded in the entire village. Thereafter, on alleging question with permission of Court, this PW2 stated that Murari @ Krishna Murari abused and insulted him. In crossexamination, he admitted that in Ex.P1, aforesaid allegation of use of abusive language and insult was not written. He further admitted that mother of Samudra Singh came to call him and at that time Shyam Bihari, Ramavtar and Hari Om were there. He further admitted that the entire incident was at the behest of mother of Samudra Singh as she named PW2 on false ground. It was further admitted that on advice of his father and police, he named accused for abusive language and also threw them out from the village. The statement of PW2 indicated that he improved his version from Ex.-P1. When we look at PW1, then the place of incident was mentioned as shop by Murari @ Krishna Murari, wherein PW2 came thereafter. In cross-examination, this PW1 admitted that his mother came to the shop, when he was confined in shop.

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PW3-Shyam Bihari again, a child witness, who further said that both accused had assaulted PW1 and PW2 and also cut their hair. PW5-Radhey Shyam, who is 18 years of age and as per him the place of incident was house of Murari @ Krishna Murari. PW-6Madan Lal, in his statement stated that firstly Samudra Singh was caught in the shop of Murari @ Krishna Murari and on behest of mother of Samudra Singh, Kamlesh was brought there, then they

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[CRLA-194/1995]

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(9 of 11)

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were taken into flour-mill. PW7 is the mother of Samudra Singh and she stated that she went to rescue Samudra Singh from Murari @ Krishna Murari, thereafter, face of PW1 and PW2 were blackened and assaulted by both the accused. In crossexamination, she admitted that whatever she stated in examination-in-chief was not seen by her, therefore, PW7 was not eye-witness. Again PW8-Sukh Lal was not an eye-witness and he is just heard the same. PW9-Satyendra Singh was an Investigating Officer.

¶59

Herein this case, no document was exhibited to establish the fact that PW2 belongs to SC community. Similarly there was not a single iota of evidence to establish the fact that the entire incident happened against PW2 as he belongs to SC community. The manner of incident as described from Ex.P1 and also by witnesses clearly indicated that incident started against Samudra Singh, who is by caste Rajput, not a member of SC community, but at the behest of mother of Samudra Singh, this PW2 was picked-up and the evidence also suggest, it was mother of Samudra Singh, who took this PW2 to the spot, thus there was no evidence to presume that being a member of SC community PW2 was targeted by appellant-Barjya @ Brij Mohan.

¶60

In this case even IO (PW9) did not examine any single local person to indicate that the shirt on which slogan "I am a thief" was written was allegedly written by appellants. In this case, the place of incident is again varying from one case to another as one of the witnesses suggested that it was house of Samudra Singh, whereas another suggest shop/house of appellants and one of them suggested flour-mill of appellants, therefore, there is

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[CRLA-194/1995]

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(10 of 11)

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inconsistency as regard to place of incident. The evidence as indicated hereinabove also suggested that criminal force was used by villagers as well, therefore, in this case, there was absence of evidence as regard to essential ingredients as required to prove charge under Section 3(1)(3) of SC/ST (POA) Act.

¶64

In case of Hitesh Verma (supra), Hon'ble Supreme Court laid down that any offence under the SC/ST Act is not established on fact that informant is a member of SC community unless there is an intention to humiliate a member of SC/ST community for reason that victim belongs to such caste. Further, in this case, the place, wherein the incident had allegedly taken placed was either house or shop and same is not a public place, therefore, to establish an offence under the Act, the place must be within public view or a public place. In this case, there is inconsistency as regard to parade in village is concerned by the appellants, therefore, in view of the principle laid down by Hon'ble Supreme Court in the case of Dinesh @ Buddha (supra) and Ramdas (supra) and Hitesh Verma (supra) , the essential ingredients as required to prove charge under Section 3(1)(3) of SC/ST (POA) Act were not found from aforesaid evidence, therefore, the learned trial court had committed serious error in upholding the charge under Section 3(1)(3) of SC/ST (POA) Act against the appellant Barjya @ Brij Mohan, therefore, he is entitled to get benefit of doubt.

¶65

As regard to involvement of Murari @ Krishna Murari is concerned, there was evidence of PW1 and PW2 for beating by Murari @ Krishna Murari, though in this case injury report which was exhibited as P7 by PW11 indicated that there were bruises on

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[CRLA-194/1995]

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(11 of 11)

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body of PW2 and on 18.08.1994, the duration of 3-7 days, which is well within limit, therefore from the evidence as deposed before learned Trial Court, the offence under Sections 342 and 323 IPC were found proved by learned Trial Court and there is no illegality in relying upon evidence by learned Trial Court.

¶69

In view of above appeal preferred by Barjya @ Brij Mohan @ Brijmohan is allowed and appeal preferred by Murari @ Krishna Murari is liable to be dismissed.

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Hence appeal preferred by Barjya @ Brij Mohan @ Brijmohan s/o. Dwarkalal aggrieved from Order of conviction and sentence dated 05.04.1995 passed by learned Special Judge, SC/ST (POA) Act is hereby allowed and order dated 05.04.1995 is hereby set aside qua Barjya @ Brij Mohan and he is acquitted from the charge of offence under Sections 3(1)(3) of SC/ST (POA) Act, whereas appeal of Murari @ Krishna Murari s/o. Dwarika Lal is hereby dismissed.

¶71

Misc. Application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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PREETI VALECHA/6

Barjya v. State

Case brief

What is this about?

What did the court decide?

Barjya v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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