1. Udhav Mahato @ Udhab Chandra Mahto 2. Raju Mahato @ Raju Prasad Mahto v. 1. The State of Jharkhand 2
Case Details
1 Criminal Appeal (S.J.) No. 323 of 2012 [Against the judgment of conviction and order of sentence dated 17.02.2012 passed by learned District & Sessions Judge-I cum Special Judge, Danbad in connection with Topchnchi P.S. Case No.176 of 1998 corresponding to G.R. No.4445 of 1998] 1. Udhav Mahato @ Udhab Chandra Mahto 2. Raju Mahato @ Raju Prasad Mahto 3. Babloo Mahto .... .... …. Appellants Versus 1. The State of Jharkhand 2. Smt. Aghani Devi .... .... .... Respondents
Legal Reasoning
For the Appellants : Mr. Pratiush Lala, Advocate : Ms. Vandana Bharti, A.P.P. For the State ----- PRESENT HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY By Court 1. Earlier the notice was served to the victim vide order dated 24.01.2024. A report has been received from the Officer-in-Charge, Topchanchi Police Station vide letter no.816/2024 dated 08.03.2024 stating that Aghani Devi has died. In view of the said report, requirement of service of notice is dispensed with under Section 15(A) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 as the appellant has died. 2. Instant appeal has been preferred against the judgment of conviction under Sections 148, 323, 354, 379 , 427, 448, 506 of the Indian Penal Code and Sections 3 (1)(x)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. 3. The complainant-Aghani Devi filed C.P. Case No.1188 of 1998 against altogether six accused persons including these appellants on 29.10.1998. The case of the appellants is that at about 11 a.m., on 27.10.1998 while she along with her family members were engaged in the daily routine works and male members had gone out for cultivation, the accused persons forming unlawful assembly with lethal weapon in order to eject them, came there and started abusing them by calling out their caste name in filthy language “SALA ADIVASI HARIJAN YAHAN SE BHAG JAO NAHI TO JAN SE MAR DENGE” and uprooted the onion and potato plants and damaged the fencing. On Hulla, the witness came to the place of occurrence and rescued them on which the accused persons fled away. 4. On the basis of the complaint petition, Topchanchi P.S. Case No.176 of 2 1998 was registered under the provisions of Indian Penal Code and Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 against altogether six accused persons. The police, on investigation, found the case true and submitted charge sheet against six of the named accused persons. Out of them Sudha Mahato died and the proceeding against him was dropped. After cognizance, charge was framed against Udhav Mahato, Madhav Mahato, Raju Mahato and Babloo Mahato under Sections 148, 323, 354, 379, 427, 448, 506 of the Indian Penal Code and Section 3(1)(x) and 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. During trial Madhav Mahato also died during pendency of trial. 5. Altogether five witnesses were examined on behalf of prosecution. After prosecution evidence, the statement of the accused persons were recorded under Section 313 of the Code of Criminal Procedure and one witness D.W. 1 was examined on behalf of defence and certified copy of Title Suit No.8/2000 has also been marked for identification as Exhibit A. During trial, Madhav Mahato died and the case was dropped against him. 6. It is submitted by learned counsel on behalf of appellants that the genesis of dispute is with respect to Plot No.84, Khata No.29, area 20 decimals, Mouza Dignagar, District Dhanbad which is Raiyati land of the accused persons who have bona fide right, title and possession over it. Without any title or possession over the property, it was the informant party who had committed trespass over the said land, and were constructing a hutment. On and on being opposed, false case has been instituted against them. A specific reference made by defence is Exhibit A, which is the judgment and decree passed in Title Suit No.8/2000 in favour of Madhav Mahato for the said piece of land which was filed against Aklu Mahli, the husband of the informant. P.W. 3, who happens to be the Devar of the informant, has admitted in his cross-examination that the dispute was with respect to Plot No.84. 7. Out of five witnesses, P.W. 5 has not supported the prosecution case and was declared hostile. Other witnesses are close family members of the informant. It is further argued that offence under SC/ST Act will not at all be attracted in the facts and circumstance of the present case as the offence did not took place because of the caste of the informant, but because of the land dispute. Reliance is placed on Hitesh Verma Versus State of Uttrakhand & Another, (2020) 10 SCC 710. 8. Learned A.P.P. defended the judgment of conviction and sentence. It is 3 submitted that there is allegation of pulling Sari and making improper sexual advance. 9. I find much force in the argument advanced on behalf of the Appellants that offence under Section 354 of the IPC will not be made out unless there was an intention to outrage the modesty of a woman. Every case of physical scuffle will not lead to a case under Section 354 of the Indian Penal Code. The informant has deposed in para 7 and 8 that the incidence was not witnessed by anyone from the village. It is surprising when an unlawful assembly was formed and assault was made in broad day light, no one from the village could see the incidence. This falsifies the very prosecution case. In the complaint petition, the time of occurrence has been stated to be 11 O’ Clock in the day time, whereas P.W. 1 Aklu Mahli states in para 1 that the incidence took place at 2.30 p.m. in the day time. This contradicts the deposition of informant. P.W. 2 has also stated the time of occurrence to be 11 O’ Clock. 10. It is apparent that there are vital contradictions regarding the time of occurrence as stated by the informant and that as deposed to by her husband. On the one hand, the informant has stated that the incidence took place at 11 O’ Clock whereas her husband has deposed at 2.30 p.m. in the day. There is no explanation for this vital contradiction. 11. Evidence has been brought on record on behalf of defence that the dispute regarding which incidence is said to have taken place, was the Raiyati land of the appellants regarding which the Title Suit was decided in their favour. From this, it appears that it was the informant party who were the trespassers over the land of the accused person. It is rightly argued by the learned counsel on behalf of appellant that offence under SC/ST Act will not at all be made out as the genesis of offence is purely land dispute. It has been held in Ramawatar v. State of M.P., (2022) 13 SCC 635 “16. Ordinarily, when dealing with offences arising out of special statutes such as the SC/ST Act, the Court will be extremely circumspect in its approach. The SC/ST Act has been specifically enacted to deter acts of indignity, humiliation and harassment against members of Scheduled Castes and Scheduled Tribes. The Act is also a recognition of the depressing reality that despite undertaking several measures, the Scheduled Castes/Scheduled Tribes continue to be subjected to various atrocities at the hands of upper castes. The courts have to be mindful of the fact that the Act has been enacted keeping in view the express constitutional safeguards enumerated the Constitution, with a twin-fold objective of protecting the members of these vulnerable communities as well as to provide relief and rehabilitation to the victims of caste-based atrocities. 17. On the other hand, where it appears to the Court that the offence in question, although covered under the SC/ST Act, is in Articles 15, 17 and 21 of 4 primarily private or civil in nature, or where the alleged offence has not been committed on account of the caste of the victim, or where the continuation of the legal proceedings would be an abuse of the process of law, the Court can exercise its powers to quash the proceedings. On similar lines, when considering a prayer for quashing on the basis of a compromise/settlement, if the Court is satisfied that the underlying objective of the Act would not be contravened or diminished even if the felony in question goes unpunished, the mere fact that the offence is covered under a “special statute” would not refrain this Court or the High Court, from exercising their respective powers under Article 142 of the Constitution or Section 482 CrPC”. Under the circumstance, this Court is of the view that this is a fit case for extending benefit of doubt to the appellants.
Decision
Judgment of conviction and sentence is set aside. The appeal is allowed. Sureties are discharged from the liabilities of their bail bonds. Interlocutory Application, if any, stands disposed of. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated, 13th March, 2024 NAFR/Anit