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2015 DIGILAW 241 (MP)

Raja Bhai v. State of M. P.

2015-02-26

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 26.9.2002 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Sagar in Special Case No. 75/01, wherein the appellant has been convicted of the offences under Section 354 of IPC and Section 3(1)(xi) of the SC/ST (Prevention of Atrocities), Act (hereinafter it would be referred as the 'Special Act') and sentenced to six months' R.I. with fine of Rs. 500/-. In default of payment of fine, one month's R.I. 2. The prosecution's case in short is that on 26.2.2001 at about 8:00 p.m. in the evening, the prosecutrix (PW-1) went outside of her house at village Basahari (Police Station Khimlasa, District Sagar) to answer the call of nature. When she was about to come back, the appellant held her from back side and threw her on the ground and pressed her breast and told that he would cohabit with the prosecutrix. However, the prosecutrix could escape and came to her house and she informed about the incident to her husband and other family members. She sustained the injuries on neck, chest, knee, waist and elbows. On the next day, she had lodged an FIR at Police Station, Khimlasa. She was sent for her medico legal examination. After due investigation, the charge sheet was filed before the JMFC, Khurai, who committed the case to the Special Judge. 3. The appellant abjured his guilt. He took a plea that he was falsely implicated in the matter however, no defence evidence was adduced. 4. The Special Judge after considering the prosecution's evidence, convicted and sentenced the appellant as mentioned above. 5. I have heard the learned counsel for the parties at length. 6. It is submitted by learned counsel for the appellant that the prosecutrix could not prove her caste certificate issued by the appropriate person. In the present case, the cast certificate Ex. P/6 was filed and it was issued by the Sarpanch. In that certificate, a list of officers has given who were competent to issue the caste certificate. In that list, the name of Sarpanch was not given and therefore, the certificate is not issued by the competent authority. Hence, by such certificate, the caste of the prosecutrix could not be proved. The prosecution has failed to prove that the prosecutrix was a member of scheduled caste. 7. In that list, the name of Sarpanch was not given and therefore, the certificate is not issued by the competent authority. Hence, by such certificate, the caste of the prosecutrix could not be proved. The prosecution has failed to prove that the prosecutrix was a member of scheduled caste. 7. The prosecutrix (PW-1), Dayaram (PW-2) and Jagat (PW-3) were examined as eyewitnesses. Out of them, Dayaram and Jagat have turned hostile. The prosecutrix has stated that the appellant threw her on the ground and pressed her breast. On her shouting, no one has come. She sustained various injuries and thereafter, she reported the matter to her husband and on the next day, she had lodged the FIR at Police Station, Khimlasa. Shyamlal (PW-4) has stated that his child came to his shop and told that the prosecutrix was weeping at residence and therefore, he went to the residence and he was informed about the incident by the prosecutrix. Dr. M.M. Sharma (PW-8) has proved the medical report Ex. P/7 in relation to the injuries caused to the prosecutrix. He found four injuries caused by hard and blunt object on her right knee, left knee and both sides of neck. The prosecutrix had lodged the FIR Ex. P/1. However, the FIR was lodged on the next day at about 1:50 p.m. The prosecutrix has stated in para 13 of her cross-examination that she has lodged the FIR on the same day when, the incident took place. However, the FIR was lodged on the next day at about 1:50 p.m. and the police station was hardly 8 kms. away. No reasonable ground could be shown to explain the delay caused in lodging the FIR. If FIR was delayed without any specific reasonable ground then a doubt is created in the prosecution's story. 8. The prosecutrix and her husband Shyamlal have stated that the appellant had opened a grocery shop near the shop of Shyamlal and therefore, a loss was caused to him due to competition. Hence, it would be apparent that due to rivalry in the same business, there was enmity between the parties. The enmity is a double edged weapon wherein one can implicate his enemy falsely due to enmity or such crime could be done due to enmity therefore, the statements of the witnesses should be examined minutely. 9. Hence, it would be apparent that due to rivalry in the same business, there was enmity between the parties. The enmity is a double edged weapon wherein one can implicate his enemy falsely due to enmity or such crime could be done due to enmity therefore, the statements of the witnesses should be examined minutely. 9. Though, the police has examined two eyewitnesses namely Dayaram (PW-3) and Jagat (PW-3) but the prosecutrix has mentioned in the FIR Ex. P/1 and stated before the Court that nobody came to the spot to save her. If no one reached to the spot to save the prosecutrix then, what was the problem to the appellant so that he could not commit rape upon the prosecutrix. If she went outside of her house and there was nobody to save her then, she could not escape from the clutches of the appellant and he would have committed rape upon the prosecutrix. Secondly, as to how the appellant got the information that at a particular time, the prosecutrix would come outside of her house to answer the call of nature. Thirdly, the conduct of husband of the prosecutrix appears to be strange. He states that in routine, he had closed his shop at about 9:00 p.m. and thereafter, he had to come to take the dinner to his house and again at about 10:00 p.m. he had to go back to the shop and to sleep in the night at the shop. On the date of incident, after taking his dinner, he went to his shop at about 10:00 p.m. and thereafter, his son came and informed him but, according to the FIR Ex. P/1, the incident took place at about 8:00 p.m. in the evening. It means that the incident took place prior to visit of Shyamlal to his house for dinner then, how he could go back to the shop at about 10:00 p.m. Looking to the statement given by Shyamlal, it appears that entire story as told by the prosecutrix and her husband appears to be false. 10. On the basis of aforesaid three reasons, the testimony of the prosecutrix appears to be doubtful. It appears that the appellant had done nothing to the prosecutrix and due to enmity, he was falsely implicated by the prosecutrix or the prosecutrix was a consenting party. 10. On the basis of aforesaid three reasons, the testimony of the prosecutrix appears to be doubtful. It appears that the appellant had done nothing to the prosecutrix and due to enmity, he was falsely implicated by the prosecutrix or the prosecutrix was a consenting party. It appears that when she was caught by her husband then, her husband assaulted her when she went back to the house and therefore, the prosecutrix sustained the injuries. Consequently, husband of the prosecutrix was annoyed and therefore, the FIR was lodged on the next day with the delay. If any doubt is created in the prosecution's story then, the benefit of doubt is to be given to the accused. It is a doubtful case and alleged eyewitnesses have turned hostile, whereas FIR was highly delayed. The conduct of the prosecutrix and her husband appears to be unnatural and therefore, it is a case in which the benefit of doubt is to be given to the accused. The trial Court has wrongly convicted the appellant for the aforesaid offences. Looking to the doubtful situation of the case, appeal filed by the appellant is acceptable and hence, it is accepted. The conviction as well as sentence imposed upon the appellant for the offences under Section 354 of the IPC and Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act are hereby set aside. The appellant is acquitted from all the aforesaid charges. He is 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 before this Court and therefore, it is directed that his bail bonds etc. shall stand discharged. 12. Copy of the judgment be sent to the trial Court alongwith its record for information.