Bhagwan Singh And Others v. State Of M.P .

A.P. Shrivastava, J:-

This appeal is di­rected by the appellants against the judg­ment of conviction and sentence dated 21.1.2000. passed by the Special Judge (Scheduled Castes and Scheduled Tribes), Guna (M.P.) in Special Case No.42/96, by which the appellants have been convicted and sentenced as under:

(i) Appellants have been convicted under section 3 (1)(xv) of the scheduled castes and scheduled tribes (prevention of atrocities) act, 1989 (hereinafter referred to as 'the act') and sentenced to un­dergo rigorous imprisonment for six months each with a fine of Rs. 100 each. They have further been convicted under Section 426 of IPC and sentenced to undergo rigorous imprisonment for one month each.

(ii) Appellant Bhagwan Singh has been convicted under sections 323 and 451 of ipc and sentenced to undergo rigorous imprisonment for three months (on both counts) with a fine of Rs. 100.

(ii) Appellant Kishore Singh and In-drapal Singh have been convicted under Section 323 read with Sec­tion 34 of IPC and sentenced to undergo rigorous imprisonment for three months each.

(iv) In default of payment of fine, they have also been directed to under­go imprisonment.

(v) All the sentences are to be run con­currently.

2. In brief, the case of the prosecution is that report was lodged by the complainant Jujla (PW1) on 23.4.96 at about 10:15 at police station Chanderi that a day before occurrence, appellant Bhagwan Singh had come and told the complainant to work at his thresher. Complainant had refused to work at thresher. Thereafter on the date of incident, i.e. on 22.4.96 at village Bhatija appellants came to his house and abused him and also threatened to kill him in case he did not work at thresher and caused dam­age to the bricks of the roof of the house of the complainant. Appellant Bhagwan Singh has also beaten him causing injury to his hand. The complainant was sent to the hos­pital for medical examination. After com­pletion of the investigation, charge-sheet was filed before the Special Court and the trial Court convicted and sentenced the ap­pellants accordingly as stated above.

3. On 30.1.2007 arguments heard finally and on 17.1.2007, aYeference was made by this Court and the matter was referred to the larger Bench to clarify the following points:

(i) Whether the compliance of Rule 7 of Scheduled Castes and Sched­uled Tribes (Prevention of Atroci­ties) Rules, 1995 is mandatory;

(ii) Whether due to non-compliance of the said rule the whole trial would vitiate or only those offences relat­ing to the Scheduled Tribes (Pre­vention of Atrocities) Act, 1989;

(iii) Whether this objection regarding non-compliance of the Rule 7 can be taken for the first time before the Appellate Court; and

(iv) If it is found that Rule 7 is manda­tory whether the Court can direct for reinvestigation in terms of Rule 7 and direct to file fresh charge-sheet before the Court.

4. During the course of final submissions, counsel for the appellants raised the follow­ing points that in this case, there is noncompliance of Rule 7 of SC &ST (Preven­tion of Atrocities) Rules, 1995 (hereinafter referred to as 'the Rules') by the investigat­ing agency. Further, the offences under atrocities act and indian penal code are interlinked to each other. Therefore, the conviction of the appellants cannot be sus­tained and particularly, the charge-sheet was filed against the appellants directly before the Special Court. There is no com­mittal proceeding. Therefore, the judgment of trial Court is erroneous and illegal. Hence, the finding of sentence is not main­tainable.

5. Regarding the non-compliance of Rule 7, what would be the consequence for that is considered in the case of Dhanraj Singh v. State of M.P. 2006(1) M.P.J.R. 70 in which it was held that the entire investigation is vitiated and the conviction cannot be maintained. Accused were acquitted in both the offences under Section 3(1)(10) of the Act and under Sec­tion 323 of IPC. Similar view has been ex­pressed in the case of Bharat Singh v. State of M.P. 2006 Cr. L.J..4429.

6. But, this Court has taken contradicto­ry view in the case of Keshav Singh v. State of M.P. Criminal Appeal No. 29 of 2000. decided on 21.9.2006.

7. The Division Bench of this Court in Criminal Appeal No. 110 of 2000 answered the reference on 24th August, 2007 and the answer recorded by Division Bench is as under:

(1) That, the provisions of rule 7 of the rules are mandatory in nature;

(ii) That, non-compliance of rule 7 of the rules will not vitiate the en­tire trial but vitiate the trial relat­ing to the offences under the Atrocities Act, unless and until the of­fence under the Indian Penal Code has nexus with the offences under the Atrocities Act;

(iii) That, objection regarding non-compliance of the provision of rule 7 of the rules can be taken for the first time before the Appellate Court, but while doing so, the ac­cused will have to satisfy the Ap­pellate Court that due to non-com­pliance of the said provision, grave prejudice is caused to him which has resulted into miscarriage of justice and unless the accused sat­isfies the appellate Court that there was miscarriage of justice, he will not get any benefit of the said provision; and

(iv) If objection is raised at the earli­est opportunity, the Court if satis­fied, can direct for re-investigation and to file charge-sheet, but not at a belated stage of the proceedings.

8. Now, with the answer of the reference given by Division Bench of this High Court, the matter has been finally settled and it was held by Division Bench of this Court that rule 7 of the rules is mandatory in nature. But non-compliance of rule 7 of the rules will not vitiate the entire trial but vitiate the trial relating to the offences un­der the Atrocities Act, unless and until the offence under the Indian Penal Code has nexus with the offences under the Atroci­ties Act. Whether in this case, the offences of Atrocities are interlinked with the offenc­es of Indian Penal Code, will be discussed later on

9. Learned counsel for the appellants raised new objection that in this case, due to non-committatl proceedings, the trial would be vitiated. He submits that being a legal objection this can be raised at the appellate stage also.

10. This is a crucial point whether due to non-committal proceeding, the trial would be vitiated,

11. Counsel for the appellants mainly relied on GangulaAshok & another v. State of A.P (2000)2 SCC 504 Vidyadharan v. State of Kerala (2004) 1 SCC 215 and Moly & another v. State of Kerala (2004) 4 SCC 584.

12. Case of State of M.P. v. Bhooraji and Others 2001(7) SCC 679 also discussed. It is submitted by the counsel for the appellants that in view of the citations submitted by him, the prin­ciples of Bhooraji and Others (supra) case will not be applicable.

13. I would like to discuss the relevant decisions on this point pronounced by this High Court as well as the Hon'ble Apex Court. Since, the Act came into force in the State of Madhya Pradesh, this point was considered in the case of Meerabai v. Bhujbal Singh 1995 Cr. L.J. 2376 in which the Division Bench of this High Court held that the Special Court has no jurisdiction to try the offences unless the case is committed to it in view of section 193 of cr. p.c. But, subsequently, in the case of Anand Swaroop Tiwari v. Ram Ratan Jatav and others 1996 MPLJ 141 the Full Bench of this High Court held that a Special Court under prevention of atrocities act is not to function as a Sessions Court but as a Court of original jurisdiction. It can take cogni­zance of any offence without committal or­der by the Magistrate.

14. Thereafter, in the case of Gangula Ashok and another (supra), the Apex Court held that under the Prevention of Atroci­ties Act, Special Court is a Court of Session. It is specified for trial of offences as distin guished from "inquiry" as defined in Sec­tion 2(g)of Cr.P.C. Therefore, it cannot take cognizance directly as a Court of original jurisdiction without the case being commit­ted to it by a Magistrate in view of section 193 of cr.p.c. sections 4 and 5 of cr.p.c. do not indicate any departure from this po­sition.

15. In the case of Vulyadharan (supra), the Apex Court considered the aspect whether Special Court under the Act is a Court of Session; whether ''Special Court" under the Act being a Court of Session, ex-cepted from interdict of section 193 of cr. p.c., 1973; whether there was any express provision in the Act or in Cr.P.C. excepting the Special Court and further whether a combined reading of sections 4(2) and 5 of cr.p.c. excepted the Special Court.

"The Apex Court has discussed this point. The relevant para IS of its judg­ment contains that:

"Section 193 of the Code has to be understood in the aforesaid back­drop. The section imposes an in­terdict on all Courts of Session against taking cogni/ance of any offence as Court of original juris­diction. It can take cognizance only if "the case has been committed to it by a Magistrate'1 as provided in the Code. Two segments have been indicated in Section 193 as excep­tions to the aforesaid interdict. One is, when the Code itself has provided differently in express lan­guage regarding taking of cogni­zance, and the second is when any other law has provided differently in express language regarding tak­ing cognizance of offences under such law. The word 'expressly' which is employed in Section 193 denoting those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the Section only if it is provided dif­ferently in clear and unambiguous terms. In other words, unless it is positively and specifically provid­ed differently, no Court of Session can take cognizance of any oi'fence directly, without the case being committed to it by a Magistrate."

16. In the case of Moly and another (su­pra), it is held by the Apex Court that un­der the Prevention of Atrocities Act, under section 14 & 2( 1 )(d), Special Court is a Court of Session. It is specified for trial of offenc­es as distinguished from 'inquiry'. Cogni­zance can be taken by said Court directly as a result of Court of original jurisdiction without the case being committed to it by a Magistrate. It is not permissible in view of section 193 of cr.p.c. In the absence of any contrary provision in the 1989 Act or in Cr.P.C. in that regard, section 5 of cr. p.c. cannot be brought in aid for supporting the contrary view. The word "except as other­wise expressly provided" used in Cr.P.C. thai means except positively provided dif­ferently in clear and unambiguous lan­guage.

17. The Apex Court in the case of Bhoo-raji and Others (supra) dealt with the mat­ter elaborately and also distinguished the case which was decided by the Apex Court in the case of Gangula Axhok and another (supra). The factual position in the case of Bhooraji and others (supra) is that police, after investigation, filed charge-sheet against eleven accused in respect of vari­ous offences including Section 302 read with Section 149 of I PC and Section 3(2) of the Act. The case started in January 1992 be­fore the Court of Additional Sessions Judge, Dhar (M.P.) which was the specified Court as per Section 14 of the said Act. The charg­es were framed and the case was decided on 23.S. 1995 by convicting all the eleven accused under sections 148, 323, 302 read with section 149 of ipc and sentenced them to various punishments including imprison­ment for life. All the eleven accused persons filed appeal before the High Court of Madhya Pradesh. It was during the penden­cy of the said appeal that the Hon'ble Su­preme Court decided the case in Gangula Ashok and another (supra) in which it was held that committal proceedings are neces­sary for a specified Court under the SC & ST Act to take cognizance of the offences to be tried. But the legal position which held by the field in the State of Madhya Pradesh till then was the same on account of a judg-ment pronounced by a Division Bench of the High Court of Madhya Pradesh in Meera-bal (supra) case. But the said legal position was changed in the State when a Full Bench of the High Court of Madhya Pradesh over­ruled the aforesaid dictum by a judgment pronounced in Ana/id Swaroop Tiwari (su­pra). The Full Bench in para 20 of its judg­ment held that:

"Section 193 of the Code of Criminal Procedure does not apply to proceed­ings under the SC & ST Act and com­mittal orders are not required."

The Full Bench, in order to prevent rep­etition of trials already held or started, took the precautionary measure of directing that;

"where cognizance has already been taken on the basis of committal orders in police challan cases, it is not neces­sary for the Courts to retrace their steps or to take cognizance afresh."

18. The Apex Court also observed that when this Court, pronounced the judgment in Gangula Ashok and another (supra) case, the legal position as was adopted by the Division Bench of the M.P. High Court in Meerabai (supra) case, got revived and the Full Bench decision got eclipsed. Taking advantage of this Court, all the convicted persons filed I.A. No. 288 of 2000 before the High Court seeking quashment of the trial proceedings on the ground that:

"The trial was without jurisdiction in­asmuch as the specified Court of Ses­sion did not acquire jurisdiction to take cognizance of and try the case, in the absence of it being committed by a Magistrate."

"The entire trial held by the Court be­low shall stand.quashed and the trial Court was directed to return the charge-sheet and the connected papers to the prosecution for resubmission to the Magistrate for further proceedings in accordance with law."

Against this order, the State of MP filed an appeal before the Apex Court. It is observed by the Apex Court that in the present case, where the accused did not raise any question when they were heard at the time of framing of the charge, that the Court cannot proceed without commit­tal made by a Magistrate. Nor did they raise such a plea at any stage either before or af­ter the evidence was recorded by the trial Court. The convicted persons thought of raising such a contention only when they found the decision of this Court in Gangula Ashok and another (supra) as useful to them.

19. Now, I will quote some important and relevant paras of the judgment in Bhooraji and Others (supra) case which are as fol­low:

8. "The real question is whether the High Court necessarily should have quashed the trial proceedings to be repeated again only on ac­count of the declaration of the legal position rnado by the Supreme Court concerning the procedural aspect about the cases involving offences under the SO & ST Act. A de iiovu trial should be the last re­sort and that too only when such a course becomes so desperately in­dispensable. It should be limited to the extreme exigency to avert "a failure of justice".

Any omission or even the illegali­ty in the procedure which does not affect the core of the case is not a ground for ordering a de nouo tri­al. This is because the appellate Court has plenary powers for re-valuating and reappraising the evidence and even to take addition­al evidence by the appellate Court itself or to direct such additional evidence to be collected by the tri­al Court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons to the Court once again for repeating the whole dep­ositions would oe a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence, the said course can he re­sorted to when it becomes unpre-ventable for the purpose of avert­ing ''a failure of justice."

13. It is useful to refer to section 462 of the code which says that even proceedings Conducted in a wrong Sessions division are not liable to be set at daught merely on that ground. However, an exception is provided in that section that if the Courtis satisfied that proceedings conducted erroneously in a wrong Sessions division "has in fact oc­casioned a failure of justice", it is open to the Higher Court to inter­fere. While it is provided that all the instances enumerated in Sec­tion 461 would render the proceed­ings void, no other proceedings would get vitiated ipso facto mere­ly on the ground that the proceed­ings were erroneous. The Court of appeal or revision has to examine specifically whether such errone­ous steps had in fact occasioned a failure of justice. Then alone the proceedings can be set aside. Thus the entire purport of the provisions subsumed in Chapter XXXV is to save the proceedings linked with such erroneous steps, unless the error is of such a nature that it had occasioned a failure of justice.

14. We have to examine section 465(1) of the code in the above context, it is extracted below:

"465(1) "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the com­plaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, or any error, or ir­regularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been oc­casioned thereby."

15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during: the trial or in any enquiry were reckoned by the Legislature as possible occurrences in criminal courts. Yet the Legislature dis-favoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the Legislature imposed a prohibition that unless such error, omission or irregularity has occasioned 'a failure of justice' the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity."

16. What is meant by 'a failure of justice', occasioned on account of such error, omission or irregularity This Court has observed in Shatnn Saheb M. Multani v. State of Karnatuka, (2001) '2 SCC 577 thus:

''We of ten hear about 'failure of justice' and quite of ten the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression 'failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment, 1977 (1) All ER 813. The criminal Court, particularly the Superior Court, should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage."

17. It is an uphill task for the accused in this case to show that failure of justice had in fact occasioned merely be­cause the specified Sessions Court took cognizance of the offences .without the case being committed to it. The nor­mal and correct procedure of course, is that the case should have been com­mitted to the Special Court because that Court being essentially a Court of Session can take cognizance of any offence only then. But if a specified Sessions Court, on the basis of the le­gal position then felt to be correct on account of a decision adopted by the High Court, had chosen to take cogni­zance without a committal order, what is the disadvantage of the accused in following the said coursed

23. We conclude that the trial held by the Sessions Court reaching the judgment impugned before the High Court in ap­peal was conducted by a Court of com­petent jurisdiction and the same can­not be erased merely on account of a procedural lapse, particularly when the same happened at a time when the law which held the field in the State of Madhya Pradesh was governed by the decision of the Full Bench of the Madhya Pradesh High Court-(supra). The High Court should have dealt with the appeal on merits and on the basis of the evidence already on record. To facilitate the said course, we set aside the judgment of the High Court im­pugned in this appeal. We remit the case back to the High Court for dis­posal of the appeal afresh on merits in accordance with law and subject to the observations made above.

20. The case vfMeerabai (supra) was de­cided by the Division Bench of this High Court on 24.1.1994. The Full Bench of this High Court gave its decision in Anand Swa-roop Tiwari (supra) case on 23.8.1995. The case of Gangulu Ashok and another (supra) was pronounced by the Apex Court on

28.1.2000; the case of Bhooraji and Others (supra) was pronounced on 24.8.2001 while the cases of Vidyadharan (supra) & Moly and another (supra) decided by the Apex Court on 14.11.2003 & on 23.3.2004.

21. It is submitted by learned counsel for the appellants that four judgments on this [joint i.e. Gangula Ashok and another (su­pra). Vidyadharan (supra), Moly and anoth­er (supra) and Bhooraji and Others (supra) were decided by the Apex Court and sub­mitted that if two decisions on the same point are given by Superior Court, the lat­ter view could be prevailed. In this regard, he relied on Rajpur Ruda Me ha and others v. State, of Gujarat AIR 1980 SC 1707 in which it is held that about the precedent when certain question is neither raised nor argued a discussion by court after 'pondering over the issue in depth' would not be a binding precedent.

22. The basis of judgment on this point of Gangula Ashok and another (supra) has been discussed by the Apex in subsequent decisions specially in the case of Bhooraji and Others (supra), the Apex Court also dis­tinguished the applicability of Gangula Axhok and another (supra) case in its judg­ment and the reasons have been given elab­orately by the Apex Court.

23. About the precedent, in the case of Shankarlal Gyarasila.l Dixit v. State of Maharashtra AIR 1981 SC 765 the Apex Court observed that legal principles are not magic incanta­tions and their importance lies more in their application to a given set of facts than in their recital in the judgment. Further, in the case Ambalal Manibhai Patel and others v. State of Gujarat and others AIR 1987 SC 1073 it is observed that the ratio of any decision must be un­derstood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what is actu­ally decides, and not what logically follows from it.

24. From the perusal of record, it is found that the present case has been filed before the Special Court on 28.5.96 against the appellants by police station Chanderi un­der Sections 451, 323, 426 of IPC and under Section 3(1)(xv) of the Act and during the relevant time, the law pronounced by the Full Bench of this High Court in the case of Anand Swaroop Tiwari (supra) was prevail­ing and it was decided on 23.8.1995. The judgment of this case was delivered on 21.1.2000 and after passing the judgment and when the appeal was pending, the de­cision in Gangula Ashok and another (su­pra) case was pronounced by the Apex Court on 28.1.2000.

25. Therefore, looking to the factual as­pect of the case and ratio decided by the Apex Court in Bhooraji and Others (supra) case, the trial would not vitiate on the ground that committal proceeding has not been followed by the Court. From the record of the lower Court and the impugned judg­ment, it appears that no such objection has been taken by the appellants at the time of trial regarding the non-compliance of pro­cedural lapse.

26. Therefore, regarding the committal proceedings before the Special Court in view of Gangula Ashok and another (supra) case and subsequent law on this point, it is clear that Special Courts under section 14 of the atrocities act are Courts of Session and committal proceedings arc necessary under section 193 of cr.p.c. But in the present case, the principle of Gangula, Ashok and another (supra) case is not applicable as al­ready discussed in detail earlier. Therefore, due to non-committal proceedings, the im­pugned judgment cannot be erased merely on the ground of procedural lapse in view of observations math1 in Bhooraji and Others (supra) case.

27. Jn view of legal objection raised by learned counsel for the appellants and the discussions made in the aforesaid paras and the proposition of law laid down by the Di­vision Bench of this Court as well as by the Apex Court, the position is now clear and settled:

(i) That, the provisions of rule 7 of the rules are mandatory in nature;

(ii) That, non-compliance of rule 7 of the rules will not vitiate the entire trial but vitiate the trial relating to the offences under the Atrocities Act, unless and until the offence under the Indian Penal Code has nexus with the offences under the Atrocities Act;

(iii) That., the objection regarding non-compliance of the provision of rule 7 of the rules can be taken for the first time before the appellate Court, but while doing so, the accused will have to satisfy the appellate Court that due to non-compliance of the said provision, grave prejudice is caused to him which has resulted into miscarriage of justice and unless the accused satisfies the appellate Court that there was miscarriage of justice, he will not get any benefit of the said provision;

(iv) If the objection is raised at the earliest opportunity, the Court if satisfied, can direct for reinvestigation and to file charge-sheet, but not at a belated stage of the proceedings.

(v) In view of the decision in the case of Gangulo. Ashok and another (supra), the committal proceedings before the Special Court are mandatory in view of section 193 of cr.p.c. But, those cases which were filed directly before the Special Court without committal proceedings in view of the decision of the Full Bench of this Court in Anand Swaroop Tiwari (supra) case prevailing at that time, the proceedings cannot be quashed due to procedural lapse as mentioned unless occasioned failure of justice as lays down by the Apex Court in Bhooraji and Others (supra) case.

28. Now, I will consider the factual as­pect of the case.

29. All the appellants wore convicted by the trial Court under Section 3( l)(xv) of the Act and under Section 426 of IPC, Appel­lant Bhagwan Singh in addition to above conviction, convicted under sections 451 and 323 of ipc while the remaining appel­lants in addition to above conviction convict­ed under Section 323 of IPC with the aid of section 34 of ipc. The allegation against the appellants is that they tried to dispossess the complainant Jujla (PWl) knowing that he is the member of Scheduled Caste. All the appellants entered into the house of the complainant. Appellant Bhagwan Singh entered into the house of the complainant by damaging his Khapra and thereby com­mitted the act of 'mischief. Regarding the dispossession, in examination-in-chief, the complainant deposed that the quarrel took place due to refusal of work as a labourer without charges. The appellants came to the house of the complainant with the appel­lant Bhagwan Singh; and they all entered into the house of the complainant and brought the complainant outside of the house. In this regard, the complainant Juj-la (PWl) stated that appellant Bhagwan Singh told him to work in his house. When he refused, then filthy language was used by the appellant Bhagwan Singh. It is fur­ther alleged that appellant Bhagwan Singh was taken the complainant outside of the house and threatened him that he would dispelled him from the village. Thereafter, appellant Bhagwan Singh inflicted farsa blow on his right hand, appellant Indrapal Singh gave a lathi blow on his right hand and appellant Kishore Singh gave blow by shoe on his face. The wife of the complain­ant Smt. Kunwar Bai (PW2), Brijbhan (PW5) were present on the spot at the time of incident. In para 7 of his cross-examina­tion, the witness admits that two bigha of land has been forcibly taken by the appel­lant Bhagwan Singh. Appellants are broth­ers and they were cultivating his land for the last 7-8 years. When the complainant asked them to return his land, they refused to do so. Patta was prepared in his name. Regarding the infliction of injuries, minor contradictions and omissions came out in the cross-examination. In the cross-exami­nation, the witness turned his version about infliction of injuries by farsa.

30. Smt. Kunwar Bai (PW2), who is wife of the complainant, deposed that all the appellants entered into the house of the complainant by damaging Khapra and they took the complainant outside the house and beat her husband.

31. Brijbhan (PW5), who is an eyewitness of the incident, has not supported the pros­ecution case. According to the witness, in his presence, no incident has taken place. He was declared hostile by the prosecution.

32. Similarly, Sukhar (PW6) has turned hostile and he has also not supported the prosecution case.

33. Dr. R. P. Sharma (PW3) examined the complainant Jujla (PWl) "on 23.4.96 and found simple injuries which were caused by hard and blunt object. The report is Ex. P2. L.C, Shriwas (PW4) proved the First In­formation Report which is Ex. PI. A.S.I. Chandan Singh Parihar (PW7) conducted the investigation of the case and also pre­pared the sop map.

34. All the independent witnesses have not corroborated the version of the com­plainant Jujla (PWl). According to the com­plainant, appellant Bhagwan Singh entered into his house. As per Smt. Kunwar Bai (PW2), who is wife of the complainant, stat­ed that all the appellants entered the house of the complainant and they broken his Khapra. The prosecution has proved Ex. P4 which is Nuksani Panchanama but the witness Sukhar (PW6) supported the Nuk­sani Panchanama Ex.P4. However, it was not proved by the complainant himself. The testimony of Investigating Officer Chandan Singh Parihar (PW7) shows that he pre­pared Nuksani Panchanama Ex. P4. Ac­cording to this Panchanam.a, the loss is worth Rs. 500. The testimony of Investigat­ing Officer in this regard remained unchal­lenged although it is not corroborated by independent witnesses. Looking to the tes­timony of the complainant and the Investi­gating Officer, it is not proved that the loss of Khapra caused to the complainant is worth Rs.500/.

35. Regarding the offence under Section 3(1)(xv) of the Act, the essential ingredient of the Section is that:

"Whoever not being a member of Scheduled Caste or Scheduled Tribe; forces or causes a member of Sched­uled Caste or Scheduled Tribe to leave his house, village or other place of resi­dence, shall be punishable under this section."

36. Regarding the objection of non-com­pliance of Rule 7 as decided by the Division Bench of this Court although the rule 7 of the rules will not vitiate the entire trial but vitiate the trial relating to the offences un­der the Atrocities Act, unless and until the offence under the Indian Penal Code has nexus with the offences under the Atroci­ties Act. This objection has been raised by the appellants for the first time during the appellate stage but while doing so, the ac­cused will have to satisfy the appellate Court that due to non-compliance of the said provision, grave prejudice is caused to him which has resulted into miscarriage of jus­tice and unless the accused satisfies the appellate Court that there was miscarriage of justice, he will not get any benefit of the said provision, In this case also the counsel for the appellants has not satisfied the Court that why this objection was not raised be­fore the trial Court and what prejudice or miscarriage of justice is caused to him due to non-compliance. Therefore, the objection is not sustainable.

37. In this case, the cause of dispute arose due to refusal of the complainant to work as a labourer without charges in the house of the appellant Bhagwan Singh or at his thresher. On this dispute, the appellant Bhagwan Singh entered into the house of the complainant; and caused damage his K/iapra; and brought him outside the house and inflicted injuries to him which arc sim­ple in nature.

38. From the evidence on record, it does not appear that there was any intention of the appellants to dispossess the complain­ant from his house, being a member of Scheduled Caste or Scheduled Tribe. The backdrop of the case clearly shows that the incident took place due to refusal of the com­plainant to work. To take revenge, the ap­pellant Bhagwan Singh went to the house of the complainant, brought him outside the house and inflicted simple injuries to him. Therefore, the essential ingredients of Sec­tion 3(1)(xv) are not proved by the prosecu­tion against the appellants beyond reason­able doubt.

39. In view of the above discussion, it is found that the offence under Section 3( l)(xv) of the Act is not proved against all the ap­pellants. Further, it has also come in the evidence that only the appellant Bhagwan Singh entered into the house of the com­plainant although version of the wife of the complainant is inconsistent on this point. According to the complainant, only appel­lant Bhagwan Singh entered into the house of the complainant but his wife stated that all the appellants entered into the house of the complain ant which is not, proved as per the prosecution story. Therefore, offence under Section 426 of IPC is only made out against the appellant Bhagwan Singh and it is not established against rest of the ap­pellants. But from the evidence, it is clear that the appellants caused injuries to the complainant and all the injuries are found to be simple in nature. The conviction of all the appellants under Section 3(1)(xv) of the Act and except Bhagwan Singh, conviction against the remaining appellants under Section 426 of IPC are hereby set aside. If the amount of fine is realized, it be returned to them. Appellant Bhagwan Singh is con­victed under sections 451,323 & 426 of ipc while the remaining appellants are convict­ed under Section 323 read with Section 34 of IPC.

40. Regarding the sentence, it is submit­ted by the counsel for the appellants that the incident took place on 22.4.1996, since then nearly 12 years have elapsed and the charges which were proved by the prosecu­tion are minor in nature, therefore, looking to the long-pendency of the case, the Court should take lenient view in awarding the sentence.

41. Looking to the above facts and cir­cumstances of the case, the sentence of the appellant Bhagwan Singh under sections 451, 323 & 426 of ipc is reduced to the pe­riod already undergone but the amount of fine to the tune of Rs. 1,000 is imposed un­der Section 323 of IPC and amount of fine to the tune of Rs. 500 is imposed under Sec­tion 426 of IPC while the amount of fine as awarded by learned trial Court under Sec­tion 451 of IPC is enhanced from Rs. 100 to Rs. 500. The sentence of the rest of the ap­pellants under Section 323 read with Sec­tion 34 of IPC is also reduced to the period already undergone but the amount of fine is imposed to the tune of Rs. 1,000 on each. In default of payment of fine, the appellants have to undergo simple imprisonment for one month on each count. On realization of the fine amount, Rs. 1,000 (Rupees one thou­sand only) be given to the complainant as compensation under section 357 of cr.p.c. Bail bonds of the appellants shall stand dis­charged. They are directed to deposit the amount of fine before the trial Court within a period of 15 days from the receipt of this j udgment.

42. Copy of this judgment be sent to the concerning Court for necessary compliance.

43. With the above modification, the ap­peal stands disposed of.

Appeal disposed of.