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Madhya Pradesh High Court · body

2015 DIGILAW 299 (MP)

Karim Khan v. State of M. P.

2015-03-13

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 24.12.1997 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Sehore in Special Case No. 390/1997, whereby the appellant has been convicted of offence under Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act (hereinafter it would be referred as 'the Special Act') and sentenced to two years' R.I. with fine of Rs.2,000/-. In default of payment of fine, six months R.I. in addition. 2. Facts of the case, in short are that the prosecutrix (PW-1) alongwith her husband Ramprasad (PW-2) were working in the fields of one Badri Prasad (PW-4) at village Charnal (Police Station Ahamadpur, District Sehore). On 19.2.1994, the prosecutrix was working near her hut. Her husband went to the field of his employer Badri Prasasd. The appellant came to the spot and held the hands of the prosecutrix. When she stood up, the appellant took her hand back and he assaulted her by a stick of Beshram for two times on her back. Since the employer was out of station therefore, the prosecutrix and her husband did not go to lodge the FIR on that day. However, on the next day, the prosecutrix had lodged the FIR Ex.P/1 at police station, Ahmadpur, District Sehore. She was sent for her medico legal examination. Dr. Deepak Chaturvedi (PW-3) examined the prosecutrix and found two parallel bruises on her back. After due investigation, the charge sheet was filed before 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. Since the appeal is old and no one is appearing on behalf of the appellant therefore, Shri Ajay Tamrakar, Advocate, whose name is in the panel of High Court Legal Services Committee and who has a vast experience in dealing with the criminal cases was appointed to argue the matter for the appellant. Thereafter, I have heard the learned counsel for the parties. 6. Thereafter, I have heard the learned counsel for the parties. 6. Learned counsel for the appellant has submitted that no caste certificate has been filed by the prosecution before the trial Court and therefore, it was not proved beyond doubt that the prosecutrix was a member of scheduled caste or scheduled tribe. Even the prosecutrix did not state in her statement about her caste. Ramprasad (PW-2) has stated that he was a tribal person. However, he did not state that he was a member of a particular type of tribe. Hence, in the light of the order passed by the Single Bench of this Court in the case of "Shankarlal Vs. State of M.P." [ 2005(1) M.P.L.J. 449 ], the prosecutrix could not prove her caste. The contention of learned counsel for the appellant is acceptable. The prosecutrix has failed to prove her caste and it was not established that she was a member of scheduled tribe. Also the prosecutrix and her husband did not tell before the Court that they were the member of a particular tribe therefore, there was no basis to accept their claims. When the prosecutrix could not prove her caste that she was a member of scheduled tribe then, the appellant cannot be convicted for the offence under Section 3(1)(xi) of the Special Act. However, in charge of offence under Section 3(1)(xi) of the Special Act, the appellant can be convicted of offence under Section354 of the IPC, if other ingredients are proved. 7. The prosecutrix (PW-1) has stated that she was all alone at the time of incident and her husband went to work in the field of his employer Badri Prasad. She has stated that initially, the appellant came to the spot and held her hands and also abused her. On her shouting, some persons were gathered however, the prosecutrix did not mention the names of such persons, who gathered at the time of incident. The investigation officer has examined the witnesses Amaiya and Chatru etc. under Section 161 of the Cr.P.C., but such witnesses were not examined before the trial Court and therefore, an adverse inference is to be drawn that if Chatru and Amiliya would have been examined then, they would not have supported the prosecution's case. 8. Thereafter, it was alleged the prosecutrix informed about the incident to her husband Ramprasad. under Section 161 of the Cr.P.C., but such witnesses were not examined before the trial Court and therefore, an adverse inference is to be drawn that if Chatru and Amiliya would have been examined then, they would not have supported the prosecution's case. 8. Thereafter, it was alleged the prosecutrix informed about the incident to her husband Ramprasad. Ramprasad has stated that since his employer was out of station therefore, they could not visit to the police station on the same day and hence, FIR Ex.P/1 was lodged on the next day. If the statement of Badri Prasad (PW-4) is considered in this aspect then, it is clear from him that he came after three days and when he came to the field, he found that the prosecutrix and her husband had left his work and they already ran away forever and he did not meet to the husband of the prosecutrix thereafter. On the basis of statement given by Badri Prasad, it appears that the prosecutrix and her husband went to lodge the FIR on the next day of morning, when the employer Badri Prasad did not come back. When Ramprasad could take his wife to the police station when his employer did not come to the spot and then, they could go to lodge the FIR on the same day. The incident took place in the afternoon and according to the FIR Ex.P/1, the police station was hardly 6 kms. away from the spot. Hence, the explanation given in lodging the delayed FIR appears to be not satisfactory. When the FIR was lodged with the delay and no satisfactory explanation is given then, the entire prosecution's case comes in a cloud of doubts. 9. The prosecutrix has stated that the appellant assaulted her on her back side for two times, whereas Ramprasad has stated that the prosecutrix sustained an injury on her leg. It is a material contradiction between the statement of the prosecutrix and her husband and therefore, the possibility cannot be ruled out that the injuries caused on the back of the prosecutrix were caused due to another reason after the incident and by taking the advantage of such injury, a false FIR was lodged against the appellant. It is a material contradiction between the statement of the prosecutrix and her husband and therefore, the possibility cannot be ruled out that the injuries caused on the back of the prosecutrix were caused due to another reason after the incident and by taking the advantage of such injury, a false FIR was lodged against the appellant. It is also possible that the witness Ramprasad would have found his wife with someone else and then, he would have assaulted the prosecutrix by a stick of Beshram on her back for two times, otherwise if the culprit or the appellant was interested to outrage the modesty of the prosecutrix then, there was no need for the accused to hold the hands of the prosecutrix and gave two blows by that stick. 10. The prosecutrix has lodged the FIR in which it is not mentioned that the appellant had expressed his wishes before holding the hand of the prosecutrix. According to the FIR, the appellant held the hands of the prosecutrix and when she stood up, the appellant assaulted her by a stick of Beshram for two times on her back. If version of the FIR is considered then, it is a case of voluntarily caused hurt and not of a case of outraging the modesty of the prosecutrix. However, the trial Court did not frame the charge of offence under Section 323 of the IPC against the appellant therefore at this stage, he cannot be convicted for the offence under Section 323 of the IPC. 11. If the evidence of the prosecutrix and her husband Ramprasad is considered with the defence suggested to them, the possibility cannot be ruled out that Ramprasad had taken some cocks to eat from the appellant and when the appellant demanded for sale price of those cocks, a false FIR was lodged or the possibility cannot be ruled out that the witness Ramprasad found the prosecutrix with someone else, he gave two blows on her back and thereafter, the FIR was lodged against the appellant due to enmity after due deliberation, hence the FIR was lodged with the delay of 18 hours of the incident. However, the prosecutrix and her husband waited for sometime so that their master could arrive but they lodged the FIR in absence of their master Badri Prasad. However, the prosecutrix and her husband waited for sometime so that their master could arrive but they lodged the FIR in absence of their master Badri Prasad. When there was no fault of Badri Prasad in the entire incident then, why the prosecutrix and her husband left the job without intimating their employer Badri Prasad. Conduct of the prosecutrix and her husband creates a doubt that a false case has been lodged against the appellant. Hence, he cannot be convicted for the offence under Section 354 of the IPC. 12. On the basis of aforesaid discussion, the appellant cannot be convicted of offence under Section 3(1)(xi) of the Special Act because it was not proved that the prosecutrix was a member of scheduled tribe. The appellant cannot be convicted of offence under Section 354 of the IPC because the prosecution's story is doubtful and when a doubt is created then, the benefit of doubt is required to be given to the accused. Hence, the appeal filed by the appellant appears to be acceptable. Consequently, it is hereby allowed. The conviction as well as sentence imposed by the trial Court against the appellant of offence under Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) 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. 13. The appellant is on bail. His presence is no more required before the Court and therefore, it is directed that his bail bonds shall stand discharged. 14. Copy of the judgment be sent to the trial Court alongwith its record for information.