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Madhya Pradesh High Court · body

2011 DIGILAW 1260 (MP)

Chalaniya Dheemar v. State of M. P.

2011-11-08

RAKESH SAKSENA

body2011
JUDGMENT 1. Appellant has filed this appeal against the judgment dated 18th September, 1996 passed by' Special Judge (SC & ST Act), Chhatarpur in Special Case No. 161/95 convicting him under section 3 (1) (xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentencing him to rigorous imprisonment for 3 years with fine of Rs. 2,000/-.In default of payment of fine further rigorous imprisonment for 6 months. 2. In short, the facts of the case are that on 19.12.1995, at about 12 O'clock in the day, when complainant Hiriya was going to fetch grass from her field, on way accused/appellant suddenly came from behind and caught her hand with a view to outrage her modesty. She tried to get her hand released but he did not allow her to do so, therefore, she dealt a blow of sickle to him whereupon he left her. When complainant shouted, Malkhan Singh and Vaishali reached there. On coming back to her house, she narrated the incident to her father-in-law Girdhari. On the same day, her father-in-law went to lodge the report at police outpost, but they asked him to bring the complainant. On the next day, i.e. on 20.12.1995 complainant along with her father-in-law went to police outpost Bachhaun and lodged report Ex. P/l. The said report was then sent to police station, Chandala where the offence under section 354 IPC was registered. After requisite investigation, charge sheet was filed. 3. Learned Special Judge framed the charge under section 3 (1) (xi) of SC & ST (Prevention of Atrocities) Act. Accused abjured his guilt and pleaded false implication. According to him, false report was lodged against him because he had lodged a report against the husband and father-in-law of complainant. 4. Before the trial Court, prosecution examined Hiriya (PW-1), Malkhan Singh (PW-2), Vaishali (PW-3) and head constable Devideen (PW-4). Learned trial Judge, upon trial and after appreciation of the evidence, held the appellant guilty and convicted and sentenced him as mentioned above. Aggrieved by his conviction and sentence, appellant has filed this appeal. 5. Learned counsel for the appellant submitted that the evidence of complainant Hiriya (PW-l) was not reliable. It was discrepant and contradictory to the evidence of Malkhan and Vaishali. First Information Report Ex. P/l was doubtful as-complainant mentioned that a written report was given to police. Aggrieved by his conviction and sentence, appellant has filed this appeal. 5. Learned counsel for the appellant submitted that the evidence of complainant Hiriya (PW-l) was not reliable. It was discrepant and contradictory to the evidence of Malkhan and Vaishali. First Information Report Ex. P/l was doubtful as-complainant mentioned that a written report was given to police. It was not established by the prosecution evidence that complainant was a member of scheduled caste or scheduled tribe. Counsel further submitted that in the facts and circumstances of the case, the conviction under section 3 (1) (xi) of the said Act was not permissible. Learned counsel for the State, on the other hand, justified the impugned judgment of conviction and submitted that no interference was called for in the finding of conviction recorded by the trial Court. 6. I have heard the learned counsel for the parties and perused the impugned judgment and evidence on record. 7. Complainant Hiriya (PW-1) categorically stated that while she was going to fetch greenery from her field, as soon as she reached inside the Nala, accused came after her running and caught her hand with a view to outrage her modesty. When he did not leave her hand, she assaulted him with a sickle which she had in her hand and also shouted. Hearing her cries, Vaishali and Malkhan reached there. Accused then ran away. She went to her house and narrated the incident to her husband and father-in-law. Her father-in-law went to police chowki Bachhaun to lodge the report, but police people called her. Next day, report Ex. P/l was recorded and her thumb impression was obtained. Though this witness was subjected to a lengthy cross-examination, but nothing material could be elicited out to indicate that she was not a truthful witness. It is, however, apparent that Hiriya (PW-1) no where stated that she was a member of scheduled caste or scheduled tribe or she belonged to scheduled caste. 8. Evidence of Hiriya (PW-1) finds corroboration from the evidence of Malkhan Singh (PW-2) and Vaishali (PW-3). Malkhan (PW-2) stated that at about 12 O'clock when he was going towards his field, he heard shrieks of Hiriya and saw accused grappling with her in the Nala. Looking at him, accused ran away. Hiriya told to him that when accused grappled with her she dealt a blow of sickle to him. Malkhan (PW-2) stated that at about 12 O'clock when he was going towards his field, he heard shrieks of Hiriya and saw accused grappling with her in the Nala. Looking at him, accused ran away. Hiriya told to him that when accused grappled with her she dealt a blow of sickle to him. He stated that Vaishali was also present there. Similarly Vaishali (PW-3) stated that when he heard cries in the Nala, he rushed to that spot. He saw Hiriya shouting in the Nala and accused running away from the spot. Hiriya narrated the incident to him. Thus, the evidence of complainant Hiriya finds corroboration from the evidence of Malkhan Singh (PW-2) and Vaishali (PW-3). 9. Evidence of Hiriya (PW-1) stands further supported by the first information report Ex. P/1 lodged by her at police outpost Bachhaun. It is true that in the first information report Ex. P/1 and Ex. P/2, it was mentioned that a written report was tendered by Hiriya at the police station and the same was not produced before the trial Court with the charge sheet, but merely by its non-production no adverse inference can be drawn since first information report Ex. P/1 was got recorded by Hiriya herself and she had put her thumb impression on it. The said reports Ex. P/1 and Ex. P/2 have been proved by head constable Devideen (PW-4). 10. On a close scrutiny of the evidence of aforesaid witnesses, it is clearly established that accused caught the hand of complainant Hiriya (PW-1) in the Nala with a view to outrage her modesty while she was going to fetch greenery. However, on scanning the evidence of all the prosecution witnesses, I find that there is absolutely no legal evidence to establish that complainant Hiriya belonged to scheduled caste or scheduled tribe. No certificate of any competent authority to that effect was produced or proved before the Court. Neither Hiriya (PW-l) nor any other witness including head constable Devideen (PW-4) deposed in the Court that she belonged to scheduled caste. It is true that in the first information report Ex. P/1 and Ex. P/2 the name of complainant has been mentioned as Hiriya Ahirwar, but merely from that it cannot be held that she belonged to scheduled caste in the absence of legal evidence in the Court. First Information Report cannot be treated as a part of substantive evidence. It is true that in the first information report Ex. P/1 and Ex. P/2 the name of complainant has been mentioned as Hiriya Ahirwar, but merely from that it cannot be held that she belonged to scheduled caste in the absence of legal evidence in the Court. First Information Report cannot be treated as a part of substantive evidence. It can be used only for corroboration or contradiction of its maker. It is also important to note that police registered the offence under section 354 of Indian Penal Code only and not under the provisions of SC & ST (Prevention of Atrocities) Act. The trial Court recorded the finding that it was established that accused outraged modesty of the complainant who belonged to scheduled caste but it appears to have been based on no legal and substantive evidence. 11. In view of the above circumstances, I am of the definite view that prosecution failed to establish that complainant Hiriya (PW-1) belonged to scheduled caste, therefore, the conviction of appellant under section 3 (1) (xi) of SC & ST (Prevention of Atrocities) Act was not justified, but since it has been established that appellant outraged the modesty of complainant, he is liable to be convicted under section 354 of the Indian Penal Code by virtue of section 222 Cr.PC. which can be said to be a minor offence. The ingredients of offence under section 354 are similar in nature to the offence under section 3 (1) (xi) of SC & ST (Prevention of Atrocities) Act, therefore, it cannot be held that any prejudice was caused to appellant. 12. Accordingly, the conviction of accused/appellant under section 3 (1) (xi) of SC & ST Act is modified/converted to one under section 354 of the Indian Penal Code. The incident had since occurred in the year 1995 i.e. about 15 years back, his sentence of rigorous imprisonment for 3 years is reduced to a period of rigorous imprisonment for two months. Sentence of fine is affirmed. Appellant who is reported to be on bail shall surrender before the trial Court forthwith to serve out the remaining part of sentence. 13. Appeal partly allowed. Mohammed Ali and V.K. Shukla for appellant; B.P. Pandey, Deputy Government Advocate for respondent.