Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 206 (MP)

Khalid v. State of M. P.

2015-02-19

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The appellant has preferred the present appeal against the judgment dated 13.10.2001 passed by the learned Special Judge under SC/ST (Prevention of Atrocities) Act, Khandwa in Special Case No. 13 of 2000 whereby, the appellant has been convicted of offences under Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act (hereinafter it would be referred as the "Special Act") and 354 of I.P.C and sentenced to six months rigorous imprisonment with fine of Rs.1000/- whereas, no separate sentence was imposed for offence under Section 354 of I.P.C. In default of payment of fine one month's rigorous imprisonment. 2. The prosecutions case in short, is that, on 12.9.1999 at about 5.00 p.m the prosecutrix (PW1) had lodged an FIR Ex.P/2 at Police Station Piplod, District Khandwa that at about 12 o'clock in the noon, when she was present in her house all alone, the appellant came inside her house and tried to drag her towards a ruined house so that he could have cohabitation with her. He pressed her breast and held her hand with bad intention. Mangalsutra in the neck of the prosecutrix was broken. The prosecutrix gave a kick to the appellant. In the meantime, Shantabai (PW3) and Champa Bai came to the spot and therefore, appellant left the prosecutrix. After due investigation a charge sheet was filed before the JMFC Khandwa who, committed the case to the Special Court. 3. The appellant abjured his guilt. He took a plea in defence that he is a conductor in a particular bus agency and husband of the prosecutrix was a ticket agent and both of them have an enmity with each other. Also on the date of incident the prosecutrix went inside the ruined house of the appellant and in a towel she took some money and therefore, the appellant had lodged an FIR at the Police Station. The towel (handkerchief) was also recovered from the prosecutrix by the Police. Hence the prosecutrix has falsely implicated the applicant. In defence Azim Khan (DW1) was examined. 4. After considering the evidence adduced by the parties, the trial Court convicted and sentenced the appellant as mentioned above. 5. I have heard the learned counsel for the parties at length. 6. The towel (handkerchief) was also recovered from the prosecutrix by the Police. Hence the prosecutrix has falsely implicated the applicant. In defence Azim Khan (DW1) was examined. 4. After considering the evidence adduced by the parties, the trial Court convicted and sentenced the appellant as mentioned above. 5. I have heard the learned counsel for the parties at length. 6. The learned counsel for the appellant has submitted that for conviction under the Special Act, it is for the victim to prove that she belongs to scheduled caste or scheduled tribe otherwise, no such conviction can be imposed. In support of his contention he has placed his reliance upon the judgment passed by the single Bench of this Court in the case of "Shankarlal Vs. State of M.P. [ 2005 (1) MPLJ 449 ]. In the present case the prosecutrix (PW1) and her husband Ashok (PW2) did not say orally about the caste of the prosecutrix. No certificate about the caste of the prosecutrix was filed along with the charge sheet. The prosecutrix was asked specific question in para 7 of her cross examination that whether the prosecutrix was "korku" by caste then neither she confirmed nor denied about her caste whereas, in the FIR it was mentioned that she was Gond. In reply to the question which was asked in para 7 of the cross examination, it appears that the prosecutrix was in love with Ashok and marriage took place with consent of their parents and however, it is not clear that whether Ashok was of scheduled tribe or the prosecutrix was of scheduled tribe. When a girl not belonging to scheduled tribe or scheduled caste is married to a person of scheduled tribe then by virtue of that marriage, it cannot be said that she was of scheduled tribe. Hence, it was for the prosecutrix to prove that she was a Member of scheduled tribe from the very beginning. It is not apparent that whether the prosecutrix was "Gond" or "Korku" or of any other caste. Hence, it could not be proved by the prosecution that the prosecutrix was of scheduled tribe. In the light of the judgment passed in the case of Shankarlal (supra) the applicant could not be convicted for offence under section 3(1)(xi) of the Special Act. 7. Hence, it could not be proved by the prosecution that the prosecutrix was of scheduled tribe. In the light of the judgment passed in the case of Shankarlal (supra) the applicant could not be convicted for offence under section 3(1)(xi) of the Special Act. 7. The prosecutrix (PW1) was examined as a eye witness whereas, the alleged eye witness Shantabai (PW3) has turned hostile and Champa Bai was not examined. FIR Ex.P/2 was lodged after five hours of the incident whereas, Police Station was hardly 5 kms away. As per the prosecutrix (PW1) and her husband Ashok (PW2), the prosecutrix had immediately informed her husband and thereafter, an FIR was lodged. In the FIR it was mentioned that the mangalsutra of the prosecutrix was broken in the incident. The prosecutrix has claimed that her blouse was torn. However, no blouse etc. was recovered by the Police. On the contrary Sushila Bai and Ashok have stated that the appellant robbed a silver chain of the prosecutrix. Such statement of these witnesses is contrary to the version of FIR Ex.P/2. 8. Ashok has accepted that he has business rivalry with the appellant and quarrel took place with the appellant for getting passenger and therefore, there is enmity between the appellant and Ashok. Enmity is a double edged weapon. Due to enmity one can lodge a false FIR or due to enmity such incident could be caused and therefore, the statement of the prosecutrix and her husband should be considered minutely. 9. The appellant took a defence that the prosecutrix went in a ruined house of the appellant and took some money in a towel and therefore, a quarrel took place between the appellant and the prosecutrix. Azim Khan (DW1) has stated about that incident. The prosecutrix has avoided to give an answer about the house of the appellant that it was adjacent to her house. However, Ashok has accepted that a ruined house of the appellant was there in front of his house. The prosecutrix in para 8 has accepted that the Police seized a towel from her. She took the towel to the Police Station while lodging the FIR. Ashok in para 5 of his cross examination has accepted that the prosecutrix took a towel to the Police Station and gave it to the Police. The prosecutrix in para 8 has accepted that the Police seized a towel from her. She took the towel to the Police Station while lodging the FIR. Ashok in para 5 of his cross examination has accepted that the prosecutrix took a towel to the Police Station and gave it to the Police. The prosecutrix has given an explanation that the appellant left the towel at the time of incident and hence she deposited the towel at the Police Station. However, there is no description in the FIR Ex.P/2 that the appellant left any towel at the spot while he was running. Consequently, no towel is shown to be recovered by the Police in the present case. Hence, it appears that the prosecutrix was called at the Police Station in relation to the matter of theft committed by her from the ruined house of the appellant and a towel was seized in that case. Thereafter, the prosecutrix had lodged an FIR against the appellant that he outraged her modesty. 10. On the basis of the aforesaid discussion, where it is established that there was a business rivalry between the appellant and Ashok, husband of the prosecutrix, there was allegation upon the prosecutrix that she committed theft in the ruined house of the appellant and a towel was also recovered from her. The prosecutrix had lodged an FIR with delay and no satisfactory explanation was given by her about that delay. The alleged eye witnesses did not support the prosecution's story hence, the possibility cannot be ruled out that the appellant was falsely implicated in the matter simply to counter the allegation of theft lodged by the appellant against the prosecutrix. Under these circumstances, the testimony of the prosecutrix and her husband cannot be believed beyond doubt. It was not proved beyond doubt that the appellant had outraged the modesty of the prosecutrix or used any criminal force with bad intention. If any doubt is created in the prosecution's case then benefit of doubt is to be given to the accused. Under these circumstances, the appellant could not be convicted even of offence under Section 354 of I.P.C. The trial Court has committed an error in convicting the appellant for aforesaid offence. 11. On the basis of the aforesaid discussion the appeal filed by the appellant appears to be acceptable and consequently it is accepted. Under these circumstances, the appellant could not be convicted even of offence under Section 354 of I.P.C. The trial Court has committed an error in convicting the appellant for aforesaid offence. 11. On the basis of the aforesaid discussion the appeal filed by the appellant appears to be acceptable and consequently it is accepted. Since it is not proved that the prosecutrix was a Member of scheduled tribe or scheduled caste and therefore, the appellant cannot be convicted of offence under Sections 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act. Similarly, it was not proved beyond doubt that the appellant outraged the modesty of the prosecutrix by using any criminal force or assault, the appellant cannot be convicted of offence under Section 354 of I.P.C. The conviction as well as the sentence of offence under section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act and Section 354 of I.P.C are hereby set aside. The appellant is acquitted from all the charges appended against him. He would be entitled to get the fine amount back if he has deposited before the trial Court. 12. 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. 13. Copy of the judgment be sent to the trial Court along with its for information and compliance.