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Madhya Pradesh High Court · body

2011 DIGILAW 644 (MP)

Balu ' Halchand v. State of M. P.

2011-06-20

I.S.SHRIVASTAVA

body2011
JUDGMENT Hon'ble Mr. I.S. Shrivastava, J. 1. This appeal under Section 374, Cr.PC has been preferred by the appellant being aggrieved by the judgment dated 7-1-1997 passed by the Court of Shri Shivdatta Oza, Special Judge, Shajapur in Special Case No. 29/96 by which the appellant has been convicted under Section 354, IPC and has been sentenced to three months RI with fine of Rs. 500/-. 2. According to prosecution case in the night of 19-2-96 Bhawaribai wife of Motilal was cooking food at her well at about 8.00 p.m. in the forest of Kawrakhedi. Her husband had gone to village to collect milk. At that time accused Balu came there and demanded sticks of match box from her and sat near Chulha. Bhawaribai gave him sticks of match box. At that time accused caught hold the hands of Bhawaribai and pushed her on ground and tried to pull her Ghaghari. In defence Bhawaribai assaulted accused by axe then accused ran away. Bhawaribai chased him but could not succeed. Then Bhawaribai reached at the well of Bheru where Ratan s/o Narayan, Ratan s/o Gangaram and Bheru were sitting near fire. She told them about the incident. After arrival of her husband, Bhawaribai told the incident to her husband as their children were alone, hence they could not proceed to report to police station immediately. On the next day on report of Bhawaribai Crime No. 15/96 was registered. After investigation challan was filed. The accused was tried under Section 3 (1) (11) of the SC/ST (Prevention of Atrocities) Act and in the alternative under Section 354 of IPC and after trial punished as mentioned above. Hence this appeal has been filed. 3. It has been argued on behalf appellant that he has been falsely implicated in this case due to enmity. Bhawaribai assaulted him by the axe on the same day; a report of which was lodged by the appellant in the police station on 20-2-96 at 4.00 p.m. and accused was sent for medical examination and for this act Bhawaribai is also being prosecuted. To meet out this case false report was lodged by Bhawaribai on the same day at 8.00 p.m. with unexplained delay of 24 hours. Appellant has been falsely implicated in this case. There is no independent witness of the incident. To meet out this case false report was lodged by Bhawaribai on the same day at 8.00 p.m. with unexplained delay of 24 hours. Appellant has been falsely implicated in this case. There is no independent witness of the incident. In the report of the appellant this fact is mentioned that he went to the house of Bhawaribai and demanded sticks of match box from her and thereafter she assaulted him by axe due to which he sustained bleeding injury on his left hand. In FIR lodged by Bhawaribai this fact has been added that at that time accused appellant caught hold of Bhawaribai, therefore, she assaulted him by axe. But this fact has not been stated by Bhawaribai in her statement. Statement of Bhawaribai (P.W. 1) is full of contradictions and omissions. Her evidence is not reliable. She has also alleged that one day appellant raped her but no report of this rape was made in the police station. Her statement is not believable. In cross-examination Bhawaribai has also admitted the fact that a case against her is pending in the Susner Court on the report of appellant. The fact that accused caught hold hand of Bhawaribai with the intention to outrage her modesty is lacking in the evidence. There is not a single whisper in the statement of Bhawaribai (P.W. 1) that appellant caught hand of Bhawaribai (P.W. 1) with the intention to outrage her modesty. Under the circumstances the appellant was not liable to be convicted. Hence appeal should be allowed. 4. It has been argued on behalf of the respondent that the accused has been rightly convicted on the basis of evidence produced before the Trial Court. The appeal being devoid of merits it should be dismissed. 5. Considered arguments. Record of the Trial Court perused. 6. Bhawaribai (P.W. 1) in her statement has stated that on Friday the accused in the night at about 10-11 p.m. outraged her and after threatening that in case of disposal of this fact to her husband or other person, he will kill her. Thereafter after arrival of her husband, she informed about the incident to her husband. She has further stated that on Monday in the evening when she was cooking food at the well accused again came and demanded sticks of match box. Thereafter after arrival of her husband, she informed about the incident to her husband. She has further stated that on Monday in the evening when she was cooking food at the well accused again came and demanded sticks of match box. She gave him 4 sticks and after taking the sticks accused caught her hand pushed her on ground and pulled her Ghaghari. Thereafter she took wooden rod which was lying in the Tapri and ran towards the accused. Then he ran away leaving his one shoe there. Accused was having axe in his hand in running he fell down and the axe was left by him. Then she took axe and chased the accused. After arrival of her husband she informed him about the incident and on next day he went to the police station and lodged the FIR (Exh. P-1). 7. It has been argued by the appellant's Counsel that in FIR (Exh. P-1) it has been mentioned that accused took sticks of match box and caught her hands and pushed her then she assaulted him by axe then accused tried to hold her Ghaghari and ran away. She chased him and reached at the well of Bheru. There she informed the incident to Ratan s/o Narayan, Ratan s/o Gangaram and Bheru. But this fact has not been confirmed by prosecutrix Bhawaribai (P.W. 1) in her statement. She has not supported the fact that she assaulted accused by axe and has deposed that she assaulted him by wooden rod. 8. Bhawaribai has also admitted the fact that a case is pending against her in the Susner Court for the assault to accused by axe though has denied that to save herself from the report lodged by the accused, she has lodged false report against accused. But to meet out the report of the accused Bhawaribai has changed her version and deposed that she assaulted accused by wooden rod and accused was having an axe in his hand and in running he fell down and leaving the axe there he ran away. The fact that whether prosecutrix assaulted by wooden rod or by axe was important one and prosecutrix must have supported this fact but she has not supported the fact and declined from the statement. Under the circumstances, the statement of Bhawaribai (P.W. 1) was not reliable. The fact that whether prosecutrix assaulted by wooden rod or by axe was important one and prosecutrix must have supported this fact but she has not supported the fact and declined from the statement. Under the circumstances, the statement of Bhawaribai (P.W. 1) was not reliable. It is also to be considered that when on Friday she was raped by appellant, then why report of this fact was not lodged in the police station because it was grievous offence while report (Exh. P-1) of this incident on Monday was lodged in the police station with a delay of 24 hours. 9. As regards report of the accused appellant is concerned, copy of the Rojnamcha No. 476, dated 22-2-96 has been filed by the police but it has not been exhibited in the evidence. From the perusal of the report it reveals that accused Balchand lodged a report against Bhawaribai that when he went to the house of Motilal to demand sticks of match box he was not present at the house and his wife said him to sit there and thereafter she assaulted him by axe causing him bleeding injury in his left hand. This report though has not been exhibited, but it may be considered in this respect and it is not necessary that it should be exhibited. It has been held in Lallu Singh V. State of M.P. 1996 MPLJ 452 , that "Medical certificate showing injuries on the body of the accused can be made use of by accused despite absence of formal proof. 10. Therefore, arguments on behalf of appellant in this behalf is not baseless that the report was lodged by the appellant on 22-2-96 at 4.00 p.m. at Rojnamcha No. 476 and thereafter report (Exh. P-1) was lodged by Bhawaribai (P.W. 1) at 8.00 p.m. with the delay of near about 24 hours because the present incident took place at about 8.00 p.m. or 9.00 p.m. in the night of 19-2-96 and the delay has not been explained. 11. As regards the intention of appellant is concerned, there is not a single whisper in the statement of Bhawaribai (P.W. 1) that with which intention the accused caught her hand. 11. As regards the intention of appellant is concerned, there is not a single whisper in the statement of Bhawaribai (P.W. 1) that with which intention the accused caught her hand. When the appellant did not act to outrage the modesty of the prosecutrix Bhawaribai, then why he caught the hand of Bhawaribai and why Bhawaribai assaulted him by axe as mentioned in the FIR or by wooden rod as mentioned in her Court statement. In her statement under Section 161, Cr.PC, it was stated that appellant caught her hand then she assaulted him by axe but this fact has not been supported by Bhawaribai in her statement and she said that she assaulted him by wooden rod. Under the circumstances statement of prosecutrix Bhawaribai (P.W. 1) was full of contradictions and was not reliable. 12. Therefore, on the basis of above discussion, the appellant was not liable to be convicted under Section 354 of IPC. 13. Therefore, on the basis of above discussion the appeal is allowed and appellant is acquitted from the charges under Section 354 of IPC. Appeal is disposed of accordingly.