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Madhya Pradesh High Court · body

2011 DIGILAW 153 (MP)

Bahadur Singh Dhakar v. State of M. P.

2011-02-02

A.K.SHRIVASTAVA

body2011
JUDGMENT A.K. Shrivastava, J 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 22.08.2003 passed by learned Special Judge, Guna in Special Case No. 14812001 convicting appellant for the offence punishable under Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter shall be referred to as "Act" and thereby sentencing him to suffer f months RI and fine of Rs. 1.000/- in default further RI of 1 month, this appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure. 2. In brief, the case of the prosecution is that on 3.3.2001 the prosecutrix lodged FIR that on 2.3.2001 at 8.30 p.m. when she was alone in her house as her husband and son were in Khaliyan. At that time appellant came to her house and inquired about her husband and when she told that he had gone to Khaliyan, it is said that appellant by catching hold her hands, hugged her and also pressed her breast. When she screamed, Mansingh and Shantilal arrived there and they managed to release her from the clutches of the appellant. Thereafter, appellant ran away from her house. Her husband and son also came from Kholiyan to whom she narrated the entire episode. On account of night and non availability of conveyance in the village, on the next day morning only the report was lodged in the police station. Initially case was registered under Section 354 of IPC but later on during investigation it was found that appellant is not a member of Scheduled Caste or Scheduled Tribe community although the prosecutrix is member of Scheduled Caste community, hence the case was registered under section 3(1)(xi) of the Act. 3. After the investigation was over, a charge-sheet was submitted in the committal court which committed the case to the Court of Session from where it was received by the trial Court for trial,. 4. The learned Special Judge on the basis of allegations made in the charge sheet, framed charges punishable under Section 3(1)(xi) of the Act Needless to say that appellant abjured his guilt and pleaded complete innocence. 5. In order to brine; homes the charges against the appellant, the prosecution examined as many as nine witnesses and placed Ex.P/1 to P/5 the documents on record. 5. In order to brine; homes the charges against the appellant, the prosecution examined as many as nine witnesses and placed Ex.P/1 to P/5 the documents on record. The defence of the appellant is of false implication because on the basis of complaint which was made by him to the Collector against husband of complainant, her husband was removed from the post of Panch. 6. The learned Trial Judge on the basis of evidence placed on record came to hold that the appellant did commit the offence punishable under Section 3(1)(xi) of the Act and eventually convicted him and passed sentence as mentioned in paragraph 1 of this judgment. 7. In this manner, this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. 8. The sole but forceful submission putforth by learned counsel for appellant is that in order to take revenge, husband of prosecutrix namely Niranjan Singh used her wife as a weapon of attack to implicate the appellant falsely for the simple reason that en the basis of complaint made by him against (Niranjan Singh that while holding the post of Panch he took out the amount of Rs. 10,000/- which was required to be paid to one Rani Bai under the Scheme of Pariwar Sahayta and on the basis of said complaint, husband of prosecutrix (Niranjan) was removed from the post of Panch and hence in order to take revenge, a false report has been lodged. Learned counsel in this context has invited my attention to the evidence of prosecutrix and her husband- Niranjan Singh (PW 2) as well as independent witness Pahalwan Singh (PW 7) and has submitted that the defence of appellant is based upon preponderance and probability and therefore the appellant is entitled for benefit of doubt. 9. On the other hand, Sushri Sudha Shrivastava, learned Public Prosecutor has argued in support of impugned judgment. 10. Having heard learned counsel for the parties and I am of the view that this appeal deserves to be allowed. 11. On bare perusal of statement of prosecutrix it is gathered that when her husband was not in the house at that time appellant entered in her house and forcibly hugged her and also pressed her breast. Eventually, this witness started shouting and on hearing her shriek, Mansingh and Shantilal arrived there. 11. On bare perusal of statement of prosecutrix it is gathered that when her husband was not in the house at that time appellant entered in her house and forcibly hugged her and also pressed her breast. Eventually, this witness started shouting and on hearing her shriek, Mansingh and Shantilal arrived there. In cross-examination this witness has admitted that her husband had been Panch of the village but in an inquiry made by the Collector, he has been removed. In Para 6 of her cross-examination, she has admitted that she cannot say in order to take revenge a false report has been lodged by her on the insistence of her husband. Further she has admitted that witness Mansingh is of her community and is her neighbour. The suggestion put to her that complaint was made against her husband by the appellant, has been denied by her. Thus, from the evidence of prosecutrix it is borne out that her husband had been a Panch of the Gram Panchayat and he was removed on the basis of complaint made to the Collector. This Court fails to understand that if in order to take, revenge, false report is not lodged, it should have been denied firmly by the prosecutrix but she was hot having courage to deny this fact firmly. On the contrary when the suggestion was put to her in this regard in her cross-examination, she is saying that she cannot say on account of enmity false report was lodged by her on the insistence of her husband. In this regard Para 6 of her cross-examination may be seen. 12. The factum of removal from the post of Panch on the basis of complaint has been admitted by Niranjan Singh also, who has admitted in Para 4 that he was a Panch but now he is not holding that post, although he has denied the suggestion that on account of complaint made by appellant, he was removed from the post of Sarpanch and in order to take revenge a false report has been lodged by his wife on his insistence. 13. The other witness Shantilal (PW 3) has not supported the case of the prosecution and was declared hostile. The prosecutrix has named this witness that on hearing her shriek this witness Shantilal came her house but this fact has been denied by Shantilal. 13. The other witness Shantilal (PW 3) has not supported the case of the prosecution and was declared hostile. The prosecutrix has named this witness that on hearing her shriek this witness Shantilal came her house but this fact has been denied by Shantilal. The other witness Mansingh who also came to house of prosecutrix on hearing her scream, has admitted in cross-examination that husband of prosecutrix was holding the post of Panch but he was removed from that post on the basis of complaint that he had misappropriated the money of Ranibai from the account of Gram Panchayat. The prosecutrix has already admitted that this witness is of her caste. 14. One independent witness Pahalwan Singh (PW 7) has been examined. Although he is a witness of site map but in cross-examination he has admitted that he is a resident of same village where incident had occurred and has further admitted that husband of the appellant while holding the post of Panch of Gram Panchayat misappropriated an amount of Rs. 10,000/- which was required to be paid to one Ranibai and a complaint in that regard was made by the appellant to the Collector, on the basis of which he was removed from the post of Panch. Hence I am of the view that defence which has been set-up by the appellant is based on preponderance and probabilities and it has been proved by the independent witness. It is well settled in law that the degree of proof of defence should not be equated with that of prosecution where the prosecution is obliged to prove its case beyond all reasonable doubts and the Courts are required to see whether the defence which has been put forth is probable or not and if the defence is found to be probable, certainly the accused is entitled for the benefit of doubt. In this regard I may profitably place reliance on the decisions of the Apex Court Punjabrao v. State of Maharashtra1 in Man Singh v. Delhi Administration2 the Apex Court has held that accused is not required to prove his defence by strict standard of proof of reasonable doubt but it is sufficient if he offers an explanation or defence which is probable. In a later decision in M.S. Narayana Menon Alias Mani vs. State of Kerala and Another3 the Supreme Court in Para 32 and 45 has held that the status of accused and the standard of proof of his defence is like a defendant in a civil case and the onus on him is not as heavy as that of prosecution where prosecution is obliged to prove its case beyond reasonable doubt. 15. For the reasons stated hereinabove I am of the view that probable defence has been proved by the appellant that husband of the prosecutrix Niranjan Singh misappropriated village Panchayat's money and took out a sum of Rs. 10,000/- which was required to be paid to one Ranibai, as a result of which, appellant made a complaint to the Collector and inquiry was set-up against the husband of the prosecutrix and he was removed from the post of Panch. Thus, in order to take revenge the husband of prosecutrix used his own wife as sword to attack the appellant and to implicate him in a false case under Section 3(1)(xi) of the Act. According to me. this case is a glaring case wherein provisions of the Act have been misused by the members of said community for whom this Act has been enacted, and the courts should be very much cautious while deciding a case under this Act. 16. For the reasons stated above. I am unable to uphold the conviction of appellant under Section of the Act and accordingly his conviction is set aside and he is acquitted from all the charges. Appellant is on bail, his bail bonds are discharged. The amount of fine, if deposited, be refunded to the appellant.