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Madhya Pradesh High Court · body

2015 DIGILAW 295 (MP)

Ramkripal v. State of M. P.

2015-03-12

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 18.9.2002 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Satna in Special Case No. 7/2002 whereby the appellant has been convicted of offence under Sections 451, 324 of IPC and Section 3(1)(xi)of SC/ST (Prevention of Atrocities) Act (herein after referred to as Special Act) and sentenced to six months RI with fine of Rs.1000/- on each count charges, default sentence in lieu of payment of fine was also imposed. 2. The prosecution's case, in short, is that on 23.12.2001 the prosecutrix (PW-1) was present in her house at Village Katkaha (Police Station Barodha District Satna). In the night the appellant went inside the house by jumping from the roof and held the prosecutrix with bad intention. He pressed her breasts & hands, thereafter bitten with teeth on her left cheek as well as left shoulder. On her shouting the appellant ran away from the house, but no one came to the spot. Thereafter the prosecutrix went to the house of her elder brother-in-law as well as sister-in-law and informed them about the incident. On the next day at about 11:00 AM she had lodged an FIR Ex.P-2 at Police Station Barodha. She was sent for her medico legal examination. Dr. Shiv Kumar Verma (PW-2) examined her at the Primary Health Centre, Barodha and gave his report Ex.P-3. He found teeth bites at four places on her person. First on the right cheek, second on the right shoulder, third on the right arm and fourth was on the left wrist. After due investigation, a charge sheet was filed before the concerned JMFC, who committed the case to the Special Court. 3. The appellant-accused abjured his guilt. He did not take any specific plea. However, Ram Prasad (DW-1) was examined on the pretext that the prosecutrix was in habit to lodge such FIRs against the various persons to get compensation. 4. The Special Judge after considering the evidence adduced by the parties, convicted and sentenced the appellant as mentioned above. 5. After going through the evidence adduced by the parties, it appears that the testimony of the prosecutrix (PW-1) is doubtful. There are so many reasons to discard her testimony. 4. The Special Judge after considering the evidence adduced by the parties, convicted and sentenced the appellant as mentioned above. 5. After going through the evidence adduced by the parties, it appears that the testimony of the prosecutrix (PW-1) is doubtful. There are so many reasons to discard her testimony. Firstly that the incident took place in the midnight and the police station was hardly 10 kms away from the village. Therefore, the FIR should be lodged upto 9:00 AM, but it was lodged at 11:00 AM. Hence the FIR was lodged with delay of at least two hours. The prosecutrix has submitted the FIR Ex.P-1 in written form and its handwriting appears of someone else, whereas she appended her thumb impression on the FIR Ex.P-1. It is not clear from the FIR as to who prepared the FIR. The possibility cannot be ruled out that it was prepared by some law knowing person. Also there is a lot of contradiction between the text of the FIR and the statement of the prosecutrix. 6. In the FIR Ex.P-1 it was mentioned that the appellant pressed the breasts and hands of the prosecutrix. However, the prosecutrix (PW-1) did not state in her statement that the appellant pressed her breasts or held her hands. In the FIR it is mentioned that the appellant had bitten by teeth for two times. First on her left cheek and second on the left shoulder. However, Dr. Shiv Kumar Verma (PW-2) found no teeth marks on her left cheek or left shoulder. Such marks were found on four places by Dr. Shiv Kumar Verma (PW-2). He found teeth marks on right cheek, right shoulder, right arm and left wrist. However, if the prosecutrix did not allege that the appellant had bitten her for four times, then as to how two extra injuries of teeth mark were found to her, specially on her right arm and left wrist. Also Dr. Shiv Kumar Verma (PW-2) has stated that he was on leave on 22nd and 23rd December, 2001, but he was available on 24.12.2001. It does not mean that the medico legal examination of the prosecutrix was done with delay of two days. The incident took place in the midnight of 23rd and 24th December, 2001 and she was examined by Dr. Shiv Kumar Verma (PW-2) on 24.12.2001 i.e. within few hours of the incident. If Dr. It does not mean that the medico legal examination of the prosecutrix was done with delay of two days. The incident took place in the midnight of 23rd and 24th December, 2001 and she was examined by Dr. Shiv Kumar Verma (PW-2) on 24.12.2001 i.e. within few hours of the incident. If Dr. Shiv Kumar Verma (PW-2) has found that such injuries were of two days older, and therefore the possibility cannot be ruled out that the prosecutrix sustained injuries two days back due to other reason and thereafter she falsely implicated the appellant by taking advantage of injuries. The age of the injuries as told by Dr. Shiv Kumar Verma (PW-2) is most important factor to consider the testimony of the prosecutrix. 7. Also the prosecutrix has stated that she told about the incident to her brother-i- -law and sister-in-law. However, her sister-in-law Minita (PW-3) has turned hostile. She has stated that the prosecutrix came to her house with the pretext that some culprit had entered in her house but she did not state about the name of that culprit. Minita is sister-in-law of the prosecutrix, who has no adverse interest to her, and therefore looking to the statement of Minita (PW-3), the testimony of the prosecutrix comes in the cloud of doubt. Similarly, Budhua (PW-4) has also turned hostile. Minita (PW-3) has also stated that the prosecutrix is living in a doubtful condition. She was in habit to lodge such FIRs against the various persons in the township. The prosecutrix denied such a fact, but in para 4 of her cross examination she has accepted that she had lodged FIRs of similar nature against few persons. After considering the testimony of the prosecutrix (PW-1) and Minita (PW-3), it appears that the husband of the prosecutrix was in habit to remain out of the township to do his work to earn his livelihood, and therefore the prosecutrix remained all alone in her house. The prosecutrix has also accepted that she had lodged an FIR against one Mohan Lal in the past and that FIR was of similar nature. 8. The allegations made by the prosecutrix appear to be unnatural. If the appellant had entered in her house by jumping from the roof, then there was no possibility of anyone to come inside the house, and therefore there was no problem to the appellant to commit rape upon the prosecutrix. 8. The allegations made by the prosecutrix appear to be unnatural. If the appellant had entered in her house by jumping from the roof, then there was no possibility of anyone to come inside the house, and therefore there was no problem to the appellant to commit rape upon the prosecutrix. When the appellant had bitten the prosecutrix for 3-4 times, then there was no any resistance from the side of the prosecutrix so that the appellant would have left her house without completing the act of cohabitation. It was not possible for him to leave the place of incident without completion of the crime, but according to the prosecutrix when she had shouted, the appellant ran away. However, she has accepted that on her shouting, no one came to her house. 9. Learned counsel for the appellant has also raised an objection that according to the Rule 7 made under the Special Act in the year 1995, the investigation was to be done by an officer having the rank of Dy.S.P. whereas in the present case the investigation has been done by the Head Constable Shaukhilal Vishwakarma (PW-5), and therefore the investigation was done in contravention of Rule 7 of the concerned rule. The contention raised by the learned counsel for the appellant is acceptable. It is the settled view of Hon'ble the Apex Court that if any incompetent officer has investigated the matter, then the accused cannot be convicted for any offence under the Special Act, but he can be convicted for IPC offence because that Investigation Officer was competent to investigate the various crimes under IPC. Hence, if the appellant is found guilty, then he cannot be convicted of offence under Section 3(1)(xi) of the Special Act, but he can be convicted of offence under Section 354 of IPC. Secondly the learned counsel for the appellant has also raised an objection that the prosecutrix did not file any caste certificate issued by the competent authority. In the present case, the caste certificate Ex.P-8 is filed, which issued by the Sarpanch, However, Sarpanch is not entitled to issue such a certificate, and therefore in the light of order passed by the Single Bench of this Court in the case Shankarlal Vs. In the present case, the caste certificate Ex.P-8 is filed, which issued by the Sarpanch, However, Sarpanch is not entitled to issue such a certificate, and therefore in the light of order passed by the Single Bench of this Court in the case Shankarlal Vs. State of MP [ 2005 (1) MPLJ 449 ], the caste of the prosecutrix has not been proved beyond doubt, and therefore the appellant cannot be convicted for any offence under the Special Act. 10. On the basis of the aforesaid discussion, it is apparent that the appellant cannot be convicted of offence under Section 3(1)(xi) of the Special Act due to aforesaid technical objection. However, as discussed above that the injuries found to the prosecutrix were older than date and time of the incident, there was no possibility of anyone to come in the house and still there is no allegation against the appellant that he committed rape upon the prosecutrix. It is alleged by the prosecutrix that the appellant had bitten her at two places i.e. on the left cheek and left shoulder, whereas no such injuries were found on left side of her cheek and shoulder. On the contrary, four injuries of teeth marks were found to her on the right cheek, right shoulder, right arm and left wrist. Her testimony was not corroborated by her sister-in- law Minita (PW-3), whereas her neighbour Budhua (PW-4) has turned hostile. Minita (PW-3) has accepted that the prosecutrix was in habit to lodge such FIRs against various persons to get the amount of compensation. The prosecutrix herself has accepted that she had lodged an FIR against Mohanlal in the past. Under these circumstances, the testimony of the prosecutrix is not at all reliable and it is not proved beyond doubt that the appellant entered in her house or outraged her modesty or bitten her by teeth. Hence the trial Court has committed an error in convicting the appellant for the offence under Sections 451, 324 and 354 of IPC. If any doubt is created, then benefit of doubt is to be given to the accused. Under these circumstances, the appeal filed by the appellant appears to be acceptable. Consequently, it is hereby allowed. The conviction and sentence directed by the trial Court against the appellant for the aforesaid offences are hereby set aside. If any doubt is created, then benefit of doubt is to be given to the accused. Under these circumstances, the appeal filed by the appellant appears to be acceptable. Consequently, it is hereby allowed. The conviction and sentence directed by the trial Court against the appellant for the aforesaid offences are hereby set aside. He is acquitted from the aforesaid charges and 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, and his presence is no more required, therefore it is directed that their bail bonds shall stand discharged. 12. A copy of this judgment be sent to the trial Court along with its record for information and compliance.