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Madhya Pradesh High Court · body

2015 DIGILAW 203 (MP)

Siriya v. State of M. P.

2015-02-18

N.K.GUPTA

body2015
JUDGMENT: N.K. Gupta, J. 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 24.7.1999 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Betul in Special Case No. 46/98, whereby the appellant has been convicted of the offences under Sections 3(1)(x) & 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act (hereinafter referred as 'the Special Act') and sentenced to six months' R.I. with fine of Rs.500/- and one year's R.I. with fine of Rs.500/- respectively. The default sentence in lieu of payment of fine was also prescribed. 2. The prosecution's case, in short is that on 12.9.1998 at about 1:30 p.m., the prosecutrix (PW-2) was washing her clothes near a Hanuman Temple in village Lohardhana (Police Station Chicholi, District Betul). She was accompanied with Bisondi Bai (PW-4) and Nanibai (DW-1). The appellant passed threw that way and told her that he would outrage her modesty and thereafter, he held her breast by both hands and started squeezing them. The prosecutrix raised a stick, which was lying there and gave a blow on knee of the appellant then, the appellant assaulted the prosecutrix by an iron rod causing injuries on her right knee, right thigh and right leg. She sustained so many injuries. Her blouse was also torn from left side. The appellant abused her with obscene words. Thereafter, the prosecutrix went to inform her husband and lodged an FIR Ex.P/2 at police station, Chicholi. She was sent for her medico legal examination to the Community Health Centre, Chicholi. Dr. Vijay Kumar Arakh (PW-1) examined the prosecutrix and gave his report Ex.P/1. He found four blunt injuries to the prosecutrix. One was on left leg, second was on right knee, third was on right wrist and fourth was on right nipple. After due investigation, the charge sheet was filed and ultimately, matter was sent to the Special Court. 3. The appellant abjured his guilt. He took a plea that the prosecutrix was in habit to prepare Kachchi liquor near Hauman temple and the appellant, who was a regular visitor of that temple had prohibited her to do so and therefore, a false FIR was lodged. In defence, Nanibai (DW- 1) was examined. 4. The Special Judge after considering the evidence adduced by both the parties, convicted and sentenced the appellant as mentioned above. 5. I have heard the learned counsel for the parties. 6. In defence, Nanibai (DW- 1) was examined. 4. The Special Judge after considering the evidence adduced by both the parties, convicted and sentenced the appellant as mentioned above. 5. I have heard the learned counsel for the parties. 6. Learned counsel for the appellant has submitted that the prosecutrix could not prove beyond doubt that she was a member of scheduled caste. A certificate Ex.P/5 was filed but it was not proved by the concerned Authority, who issued it. Such certificate is obtained by SDOP Ramkrishna Choubey (PW-3) from Gram Panchayat. For issuance of caste certificate, SDOP (Revenue) of that area was competent. Such certificate could not be issued by the Sarpanch of the Gram Panchayat and secondly, Sarpanch of Gram Panchayat was to be examined to prove that document as to whether he gave that certificate on the basis of some document and whether he had done any entry in Panchayat register before issuance of certificate. The prosecutrix was writing her surname to be Patil, whereas she has claimed that she was "Mehra" by caste and therefore, she was a member of scheduled caste. The contention of learned counsel for the appellant appears to be correct. It is for the prosecution to prove beyond doubt that the victim is a member of scheduled caste. The prosecutrix has stated that she was of "Harijan" by caste but "Harijan" means scheduled caste and "Harijan" itself is not a particular caste belonging to scheduled caste. It was for the prosecutrix to say that she was "Mehra" by caste, which falls in the category of scheduled caste. Under these circumstances, the prosecution has failed to prove that the prosecutrix was a member of scheduled caste. 7. In the cross-examination of accused, the appellant has denied that the prosecutrix was a member of scheduled caste and therefore, when the caste certificate Ex.P/5 was not duly proved by the person, who issued that certificate and it is not proved that he was competent to issue such a certificate then, it cannot be said that the prosecutrix was a member of scheduled caste. 8. 8. The prosecutrix (PW-2) and Bisondi Bai (PW-4) have stated that when the prosecutrix was washing her clothes and thereafter she started bathing, the appellant went and told her to permit for cohabitation thereafter, he hug the prosecutrix and pressed the breast and thereafter, he threw her in the water and assaulted her by an iron rod. On other hand, one alleged eyewitness Nanibai (DW-1) has stated that no such incident took place with the prosecutrix. Since the appellant was prohibiting the prosecutrix to prepare Kachchi liquor near a temple, he was falsely implicated. The possibility cannot be ruled out that Nanibai was won over witness of the appellant and therefore, the testimony of the prosecutrix and Bisondi Bai should be considered independently. The statements of the prosecutrix and Bisondi Bai are corroborated by a medical evidence relating to the assault caused by the appellant. However, a doubt is created that the appellant had tried to outrage the modesty of the prosecutrix. Dr. Vijay Kumar Arakh (PW-1) has admitted in para 5 of his cross- examination that the injury found on nipple could be self inflicted. The prosecutrix had lodged the FIR with the delay of at least three hours. The alleged incident took place at about 1:30 p.m. and the concerned police station was 24 kms away. Bisondi Bai has accepted that from her village, at least one hour is required to visit Chicholi by bus and in every half hour, bus service is available. When FIR was lodged with delay, the possibility cannot be ruled out that some modification was done in the FIR. According to the FIR Ex.P/2, it was alleged by the prosecutrix that the appellant held her both breast by both hands respectively and thereafter, he twisted the nipples of the prosecutrix then, injuries should have been caused to both of the nipples. Secondly, the prosecutrix had claimed that her blouse was torn from left side but no such blouse was seized by the police. SDO Ramkrishna Choubey (PW-3) has clarified in his cross-examination that he could not seize the torn blouse because the prosecutrix did not bring another blouse to wear. However, he has not mentioned such a reason in his case diary. The prosecutrix did not state that her blouse was not recovered by the investigation officer because she did not have another blouse for change. However, he has not mentioned such a reason in his case diary. The prosecutrix did not state that her blouse was not recovered by the investigation officer because she did not have another blouse for change. If the investigation officer would have directed then, on the next day, the prosecutrix could have provided that torn blouse to the investigation officer for seizure. Hence, since the blouse was not recovered, the statement of the prosecutrix cannot be believed that her blouse was torn. 9. The prosecutrix has mentioned in the FIR Ex.P/2 that when the appellant visited the place of incident, she was washing her clothes and therefore at that time, she was wearing her blouse, whereas the prosecutrix has claimed that when the appellant passed from that place, she was bathing and the witnesses Bisondi Bai and Nanibai were washing their clothes. It is apparent from the statements of the prosecutrix and Bisondi Bai that Bisondi Bai and Nanibai were present at the time of incident and if the appellant was interested to do the cohabitation with the prosecutrix then, he could not have given such offer before other two women because, before such other women, the prosecutrix could not accept his offer. It was not possible for the appellant to hold the breast of the prosecutrix in presence of other two women. Hence, after considering the defence evidence of Nanibai, who was one of the eyewitness, it appears that a false case has been lodged by the prosecutrix with the help of Bisondi Bai that the appellant tried to outrage her modesty or he used any criminal force to outrage her modesty. The possibility cannot be ruled out that the appellant would have assaulted the prosecutrix by an iron rod and thereafter, to make the case grave, a false FIR of offence under Section 3(1)(xi) of the Special Act was lodged and injury on left nipple was caused by herself. Under these circumstances, it is possible that the appellant had assaulted the prosecutrix causing injuries but his intention to outrage the modesty of the prosecutrix is not established beyond doubt. The appellant could neither be convicted for offence under Section 3(1)(xi) of the Special Act or Section 354 of the IPC. The Special Judge has committed an error in convicting the appellant for the offence under Section 3(1) (xi) of the Special Act. 10. The appellant could neither be convicted for offence under Section 3(1)(xi) of the Special Act or Section 354 of the IPC. The Special Judge has committed an error in convicting the appellant for the offence under Section 3(1) (xi) of the Special Act. 10. So far as the offence under Section 3(1)(x) of the Special Act is concerned, if the evidence of the prosecutrix (PW-2) and Bisondi Bai (PW-4) is examined alongwith the FIR Ex.P/2 then, intention of the appellant could be that he assaulted the prosecutrix to pressurize her to surrender. However, it is not established by these witnesses that he assaulted the prosecutrix with intention to cause insult of the prosecutrix on the basis of her caste. It is not stated by the prosecutrix that due to such assault, any insult was specially caused to her. If the accused outraged the modesty of the prosecutrix then, it is not necessary that he had caused insult of the prosecutrix on the basis of her caste and therefore, if the offence under Section 3(1)(xi) of the Special Act is made out then, still it is not necessary that the offence under Section 3(1) (x) of the Special Act shall constitute. 11. On the basis of aforesaid discussion, it would be apparent that there was no allegation at all from the side of the prosecutrix that the appellant insulted her on the basis of caste. The trial Court has committed an error of law in convicting the appellant of offence under Section 3(1)(x) of the Special Act. It would be apparent that it was established by the prosecution that the appellant had voluntarily caused hurt to the prosecutrix by assaulting her with an iron rod. However, the trial Court did not frame the charge under Section 323 of the IPC against the appellant. Offence under Section 323 of the IPC is not an inferior offence of same nature as of Section 3(1)(x) or Section 3(1)(xi) of the Special Act. The accused could be convicted of offence under Section 354 or 352 of the IPC under the charge of Section 3(1)(xi) of the Special Act but the accused cannot be convicted of offence under Section 323 of the IPC under same head. The accused could be convicted of offence under Section 354 or 352 of the IPC under the charge of Section 3(1)(xi) of the Special Act but the accused cannot be convicted of offence under Section 323 of the IPC under same head. It was for the trial Court to frame a separate charge of offence under Section 323 of the IPC against the appellant and therefore, at this stage, the appellant cannot be held guilty of offence under Section 323 of the IPC in absence of any charge. 12. As discussed above, the appellant cannot be convicted of offence under Section 323 of the IPC in absence of any charge, the prosecutrix has not proved that she was a member of scheduled caste. It was not proved beyond doubt that the appellant used any criminal force or assaulted the prosecutrix to outrage her modesty and therefore, the appellant cannot be convicted of offence under Section 3(1)(xi) of the Special Act. Similarly, when the prosecutrix could not prove that she was a member of scheduled caste and it was not proved beyond doubt that the appellant insulted her on the basis of her caste then, the appellant cannot be convicted of offence under Section 3(1)(x) of the Special Act. Under these circumstances, the appeal filed by the appellant appears to be acceptable and hence, it is hereby accepted. His conviction as well as sentence imposed for the offences under Section 3(1)(x) or3(1)(xi) of the SC/ST (Prevention of Atrocities) Act are hereby set aside. He is acquitted from all the charges appended against him. He is entitled to get the fine amount back, if he has deposited the same before the trial Court. 13. At present, the appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. 14. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance.