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Madhya Pradesh High Court · body

2012 DIGILAW 1183 (MP)

Radheshyam Heeralal Kalota v. State of M. P.

2012-11-19

U.C.Maheshwari

body2012
JUDGMENT (Oral) 1. The appellant-accused has directed this appeal under section 374 of the CrPC being aggrieved by the judgment dated 29.10.1998 passed by Special Judge (constituted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (in short the Act), in Special Case No.26/1998 whereby he has been convicted and sentenced under section 3(1)(xi) of the Act with a direction to undergo RI of 6 months with fine of Rs.500/- with stipulation of punishment in default of depositing the fine. 2. The facts giving rise to this appeal in short are that Smt. Sumitrabai as alleged Balai by caste lodged the FIR on 14.5.1998 at about 4 o’clock at Police Station Gutampura Indore contending that she being an agricultural labour at about 10 o’clock in the morning accompanied with Bhanverbai, Anterbai and Kamlabai went to collect the cow dung towards the field of one Mohan Jat. During such collection accompanied person went ahead while she was backside at some distance. At the same time, the appellant Radheshyam was grazing his buffaloes came to her and after taking his basket placed on the floor and by pressing her mouth pressed her chest. On her shouting, he fled away. She further stated that appellant committed such act with intention to commit the rape but because of shouting he could not make success. Thereafter she came to her residence and after apprising such incident to his brother-in-law Jagdish and father-in-law Mangilal accompanied with them came to police station and lodged the report. On which a crime for the offence under section 354 IPC and section 3(1)(xi) of the Act was registered, investigated and on completion of the same the appellant was charged-sheeted for his prosecution. 3. On assessment of the charge-sheet a charge of section 3(1)(xi) of the Act was framed. The appellant abjured the guilt on which the trial was held. On appreciation of the evidence by holding the appellant guilty for such offence, he was punished with the above mentioned punishment. Being dissatisfied with such judgment of conviction and sentence, the appellant has come to this Court with this appeal. 4. Shri Ashish Vyas, learned appearing counsel of the appellant assailed the impugned judgment saying that on proper appreciation of the evidence it is apparent that prosecution has utterly failed to prove the caste of the prosecutrix Balai covered with the Act. 4. Shri Ashish Vyas, learned appearing counsel of the appellant assailed the impugned judgment saying that on proper appreciation of the evidence it is apparent that prosecution has utterly failed to prove the caste of the prosecutrix Balai covered with the Act. In continuation he said that in order to prove such fact prosecution has placed the caste certificate Ex.P-2 issued by the Sub-Divisional Officer but the same has not been issued in compliance to the rules and regulation and also in accordance with the direction of the apex Court which was given in Madhuri Patil’s case. He further said that in the lack of deposition of Sub-Divisional Officer or the concerning Tahsildar who signed such certificate, the same could not be a foundation to hold the caste of the prosecutrix covered with the act. In this regard, he further said in the lack of opportunity of cross-examination to the concerning authority like SDO of Tehsildar who issued such certificate with their signature the same could not be used a admissible evidence against the appellant. In this connection he also said that mere marking the exhibit by the Investigating Officer on such certificate is not sufficient to hold that the certificate has been proved on record. He also said that it is settled proposition of law that every act should be carried out by the authorities in accordance with the procedure prescribed under the law. If any act is carried out by the authority contrary to such procedure then, the same should not be the foundation to draw any inference against the accused to hold conviction against him. In this background, firstly he prayed for extending the acquittal to the appellant from the aforesaid charge of the act, in response to some query of the Court based on section 222 of the CrPC asking the counsel that in view of the available evidence whether appellant could be convicted under section 354 of the IPC. Learned counsel submits that on proper appreciation of the evidence and also on taking into consideration the inconsistency and discrepancies between the inter se depositions of the prosecutrix and the supporting witnesses viz. Kamlabai and Santoshbai the appellants could not be convicted under section 354 of the IPC and prayed for setting aside the impugned judgment by extending acquittal to the appellant by allowing this appeal. 5. Kamlabai and Santoshbai the appellants could not be convicted under section 354 of the IPC and prayed for setting aside the impugned judgment by extending acquittal to the appellant by allowing this appeal. 5. On the other hand, by justifying the impugned conviction and sentence of the appellants Shri R.S. Bais, learned Deputy Government Advocate said that the approach of the trial Court in this regard being based on proper appreciation of evidence is in accordance with the law, it does not require any interference at this stage. However, he fairly conceded that in order to prove the aforesaid caste certificate of the prosecutrix, the prosecution has not examined the SDO or Tahsildar which is apparent on the record. He further said the prosecutrix and other examined witnesses have proved the caste of the prosecutrix which is covered by the act and in such circumstances, even in the lack of proving the certificate in accordance with the law. Mere on such technical ground appellant could not be extended the benefit of acquittal and prayed for dismissal of this appeal. 6. Having heard the counsel and keeping in view their respective argument, I have carefully gone through the record along with the impugned judgment. 7. On such perusal I am of the considered view that the learned trial Court has committed error in holding conviction and sentence to the appellant under the aforesaid provision of the Act. 8. True it is during the course of the investigation some caste certificate of the prosecutrix was obtained by the Investigating Officer from the office of the SDO and such certificate was also signed by the Tahsildar but in order to prove that certificate neither the SDO nor Tahsildar has been examined by the prosecution. Apart from this, the dispatch register or the receiving register of the SDO office, Tahsil Office or the police station was neither produced nor proved on the record. In this regard, no proper explanation has been put forth by the prosecution on record and it is settled proposition of law that mere marking the exhibit by unconcerned person with the document is not sufficient to rely such document or to treat such document as admissible document. 9. In this regard, no proper explanation has been put forth by the prosecution on record and it is settled proposition of law that mere marking the exhibit by unconcerned person with the document is not sufficient to rely such document or to treat such document as admissible document. 9. After deciding the legal position by the apex Court in Madhuri Patil’s case in 1995 in which some guidelines and directions were given to the State Government for issuing the caste certificate and in that connection probably some rules and regulations had been framed by the State then, the authority was bound to issue such certificate in accordance with the directions of the apex Court as well as the concerning rules if the same had been enacted before the registration of the impugned criminal case. It is apparent on the record in this regard no explanation has been put forth by the prosecution on record. 10. It is also settled proposition that unless it is proved that the document was prepared in accordance with the rules and regulations and the procedure prescribed for that purpose the same could not be treated to be admissible. In the case at hand the caste certificate has not been proved accordingly by the prosecution. Then merely on oral testimony of the prosecutrix or supporting witnesses it could not be deemed that the prosecutrix is belonging to the caste covered under the Act. 11. In view of the aforesaid discussion, specially taking into consideration that it has not been proved on record that certificate Ex.P-2 was issued by the appropriate issuing authority in accordance with the rules and regulations, and also in the lack of proving its basic record so also in the lack of examination of the SDO or the Tahsildar I am of the considered view that the prosecution has utterly failed to prove the caste of the prosecutrix i.e. Balai covered under the Act and the same is held. On holding that the prosecutrix could not be deemed to be from the caste covered under the act then, the conviction of the appellant under section 3(1)(xi) could not be sustained or maintained. Hence, the conviction and sentence of the appellant under the act is, hereby, set aside. 12. On holding that the prosecutrix could not be deemed to be from the caste covered under the act then, the conviction of the appellant under section 3(1)(xi) could not be sustained or maintained. Hence, the conviction and sentence of the appellant under the act is, hereby, set aside. 12. Setting aside the conviction and sentence of the appellant for the offence under section 3(1)(xi) of the Act does not mean that the appellant deserves for extending the acquittal in the matter, on appreciation of the evidence if it is found that the appellant has committed some other offence made punishable under the provisions of the IPC or any other law except the Act then, looking to the language of the concerning law or provision of punishment along with the charge which has been framed by the trial Court against the accused before holding the trial, if it is found that without mentioning the concerning section 11 requisite ingredients of such offence also stated in framing the charges then even after extending the acquittal from the offence of some specific enactment by virtue of section 222 of CrPC the accused like appellant could be convicted under the provision of IPC on the basis of the available evidence without extending any further opportunity of cross-examination of prosecution witnesses even at the appellate stage or revisional stage. 13. In the case at hand, it is apparent that the appellant was prosecuted for committing the act of outraging the modesty of a women by criminal force and such offence is made punishable under section 354 of the IPC. The language of section 354 IPC and section 3(1)(xi) of the Act till some extent are para materia for the alleged offence of outraging the modesty of the woman but under the act such women should be from the community covered by such Act. In such premises Court has to examine the matter whether after extending the acquittal to the appellant on the aforesaid technical ground from the offence of the Act the appellant could be held guilty for the offence of section 354 of the IPC or not. 14. Keeping in view the aforesaid legal position, I have examined the evidence led by the prosecution as well as the evidence of the defence led on behalf of the appellant. 15. 14. Keeping in view the aforesaid legal position, I have examined the evidence led by the prosecution as well as the evidence of the defence led on behalf of the appellant. 15. Smt. Sumitrabai PW1 on recording her deposition categorically stated the story which has been narrated by her in the FIR Ex.P-1. She stated that she accompanied with Bhanvri, Kamlabai and Santoshbai went towards the field of Mohan Jat for collection of the cow dung and she was at some distance from the accompanied women. At the same time the appellant was present there for grazing of his buffalow, came to her and after laying her on the floor he seated upon her and also pressed her chest, on her shouting he fled away then she lodged a report with the police. On going through her cross-examination I have not found any substantial material destroying the version stated by her in chief and her testimony is further supported by the accompanied witnesses Kamlabai PW2 and Santoshbai PW5. Besides this as per available evidence immediately after incident the prosecutrix came back to home and informed about the incident to her husband Ramesh PW3 and one Jagdish PW4 with whom she went to the police station for lodging report. On recording the depositions Ramesh and Jagdish also supported her deposition. Such story is further supported by Mangilal PW6. So in such premises, it is apparent that the prosecution has successfully proved the ingredients of section 354 of the IPC against the appellant and in such premises by virtue of section 222 of the CrPC even after extending the acquittal from section 3(1)(xi) of the Act, the appellant could be held guilty for committing the offence of section 354 IPC with the prosecutrix and the same is, hereby, held. 16. After holding guilty the Court has considered the case for extending the benefit of the Probation of the Offenders Act to the appellant. Keeping in view such provision, I have examined the matter. Looking to the nature of the act committed by the appellant with the prosecutrix even after 14 years from the date of incident, I am not inclined to extend such benefit of probation. Consequently, it is held that the appellant is not entitled for such benefit. 17. Keeping in view such provision, I have examined the matter. Looking to the nature of the act committed by the appellant with the prosecutrix even after 14 years from the date of incident, I am not inclined to extend such benefit of probation. Consequently, it is held that the appellant is not entitled for such benefit. 17. After modification of the conviction of the appellant from section 3(1)(xi) of the IPC Court has to impose the punishment on the appellant. It is apparent fact on record that the alleged incident took place long before 14 years and at that time of incident the appellant was of the age of 29 years and during the aforesaid period he might have been settled in his family comprising with the wife and children and he has already suffered the mental agony of this case in last 14 years besides this he also suffered 2 days in judicial custody which is apparent from the record so in such circumstances, instead to send him again to jail I deem fit to punish him with the jail sentence which he has already suffered in the judicial custody as stated above by imposition of some fine with a direction to give such sum to the prosecutrix to sub-serve the justice with her and the same is ordered. 18. In view of the aforesaid, by allowing this appeal in part the conviction and the sentence of the appellant under section 3(1)(xi) of the Act is, hereby, set aside and the appellant is held guilty for the offence under section 354 of the IPC as discussed above and in such section he is punished with the jail punishment of 2 days which he has already undergone as stated above by imposition of fine Rs.7,500/-. The amount of fine which is deposited in connection with the offence of the Act shall be adjusted in the aforesaid fine amount. The remaining amount is to be deposited by the appellant in the trial Court within 30 days from today failing which, the appellant has to suffer 6 months RI. On depositing the aforesaid amount of fine, the entire sum of the fine be given to the complainant Sumitrabai by calling her through summons in the trial Court. The remaining amount is to be deposited by the appellant in the trial Court within 30 days from today failing which, the appellant has to suffer 6 months RI. On depositing the aforesaid amount of fine, the entire sum of the fine be given to the complainant Sumitrabai by calling her through summons in the trial Court. Appeal is allowed in part by modifying the conviction and sentence of the appellant from section 3(1)(xi) of the Act to section 354 of IPC as indicated above.