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2009 DIGILAW 1233 (MP)

Rambhagat @ Ram Bharose Yadav v. State of M. P.

2009-10-30

SUSHMA SHRIVASTAVA

body2009
JUDGMENT : Smt . Sushma Shrivastava ,J.: -- Appellantshave preferred this appeal challenging their conviction and order of sentencepassed by Special Judge, Mandla in Special CaseNo.125/98, decided on 12.01.2000. 2.Appellants have been convicted under Section 323 of IPC for causing simple hurtto Shambhu Prasad and sentenced to pay fine ofRs.700/- each, in default simple imprisonment for three months. Appellant No. 1has been further convicted under Section 354 of IPC and Section 3(1 )( xi) of Scheduled Caste and Scheduled Tribe (Prevention ofAtrocities) Act, 1989 (hereinafter referred to as ‘Act’) and sentenced torigorous imprisonment for six months each for the respective offences and alsosentenced to pay a fine of Rs.200/- for the offence under Section 3(1)(xi) ofthe Act by the impugned judgment. 3.According to prosecution, on 26.8.98 about 5:30 in the evening, prosecutrix , a member of Scheduled Caste, had gone to answer the call of nature on theriverside of the field near village Marvari . When the prosecutrix was sitting for easing herself, appellant Rambhagat came there; prosecutrix then got up, but appellant Rambhagat caught hold ofher hands with intent to outrage her modesty and also tried to pull her sari.Upon hue and cry, her nephew Ganesh noticed theincident and called the husband of the prosecutrix .When Shambhu Prasad, the husband of the prosecutrix came there and inquired about the incident fromappellant Rambhagat , he began assaulting him. By thattime, the other appellant, the father of appellant No.1, also came there andcaught hold of the neck of Shambhu Prasad andthereby-both the appellants caused hurt to him. The matter was reported to thePolice. On the basis of report lodged by prosecutrix next day, an offence was registered against the appellants and wasinvestigated. Injured Shambhu Prasad was sent formedical examination. After due investigation, appellants were prosecuted underSections 354,323/34 of IPC and Section 3(1) (xi) of the Act and were put totrial before Special Court , Mandla . 4.Appellant No.1 was charged under Sections 354, 323 of IPC and Section 3(1) (x)and (xi) of the Act, whereas appellant No.2 was charged only under Section 323 of IPC and Section 3(1) (x) of the Act. 5.Appellants abjured the guilt and pleaded false implication due to enmity. 4.Appellant No.1 was charged under Sections 354, 323 of IPC and Section 3(1) (x)and (xi) of the Act, whereas appellant No.2 was charged only under Section 323 of IPC and Section 3(1) (x) of the Act. 5.Appellants abjured the guilt and pleaded false implication due to enmity. 6.Learned Special Judge, after trial and upon appreciation of the evidenceadduced in the case, acquitted the appellants of the charges under Section 3(1)(x) of the Act, but found them guilty under Section 323 of IPC, also foundappellant No.1 guilty for committing offence under Sections 354 and 3(1) (xi)of the Act, convicted and sentenced them as aforesaid by the impugned judgment,which has been challenged in this appeal. 7.Appeal is preferred inter alia on the ground that theTrial Court erroneously convicted the appellants without there being any cogentand reliable evidence against them and without considering that there was delayin lodging the FIR and the entire story was an after thought. 8.Learned counsel for the State, on the other hand, justified and supported theconviction of the appellant. 9.Perused the evidence on record. Prosecutrix (P.W-1)deposed in her evidence that at the relevant time, when she had gone forlatrine near the river side and sitting on the ground, appellant Rambhagat came there; when she got up, appellant Rambhagat caught hold of her hands and tried to pull hersari. When she shouted for help, her nephew Ganesh heard her voice and called her husband Shambhu Prasad. 10. Shambhu Prasad (P.W-2), the husband of the prosecutrix admittedly did not witness the alleged incidentof indecent assault on his wife. Ganesh Prasad(P.W-4), the nephew of the prosecutrix , thoughidentified both the appellants during his evidence, merely deposed that onhearing the voice of the prosecutrix , he noticed thata boy was holding her hand; he did not name the appellant No. 1 as the person,who caught hold of the hands of the prosecutrix . Ifthe incident of the indecent assault by appellant No. 1 on the prosecutrix was true, her nephew Ganesh Prasad (P.W-4) would also have specifically seen and named him. Moreover, Ganesh Prasad (P.W-4) also never stated in his evidencethat he had seen appellant No. 1 or the boy, pulling sari of the prosecutrix , as deposed by her. Ifthe incident of the indecent assault by appellant No. 1 on the prosecutrix was true, her nephew Ganesh Prasad (P.W-4) would also have specifically seen and named him. Moreover, Ganesh Prasad (P.W-4) also never stated in his evidencethat he had seen appellant No. 1 or the boy, pulling sari of the prosecutrix , as deposed by her. 11.In view of the aforesaid facts, the evidence of the prosecutrix (P.W-1) about the indecent assault on her by appellant No. 1 becomes doubtful.There has been a suggestion in her cross-examination that she had gone for latrinein the field of appellant, which was objected to by appellant No.1 resulting inhis false implication. Though the prosecutrix (P.W-1)denied the aforesaid suggestion, but Uttamlal Jhariya (P. W-3) admitted in her cross-examination thatnear the place of occurrence there is a field of appellant Rambhagat .The FIR of the incident was also lodged by the prosecutrix (P. W-1) next day evening; therefore, the possibility of twisting the facts andlodging a report with embellishment and coloured version after deliberation and consultation, cannot be ruled out. 12.In the wake of aforesaid, the charges under Section 354 of IPC and 3(1) (xi) ofthe Act against appellant No.1 could not be said to have been proved beyondreasonable doubt. His conviction under Section 354 of IPC and Section 3(1) (xi)of the Act, therefore, deserve to be set aside. 13.However, there is ample evidence against the appellants that they caused hurtto Shambhu Prasad (P.W-2), the husband of the prosecutrix . Besides the evidence of Shambhu Prasad (P.W-2) himself and his wife (P.W.-1), there is corroborative medicalevidence of Dr. S. Saalvar (P.W-6) as also of Uttamlal (P. W-3) in this behalf that hurt was caused to Shambhu Prasad (P.W-2) by the appellants. 14.In view of the evidence as available on record against the appellants, theirconviction under Section 323 of IPC for causing hurt to Shambhu Prasad, deserves to be affirmed. However, the mere sentence of fine of Rs . 700/- imposed on them under Section 323 of IPC does notcall for any interference in the facts and circumstances of the case. 15.Consequently, the appeal is partly allowed. The conviction of the appellant No.1 and sentence passed on him under Section 354 of IPC and Section 3(1) (xi) ofthe Act are hereby set aside. The conviction of both the appellants andsentence passed on them under Section 323 of IPC are hereby affirmed. Appeal isaccordingly disposed of.