Yuvraj Sahu v. State Of Chhattisgarh

Judgment

#1. This criminal appeal has been preferred by appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C.’) challenging the judgment of conviction and order of sentence dated 11- 11-2005 passed by learned Special Judge, Raipur (CG) in Special Sessions case No. 96/2004 whereby the appellant / accused has been convicted and sentenced as under :- Conviction under Jail Fine Default stipulation Section sentence sentence 3(1)(x), Atrocities Act 6 months’ SI Rs. 500/- 15 days’ SI 323, IPC - Rs. 500/- 15 days’ SI Sentences imposed for default of fine have been directed to be served 2 separately.

Facts of the case, in nutshell, are that, appellant/accused had repaired the shutter of shop of Shivcharan Netam (son of complainant Mohanlal). On the date of incident 18-6-2004 at about 10.00 am, appellant approached him at his shop and demanded payment of aforesaid repairing work, which was declined by the Shivcharan Netam by saying that, he had not repaired the shutter properly, therefore, he said him to repair the shutter properly and take money. On this, the appellant angered and abused him in filthy language naming his caste, also assaulted him (Shivcharan Netam) and his father / complainant Mohanlal, thereby appellant insulted the complainant and his son, who belong to scheduled tribe community. An FIR (Ex. P-1) was lodged by complainant Mohanlal Netam (P.W. 3). Statements of witnesses were recorded under Section 161 of the Cr.P.C.. Medical examination of complainant and his son Shivcharan Netam (P.W. 2) was conducted by Dr. C.B.S. Banjare (P.W. 9) in which, vide his report Ex. P-10, he opined that no external injury was found on the body of Shivcharan, rather he was complaining pain on palm of right hand. Vide MLC report (Ex. P-11) of Mohanlal, the doctor opined that, he had sustained injury on left forearm, swelling and ecchymosis developed and his left side of lip torn. Caste certificate of complainant Mohanlal (P.W. 3) and his son Shivcharan (P.W. 2) were seized vide seizure memo Ex. P-2. Spot map was prepared. After due investigation, a charge-sheet under Sections 294, 323 and 506 of the IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth, referred to as ‘the Atrocities Act’) was filed by the police 3 against the appellant before the Chief Judicial Magistrate, Dhamtari, who committed the case to the Sessions Court, Raipur, who transferred the same to the Special Court, Raipur for trial.

#3. Learned Special Judge framed charges under Sections 3(1)(x) of the Atrocities Act and Section 323 of the IPC against the appellant and explained to him, who abjured his guilt and claimed trial.

#4. In order to prove the guilt of accused, the prosecution examined following witnesses and exhibited following documents:- WITNESSES PW 1 PW 2 PW 3 P.W. 4 P.W. 5 Kunjbihare Nage P.W.6 Tekuram Shivcharan Netam P.W. 7 Rakesh Agrawal Mohanlal Netam P.W. 8 S.K. Mulakalwar Kaushik Kumar P.W. 9 Dr. C.B.S. Banjare Phoolsingh EXHIBITS

#1. Ex. P-1 FIR

#2. Ex. P-2 Seizure 7 8 Ex. P-7 Spot map Ex. P-8 Police statement Tekuram Sinha

#3. Ex. P-3 Caste

#9. Ex. P-9 Police statement of Rakesh certificate of Mohanlal

#4. Ex. P-4 Caste 10 Ex. P-10 MLC report of Shivcharan certificate of Shivcharan

#5. Ex. P-5 Supurdnama 11 Ex. P-11 MLC Report of Mohanlal receipt

#6. Ex. P-6 Police statement of Kaushik Kumar Sahu Statement of the appellant/accused under Section 313 of the Cr.P.C. 4 was recorded, in which, he denied all the incriminating circumstances appearing against him in evidence of prosecution witnesses, pleaded innocence and not guilty. The appellant has not examined any witness in his defence.

#5. Learned Special Court after appreciating the evidence adduced by the prosecution, convicted appellant under Section 323 of the IPC and Section 3(1)(x) of the Atrocities Act and sentenced him as has been mentioned in opening paragraph of this judgment. Being aggrieved, the appellant has filed this appeal.

#6. Learned counsel for the appellant/accused would submit that, Tekuram (P.W. 6) and Rakesh Agrawal (P.W. 7) are said to be eye-witnesses, but they have not supported the case of the prosecution. He further submits that, the appellant had not assaulted the victim, rather on being demanded money for repairing work of shutter, son of the complainant namely Shivcharan himself abused and assaulted the appellant, therefore, the appellant had also lodged FIR against him. He further submits that, the caste certificates Ex. P-3 and Ex. P-4 of complainant Mohanlal (Ex. P-3) and his son Shivcharan (Ex. P-4) respectively were got prepared after the incident and photocopy of the same has been exhibited, and original has not been exhibited. Therefore, it cannot be held proved that the complainant belongs to Scheduled tribe community. The Special Court has convicted the appellant only on the basis of evidence of interested witnesses. Therefore, the appeal may be allowed and the appellant may be acquitted of all the charges.

#7. On the other hand, learned Panel Lawyer appearing for the 5 respondent/State supports the impugned judgment.

#8. I have heard learned counsel for the parties and perused the material available on record of the case including record of the Special Court.

#9. Shivcharan Netam (P.W. 2) is son of complainant. He has stated in his deposition that, at the time of incident, the appellant came to his shop and demanded money of repairing of shutter of his shop, but since he had not repaired the shutter properly, therefore, he said to him that first, repair the shutter properly and then he will pay the money, to which, the appellant abused him in filthy language naming his caste and assaulted him also. He has further stated that when he had gone to lodge report, then the appellant again came and assaulted his father Mohanlal (P.W. 3). Shivcharan (P.W. 2) has denied the suggestion of learned defence counsel that, on being demanded money by the appellant, he himself abused and assaulted the appellant. Similar suggestion has also been denied by Mohanlal (P.W. 3).

#10. Complainant Mohanlal (P.W. 3), who is father of Shivcharan, has supported in deposition of Shivcharan Netam (P.W. 2) with regard to assault. He has stated in his deposition that, the appellant/accused had gone to his shop and the dispute occurred on account of demand of payment made by the appellant for repairing work of shutter of shop of Shivcharan. The accused abused him in filthy language and assaulted him in which, he sustained injury on his neck, leg and near the eyes.

#11. Phool Singh (P.W. 5) is said to be independent witness, he has also supported the evidence of Shivcharan Netam (P.W.2) that, the appellant abused Shivcharan Netam in filthy language by naming his caste and assaulted him. Though he is said to be employee of 6 complainant party, but nothing has been elicited in his cross- examination to discard his aforesaid statement. Only being employee of complainant party, his deposition cannot be discarded.

#12. Kaushik Kumar (P.W. 4), Tekuram (P.W. 6) and Rakesh Agrawal (P.W. 7), are said to be eye-witnesses, but they have not supported the case of prosecution and they have turned hostile.

#13. Dr. C.B.S. Banjare (P.W. 9) had conducted medical examination of Shivcharan Netam (P.W. 2) and his father Mohanlal (P.W. 3), but he has opined that, he had not found any visible injury on the person of Shivcharan Netam, rather, he was complaining only pain on palm of his right hand. He has further stated that in X-ray, he had not found any fracture, but he has stated that on being examined Mohanlal (P.W. 3), he has found swelling on his forehead and his left side of lip also torn, though he has opined those injuries to be simple in nature. Dr. C.B.S. Banjare (P.W. 9) has also stated in cross-examination that aforesaid injury could be sustained on being fallen but nothing has been suggested by learned defence counsel to Shivcharan Netam (P.W. 2) and Mohanlal (P.W. 3) that they had fallen at the time of incident or prior to it.

#14. Thus, from the support of medical evidence, evidence of Shivcharan Netam (P.W. 2), his father Mohanlal (P.W. 3) and independent witness Phoolsingh (P.W. 5), it is found proved that, the appellant had assaulted Shivcharan Netam (P.W. 2) & his father Mohanlal (P.W. 3) and caused them simple injury.

#15. Shivcharan (P.W. 2) has deposed in his deposition that, he belongs to Gond caste of tribal community and the appellant also abused him 7 naming his caste, which also gets support from deposition of Mohanlal (P.W. 3) and Phoolsingh (P.W. 5).

#16. To prove the caste of Shivcharan Netam (P.W. 2) and his father Mohanlal (P.W. 3), photocopy of their caste certificates Ex. P-4 and Ex. P-3 respectively have been seized vide seizure memo Ex. P-2, but their caste certificate Ex. P-4 and Ex. P-3 have not been proved by comparing them from their originals, which were primary evidence. Section 61 of the Evidence Act provides that, contents of a document can be proved by either primary evidence (the original document) or secondary evidence (a copy or other proof).

#17. It is settled law that a fact in issue can be proved by producing primary evidence. Hon’ble Supreme Court in the case of H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 : (2011) 2 SCC (Civ) 209 : 2011 SCC OnLine SC 437, has held in para 12 as under:- “12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence 8 does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v.