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2012 DIGILAW 13 (MP)

Munna @ Mahendra v. State Of M. P.

2012-01-03

U.C.MAHESHWARI

body2012
JUDGMENT : The appellant/accused Munna @ Mahendra has preferred this appeal under section 374(2) of Criminal Procedure Code being aggrieved by the judgment dated 2-11-1996 passed by Special Judge (Constituted under the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act), (In short 'the Act') Mandla, in Special Case No. 10/96, convicting the appellant under section 354 of IPC and section 3(1)(xi) of the Act with a direction to undergo for six months RI with fine of Rs. 500/- separately in each of such sections with a direction to run the sentences concurrently and in default of depositing the fine amount, further two months RI in each of the count has been awarded. 2. The facts giving rise to this appeal in short are that on dated 8-11-1990 the prosecutrix Shanti Bai (PW-6) gave a report in writing Ex.P./3, at the Police Station Bijadandi on which, a Crime No. 104/90 was registered at such Police Station on dated 13-11-1990 for the offence of sections 294, 324, 354 and 506 of Indian Penal Code. In the course of investigation, the section 3(1)(x) and 3(1)(xi) of the Act, were also invoked in the matter because as per contention of the prosecutrix, the alleged act was committed by the appellant along with the co-accused with the prosecutrix and other victims with intention to harass and humiliate them on account of their caste 'Baiga' covered under the Act as well as the modesty of the complainant Shanti Bai was outraged by the appellant having the knowledge that she is belonging to the Tribal community covered under the Act. On completion of the investigation, the appellant accompanied with the co-accused were charge-sheeted for the offence of sections 324, 354, 294, 506 read with section 34 of Indian Penal Code and section 3(1)(xi) of the Act. 3. On evaluation of the charge-sheet, the charges of the aforesaid offence were framed against the present applicant while, instead the charge of section 3(1)(xi) of the Act, the charge of section 3 (1) (x) of the Act along with the other identical charges were framed against the co-accused Raju. They abjured the guilt on which, the trial was held. 3. On evaluation of the charge-sheet, the charges of the aforesaid offence were framed against the present applicant while, instead the charge of section 3(1)(xi) of the Act, the charge of section 3 (1) (x) of the Act along with the other identical charges were framed against the co-accused Raju. They abjured the guilt on which, the trial was held. On appreciation of the evidence, the co-accused Raju was acquitted from all the charges while, extending the acquittal to the appellant from the charges of sections 294, 324 and 506/34 of Indian Penal Code, he was held guilty for the offence of section 354 of Indian Penal Code as well as of section 3(1)(xi) of the Act and punished with the abovementioned sentence. Being dissatisfied with such conviction and sentence, the appellant has come forward to this Court with this appeal. 4. Shri Batri, learned appearing counsel of the appellant after taking me through the record of the trial Court including the evidence led by the prosecution along with the impugned judgment argued that on proper appreciation of the evidence, the appellant ought to have been acquitted from the aforesaid charges also, but he has been convicted under the wrong premises. In continuation, he said that on account of some previous enmity between the parties and also in view of some other quarrel which had taken place between the witness Bhaddelal (PW-1) and the appellant at the instance of the sister of Bhaddelal the prosecutrix Shanti Bai (PW-6), the appellant has been implicated in the matter on false pretext. It was also argued that the inconsistency between the inter-se depositions of the prosecution witnesses so also the omissions and contradictions part between the case diary statement and the depositions of the examined witnesses were not taken into consideration with proper approach by the trial Court. According to his submission, on account of such material omissions and contradictions, the case of the prosecution is apparently suspicious and in such premises, the impugned conviction of the appellant is not sustainable and firstly prayed for extending the acquittal to the appellant and in alternative, he argued that it is apparent from the fact that the prosecution has failed to prove the caste of the complainant-Shanti Bai by any admissible and reliable evidence or the documents on which, it could be said that she belongs to Baiga Tribal community covered under the Act. So, in any case, his conviction under section 3(1)(xi) of the Act is not sustainable and prayed to set aside the same. In continuation, he said that after setting aside such conviction, if the Court comes to a conclusion that offence of section 354 of Indian Penal Code is made out against him then, in that circumstances, keeping in view the factual matrix of the case that the alleged incident took place long before in the year 1990 when the appellant was of the age of 29 years and subsequent to that, in last near about 21 years he has settled in his life with his family. Besides this, he did not have possess any criminal antecedents or history. So, in such circumstances on sending him again to jail for facing the remaining jail sentence under section 354 of Indian Penal Code in comparison of the appellant, his family has to suffer a lot and prayed to reduce his jail sentence under such section awarded by the trial Court upto the period for which he has already suffered the judicial custody in pendency of the trial between 15-12-1990 and 17-12-1990 and from 31-1-1991 to 5-2-1991 i.e. near about one month and seven days by imposing some amount of fine under the discretion of the Court and prayed to allow this appeal accordingly. 5. On the other hand, by justifying the impugned conviction of the appellant under both the sections Shri Kesherwani, learned Panel Lawyer, argued that the same being based on proper appreciation of the evidence, does not require any interference at this stage and prayed for dismissal of this revision. In response of some query of the Court, he fairly conceded that in order to prove the caste of the prosecutrix i.e. Baiga, falling under the Tribal community, except the oral testimony of the witnesses, no documentary or other admissible evidence has been produced by the prosecution on record. However, he justified such conviction on the basis of statements of the prosecutrix, his brother and sister namely Bhaddelal (PW-1), Beti Bai (PW-2), Sumer Singh (PW-3) and Asha Ram (PW-4) saying that such witnesses have deposed the caste of the prosecutrix in their depositions. 6. Having heard the counsel at length, keeping in view their arguments, I have carefully gone through the record of the trial Court along with the impugned judgment. 6. Having heard the counsel at length, keeping in view their arguments, I have carefully gone through the record of the trial Court along with the impugned judgment. It is apparent fact on record that initially on the basis of report in writing given by the prosecutrix Shanti Bai (PW-6), the offence of sections 354, 294, 324 and 506 of Indian Penal Code was registered. In such report, against the appellant, the allegation of outraging the modesty of Shanti Bai, was stated. According to the averments of the report in writing, on the aforesaid date the prosecutrix accompanied with his sister, brother and some other persons were returning from Maneri Madhai to their village on the way when the prosecutrix accompanied with her sister Beti Bai was passing in front of the house of the appellant, she was intercepted in presence of his sister Beti Bai (PW-2), by the appellant accompanied with other co-accused. Thereafter, the appellant caught hold her hand with bad intention and asked to take her 'Ijjet'. On her shouting, his brother and some other persons, who were coming behind the prosecutrix and his sister on some distance, came there out of them, the alleged incident was narrated by the prosecutrix to his brother Bhaddelal (PW-1) and she accompanied with her sister went away to home from the place of the incident. In such factual background, it is apparent that initially such report was not lodged by stating that such incident was committed by the appellant accompanied with other co-accused with intention to harass them or outrage the modesty of Shanti Bai on account of their caste. Even in support of such averments, no admissible documents showing the caste of the prosecutrix was annexed not produced with the FIR. In subsequent investigation also, no such evidence was collected by the investigating Agency from any authority appointed under the law for that purpose, although at later stage of investigation, the offence of section 3(1)(x) and 3(1)(xi) of the Act, was invoked in the matter. So, in such premises, in the lack of any admissible evidence or documents showing the caste of the prosecutrix the Court has to answer the question whether the caste of the prosecutrix covered under the Act and subject to such answer the Court has to consider the sustainability of conviction of the appellant under section 3(1)(xi) of the Act. 7. So, in such premises, in the lack of any admissible evidence or documents showing the caste of the prosecutrix the Court has to answer the question whether the caste of the prosecutrix covered under the Act and subject to such answer the Court has to consider the sustainability of conviction of the appellant under section 3(1)(xi) of the Act. 7. It is settled proposition of law that in the lack of any positive, reliable and admissible evidence, no alleged fact stated either by the prosecution or by the defence could be relied and in view of the aforesaid discussions, it is apparent on record that in order to prove the caste of the prosecutrix, no admissible evidence or documents issued by the competent authority appointed for that purpose has neither been placed on the record nor proved the same. So in such premises, I am of the considered view that mere on the basis of oral deposition of the prosecutrix and other witnesses, it could not be deemed that the prosecutrix is belonging to the community covered under the Act. In any case, the appellant is entitled to extent the benefit of such suspicion because as per settled proposition of law, that whenever some doubt appears on some fact then, the benefit of the same should be extended to the accused and not to the prosecution. So, in such premises, the conviction of the appellant under section 3 (xi) of the Act along with it's sentence being not sustainable is hereby set aside. 8. Now, I proceed to examine the matter whether the charge of section 354 of Indian Penal Code is made out against the appellant or not. On recording the deposition of the prosecutrix Shanti Bai (PW-6), she categorically stated that on the date of the incident while, she was accompanied with her sister Beti Bai (PW-2) was passing away in front of the house of the appellant, she was intercepted by the appellant with the acquitted co-accused and after catching hold her hand the appellant asked her to take her 'Ijjet' and thereby, he has outraged her modesty. Her such deposition is further supported by her own sister Beti Bai (PW-2), who was present on the spot with the prosecutrix. She stated all these things as stated by the prosecutrix. Her such deposition is further supported by her own sister Beti Bai (PW-2), who was present on the spot with the prosecutrix. She stated all these things as stated by the prosecutrix. So far as other witnesses namely; Bhaddelal (PW-1), Sumer Singh (PW-3) and Asharam (PW-4) are concerned, they were reached on the spot after hearing the noise of the alleged quarrel of the prosecutrix and the appellant till then the aforesaid alleged offending act was already over. But the aforesaid incident was narrated to Bhaddelal (PW-1) by the prosecutrix Shanti Bai and thereafter, she accompanied with her sister Beti Bai (PW-2) left the place of the incident. Thereafter, some beating took place between the appellant and Bhaddelal for which, the appellant has already been acquitted which is not the subject-matter of this appeal specially in the lack of any appeal from the side of the respondent against such acquittal. Although, there is some inconsistency between the inter-se deposition of the Bhaddelal (PW-1), Sumer Singh (PW-3) and Asharam (PW-4), but on jointly reading of their statements with the deposition of the prosecutrix and Beti Bai (PW-2), such inconsistency does not affect the case of the prosecution or to destroy the version stated by the prosecutrix against the appellant for committing the alleged act of outraging her modesty by him. So, in such premises, I have not found any circumstances in the matter to interfere with the findings of the trial Court holding guilty to the appellant under such section 354 of Indian Penal Code. Hence, by affirming such finding, the conviction of the appellant under section 354 of Indian Penal Code is hereby upheld. 9. Coming to consider the alternative prayer of the appellant's counsel to reduce his jail sentence awarded by the trial Court to the period for which he has already suffered the judicial custody in pendency of the trial. I have found some substance in it. It is apparent fact that the alleged incident took place in the year 1990, subsequent to it, the appellant might have settled in his life with his family and besides this, I have not found any criminal antecedents or history against him. So in such premises, he appears to be the first offender. I have found some substance in it. It is apparent fact that the alleged incident took place in the year 1990, subsequent to it, the appellant might have settled in his life with his family and besides this, I have not found any criminal antecedents or history against him. So in such premises, he appears to be the first offender. Thus in such circumstances, instead to send him again in jail, I deem fit to reduce his jail sentence from 6 months to the aforesaid period of one month and seven days as submitted by the appellant's counsel, which is also correct from the record, by enhancing some amount of fine with a direction to give the same to the prosecutrix to sub-serve the justice with her also. 10. Therefore, by affirming the conviction of the appellant under section 354 of Indian Penal Code, this appeal is allowed in part and conviction and sentence of the appellant under section 3(1)(xi) of the Act is hereby set aside and in view of the aforesaid discussions, the awarded jail sentence of the appellant under section 354 of Indian Penal Code is hereby reduced from six months to the aforesaid period of one month and seven days, which has already been suffered by him in the judicial custody during trial by enhancing the amount of fine from Rs. 500/- to Rs. 3000/-. The enhanced fine is to be deposited by the appellant within 60 days from today failing which, the appellant has to suffer further three months RI. 11. The amount of fine deposited in connection of section 3(1)(xi) of the Act shall be adjusted in the aforesaid enhanced fine amount. On depositing the aforesaid enhanced fine amount, out of the entire imposed fine, Rs. 2,500/- be given to the prosecutrix Shanti Bai by calling her through summons in the trial Court. Failing in depositing the aforesaid fine, the trial Court is directed to take appropriate steps to serve the alternative awarded sentence to the appellant. 12. Appeal is allowed in part as indicated above.