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2003 DIGILAW 626 (MP)

Hukum Singh v. State of M. P.

2003-04-28

S.K.SETH

body2003
JUDGMENT This appeal by the appellants is against the judgment dated 14.7.1992 passed by the 3rd Additional Sessions Judge, Shajapur (Camp Shujalpur) in S.T. 131 of 1991. By the impugned judgment the appellant No.1 Hukum Singh has been convicted for having committed offences punishable under Ss. 458, 354, 323 IPC read with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the Act of 1989) though no sentence was handed down to the appellant No. 1 and Aziz appellant No.2 having committed offences punishable under Ss. 456, 323 IPC. Details of their offences and sentence in respect of each count passed by the learned trial Court are as under -- Offence Sentence Hukum Singh 458 IPC 4 years RI + Fine of Rs. 500/- in default 3 months RI. 354 IPC 2 years RI + Fine of Rs. 250/- in default 1 & 1/2 months RI 323 IPC 6 months RI + Fine of Rs. 250/- in default 1 & 1/2 months RI Aziz 456IPC 1 years RI + Fine of Rs. 250/- in default 1 & 1/2 months RI. 323 IPC 6 months RI + Fine of Rs. 250/- in default 1 & 1/2 months RI. Out of the fine amount of Rs. 1,000/- payable by appellant No.1, trial Court ordered payment of Rs. 500/- and Rs. 250/- to Krishnabai and Hariprasad respectively as compensation under section 357 CrPC. The relevant facts that are material for the disposal of the present appeal are as under. That about 1 a.m. in the night of 13.2.1991, appellant No.1 and 2 entered the hut where Krishnabai (PW 4) was sleeping with the intention to outrage her modesty and commit rape. Hearing the noise she woke up and noticed the presence of appellant No.1 and 2 in the hut. No sooner she woke up, appellant No.1 smashed electric bulb which was burning inside the hut and then forcibly committed rape causing her other personal injuries. Alerted by the hue and cry raised by her, Hariprasad (PW 5) her husband who was guarding the crop in the adjoining field rushed to her rescue. As soon as reached the hut, appellant No. 1 and 2 along with two others assailants who were hiding outside the hut gave beating to Hariprasad and then ran away from the scene. Alerted by the hue and cry raised by her, Hariprasad (PW 5) her husband who was guarding the crop in the adjoining field rushed to her rescue. As soon as reached the hut, appellant No. 1 and 2 along with two others assailants who were hiding outside the hut gave beating to Hariprasad and then ran away from the scene. As a result of beating, PW 5 remained unconscious throughout the night and upon regaining consciousness in next morning i.e. on 14.2.1991, Krishnabai and her husband Hariprasad narrated the incident to village Kotwar Prabhulal (PW 1) and Ramswarup (PW 2), the younger brother of Hariprasad. Thereafter they went to police Choky Kalapipal and Krishnabai lodged the FIR (Ex. P. 3) on 14.2.1991 that set in motion the investigation. After completion of the investigation, the P.S. Shujalpur filed the charge sheet against the appellants and one Shivprasad. Learned Sessions Judge, as against appellant No.1 Hukum Singh, initially framed charges for offences punishable under section 376,450 and 323 IPC. As against other two co-accused persons trial Court framed charges for offence punishable under 456 and 323 IPC. During trial, after recording the evidence of Krishnabai (PW 4), in view of the charge for offence under section 376, learned Sessions Judge framed additional charge for offence under section 3(2)(v) of the Act of 1989 against appellant No.1 only. At the trial, accused persons abjured their guilt and submitted that they have been falsely implicated. Learned trial Court after appreciating material evidence, as has been brought on record by the prosecution during trial, found that no offence has been proved against the accused No.3 Shivprasad on any count therefore, he was acquitted of all the charges framed against him. State has not preferred any appeal against his acquittal so it has become final. So far as charges under section 450 and 376 against appellant No. 1 are concerned, on the basis of the. evidence on record, learned Sessions Judge found that the prosecution has failed to prove the either of the offences punishable under section 450 or 376 against appellant No.1, and therefore, he was acquitted of those two charges. However, learned trial Judge on the basis of evidence found that the both the appellants are guilty of having committed the offences hence convicted and passed sentences against them as mentioned above. However, learned trial Judge on the basis of evidence found that the both the appellants are guilty of having committed the offences hence convicted and passed sentences against them as mentioned above. Although learned Sessions Judge found appellant No. 1 guilty of offence under section 3(2)(v) of the Act of 1989 and convicted him without awarding sentence, Shri Bohra, learned counsel for the appellants at the outset very vehemently submitted that the conviction of the appellant No.1 under section 3(2)(v) of the Act of 1989 is unsustainable in law in as much as it has not been proved beyond reasonable doubt by the prosecution that Krishnabai (PW 4) and Hariprasad (PW 5) belong either to Scheduled Caste or Scheduled Tribe. In this Regard he has read out the FIR (Ex. P-3) filed in P.S. Shujalpur and deposition of Krishnabai (PW 4) and Hariprasad (PW 5). According to learned counsel, except for the fact that in the FIR, caste of Krishnabai has been mentioned as , 'CHAMAR' , there is no iota of evidence to establish that Krishnabai fPW 4) and Hariprasad (PW 5) belong either to Scheduled Caste or Scheduled' Tribe. Even, Krishnabai (PW 4) who was re-examined after the additional charge for offence under S. 3(2)(v) of the Act of 1989 was framed, did not say anything about belonging to Scheduled Caste or Scheduled Tribe. Shri Bohra, learned counsel for the appellants has strongly criticised the· conviction under section 3(2)(v) of the Act of 1989 and has urged that the trial Court without any discussion on the subject or marshalling of the evidence, has wrongly come to the conclusion that appellants are guilty of the offence under section 3 (2)(v) of the Act of 1989. Shri Salim, learned Panel Advocate appearing for the State could not point out any piece of substantive evidence so as to sustain charge under 3(2)(v) of the Act of 1989. In the absence of any substantive piece of evidence so as to make out an offence under section 3 (2)(v) of the Act of 1989, the conviction and sentence of the appellants for the said offence cannot be sustained. It is a sine qua non that the victim must belong either to a Scheduled Caste or Scheduled Tribe. In the absence of any substantive piece of evidence so as to make out an offence under section 3 (2)(v) of the Act of 1989, the conviction and sentence of the appellants for the said offence cannot be sustained. It is a sine qua non that the victim must belong either to a Scheduled Caste or Scheduled Tribe. Since the prosecution miserably failed to prove this vital fact through substantive evidence that the victim belongs to Scheduled Caste or Scheduled Tribe, in the considered opinion of this Court, conviction of the appellants for an offence under section 3(2)(v) of the Act of 1989 cannot be sustained in law and the same is therefore set aside and the appellants are acquitted of the said offence. As regards the conviction and sentence for the other offences, learned counsel for the appellants submitted that appellants have been falsely roped in due to previous enmity between the appellant No. 1 and Hariprasad (PW 5). However, in the light of evidence of Krishnabai (PW 4) coupled with the medical evidence of Dr. (Smt.) Vyas (PW 3) who had, upon examination found number of external injuries on Krishnabai, as per her report Ex. P. 2, in the opinion of this Court, conviction of appellants for offence punishable under section 456, 458,354 and 323 do not warrant any interference. In view of this, learned counsel submitted that a lenient view might be taken for the reason 'that incident took place in the year 1991 and both appellants were on bail not only during trial but also during pendency of the above appeal. They have not misused their liberty. It is also argued that a further order for custodial sentence at this distance of time may cause rupture to social harmony in the village life and may only help to rekindle the flames of anger and looking to the age of the appellants interest of justice would be served by enhancing the amount of the fine and treating the period of sentence already undergone as sufficient punishment.. Shri A. Salim, learned panel lawyer for the State fairly conceded to the proposal and submitted that as regards Appellant No. 1 the amount of fine under Ss. 458, 354 and 323 IPC may be raised to Rs. 2,000/-, Rs. 1,000/- and Rs. 7501- respectively. Shri A. Salim, learned panel lawyer for the State fairly conceded to the proposal and submitted that as regards Appellant No. 1 the amount of fine under Ss. 458, 354 and 323 IPC may be raised to Rs. 2,000/-, Rs. 1,000/- and Rs. 7501- respectively. Similarly, for the accused Appellant Aziz, the fine amount u/s 456, 354 and 323 may be raised proportionately. . After considering the submission of the learned counsels for the parties, this Court is of the view that the sentence already undergone by the appellants is sufficient to meet the ends of justice, however, the fine amount imposed by the trial Court is enhanced and it is ordered that the appellant No.1 shall pay fine of Rs. 1000/-; 750/- and 500/- on each count respectively and in default he shall undergo simple imprisonment of two months similarly, appellant No.2 shall pay fine of Rs. 750/- on each count respectively and in default he shall undergo simple imprisonment of one month. Both appellants shall pay the fine amount within 1 month from the date of this order. Out of the fine amount payable by appellant No.1, Krishnabai and Hariprasad would be entitled to receive an amount of Rs. 1,500/- in addition to compensation already awarded by the trial Court, The judgment of the trial Court is modified to the extent as indicated above. The appeal, is thus, partly allowed.