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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRIMINAL APPEAL No 923/2001
Reserved on 28-11-2018
Delivered on 3-12-2018
(Arising out of judgment of conviction and order of sentence dated 14-
9-2001 passed by Special Judge, Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989, Bastar at Jagdalpur (CG) in
ST Case No. 71/2001)
…

Rameshwar S/o. Sonu Ram Yadav, aged about 28 years, R/o. Ulnaar,
P.S. Nagarnar, Distt. Bastar (CG)

Appellant
VERSUS
State of Chhattisgarh through District Magistrate, Jagdalpur, Distt.
Bastar (CG)
Respondent

———————————————————————————————–

For Appellant : Shri Keshav Dewangan, Adv.
For Respondent : Shri Ashok Swarnkar, Panel Lawyer.

———————————————————————————————–

Hon’ble Shri Justice Sharad Kumar Gupta
CAV JUDGMENT

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

conviction and order of sentence dated 14-9-2001 passed by Special

Judge, Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989,(in brevity ‘SCST Act’), Bastar at Jagdalpur (CG) in

ST Case No. 71/2001 whereby and whereunder he convicted and

sentenced the appellant as under:-

Conviction Sentence Fine sentence
under Section
323, IPC RI for 6 months
3(1)(x) of the RI for 1 year Rs. 1,000/-, in default of payment of
SCST Act fine to undergo RI for 3 months

Both the sentences have been directed to run concurrently.

2. This is admitted by appellant that he is Raut by caste.

3. In brief the prosecution case is that on 28-12-1998 complainant
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Smt. Nirmla Kashyap at about 12.00 pm was going to take rice.

Appellant called her and asked as to why the house under Indira Awas

Yojana has not been given to Mangaldei. During the conversation he

said her ‘Muria, Sala’. She told the incident to her husband after

reaching in the house. She, her husband, Laikhan and other persons

went to his house to inquire the matter. He beat her husband and

Laikhan by club. On 30-12-1998 she gave an application to police

station SC ST Jagdalpur. After the inquiry, an FIR was lodged in

police station AJAK, Jagdalpur on 9-1-1999. After completion of the

investigation a charge sheet was filed against him. The trial Court

framed charges against him under Section 323, IPC, regarding

complainant Laikhan and Tulsiram Kashyap and 3(1)(x) of the SCST

Act. He abjured the charges and faced trial. To bring home the charges

prosecution examined as many as 6 witnesses. He examined 3

witnesses in his defence. After conclusion of the trial, he was acquitted

from the charge punishable u/s 323, IPC regarding complainant

Laikhan however he was convicted and sentenced as aforesaid.

4. Being aggrieved from aforesaid conviction and sentences, the

appellant has preferred this criminal appeal.

5. Shri Keshav Dewangan, counsel for the appellant submits that

the appellant has been falsely implicated, Trial Court has not

appreciated the evidence in proper perspective, the investigation has

been conducted by Sub Inspector which is violation of Rule 7 of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities),

Rules, 1995 (in brevity ‘SCST rules’), there is no evidence that alleged

insult had been committed with intention to humiliate the complainant

Smt. Nirmla Kashyap. Therefore, the impugned judgment of conviction
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and order of sentences being bad in law may be set aside and he may

be acquitted of the aforesaid charges.

6. On the other hand, Shri Ashok Swarnkar, Panel Lawyer

appearing for the State supported the impugned judgment and

submitted that the trial Court has rightly convicted and sentenced the

appellant. No interference is called for by this Court. Hence the appeal

may be dismissed.

7. P.W. 2 Tulsiram Kashyap says in para 1 of his statement given

on oath that his wife complainant Smt. Nirmla Kashyap is a member of

scheduled tribe.

8. P.W. 4 Smt. Nirmla Kashyap says in para 1 of her statement

given on oath that she is Muria by caste and member of scheduled

tribe.

9. P.W. 5 Laikhan says in para 1 of his statement given on oath that

complainant Smt. Nirmla Kashyap is Muria by case and member of

scheduled tribe.

10. P.W. 6 Smt. Soni Bai says in para 1 of her statement given on

oath that complainant Smt. Nirmla Kashyap is Muriya by caste.

11. There is no such evidence on record on strength of which it can

be said that aforesaid statements of aforesaid witnesses are not

believable. Thus this Court believes on them.

12. After appreciation of the evidence discussed herebefore, this

Court finds that prosecution has succeeded to prove beyond

reasonable doubt that the complainant is by caste Muria and member of

Scheduled Tribe.

13. The Raut caste neither comes in category of scheduled caste
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nor in scheduled tribe.

14. P.W. 4 Smt. Nirmla Kashyap says in para 2 that when she was

taking rice from the Lampus Society, appellant asked her as to why

house under Indira Awas Yojana has not been given to Mangaldei. He

said her “Murin, Sali”.

15. P.W. 2 Tulsiram Kashyap says in para 3 that his wife had told

him that appellant had addressed her “Murin, Sali”.

16. P.W. 6 Smt. Soni Bai says in para 2 that appellant had told

complainant Smt. Nirmla Bai “Muria, Sale”

17. D.W. 1 Tulsiram says in para 1, D.W. 3 Rameshwar Kashyap

says in para 2 of their statements given on oath that appellant was

making inquiry from complainant as to why the name of Mangaldei has

been struck off from the list of beneficiaries prepared under Indira Awas

Yojana, no quarrel happened.

18. D.W. 2 Maniram says in para 1 of his statement given on oath

that appellant had asked the complainant as to why house has not been

allotted to Mangaldei, thereafter all people had gone.

19. There is no such evidence available on record on the strength of

which it can be said that P.W. 6 Smt. Soni Bai had made aforesaid

statement as they were allegedly interested with the complainant Smt.

Nirmla Kashyap or prejudiced with the appellant for such reasons.

20. P.W. 4 Smt. Nirmla Kashyap says in para 4 during her cross-

examination that the appellant had lodged the report in police station

Nagarnar thus she lodged the report against him.

21. There is no material available on record on the strength of which

it can be said that the appellant allegedly had not committed any wrong
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act and complainant had given the application, she and P.W. 2 Tulsiram

Kashyap had made aforesaid statements, merely to escape

themselves from criminal liability which may arise from the report

lodged by appellant. Thus, the appellant does not get any help from the

aforesaid statement of para 4 of P.W. 4 Smt. Nirmla Kashyap.

22. There is no such evidence on record on the strength of which it

can be said that P.W. 4 Smt. Nirmla Kashyap, P.W. 2 Tulsiram Kashyap

and P.W. 6 Smt. Soni Bai had made aforesaid statements because

there was a party bandi and appellant was in oppose party.

23. In Ex. P-4 it has been mentioned that the appellant had

addressed prosecutrix ‘Muria, Sala’.

24. In the matter of State of H.P. -v- Shree Kant Shekari [(2004) 8

SCC 153], Hon’ble Supreme Court has held in para 18 as under :-

“18. The unusual circumstances satisfactorily explained the delay
in lodging of the first information report. In any event, delay per se
is not a mitigating circumstance for the accused when
accusations of rape are involved. Delay in lodging the first
information report cannot be used as a ritualistic formula for
discarding the prosecution case and doubting its authenticity. It
only puts the court on guard to search for and consider if any
explanation has been offered for the delay. Once it is offered, the
court is to only see whether it is satisfactory or not. In case if the
prosecution fails to satisfactorily explain the delay and there is
possibility of embellishment or exaggeration in the prosecution
version on account of such delay, it is a relevant factor. On the
other hand, satisfactory explanation of the delay is weighty
enough to reject the plea of false implication or vulnerability of the
prosecution case. As the factual scenario shows, the victim was
totally unaware of the catastrophe which had befallen her. That
being so, the mere delay in lodging of the first information report
does not in any way render the prosecution version brittle. These
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aspects were highlighted in Tulshidas Kanolkar v. State of Goa
[(2003) 8 SCC 590 : 2004 SCC (Cri) 44] .”

25. The relevant portion of para-13 in Puran Chand -v- State of

H.P. [(2014) 5 SCC 689] is quoted below wherein the Hon’ble Supreme

Court has observed that :-

“13. ……………The delay in lodging the FIR has been clearly
explained by the prosecution relating the circumstance and the
witnesses supporting the same have stood the test of scrutiny of
the cross-examination as a result of which the version of the
victim girl cannot be doubted. The delay in lodging the FIR thus
stands fully explained.”

26. P.W. 4 Smt. Nirmla Kashyap says in para 4 during her cross-

examination she had not lodged the report on the very day because

villagers had told that matter would be settled by compromise.

27. There is no such evidence on record on the strength of which it

can be said that aforesaid explanation for giving Ex. P-4 with delay is

not sufficient or not natural. Thus, this Court believes on aforesaid

explanation. Thus, looking to the judicial precedents in the matters of

Shree Kant Shekari (supra) and Puran Chand (supra), this Court finds

that the delay in giving Ex. P-4 is not fatal to the prosecution case.

28. Looking to the above-mentioned facts and circumstances, this

Court finds that Ex. P-4 is normal, natural, simple and is not concocted,

not fabricated.

29. Looking to the above mentioned facts and circumstances, this

Court finds that aforesaid statements of para 2 of P.W. 4 Smt. Nirmla

Kashyap, para 3 of P.W. 2 Tulsiram Kashyap, P.W. 6 of Smt. Soni Bai

are simple, natural and normal. Thus, this Court believes on the

aforesaid statements of para 2 of P.W. 4 Smt. Nirmla Kashyap, para 3
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of P.W. 2 Tulsiram Kashyap, P.W. 6 of Smt. Soni Bai, and disbelieves

aforesaid statements of D.W. 1 Tulsiram Baghel, DW. 2 Maniram, DW 3

Rameshwar Kashyap regarding the reference that appellant had not

allegedly committed any wrong act.

30. Counsel for the appellant placed reliance on a decision of this

Court in Horilal and another -v- State of M.P. [(2011) 4 CGLJ 51]

para 10 of which is relevant and quoted below :-

“10.Thus in view of the clear mandate of Rule 7 of Rules, 1995
and the decisions of the Supreme Court and various High Courts
referred to above it is only the Deputy Superintendent of Police
who is competent to investigate the offence under this special
Act. Undisputedly, in the case in hand, the entire investigation
has been carried out by the Sub-Inspector of Police, which is in
flagrant violation of the legal provision and renders the entire trial
as vitiated.”

31. Rule 7 of the SCST Rules is relevant in the case in hand which

reads as under :-

“7. Investigating Officer.–(1) An offence committed under the Act
shall be investigated by a police officer not below the rank of
Deputy Superintendent of Police. The Investigating Officer shall
be appointed by the State Government/Director General of
Police/Superintendent of Police after taking into account past
experience, sense of ability and justice to perceive the
implications of the case and investigate it along with right lines
within the shortest possible time.

(2) The Investigating Officer so appointed under sub-rule (1)
shall complete the investigation on top priority basis within thirty
days and submit the report to the Superintendent of Police who in
turn will immediately forward the report to the Director General of
Police of the State Government.

(3) The Home Secretary and the Social Welfare Secretary to the
State Government, Director of Prosecution, the officer-in-charge
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of Prosecution and the Director General of Police shall review by
the end of every quarter the position of all investigations done by
the Investigating Officer.”

32. In the case in hand, investigation was not conducted by P.W. 3

Kriparam Khande. He had conducted inquiry and lodged FIR. Entire

investigation was done by V.K. Hajari, SDOP, AJAK police Station

Jagdalpur thus appellant does not get any help from aforesaid judicial

precedent laid down by this Court in Horilal (supra).

33. Counsel for the appellant placed reliance on the decision of this

Court in The State of Chhattisgarh -v- Laxmiprasad Yadav [(2014) 4

CGLJ 256] relevant portion of para 20 of the same is quoted below :-

“20. Thus, it is held that in the instant case, merely calling the
complainant by accused from his caste (Kawar Adiwashi) as
there is no proof of intention of insulting or humiliating him, do not
constitute an offence under Section 3(1)(x) of the Atrocities Act
……..”

34. Hon’ble Supreme Court in the matter of Swaran Singh and

others -v- State through Standing Counsel and another reported in

[(2008) 8 SCC 435] has observed in para 21 to 24 and 30 as under :-

“21. Today the word “chamar” is often used by people belonging
to the so-called upper castes or even by OBCs as a word of
insult, abuse and derision. Calling a person “chamar” today is
nowadays an abusive language and is highly offensive. In fact,
the word “chamar” when used today is not normally used to
denote a caste but to intentionally insult and humiliate someone.

22. It may be mentioned that when we interpret Section 3(1)(x) of
the Act we have to see the purpose for which the Act was
enacted. It was obviously made to prevent indignities, humiliation
and harassment to the members of SC/ST community, as is
evident from the Statement of Objects and Reasons of the Act.
Hence, while interpreting Section 3(1)(x) of the Act, we have to
take into account the popular meaning of the word “chamar”

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which it has acquired by usage, and not the etymological
meaning. If we go by the etymological meaning, we may frustrate
the very object of the Act, and hence that would not be a correct
manner of interpretation.

23. This is the age of democracy and equality. No people or
community should be today insulted or looked down upon, and
nobody’s feelings should be hurt. This is also the spirit of our
Constitution and is part of its basic features. Hence, in our
opinion, the so-called upper castes and OBCs should not use the
word “chamar” when addressing a member of the Scheduled
Caste, even if that person in fact belongs to the “chamar” caste,
because use of such a word will hurt his feelings. In such a
country like ours with so much diversity’so many religions, castes,
ethnic and lingual groups, etc.–all communities and groups must
be treated with respect, and no one should be looked down upon
as an inferior. That is the only way we can keep our country
united.

24. In our opinion, calling a member of the Scheduled Caste
“chamar” with intent to insult or humiliate him in a place within
public view is certainly an offence under Section 3(1)(x) of the
Act. Whether there was intent to insult or humiliate by using the
word “chamar” will of course depend on the context in which it
was used.

30. In this connection it may be mentioned that in America to use
the word “nigger” today for an African-American is regarded as
highly offensive and is totally unacceptable, even if it was
acceptable 50 years ago. In our opinion, even if the word
“chamar” was not regarded offensive at one time in our country,
today it is certainly a highly offensive word when used in a
derogatory sense to insult and humiliate a person. Hence, it
should never be used with that intent. The use of the word
“chamar” will certainly attract Section 3(1)(x) of the Act, if from the
context it appears that it was used in a derogatory sense to insult
or humiliate a member of SC/ST.”

35. Hon’ble Supreme Court in the matter of Arumugam Servai -v-
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State of Tamil Nadu reported in [(2011) 6 SCC 405] has observed in

para 5, 6 and 7 as under :-

“5………The word “Pallan” no doubt denotes a specific caste, but
it is also a word used in a derogatory sense to insult someone
(just as in North India the word “Chamar” denotes a specific
caste, but it is also used in a derogatory sense to insult
someone). Even calling a person a “Pallan”, if used with the intent
to insult a member of the Scheduled Caste is, in our opinion, an
offence under Section 3(1)(x) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter
referred to as “the SC/ST Act”). To call a person as a “pallapayal”
in Tamil Nadu is even more insulting, and hence is even more an
offence.

6. Similarly, in Tamil Nadu there is a caste called “Parayan” but
the word “Parayan” is also used in a derogatory sense. The word
“paraparayan” is even more derogatory.

7. In our opinion use of the words “Pallan”, “pallapayal”,
“Parayan” or “paraparayan” with intent to insult is highly
objectionable and is also an offence under the SC/ST Act. It is
just unacceptable in the modern age, just as the words “Nigger”
or “Negro” are unacceptable for African-Americans today (even if
they were acceptable 50 years ago). ….”

36. Looking to the aforesaid judicial precedent laid down by Hon’ble

Supreme Court in Swaran Singh (supra) and Arumugam Servai

(supra), this Court finds that aforesaid words asked by appellant are

generally used for insult, abuse, derision. The aforesaid words are

derogatory, highly objectionable and unacceptable now a days. The

aforesaid words are highly offensive.

37. Looking to the facts and circumstances of the case, this Court

finds that appellant had asked aforesaid words to the complainant Smt.

Nirmla Kashyap with intention to insult or humiliate her. Thus, the

appellant does not get any help from the aforesaid judicial precedent
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laid down by this Court in the State of Chhattisgarh (supra).

38. From the facts and circumstances of the case, material available

on record, this Court finds that appellant had uttered aforesaid words to

the complainant Smt. Nirmla Kashyap merely on the ground that she is

the member of the scheduled tribe.

39. After appreciation of the evidence discussed herebefore, this

Court finds that prosecution has succeeded to prove beyond

reasonable doubt against the appellant the offence punishable under

Section 3(1)(x) of the SCST Act. Thus, this Court affirms the conviction

of the appellant punishable under Section 3(1)(x) of the SCST Act.

40. As per the MLC report Ex. P-2, P.W. 1 Dr. Vinay Kumar had

examined complainant Tulsiram kashyap and found one lacerated

wound size 1.5 cm x 0.5 cm on right forehead. One another lacerated

wound on index finger of left hand size 0.5 cm x 0.5 cm. He opined that

injuries were caused by hard and blunt object.

41. There is no such evidence on record on strength of which it can

be said that Ex. P-2 is not believable. Thus, this Court believes on Ex.

P-2.

42. P.W. 2 Tulsiram says in para 4 that appellant had caused injury

on his forehead by club.

43. P.W. 4 Smt. Nirmla Kashyap says in para 3 that appellant had

caused injury on forehead of his husband by club.

44. P.W. 5 Laikhan says in para 3 that appellant beat complainant

Tulsiram.

45. There is no such evidence on record on strength of which it can

be said that aforesaid statements of P.W. 2 Tulsiram, P.W. 4 Smt.
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Nirmla Kashyap and P.W. 5 Laikhan are not believable. Thus, this Court

believes on them.

46. After the appreciation of the evidence discussed herebefore this

Court finds that prosecution has succeeded to prove beyond

reasonable doubt the charge punishable under Section 323 of the IPC.

Thus, this Court finds that trial Court has not committed any illegality in

convicting the appellant for the offence punishable under Section 323 of

the IPC. Thus, this Court affirms the conviction of the appellant for the

offence punishable under Section 323, of the IPC.

47. At the time of commission of the offence punishable under

Section 3(1)(x) of the SCST Act, minimum sentence was prescribed as

6 months.

48. Looking to the facts and circumstances of the case, this Court

finds that the aforesaid jail sentences are excessive. Thus, the jail

sentence of one year for the offence punishable under Section 3(1)(x)

of the SCST Act is reduced to RI for six months. The RI for six months

for the offence punishable under Section 323 of the IPC is reduced to

RI for 3 months. Both the jail sentences shall run concurrently. The fine

sentence shall remain as it is.

49. The appeal is partly allowed. Appellant is reported to be on bail.

He is directed to surrender immediately before the trial Court for serving

the remaining part of sentences. If the appellant does not surrender, the

Trial Court is also directed to take him into custody and send him jail to

serve the remaining part of sentences.

Sd/-

(Sharad Kumar Gupta)
Judge
Pathak