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2015 DIGILAW 305 (MP)

Narayan v. State of M. P.

2015-03-17

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The appellants have preferred the present appeal against the judgment dated 27.3.1998 passed by the Special Judge, Tikamgarh in Special Case No. 156 of 1997 whereby, the appellants have been convicted of offences under Section 323 of I.P.C. and 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Special Act") and sentenced to three months rigorous imprisonment with fine of Rs. 500/- and one year's rigorous imprisonment with fine of Rs. 1500/-, default sentence was also imposed in lieu of payment of fine. 2. The facts of the case in short are that on 3.3.1994 at about 9.15 a.m. the prosecutrix (PW2) who, was going to fetch some milk at Village Dantgowra (Police Station Palera, District Tikamgarh) asked the appellant Sukha as to why he made a complaint against her to the Collector and thereafter, they held her hand and threw her on the ground and on wooden logs assaulted her by kicks and fats. One of the appellant sat on her chest and pressed her neck and therefore, her clothes were torn and swelling was caused on her chest. On her shouting Om Prakash (PW1), Rajesh s/o of the prosecutrix had come to the spot. The prosecutrix went S.P. Tikamgarh on the same day and on his direction a written FIR was given at Police Station Palera. On 5.3.1994 her FIR was registered at document Ex. P/2. She was sent for her medico legal examination. Dr. C.V. Arya (PW5) examined her on 3.3.1994 at Primary Health Centre, Palera and found multiple abrasions on her left hand, back, right chest and left neck. After due investigation a charge sheet was fled before the Special Judge. 3. The appellants abjured their guilt. They did not take any specific plea but, they have stated that they were falsely implicated in the matter as they had made a complaint against the prosecutrix. In defence Harprasad (DW1) and Maniram (DW2) were examined. 4. The Special Judge after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above. 5. I have heard the learned counsel for the parties. 6. The learned counsel for the appellants has submits that the complainant did not file her caste certificate before the trial Court. 4. The Special Judge after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above. 5. I have heard the learned counsel for the parties. 6. The learned counsel for the appellants has submits that the complainant did not file her caste certificate before the trial Court. It was expected from the complainant to file a caste certificate otherwise, it shall not be presumed that the complainant was a member of scheduled caste or scheduled tribe. Reliance has been placed upon the judgment of this Court in the case of "Shankarlal v. State of M.P." (: 2005(1) MPLJ 449 ). 7. The contention advanced by the learned counsel for the appellants appears to be acceptable. The prosecutrix did not submit any caste certificate either to the Police or to the trial Court. When she was working as an Anganwadi Worker, she must have a caste certificate issued by a competent authority. Under these circumstances, it would be apparent that the prosecutrix could not prove that she was a Member of Scheduled Caste or Scheduled Tribe and therefore, the appellants could not have been convicted of any offence under the Special Act. 8. The prosecutrix (PW2) has stated about the incident. Witness Omprakash (PW1) has turned hostile. Shanta Bai (PW3), mother of the prosecutrix, has also supported the story told by the prosecutrix. No other eye witness was examined. The prosecutrix has lodged an FIR with delay of two days. However, it appears that her medico legal examination was done by Dr. C.V. Arya (PW5) on the date of incident and therefore, it appears that on her report, she was sent for medico legal examination but, case was not registered till 5.3.1994 and therefore, the contention advanced by the prosecutrix that she had immediately lodged an FIR appears to be correct. Her statement is duly corroborated by Dr. C.V. Arya (PW5). Multiple abrasions were found to the prosecutrix on her left hand, middle of back, right chest and left neck. A suggestion was given to Dr. Arya that if a person falls into a cliff then such injuries could be caused. However, by a hypothetical suggestion, it cannot be presumed that the injuries were caused according to the factual position of such suggestions. The appellants did not prove that the prosecutrix had fallen in a cliff or a ditch. A suggestion was given to Dr. Arya that if a person falls into a cliff then such injuries could be caused. However, by a hypothetical suggestion, it cannot be presumed that the injuries were caused according to the factual position of such suggestions. The appellants did not prove that the prosecutrix had fallen in a cliff or a ditch. The learned counsel for the appellants has further submitted that in the FIR Ex. P/2, it was mentioned that at the time of incident, Rajesh son of the prosecutrix, was standing who, told the appellants not to assault his mother. However, Rajesh was not examined as a witness. Shantabai was examined as a witness but, it was not mentioned in the FIR that she was an eye witness and therefore, Shantabai is nothing but a cooked witness prepared by the prosecutrix. The contention of the learned counsel for the appellants is acceptable. The testimony of Shantabai cannot be believed. It appears that the witness Rajesh was present in the Court but, he was given up. 9. The appellants have examined the defence witnesses Harprasad (DW1) and Maniram (DW2) to show that the prosecutrix was not giving rent to her landlord Narayan Das and she was not working properly as an Anganwadi Worker and therefore, her complaint was made by the appellants to the Collector. However, enmity is a double edged weapon. Due to enmity, the appellants would have assaulted the prosecutrix and due to enmity she could falsely implicate the appellants. If cross examination of the prosecutrix is considered then no suggestion was given that any rent was due towards her. Only a suggestion is given that the appellants desired to get the house vacated. If it is presumed that rent was due or the appellants have desired to get the house vacated then they were not authorized to beat the prosecutrix in such a manner. After considering the evidence of the prosecutrix along with the medical report as given by Dr. Arya (PW5), the testimony of the prosecutrix is acceptable that both of the appellants have assaulted her in a brutal manner though only superficial injuries were caused to her. Looking to the number of injuries, it would be apparent that the appellants knew the result of their overt act. Arya (PW5), the testimony of the prosecutrix is acceptable that both of the appellants have assaulted her in a brutal manner though only superficial injuries were caused to her. Looking to the number of injuries, it would be apparent that the appellants knew the result of their overt act. If the prosecutrix had asked the appellants as to why they made complaint of her then by such asking, no sudden or grave provocation has been caused to the appellants. Hence the appellants assaulted the prosecutrix by knowing the result of their act and without any right of private defence or sudden or grave provocation then they had certainly, voluntarily caused hurt to the prosecutrix and therefore, the trial Court has rightly found that the appellants had voluntarily caused hurt to the prosecutrix and the appellants were appropriately convicted of offence under Section 323 of I.P.C. 10. So far as the offence under Section 3(1)(xi) of the Special Act is concerned, it would be apparent that the appellants cannot be convicted of any offence of the Special Act because caste of the prosecutrix was not proved. However, it should be seen as to whether the appellants can be convicted of offence under Section 354 of I.P.C. under the same charge of offence under Section 3(1)(xi) of the Special Act. 11. According to the prosecutrix, the appellants assaulted her on her questioning them as to why they made a complaint against her to the Collector. The prosecutrix was residing in the house of the appellant No. 1 Narayan as a tenant but, in past no such incident took place. If the entire statements of the prosecutrix are considered then it would be apparent that the appellants had shown their physical power to the prosecutrix. They did not intend to outrage her modesty. It is not found that they pressed her breasts. If the appellants would have pressed her breasts with bad intention then multiple abrasions could not have been caused on her right breast and the appellants would not have continue to assault her on her neck and hands. Hence, it is true that the appellants used criminal force upon the prosecutrix but, it was not established that it was done to outrage her modesty. Hence, it is true that the appellants used criminal force upon the prosecutrix but, it was not established that it was done to outrage her modesty. The Police did not recover any torn blouse of the prosecutrix from her and therefore, it cannot be said that by tearing of her clothes the appellants have outraged the modesty of the prosecutrix. Under these circumstances, the appellants cannot be convicted of offence under Section 354 of I.P.C. 12. So far as the sentence is concerned the appellants were the first offenders though they assaulted a woman. They have faced the trial and appeal for 20 years and they remained in custody for three days during the trial. No deep injury was caused to the victim and therefore, it would be proper that the jail sentence of the appellants for offence under Section 323 of I.P.C. be reduced to the period for which they remained in the custody and a maximum fine of Rs. 1000/- be imposed on each of them. 13. On the basis of the aforesaid discussion, the appeal fled by the appellants appears to be partly acceptable. Consequently, it is hereby partly allowed. The conviction and sentence of offence under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act imposed upon the applicants are hereby set aside. They are acquitted from the charge of Section 3(1)(xi) of the Special Act as well as charge under Section354 of I.P.C. However, their conviction of offence under Section 323 of I.P.C. is hereby maintained but, sentence is reduced to the period for which they remained in the custody by enhancement of the fine amount from a sum of Rs. 500/- to a sum of Rs. 1000/-. Since the appellants have deposited the fine amount for two offence which was of more than Rs. 1000/- therefore, there is no need to provide a provision of default sentence. The appellants would be entitled to get the surplus fine amount back which is deposited before the trial Court. Out of fine a sum of Rs. 1000/- be provided to the prosecutrix by way of compensation. 14. The appellants are on bail. Their presence is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged. 15. Copy of the judgment along with record of the trial Court be sent to the trial Court for information and compliance.