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Madhya Pradesh High Court · body

2012 DIGILAW 277 (MP)

SANTOSH KUMAR v. STATE OF M. P.

2012-03-06

U.C.MAHESHWARI

body2012
JUDGMENT : 1. The appellant/accused has directed this appeal under section 374(2) of Criminal Procedure Code being aggrieved by the judgment dated 26-7-1996 passed by Special Judge, Balaghat constituted under S.C.S.T. (Prevention of Atrocities), Act (in short "the Act"), in Special Criminal Case No. 91/95, convicted him under section 3(1)(xi) of the Act for RI six months with fine of Rs. 1,000/-. 2. The facts giving rise to this appeal in short are that on 3-7-1995 at about 7.00 p. m. victim Kalabai Basnik lodged the FIR at P. S. Kirnapur contending that today at about 4.00 p. m. when she was carrying out the agricultural activities on the boundary of her field at the same time her neighbour agriculturist namely Santosh accompanied with his brother Harish came there and by abusing her with filthy language asked that her husband could not be traced out for his murder, hence they will outrage her modesty and in continuation of it with intention to commit the same the appellant accompanied his brother Harish have assaulted on her and by using criminal force and tried to snatch her sari to outrage her modesty, on which after shouting she ran away from such place some neighbour agriculturist also came there and saw the incident. Thereafter the appellant and his brother have fled away from the place of incident. On reaching home she apprised her husband about the incident and thereafter went to police station and lodged the aforesaid FIR, on which a crime for the offence of sections 294, 506-B, 354/34 of Indian Penal Code and section 3(1)(xi) of the Act was registered against the appellant and his brother co-accused Harish. The accused were arrested and on completion of the investigation they were charge-sheeted for their prosecution under the abovementioned offence. On evaluation of the same the charge of section 3(1)(xi) of the Act was framed against them, they abjured the guilt, on which the trial was held. After recording the evidence on appreciation of the same by acquitting the co-accused Harish the appellant was convicted and sentenced under the aforesaid section with the abovementioned punishment. Being dissatisfied with such conviction and sentence the appellant has come to this Court. 3. After recording the evidence on appreciation of the same by acquitting the co-accused Harish the appellant was convicted and sentenced under the aforesaid section with the abovementioned punishment. Being dissatisfied with such conviction and sentence the appellant has come to this Court. 3. Appellant's counsel Shri R. S. Patel, after taking me through the record of the trial Court as well as the exhibited documents assailed the impugned conviction and sentence of section 3(1)(xi) of the Act on the ground that on taking into consideration the prosecution evidence available in the record as accepted in it's entirety the prosecution has failed to prove the caste of victim Smt. Kalabai, whether it was covered under the Act. In continuation he said that unless the caste of the victim is proved by admissible and reliable evidence the person like appellant could not be held guilty for such offence of the Act. In this regard he also argued that there are certain rules and regulations to make inquiry and issue the certificate of caste to the concerning person, who is covered under the Act. Even at the time of the incident there was some provision and procedure under which the Revenue Officers were authorized by the State Government for issuing such caste certificate but it is apparent on record that neither such certificate was obtained and placed on record nor proved by any of the documentary evidence. In the lack of such evidence regarding the caste of the victim, the impugned conviction of the appellant is not sustainable. In the lack of such evidence regarding the caste of the victim, the impugned conviction of the appellant is not sustainable. He further said that on the basis of the language of the charge framed by the trial Court on re- appreciation of evidence if the Court comes to the conclusion that offence of section 354 of Indian Penal Code is made out against the appellant, then in that circumstance keeping in view the long pendency of the present matter in which the appellant has suffered the mental agony of it for years together along with the judicial custody of 4 days during trial between 26-7-1995 to 7-8-1992 (sic) and did not possess any criminal antecedents and in such premises being first offender by adopting the lenient view he be extending the benefit of Probation of Offenders Act and in case if such benefit is not extended then under such section or section 354 of Indian Penal Code he be punished with the jail sentence for which he has already undergone by imposing the amount of fine under the discretion of the Court and prayed to allow this appeal accordingly. 4. On the other hand learned P. L. Shri Rakesh Kesharwani by justifying the impugned conviction and sentence of the appellant under the aforesaid, section said that the same being based on proper appreciation of available evidence and specially the testimony of victim Kalabai (P.W.1), in which she categorically stated that her community is covered under the Act, do not require any interference at this stage. He further said that mere on account of non-production of caste certificate of the victim the appellant could not be acquitted from the alleged charge of the Act. According to him justice should not be defeated mere on the formal technicalities. He also said that on evaluation of the evidence and other available circumstances of the case it is apparent that victim is belonging to the caste which is covered under the Act. According to him justice should not be defeated mere on the formal technicalities. He also said that on evaluation of the evidence and other available circumstances of the case it is apparent that victim is belonging to the caste which is covered under the Act. In alternate he said that in the lack of any admissible and reliable evidence regarding caste of the victim if the appellant is acquitted from the alleged charge then in that circumstances by virtue of section 222 of Criminal Procedure Code taking into consideration the language stated in the charge framed by the trial Court in the light of available evidence the appellant be held guilty and punished under section 354 of Indian Penal Code and prayed to adjudicate this appeal accordingly. 5. Having heard the parties keeping in view their arguments, I have carefully gone through the record of the trial Court so also the impugned judgment. 6. It is apparent fact on record that to prove the caste and community of the victim no certificate, either issued by the Revenue Authority or local Gram Panchayat, has neither been produced nor proved. I am of the considered view that in the lack of such certificate of the competent authority mere on the basis of the oral testimony of victim Kalabai (P.W.1), it could not be deemed or held that she was/ is belonging to the community which is covered under the Act. I have not found any document on the record or any specific averments in the deposition of any of examined witnesses showing that at any point of time the investigation agency had taken any step to obtain such certificate. The prosecution has also failed to explain the circumstance regarding non-production of such certificate. In the lack of such certificate, it is held that the prosecution has failed to prove the caste of the victim covered under the Act and pursuant to it the impugned conviction and sentence of the appellant under section 3(1)(xi) of the Act is hereby set aside. 7. Acquitting the appellant from the aforesaid charge of section 3(1) (xi) of the Act does not mean that appellant deserves to be acquitted from his alleged offences committed by him with the victim for which sufficient evidence is available on record. 7. Acquitting the appellant from the aforesaid charge of section 3(1) (xi) of the Act does not mean that appellant deserves to be acquitted from his alleged offences committed by him with the victim for which sufficient evidence is available on record. I am of the considered view that by virtue of section 222 of Criminal Procedure Code on the basis of the language and facts stated in the charge framed by the trial Court against the appellant if the specific offence for which the charge was framed is not found to be proved then on appreciation of available evidence if any other offence is made out against the accused like appellant then such accused on such charge could be convicted under such proved offence of other enactment because the impugned case has been prosecuted and defended by the appellant with full understanding of the language stated in the charge framed. 8. In such premises, keeping in view the language of charge framed by the trial Court I have carefully gone through the evidence available on record. The victim Kalabai (P.W.1) on her deposition categorically stated that on the aforesaid date and time when she was carrying out the agricultural activities on her field at the same time the appellant accompanied his brother Harish came there and asked her that he wanted to kill her husband but he could not be traced out hence he will outrage her modesty and pursuant to it the appellant by holding her hands pressed her breasts and asked his brother Harish co-accused to remove her Sari with intention to outrage her modesty, due to such act of the appellant she fell down and shouted on which her neighbour agriculturist Hemraj, Duryodhan and some other persons also came there. On going through her cross-examination I have not found any material destroying the version stated by her in-chief. Her testimony is further supported by Duryodhan (P.W.2) and Hemraj (P.W.3), on recording their deposition as eyewitnesses of the incident, they categorically stated about the act of the appellant whereby they committed the offence of outraging the modesty of victim Kalabai. In such premises I have found sufficient evidence against the appellant to hold that he has committed the offence of outraging the modesty of the victim defined under section 354 of Indian Penal Code. In such premises I have found sufficient evidence against the appellant to hold that he has committed the offence of outraging the modesty of the victim defined under section 354 of Indian Penal Code. In such premises the appellant is hereby held guilty for the offence of section 354 of Indian Penal Code. 9. So far the prayer of the appellant's counsel for extending the benefit of Probation of Offender's Act to the appellant is concerned, looking to the nature of the offence and the manner in which it was committed by the appellant, I do not find fit to extend the benefit of the Probation of the Offenders Act to him. 10. So for alternate prayer of the appellant's counsel for adopting the lenient view in awarding the jail sentence under such section is concerned, it is apparent on record that alleged incident took place in the year 1995 and since then the appellant has been suffering the mental agony of this case, so also in last seventeen years he appeared on the various dates in the trial Court so also before this Court. Besides this as per record he also suffered the judicial custody of four days between 26-7-1995 to 29-7-1995 during trial and according to available record he did not possess any criminal antecedent. Therefore, considering all these circumstances, instead to send the appellant to jail again by imposition of the higher sentence, I deem fit to punish him with the jail sentence of the aforesaid period of four days for which he has already undergone, by imposing the fine of Rs. 7,500/- and the same is ordered. 11. In view of the aforesaid discussion, by allowing this appeal in part, appellant is acquitted from the charge of section 3(1)(xi) of the Act. Consequently, the awarded punishment of such section is also set aside and instead of such section, after holding guilty to the appellant for the offence under section 354 of Indian Penal Code, as stated above he is punished with the jail sentence of four days, which has already been suffered by him during trial but with fine of Rs. 7,500/-. The amount of fine deposited by the appellant under section 3(1)(xi) of the Act shall be adjusted in the abovementioned imposed fine amount under section 354 of Indian Penal Code. 7,500/-. The amount of fine deposited by the appellant under section 3(1)(xi) of the Act shall be adjusted in the abovementioned imposed fine amount under section 354 of Indian Penal Code. The remaining fine amount is to be deposited by the appellant in the trial Court within three months from today, failing in depositing the fine he has to suffer further six months RI. The bail bond of the appellant is hereby discharged. Till the aforesaid extent the impugned judgment is modified. 12. Appeal is allowed in part as indicated above.