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Dhaneshwar @ Khodia vs State Of Chhattisgarh 56 … on 23 August, 2018

1

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR
CRIMINAL APPEAL No 247/2003

Reserved on 20-8-2018

Delivered on 23-8-2018

[Arising out of judgment of conviction and order of sentence dated 11-
2-2003 passed by the Special Judge, Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 in ST No. 307/2002]

Dhaneshwar Alias Khodia S/o. Tula Ram, aged about 26 years,
R/o.village Kuruspal, PS Nagarnar, Distt. Bastar.

Versus

State of Chhattisgarh through Scheduled Caste and Scheduled
Tribe Wing, Jagdalpur

———————————————————————————————–

For Appellant : None.
For Respondent : Ms. Smita Ghai, Panel Lawyer.

———————————————————————————————–

Hon’ble Shri Justice Sharad Kumar Gupta

CAV JUDGMENT

1. In this criminal appeal, challenge levied is to the judgment

of conviction and order of sentence dated 11.02.2003 passed by

Special Judge, Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989, Bastar at Jagdalpur in ST

No. 307/2002 whereby and whereunder he convicted the

appellant for offence punishable under Section 3(1)(x) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (hereafter called as ‘Act, 1989’) and

sentenced him to undergo RI for one year and to pay a fine Rs.

1000/-, in default of payment of fine, to further undergo additional
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RI for three months.

2. This is admitted by the appellant that complainant

Sonadhar is a Bhatra by caste and is a member of scheduled

tribe and he himself is Mahra by caste.

3. In brief the prosecution case is that on 26.06.2002

complainant had taken out his bull for grazing towards Mahran of

Sudhumahra, at about 3 pm. Appellant reached there and

uttered the complainant Bhatra Maderchod, you are grazing the

cattle here, if it is a land of your father and caused injury on his

head by brick. Complainant Sondhar lodged the FIR on very day

to AJAK Police Station, Jagdalpur. After completion of the

investigation a charge sheet was filed against the appellant u/s

294, 336 I.P.C. and 3(1)(x) of the Act, 1989. The trial Court

framed charge against the appellant under Sections 3(1)(x) of

the Act, 1989 and 324 of the IPC. Appellant abjured the charges

and faced trial. To bring home the charges prosecution

examined as many as seven witnesses. Appellant did not

examine any witness in his defence.

4. During the trial, appellant was acquitted from the charge

punishable u/s 324, IPC on compromise.

5. After conclusion of the trial, the Trial Court convicted and

sentenced appellant as aforesaid.

6. P.W. 5 Sonadhar says in para 2 of his statement given on oath

that, on 26.06.2002 at about 3 pm he was grazing his bull.

Appellant reached there and uttered that Bhatra Maderchod, you
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are grazing the cattle here, if it is a land of your father.

7. P.W. 6 Smt. Jimayat Bai says in para 2 and 3 of her statement

given on oath that complainant Sonadhar was grazing cattle, the

appellant reached there and uttered him that Bhatra Madarchod,

you are grazing the cattle here, if it is a land of your father.

8. P.W. 5 Sonadhar and P.W. 6 Smt. Jimayat Bai do not say that,

the appellant had allegedly given any threat to P.W. 5 Sonadhar.

9. From the aforesaid statement of P.W. 5 Sonadhar and P.W. 6

Smt. Jimayat Bai, it does not appear that the appellant had

allegedly provoked P.W. 5 Sonadhar intending or knowing it to

be likely that such provocation will cause him to break the public

peace or to commit any other offence.

10. In Bhalchand Tiwari @ Bhola v State of Chhattisgarh

{2016 (3) CGLJ Vol. 363} it has been held that the appellant is

acquitted of the charge under Section 3(1)(XII) of the Special Act

because it is not proved that the appellant had dominated the will

of the Prosecutrix and used his position to exploit her sexually

simply because she belonged to the Scheduled Tribe Category.

11. In the judgment of the Division Bench of this Court in

Bhikhar and Others v. State of Chhattisgarh passed in Cr.A.

No. 328 of 2003 decided on 14.06.2016 it was observed that so

far as the conviction of the appellants under Section 3(2)(V) of

the Act is concerned, in the present case, there is no evidence at

all to the effect that appellants had committed the offence on the

ground that the deceased belonged to Scheduled Caste
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Category. In the absence of such ingredients merely because

the deceased happens to be a member of Scheduled Caste

Category, automatically the offence under Section 3(2)(V) of the

Act is not made out against the appellants.

12. The Division Bench of this Court in its decision dated 14-

12-2017 passed in Cr.A. No. 304/2007 in the matter of

Devchand Patel and Others v. State of Chhattisgarh

observed that so far as conviction under Section 3(2)(V) of the

Act, 1989 is concerned, since it has already been held that the

appellants have not committed any offence as against the

deceased, the question of their conviction under this Section

does not arise. Even otherwise this is not a case of the

prosecution that as the deceased belonged to a particular caste,

he was subjected to beat, rather it has been established from the

evidence that it was the deceased who being at fault was beaten

by the villagers, which unfortunately resulted in his death.

Therefore, the accused are acquitted of this charge also.

13. The Hon’ble Supreme Court in Dinesh @ Buddha v. State

of Rajasthan {2006 (3) SCC771} in para-15 has held as under:

” 15. Sine qua non for application of Section 3(2)(v) is that
an offence must have been committed against a person on
the ground that such person is a member of Scheduled
Castes and Scheduled Tribes. In the instant case no
evidence has been led to establish this requirement. It is
not case of the prosecution that the rape was committed on
the victim since she was a member of Scheduled Caste. In
the absence of evidence to that effect, Section 3(2)(v) has
no application. Had Section 3(2)(v) of the Atrocities Act
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been applicable then by operation of law, the sentence
would have been imprisonment for life and fine.”

14. In the case in hand, there is no such evidence on record

that the appellant had allegedly committed said offence merely

on the ground that the complainant was a member of the

Scheduled Tribe.

15. Looking to the above facts and circumstances of the case,

this Court finds that the prosecution has failed to prove beyond

reasonable doubt that the appellant has committed offence

punishable under Section 3(1)(x) of the Act, 1989 or any of its

minor offence.

16. Consequently, the appeal is allowed and the impugned

judgment of conviction and order of sentence are hereby set

aside. The appellant is acquitted of the charge punishable under

Section 3(1)(x) of the Act, 1989. The fine amount deposited by

the appellant be returned back to him after the expiration of

period of appeal or revision.

17. The appellant is on bail. His bail bond stands discharged

subject to the provisions contained in Section 437-A of the

Cr.P.C.

Sd/-

(Sharad Kumar Gupta)
Judge
Kishor/P

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