1. This criminal appeal preferred by the appellants under Section 374 (2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 21.06.2002, passed by Special Judge under Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 at Bastar, District Jagdalpur in Sessions Trial No. 122/2001 whereby the appellants stand convicted and sentenced as mentioned below:-

Appellant No.2

2. Case of the prosecution, in brief, is that the victim Gada by caste belongs to Scheduled Caste Community whereas appellants belongs to Kalar by caste. Appellant No. 1 on 25.08.99 at about 7.30 AM abused victim by caste and slapped her when she asked him as to why he has removed the roof of the house belonging to her father. It is alleged that at the same time appellant No. 2 came there and assaulted the victim by catching her hair, as a result of which she sustained injuries on her left elbow and right finger and blood was oozing. Subsequently, Sarvesh (PW-4) intervened and save her. Thereafter, victim lodged the FIR (Ex.P-1) in police Station Korar and she was sent to hospital for treatment. The prosecution seized caste certificate (Ex.P-2) and after usual investigation, after collecting material, final report for commission of offence under Sections 323 read with section 34 IPC & Section 3(1) (x) of the SC/ST Act has been submitted before the Chief Judicial Magistrate, Kanker, who in turn committed the case to the Special Judge, SC/ST Act, Bastar, which was registered as Session Trial No. 122/2001.

3. In order to bring home the guilt of appellants, the prosecution has examined as many as 6 witnesses namely-Devkuvar Bai (PW-1), Shiv Kumar (PW-2), S.K. Gupta (PW-3), Sarvesh Singh Chouhan (PW-4), Shivram (PW-5) and head constable S.L. Sahu (PW-6). The prosecution to prove the guilt of the appellant has exhibited the documents FIR (Ex.P-1) dated 28.05.99, seizure memo (Ex.P-2), temporary caste certificate of victim (Ex.P-3), statement of eye witness (Ex.P-4) and medical report (Ex.P-5). Statements of accused/appellants have been recorded under Section 313 Cr.P.C., in which they denied the allegation leveled against them and pleaded innocence and false implication. Apart from this, one defence witness namely Tadbir Singh (DW-1) has also been examined.

4. The victim (PW-1) was examined before the Court below wherein she has narrated the incident. This witnesses was cross-examined wherein she denied that her husband sold the property to the appellants. She has denied any suggestion made by the defence. Other witnesses have also supported the case of the prosecution. Prosecution for proving the caste of the victim has examined Tahsildar who has issued temporary caste certificate vide Ex.P-3.

5. Tadbir Singh (DW-1) has deposed that the victim and her husband were abusing the appellants and he was in his bicycle shop where he heard the noise and went there and saw that victim was assaulting Savitri Bai but appellant No. 2 did not say anything against her. It has also been stated that both the parties have reported the matter before the police, but the report of the appellants was not lodged by the police.

6. Learned trial Court, after appreciating the evidence and material available on record, vide its judgment dated 21.06.2002 has held that the appellants have committed the aforesaid offences and thereby convicted and sentenced them for the offences as mentioned in paragraph one of the judgment. Being aggrieved and dissatisfied with the aforesaid judgment of conviction & order of sentence, instant criminal appeal has been preferred by the appellants.

7. Learned counsel for the appellants would submit that the prosecution is unable to prove the case for commission of offence under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. He would further submit that the temporary caste certificate issued by the Tahsildar on 02.06.99 which is valid only for six months was not in existence when the document was tendered in the evidence, as such the prosecution has not proved any material to prove the caste of the victim. He would further submit that in view of the judgment of Hon'ble the Supreme Court in the matter of Ku. Madhuri Patil v. Addl. Commissioner, Tribal Development, reported in AIR 1995 SC 94 [LQ/SC/1994/798] wherein the Hon'ble Supreme Court has held that the competent authority for issuance of caste certificate is Sub Divisional Officer and the Tahsildar can only be issued temporary certificate which is valid for six months, since no material with regard to the caste of the victim has been produced by the prosecution, therefore, finding recorded by the trial Court for under the Atrocities Act is erroneous and is perverse finding of the fact and on the perverse finding conviction of the appellants for committing the alleged offence under the atrocities Act is illegal as such appellants deserves to be acquitted from the said offence. He would further submits that this Court in CRA No. CRA No. 340 of 2004 in the case of Pilla Bai and others vs. State of Chhattisgarh has examined this issue and has held that when caste certificate is issued by the competent authority i.e. SDO and produced before the court then only the caste can be held to be proved beyond reasonable doubt by the prosecution for conviction under the said offence. Since no relevant material has been placed by the prosecution the finding recorded by the learned is perverse finding and prays for quashing of the offence under Section SC and ST Act.

8. Learned counsel for the State would submit that caste Certificate issued by the Tahsildar is a valid document, on the basis of which, caste of the victim has been determined by the trial Court for convicting the appellants under the SC/ST Act and the caste certificate has validly been proved by prosecution, therefore, the order impugned does not suffer from any irregularly or infirmity warranting interference by this Court in the instant appeal.

9. I have heard learned counsel for the parties and perused the material available on record.

10.For better understanding, to examine issue in this appeal, it is expedient for this Court to examine relevant provisions of the SC/ST Act, 1989 and the relevant provisions of Constitution of India are extracted which read as under:-

"Definition.-(1) in this Act unless the context otherwise requires,-

(c) " Scheduled Castes and Scheduled Tribes" Shall have the meaning assigned to them respectively' under clause (24) and clause(25) of article 366 of the constitution."

11. The provision of of Section 3(1)(v) of the Act is also required to be seen which is reproduced as under:-

"3. Punishments for offences of atrocities.-(1) whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-(v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water: "

12. In view of the foregoing facts, it is apparent that if a person of a scheduled caste or scheduled tribe falls under clause (24) and (25) of Article 366 of the Constitution of India and has been wrongfully dispossessed from his land or premises or interfered with the enjoyment of his rights over the land, premises or water, by the persons not being the member of the scheduled caste or scheduled tribe shall be deemed to have committed the offence of prove the said charge. Clause (24) and (25) of Article 366 specify the definition of Scheduled Caste and Scheduled Tribe which are reproduced as under:-

366. Definitions.-In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say-(24) "Scheduled Caste" means such Castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution;

(25) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution;

13. From perusal of the Article 366 of the Constitution of India, it is clear that such castes, races or tribes or parts of groups will be deemed to be scheduled castes or scheduled tribes who are within such castes, races or tribes as are deemed under Article 341 and 342 of Constitution of India. The Article 341 of the Constitution of India makes it clear that the precedent with respect to any State or Union territory and where it is a State after consultation with the Governor by public notification specify the castes, races or tribes or parts of or groups within castes, races or tribes shall be called to be the scheduled castes or scheduled tribes in relation to that State or Union territory as the case may be. In the said context, it is required to be seen that the prosecution has to establish a case that the complainant belongs to a particular caste or parts of groups or races within the caste which falls within the notified scheduled castes or scheduled tribes to prove the charge under Section 3(1)(v) of the Prevention of Atrocities Act.

14. In this respect, after going through the record it can safely be observed that the prosecution has not submitted any caste certificate to prove that the complainant belongs to scheduled tribe community as the investigating officer has filed temporary caste certificate dated 02.06.1999 which is valid for six months only which is clearly mentioned in the certificate. The evidence was examined on 15.03.2002 on which day the certificate was not in existence as it has already expired being temporary in nature and valid for six months only from the date of issuance of certificate, as such it was incumbent on the part of the prosecution to prove the guilt of the appellants for commission of offence under the Atrocities Act to place on record the valid caste certificate issued by the competent person which is missing in the present case. This issue has come up for consideration before the Hon'ble Madhya Pradesh High Court in the case of Bharat Singh Vs. State of M. P. reported in 2006 (4) MPLJ 174 para 4 has held as under:-

"4. After hearing the learned counsel for the parties and perusing the entire record, this Court is of the considered view that the conviction of the appellants is not sustainable because the prosecution has failed to establish by adducing cogent and reliable evidence that the complainant (PW01) Remeshwar belonged to the Scheduled Caste or Scheduled Tribe community. In the Court Statement Rameshwar (PW-1) has deposed that he belongs to BALAI caste but no-where he has stated that his caste falls within the category of scheduled caste or scheduled Tribe. None of the prosecution witnesses has stated so though the appellants have admitted that the complainant belong to BALAI Community but that itself is not sufficient to establish that the complainant belonged to the scheduled caste community. Learned trial Court, without any evidence on record, has held in para 8 of the judgment that the complainant Rameshwar (PW-1) and Sobalsingh (PW-2) belong to the Scheduled caste community. The authority to prove that the caste of the complainant Rameshwar falls within the category of Scheduled Caste. Filing of caste certificate is sine-qua-non."

15. In the case of Jukum Singh Vs. State of M.P. 2003 (2) MPWN (79), it has been held that the victim must belong either to a scheduled caste or scheduled tribe ought to be established by unimpeachable evidence. On failing to prove by the prosecution, the said charge cannot be found established. In the said context, the judgment of the Bombay High Court in this case Ashok K. Chintawar Vs. State of Maharashtra reported in 2006 CGLJ (2234) is also relevant. In para 6 of the said of the judgment, the court has observed as under:

"6. For this purpose the learned counsel for the appellant relied on a judgment of this Court in Ashabail Ganeshrao Vs. State of Mah. Reported in 1999(2) Mah. L. J. 36. In that case too the complainant's Statement that he belonged to Matang Community had not been challenged. Yet the Court held that prosecution ought to have brought on record cast certificate of the complainant. In the instant case, the accused had specifically denied that the complainant belonged to Madia tribe and had specifically denied that the complainant belonged to Madia tribe and had specifically alleged that the complainant belonged to Gowari caste. In view of this, since it was incumbent on the prosecution to establish that the complainant belonged to Scheduled Tribe by unimpeachable evidence, which the prosecution failed to do the conviction under Section 3(1)(xi) of the Atrocities Act cannot be sustained."

16. Madhya Pradesh High Court in the case of Tulsiram Vs. State of Madhya Pradesh reported in 2012 C.L.R.(M.P.) 765 has held that the victim ought to have proved her caste by producing the caste certificate, mere oral evidence is not sufficient to assume that her caste is covered under the Act. Similarly, this Court in a recent judgment in the case of Ashraf khan Vs. State of Madhya Pradesh, reported in 2013 Cr.L.J. (CG)76 has observed that filing and proving the caste certificate is a sine-qua-non to prove the offence under the Act.

17. The Madhya Pradesh High Court again in the matter of Ashok and Others Vs. State of M. P. reported in ILR (2015) MP 2475 has held at paragraph 13 which reads as under:-

13. Similarly, when it is not proved that the offence committed by the appellants was committed due to the caste of the complainant, therefore, only uttering the word "Chamra", it cannot be said that the appellants insulted the complainant on the basis of his caste. In this connection the judgment passed in the case of "Anil Kumar Pandy V. Daulat Prasad", 2005(4) MPLJ 467] may be referred, in which it is held that if someone has been called by name of his caste without any intention to insult or humiliate a member of scheduled casts, then no offence under Section 3(1)(x) of the Special Act is made out. In the light of the aforesaid judgment, the trial Court has committed an error in convicting the appellants of offence under Section 3(1)(x) of the Special Act."

18. The procedure for issuance of caste certificate has been well prescribed by the Hon'ble Supreme Court in the matter of Ku. Madhuri Patil (supra) which laid down the forum and procedure for issuance of/assailing caste certificate and the status of candidate. Thus, in view of the aforesaid dictum of Hon'ble the Supreme Court, the aforesaid caste certificate has no evidentiary value, as it has not been issued by incompetent authority and the prosecution has failed to discharge its burden to prove the caste as discussed above. Apart from this, from perusal of evidence available on record, it is evident that the appellants have not abused the complainant in filthy language knowing that they belong to Scheduled Tribe Community.

19. Considering the law laid down by the Hon'ble Supreme Court, material evidence on record, it is quite vivid that the prosecution has failed to prove the caste of the victim beyond reasonable doubt, therefore, the conviction of the appellant No. 1 for commission of offence under Section 3(i)(x) of the SC/ST Act and imposition of fine, is set aside and the appellant No. 1 is acquitted from this charge.

20. So far as offence under Section 294 of the IPC and 323/34 of IPC is concerned, it is clearly proved by the prosecution beyond reasonable doubt as the victim (PW-1) has clearly deposed about the assault made by the appellants and there is no effective cross-examination on this point and thus, the appellant No. 1 has been rightly convicted for commission of offence under Sections 294 & 323/34 for six months and appellant No. 2 has been convicted u/s 323/34 IPC and has been sentenced to fine of Rs. 700/-only. Thus, this Court is of the firm view that the offences under Sections 294, 323/34 IPC is made out against the appellant No. 1 and offence under Section 323/34 is made out against appellant No2, therefore, the conviction of the appellants under Sections 294 & 323/34 is hereby maintained.

21. From the record, it is quite vivid that incident took place in the year 1999 and thereby more than 23 years have been elapsed; appellant No. 1 was regularly appearing before the trial Court and after releasing on bail by this Court vide order dated 12.08.2002. Further the appellant No. 1 is the resident of District Kanker and attending this court as and when required by this Court. Therefore, in the peculiar facts and circumstances of the case, ends of justice would be served if the sentence imposed by the trial Court is reduced by enhancing the fine amount of Rs. 5000/-in place of Rs. 1000/-on the appellant No. 1 for the offence under Sections 294, 323/34 of the IPC. The appellant No. 2 shall also pay Rs. 1000/-in place of fine of Rs. 700/-under Section 323/34 IPC.

22. The additional amount of Rs. 4000/-shall be deposited by the accused/appellant No. 1 and Rs. 300/-shall be deposited by the appellant No. 2 before the trial Court within three months from the date of receipt of copy of this order and the same shall be payable to the victim as compensation.

23. Accordingly, the criminal appeal is partly allowed. The appellant No. 1 is reported to be on bail. His bail bond shall continue for a further period of six months from today in view of Section 437-A of Cr.P.C.