Full Judgment
Oral Judgment:
1. Heard the parties.
2. This appeal has been initially preferred by six appellants out of whom appellant nos. 4 and 5, namely, Ramautar Yadav and Chichai Yadav, are dead and the appeal with respect of them stands abated vide order dated 21st January, 2014. The remaining four appellants, i.e., appellant nos. 1, 2, 3 and 6, have preferred this appeal against the judgment of conviction and order of sentence dated 07th September, 1998 passed by 1st Additional Sessions Judge-cum-Special Judge, Saharsa in G. R. Case No. 41 of 1993 / 100 of 1997, holding them guilty for the offences under Sections 3 (i) (vi) and (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and under Section 323 of the Indian Penal Code and sentence to undergo rigorous imprisonment for six months. However, the sentences are to run concurrently.
3. The prosecution case in short based on the written application dated 03.08.1993 (Exhibit-2) of Adalat Mushar (not examined since dead before trial) is that the appellants have been utilizing the informant as a bonded labour since before and owing to illness he was not in a position to work for a few days, but perforce he was called for and compelled to do some work which he denied on the ground of his illness and then he was assaulted by slaps and fists. On basis of such written application the case was instituted and on submission of charge-sheet after taking cognizance charges were explained for the offences under Sections 341, 323 and 504/34 of the Indian Penal Code by the learned Sub-Divisional Judicial Magistrate on 29.04.1995 and, thereafter, as it appears record was transferred to the court of 1st Additional Sessions Judge on 25.05.1995, where on the prayer of prosecution after hearing the parties fresh charge was framed on 10.04.1996 for the offences under Sections 3 (i) (vi) and (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and under Section 323 of the Indian Penal Code.
4. Thereafter, the prosecution side examined altogether five witness besides producing following documentary evidence:-
(i) Exhibit-1:- Investigating Officer has identified his signature on the F.I.R.
(ii) Exhibit-2:- Written report submitted before police station.
In defence, there is one witness, but no documentary evidence and on the materials available, the trial court convicted and sentenced the appellants in the manner aforestated.
5. At the very outset, learned Amicus Curiae, Mr. Arun Kumar Tripathi, submitted that the entire trial is vitiated since the case has not been committed after observing the requirements under law and he further referred and relied upon the decision of this Court in a case of œHARESH KUMAR SINGH AND OTHERS VERSUS UNION OF INDIA? reported in œ1997 (1) PLJR 334?, where in PARAGRAPH-16 it is held:-
œ16. ¦¦¦¦¦Thus offences under the Act have to be tried by a court of session. The court of session cannot take cognizance of an offence as a court of original jurisdiction under the Code unless the same has been committed to it by the Magistrate.?
6. On the other hand, learned Additional Public Prosecutor relying upon a decision of Honble Apex Court in a case of œRATTIRAM AND OTHERS VERSUS STATE OF MADHYA PRADESH (THROUGH INSPECTOR OF POLICE)? reported in œ(2012) 4 SCC 516?, and submits that only for such technical error unless any prejudice is caused and shown by the appellants, the trial court cannot vitiated.
7. Out of total five prosecution witnesses, P.W.1, namely, Jadu Mushar, the son-in-law of the informant, comes to state that appellant no. 6 arrived and called his father-in-law (informant) for ploughing, he avoided and stated that whenever he will feel comfortable, he will come, then he called him at his door, where the informant went. On some alarm raised this witness also went there and could see the informant being assaulted by all the appellants and when he protested, he too was assaulted and appellant no. 6 said you are bounded labour, how will you not work. In cross-examination, this witness states about some litigation between appellant no. 6 and one Anant Yadav, a co-villager and accept about stating that appellant no. 6 called him bounded labour. He has placed no details of the period of work as bounded labour or any sort of abuse or any material to show the occurrence taking place treating the prosecution side being member of scheduled castes.
8. Almost similar is the position of P.W.2, namely, Chandan Mushar, the son of deceased informant, who contrary to prosecution version and statement of P.W.1, in paragraph-7 of the cross-examination states that prior to arrival of appellant no. 6 to call his father he had already been dragged and was assaulted for about five months and further in paragraph-6 he says that neither he nor his brother-in-law (P.W.1) knows ploughing nor they were engaged for work in lieu of deceased informant.
9. P.W.3, namely, Bindeshwari Sada, the another son of deceased informant, though almost stated the prosecution version in examination-in-chief except earlier use as bounded labour etc., but in cross-examination, according to him his brother (P.W.2) and brother-in-law (P.W.1) were at a different place and he alone was with his father, who was pushed by the appellants and, likewise earlier two witnesses, he too has not given any detail of the period of work etc. as bounded labour.
10. P.W.4, namely, Dinbandhudhar Dubey, is the Investigating Officer of the case, proved Exhibit-1 and he also could not be able to state about such act nor did he find any sign of assault upon the informant or anyone else. P.W.5, namely, Jainarayan Yadav, is a formal witness coming as a scribe of written application on behalf of the informant and an illiterate person, but his name or sinuate does not appear in Exhibit-2 to show he was scribe of the same. He further admits his own dispute with the appellant no. 6.
11. From the evidence of above witnesses produced on behalf of the prosecution, it appear that the prosecution witnesses could not be able to show any such occurrence taking place with intention and only on the ground, they belong to a particular class (scheduled castes) and even on the point of taking away the deceased informant, their statements contradict each other.
12. The solitary defence witness, namely, Siya Saran Prasad, has come to say about the false implication due to some enmity and prosecution side having lesser cultivating land never engaged anyone as labour rather their family works for them.
13. Having regard to the facts and circumstances discussed above, it appears that prosecution could not be able to establish the case beyond any reasonable doubt. Hence, the judgment of conviction and order of sentence passed against the appellants, who have already suffered mental agony etc. for last twenty one years, is not at all sustainable, consequently, it is set-aside and the appeal is hereby allowed and they are set free from the liabilities of the bail-bonds furnished on their behalf.
14. Let, the copy of first and last page of this judgment be served for needful upon learned Amicus Curiae, Mr. Arun Kumar Tripathi, who has labour hard and deserves appreciation.