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Madhya Pradesh High Court · body

2015 DIGILAW 215 (MP)

Shobharam Yadav v. State of M. P.

2015-02-20

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 7.7.1999 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Tikamgarh in Special Case No. 42/1998 whereby the appellant has been convicted of offence under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act (hereinafter referred to as "Special Act") and sentenced to six months' RI with fine of Rs.2000/- and in default of payment of fine three months' RI. 2. The prosecution's story, in short, is that the prosecutrix (PW-1) was resident of Village Kanchanpura (Police Station Niwadi District Tikamgarh). On 2.8.1998 at about 2:00 PM the prosecutrix was inside her house and her husband Maniram (PW-2) was working behind the house. The appellant went to the house of the prosecutrix on a bicycle and knocked the door. He gave a bag to be kept in the house, but the prosecutrix denied to do so. Thereafter the appellant held her hand and asked for to go on the bed. Thereafter he pressed her breasts by his both hands. On her shouting, her husband came to the spot, therefore the appellant ran away. The prosecutrix had lodged an FIR at Police Station Niwadi against the appellant. After due investigation, a charge sheet was filed before the Special Judge. 3. The appellant-accused abjured his guilt. He took a plea that he was falsely implicated in the matter due to enmity. However, no defence evidence was adduced. 4. During the pendency of the trial, on 5.3.1999 the prosecutrix had filed a compromise application, and therefore charge of Section 354 of IPC was compounded and the appellant was acquitted from that charge due to compromise. However, after considering the prosecution evidence, the trial Court has convicted the appellant for the offence under Section 3(1)(xi) of the Special Act and sentenced as mentioned above. 5. I have heard the learned counsel for the parties. 6. It is apparent from the evidence of the prosecution that the appellant is a teacher by profession. Usha (PW-1) and Maniram (PW-2) have stated that Maniram went to the spot when his wife shouted. Usha has stated that the appellant held her hand and pressed her breasts and thereafter he was taking her to a Chaarpai (bed). She made hue and cry and thereafter she lodged the FIR Ex.p-1. Usha (PW-1) and Maniram (PW-2) have stated that Maniram went to the spot when his wife shouted. Usha has stated that the appellant held her hand and pressed her breasts and thereafter he was taking her to a Chaarpai (bed). She made hue and cry and thereafter she lodged the FIR Ex.p-1. In the present case, there are two deformities in the prosecution story. Firstly, the FIR has been lodged with delay of at least 4 1/2 hours. The incident took place at about 2:00 PM whereas the FIR was lodged at about 6:30 PM, though the police station was hardly 1 1/2 kms. The prosecutrix (PW-1) in para 8 of her cross examination has stated that the incident took place at about 2:00 PM and within 20-25 minutes she went to the police station and lodged an FIR. According to her, the FIR was lodged at about 2:30 PM but unfortunately the FIR appears to be lodged at 6:30 PM. Apparently the FIR has been lodged with a delay of four hours and no explanation was given by the prosecutrix for such delay in lodging the FIR. If the FIR has been lodged with some delay, then the prosecution story comes in the cloud of doubt. 7. Secondly, the prosecutrix has accepted that she appeared in the examination of Class-5th one year after her marriage. In the examination she sent another girl to appear in the examination and the appellant being a teacher caught that girl red handed in the examination hall, and therefore a complaint was made by the appellant. Hence, the examination of the prosecutrix was cancelled. In such circumstances, the prosecutrix had a reason to implicate the appellant falsely. The Special Judge asked the prosecutrix as to whether she has lodged a false FIR due to that enmity, however she denied. 8. If aforesaid two deformities are considered simultaneously along with the evidence of the prosecutrix and her husband, then some questions remained unanswered. Firstly, there was no need to the appellant to visit the house of the prosecutrix when he had already made a complaint against the prosecutrix relating to her personation in the examination. 8. If aforesaid two deformities are considered simultaneously along with the evidence of the prosecutrix and her husband, then some questions remained unanswered. Firstly, there was no need to the appellant to visit the house of the prosecutrix when he had already made a complaint against the prosecutrix relating to her personation in the examination. It was not proved that being a teacher the appellant had molested any of his student in the past, and therefore it was not possible for the appellant to visit the house of the prosecutrix on a particular day with such a bad intention, whereas he had already lodged a complaint against the prosecutrix about her misconduct in the examination. Secondly, the prosecutrix has stated that the appellant gave a bag to be kept in the house and she denied to take that bag. Such things could be done in front of the house and there was no possibility that the appellant could take the prosecutrix to her Chaarpai (bed). Similarly, the incident took place at an open place in front of the house of the prosecutrix, whereas the house of the prosecutrix was surrounded by various houses of other persons. It is surprising that no other eye-witness came to the spot on shouting of the prosecutrix. In the FIR it was mentioned that one Mannu came to the spot, however when Mannu appeared before the Court for his examination, he was given up. Therefore, it shall be presumed that if Mannu would have examined, then he would have turned hostile. Under these circumstances, the testimony of the prosecutrix and her husband was not corroborated by the independent witness. The allegations appear to be unnatural. There was no possibility for the appellant to visit the house of the prosecutrix on a particular day with bad intention, whereas he had already lodged a complaint against the prosecutrix about the cheating done by her in the examination. There was enmity between the prosecutrix and the appellant. The appellant was a teacher by profession and he was a respectful person. It was not expected from him to do so. The FIR was lodged with a delay of at least four hours and no explanation was given by the prosecutrix for such delay. Hence the testimony of the prosecutrix and her husband cannot be believed beyond doubt. 9. The appellant was a teacher by profession and he was a respectful person. It was not expected from him to do so. The FIR was lodged with a delay of at least four hours and no explanation was given by the prosecutrix for such delay. Hence the testimony of the prosecutrix and her husband cannot be believed beyond doubt. 9. The learned counsel for the appellant has submitted that the prosecutrix did not prove that she was a member of Scheduled Caste or Scheduled Tribe, she was required to file a caste certificate in support of her evidence. In this connection, the learned counsel for the appellant has placed his reliance upon the judgment of Single Bench of this Court in the case of "Shankarlal Vs. State of MP" [ 2005(1) MPLJ 449 ] in which it is held that in order to establish a charge of offence under Section 3(1)(xi) of the Special Act, it is for the prosecutrix to establish that she belongs to Scheduled Caste or Scheduled Tribe. If no such evidence is inserted by the prosecution, then the accused cannot be convicted of offence under Section 3(1)(xi) of the Special Act. In the present case, the prosecutrix could not establish that she was a member of Scheduled Caste. No such caste certificate is submitted in this regard. Therefore, if the testimony of the prosecutrix and her husband is believed, still the appellant could not be convicted of offence under Section 3(1)(xi) of the Special Act. At the most he could be convicted of offence under Section 354 of IPC but due to compromise he was acquitted from the charge of Section 354 of IPC. 10. On the basis of the aforesaid discussion, it appears that the case of prosecution appears to be doubtful and when any doubt is created, then benefit of doubt is to be given to the accused. The appellant could not be convicted of offence under Section 3(1)(xi)of the Special Act. Therefore, the appeal filed by the appellant is acceptable. Consequently, it is hereby accepted. The conviction as well as the sentence imposed by the trial Court for commission of offence under Section 3(1)(xi) of the Special Act 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 the same before the trial Court. The conviction as well as the sentence imposed by the trial Court for commission of offence under Section 3(1)(xi) of the Special Act 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 the same before the trial Court. 11. At present the appellant is on bail, his presence is no more required, therefore it is directed that his bail bonds shall stand discharged. 12. A copy of this judgment be sent to the trial Court with its record for information and compliance.