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Madhya Pradesh High Court · body

2015 DIGILAW 1058 (MP)

Harishankar v. State of M. P.

2015-10-05

J.K.JAIN, P.K.JAISWAL

body2015
JUDGMENT Jaiswal, J. -- 1. This appeal has been filed by the accused against the order and judgment of conviction and sentence dated 26.4.2007 whereby the learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Rajgarh (Biaora), District Rajgarh in Special Case No.105/2006 has convicted the appellant for offence under sections 376(1) of IPC read with section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentenced him to undergo RI for Life with fine of Rs.1,000/- and in default of payment of fine, 6 months additional RI and also convicted the appellant under section 506 of IPC and sentenced him to undergo 1 year RI with fine of Rs.500/- and in default of payment of fine, 3 months additional RI. 2. As per prosecution story, on 7.10.2006 at about 10:00–11:00 p.m., in the night, when the prosecutrix (PW2) was sleeping in her house along with her three children and her husband has gone at the house of his neighbour Pandaji for watching T.V., suddenly the appellant-accused came to her house, opened the door and forcefully committed rape on her. After that when he was wearing his clothes and was about to go from the room, Banesingh (PW3), husband of the prosecutrix came there. On seeing him, the accused ran away from the place of occurrence. Thereafter, she narrated the whole incident to her husband and, on 8.10.2006, she lodged FIR (Ex.P-3) vide Crime No.254/2006 in respect of incident dated 7.10.2006. In the FIR, she has stated that when her husband came to the house, at that time, the appellant was wearing clothes and on seeing her husband, he ran away from the place of occurrence. It is also stated that the alleged offence has been registered against the appellant because the prosecutrix belongs to the Scheduled Tribe. 3. After investigation, the challan was filed before the trial Court on the basis of the fact that prosecutrix belongs to the Schedule Tribe, a case under sections 506 and 376 of IPC and under section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short “the Act”), were registered against the accused. The Sessions Court, after conducting the trial by its impugned order dated 26.4.2007, convicted and sentenced the appellant as aforementioned. 4. The Sessions Court, after conducting the trial by its impugned order dated 26.4.2007, convicted and sentenced the appellant as aforementioned. 4. Learned counsel for the appellant has drawn our attention to the statement of the prosecutrix (PW2) and submitted that it is a case of false implication. The prosecutrix was a consenting party and, therefore, on seeing her husband, she made an allegation against the appellant that he committed rape on her. He also submitted that all the three children below 7 years of age were present at the same room. It is not a case of the prosecutrix that she started crying for help or made any protest. He submitted that on the date of occurrence, prosecutrix was a married woman and she in her FIR as well as in the police statement and Court statement very categorically stated that she sustained injuries on her body, but no such injury was found by the doctor, the medical evidence does not corroborate the story of the prosecutrix (PW2). It is submitted that when the husband of the prosecutrix returned home, the accused was seen running away from the home. 5. Learned counsel has also drawn our attention to the statement of Bane Singh (PW3), husband of the prosecutrix (PW2) and his 161 statement (Ex.D-1) and submitted that if we go through his statement as well as the statement of the prosecutrix and FIR lodged vide Ex.P-3, there is material contradictions and inconsistency with the testimony of both of them and it is very difficult to accept the version of the prosecutrix and prays for acquittal. 6. Learned Deputy Advocate General, who is appearing on behalf of the respondent/State has drawn our attention to the statement of prosecutrix (PW2) and her husband Banesingh (PW3) and so also the reasoning assigned by the learned trial Court and submitted that the prosecution has proved its case beyond reasonable doubt and, therefore, no case is made out to interfere with the well reasoned finding of the learned trial Court. 7. First we consider the question of conviction under section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 8. 7. First we consider the question of conviction under section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 8. To attract the provisions of section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under section 3(2)(v) of the Act arises. In this case, the trial Court on the basis of Caste Certificate (Ex.P-2) gave a finding that the prosecutrix (PW2) belongs to Schedule Tribe and, thus, the learned trial Court only on the basis that there was no controversy that the victim belonged to Schedule Tribe convicted the appellant for offence arising under section 3(2)(v) of the Act . 9. In the present case, there is no evidence at all to the effect that the appellant committed an offence alleged against him on the ground that prosecutrix is a member of Scheduled Tribe. In absence of such ingredients, no offence under section 3(2)(v) of the Act arises. In that view of the matter, we think, the trial Court missed the essence of this aspect. 10. It is also pointed out that the prosecutrix (PW2), being a matured lady should have fought back and in such a situation, would have been hurt. He submits that in absence of hurt on body, no adverse inference, should have been drawn against her. He further submits that the learned trial Court erred in disbelieving the statement of prosecutrix (PW2) and Banesingh (PW3) and wrongly held that all the ingredients of section 376 of IPC has been proved and convicted the appellant for the alleged offence. 11. As per FIR (Ex.P-2), it is very clear that the FIR has been lodged on the next day of incident i.e. on 8.10.2006 at about 12:15 in the afternoon. In the FIR, the prosecutrix has very categorically stated that when accused was in her room and after the act when he was wearing clothes, her husband came at the place of occurrence. On seeing him, the accused ran away along with the clothes. In the FIR, the prosecutrix has very categorically stated that when accused was in her room and after the act when he was wearing clothes, her husband came at the place of occurrence. On seeing him, the accused ran away along with the clothes. The relevant part of the FIR reads as under : brus essa esjk vkneh vk x;k rks gjh 'kadj lksuh dPNh ck¡/k ds Hkkx x;k] Hkkxrs gq, esjs vkneh us Hkh ns[kk gSA 12. Prosecutrix (PW2) in para 1 of her Court statement has deposed that the appellant is known to her and he belongs to Soni caste. The prosecutrix belongs to Schedule Tribe and Ex.P-2 is her caste certificate. He further deposed that at the time of occurrence she was residing at Mansomavariya Badli on the ground floor of the house of Lallu Member Sahab and on the date of occurrence, when she was sleeping in her house along with her three children and her husband has gone at the house of his neighbour Pandaji for watching T.V., suddenly the appellant-accused, who was residing at the first floor of the same house, suddenly came to her house, opened the door and forcefully committed rape on her. She further deposed that during the aforesaid, when the prosecutrix tried to resist herself, the accused threatened her to kill. After that when he was wearing his clothes and was about to go from the room, her husband Banesingh (PW3) came there. On seeing him, the accused ran away from the place of occurrence. Thereafter, she narrated the whole incident to her husband. 13. As per spot map, the appellant and the prosecutrix are tenant in the house. The prosecutrix and her family were residing on the ground floor and the appellant was residing at the first floor of the same house. 14. In para 6 of the statement of prosecutrix (PW2), she has further deposed that she sustained abrasion on her hands, but the aforesaid fact has not been supported by Dr. Manisha Mittal (PW1). As per statement of PW1, no injury was found on the body of the prosecutrix. 15. 14. In para 6 of the statement of prosecutrix (PW2), she has further deposed that she sustained abrasion on her hands, but the aforesaid fact has not been supported by Dr. Manisha Mittal (PW1). As per statement of PW1, no injury was found on the body of the prosecutrix. 15. In para 8 of the cross-examination of the prosecutrix (PW2), when it was asked that whether she has received Rs.25,000/- from the State Government or not she pleaded ignorance and gave no reply to the fact that a sum of Rs.25,000/- was deposited in her Corporative Bank Account. She also denied about a rape case lodged by her against one Balveer and Dalchandra and during trial, a settlement was arrived between them and for settlement of the case with Dalchandra, she received a sum of Rs.15,000/- from him. 16. Banesingh (PW3) in para 1 of her statement has deposed that when he was near to his house, he heard the shriek of the prosecutrix (PW2) and immediately rushed to the house. On entering the house, he saw that the appellant is running away from his house. When he asked her wife what is the matter, at that time she was crying and narrated the whole incident. In para 2 of his cross-examination, this witness admits that he did not narrate the incident to Pandaji and other neighbours. He also denied about compromise of his wife with Dalchandra against whom his wife has lodged a case under section 376 of IPC. 17. As per statement of Dr. Manisha Mittal (PW1), the doctor by which the prosecutrix was medically examined, she stated that the prosecutrix has neither received any abrasion nor any internal or external injury was found over her vital part of the body. 18.The accused in his 313 CrPC, statement has denied his involvement in the occurrence, but very categorically admitted that he belongs to Soni caste and the prosecutrix (PW2) belongs to schedule tribe. He also stated that it is a case of false implication. 19. If we analysis the statement of the prosecutrix (PW2) and her husband Banesingh (PW3), there was no resistance by the prosecutrix nor she cried for any help. It appears that on seeing by her husband, she started defending and made an allegation against the accused. The only explanation given by her is that she was threatened by the accused. 19. If we analysis the statement of the prosecutrix (PW2) and her husband Banesingh (PW3), there was no resistance by the prosecutrix nor she cried for any help. It appears that on seeing by her husband, she started defending and made an allegation against the accused. The only explanation given by her is that she was threatened by the accused. As per medical report, no external injury was found on her person. It appears that she never tried to resist or opposed the act of the accused. Under these circumstances, the medical evidence gains significance for the examining doctor has categorically deposed that there was no injuries on her external part of the body. The testimony of the prosecutrix (PW2), the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix and her husband Banesingh (PW3) as so natural and truthful to inspire confidence. It can be stated certitude that the evidence of the prosecutrix is not of such quality, which can be placed reliance upon. The prosecutrix is a fully grown up lady. She could have resisted herself. There are material improvement in her Court statement. 20. Considering the statements of prosecutrix (PW2), her husband Bandesingh (PW3) as well as the statement of Dr. Manish Mittal (PW1), we are of the view that the statement of the prosecutrix (PW2) and her husband Banesingh (PW3) are not reliable and their testimonies do not inspire confidence and the substantial evidence remotely do not lend any support to the same. In absence of the above, we are of the view that the finding recorded by the learned trial Court is vitiated by an error of law or procedure and the same is perverse and unsupportable from the evidence on record. However, the learned Special Judge has made an error in convicting the accused for the alleged offence. It is well settled that the credibility of the witnesses has to be adjusted by this Court in drawing inference from proved and admitted facts. 21. On due consideration of the aforesaid and the material available on record, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt on the said evidence. It is well settled that the credibility of the witnesses has to be adjusted by this Court in drawing inference from proved and admitted facts. 21. On due consideration of the aforesaid and the material available on record, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt on the said evidence. There is no evidence at all to the effect that the appellant committed an offence alleged against him on the ground that prosecutrix is a member of scheduled tribe. In absence of such ingredients, no offence under section 3(2)(v) of the Act arises. In that view of the matter, we think, the trial Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial Court ought to be set aside. 22. In view of the aforesaid factual position, we do not agree with the conclusion recorded by the trial Court that the offences charged against the appellant are proved. The appeal is, therefore, allowed. Conviction of the appellant and sentences awarded to him by the trial Court for offence under sections 376(1) and 506 of IPC and under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are hereby set aside and the appellant is acquitted of the charges levelled against him. The appellant is on bail. His bail bond and surety bond shall stand discharged. Amount of fine, if deposited, shall be refunded to him.