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2015 DIGILAW 562 (MP)

Govindi v. State of M. P.

2015-05-08

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The appellant has preferred the present appeal against the judgment dated 24.8.1998 passed by the Special Judge, Chhatarpur in Special Case No. 27/96, whereby the appellant has been convicted of offence under Section 3(1)(xi) of the SC/ST (Prevention of Atrocities), Act (hereinafter referred to as the 'Special Act') and sentenced for six months' R.I. with fine of Rs. 500/-. In default of payment of fine, R.I. for the 45 days. 2. Facts of the case in short are that on 17.3.1996, the prosecutrix (PW-1) was working in the field of Mahendra Singh at village Lakheri. At about 3:00 p.m., she went to feed her child by breast feeding and her husband Moolchand (PW-2) was clearing the food grains from the fodder near the spot. The appellant went to the spot and pressed the breast of the prosecutrix with bad intention and thereafter, he left the spot. The prosecutrix immediately rushed and told about the incident to her husband and also to Mahendra Singh owner of the field. Moolchand chased the appellant but the appellant not only abused Moolchand but also held his neck. Thereafter, the prosecutrix had submitted a written report Ex.P/1 at Police Station, Khajuraho and an FIR Ex.P/2 was registered on the same day. After due investigation, the charge sheet was filed before the Special Court. 3. The appellant abjured his guilt. He took a plea that he was working as a driver on the tractor of Mahendra Singh and Mahendra Singh was not giving his salary and therefore, he was chucked off. Thereafter, due to instigation of Mahendra Singh, he was falsely implicated in the matter, however, no defence evidence was adduced. 4. The learned 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. 6. Learned counsel for the appellant has submitted that it was for the prosecutrix to establish her caste by the certificate duly issued by the competent officer, but no such certificate is filed. Learned counsel for the appellant has relied upon the judgment passed by the Single Bench of this Court in the case of "Shankar Lal Vs. 6. Learned counsel for the appellant has submitted that it was for the prosecutrix to establish her caste by the certificate duly issued by the competent officer, but no such certificate is filed. Learned counsel for the appellant has relied upon the judgment passed by the Single Bench of this Court in the case of "Shankar Lal Vs. State of M.P." [ 2005 (1) M.P.L.J. 449 ], in which it is held that if the caste certificate issued by the competent officer is not duly proved then, caste of the complainant cannot be presumed. In the present case, no such caste certificate has been produced and therefore, by simply statement of the prosecutrix and her husband, her caste cannot be presumed that she was Kori by caste and hence, it was not proved beyond doubt that the prosecutrix was a member of Scheduled Caste or Scheduled Tribe. Under these circumstances, the conviction of offence under Section 3(1)(xi) of the Special Act could not be imposed against the appellant. 7. However, the offence under Section 354 of the IPC is a lower offence of same nature and therefore, the appellant can be convicted of offence under Section 354 of the IPC under the same charge and hence, merits of the case should be examined. The prosecutrix (PW-1) was only the eyewitness in the case, who has stated that when she was feeding her child, the appellant suddenly came from back and pressed her breast, thereafter he left the spot. According to the prosecutrix and her husband Moolchand (PW-2), Moolchand was removing the grains from fodder hardly at 100 steps away from the spot. However, on shouting of the prosecutrix, he could not hear her noise and therefore, the prosecutrix went to her husband and inform him about the incident. Moolchand has claimed that he chased the appellant and held him then, the appellant held the neck of Moolchand. Chukhra (PW-3) has stated that he saw the quarrel of the appellant with Moolchand, but he does not know the reason of quarrel. Mathura (PW-4) has stated that the prosecutrix informed her husband that the appellant pressed her breast. A.S.I. Devendra Kumar (PW-5) has proved that a complaint Ex.P/1 was lodged by the prosecutrix written by her husband Moolchand at about 6:35 p.m. in the evening and report was within time. 8. Mathura (PW-4) has stated that the prosecutrix informed her husband that the appellant pressed her breast. A.S.I. Devendra Kumar (PW-5) has proved that a complaint Ex.P/1 was lodged by the prosecutrix written by her husband Moolchand at about 6:35 p.m. in the evening and report was within time. 8. The defence of the appellant before the trial Court was that he was working with Mahendra Singh and Mahendra Singh removed him without giving any salary and thereafter, a false case has been lodged against him by Mahendra Singh with the help of the prosecutrix. Moolchand has accepted in para 4 of his statement that Mahendra Singh had distributed some Bhang amongst his worker 15 days prior to the incident and on direction of Mahendra Singh, the appellant had distributed Bhang. It would be apparent that the appellant was in service of Mahendra Singh 15 days prior to the incident, but when the incident took place, he was not in service. The prosecutrix and Moolchand did not know about the fact whether Mahendra Singh gave the salary to the appellant or not and what was the reason so that the appellant was chucked off from his service. Mahendra Singh, who was a witness in the list of prosecution was not examined before the trial Court and therefore, an adverse inference should be drawn that there was an enmity between the appellant and Mahendra Singh. It was possible that Mahendra Singh could implicate the appellant with the help of the prosecutrix. Under such circumstances, the testimony of the prosecutrix and her husband should be examined carefully. 9. In the evidence of the prosecutrix (PW-1) and her husband Moolchand, there are some discrepancies. Firstly that, various other labourers were working near the spot and nobody heard any hue and cry made by the prosecutrix, even her husband was working at 100 steps away from the spot. He could not hear any cry of the prosecutrix. Secondly, initially the prosecutrix has stated that she was feeding breast milk to her child when the incident took place, but in the Court, she has stated that feeding was done and she was working in the field at the time of incident. Also, initially she has alleged that the appellant pressed her both breasts, whereas before the court, she has stated that the appellant pressed only one breast. Also, initially she has alleged that the appellant pressed her both breasts, whereas before the court, she has stated that the appellant pressed only one breast. Thirdly, the allegation made against the appellant appears to be unnatural. If the appellant had bad eye over the prosecutrix, then he could have done something in that respect while he was in service of Mahendra Singh, but there was no allegation that he committed such an act in the span of that period. If he was interested to do cohabitation with the prosecutrix, then he would have continued to do such a crime with the prosecutrix after pressing of her breast. It is strange that he came from back and pressed her breast and thereafter left the spot without doing any further act, where so many persons were working in surrounding the field. The appellant could not do such an act in broad day light specially in presence of so many persons including husband of the prosecutrix, who was working 100 steps away and who was visible to the prosecutrix. Fourthly, according to the prosecutrix, she immediately rushed to her husband and informed him, who chased the appellant and held him, however Moolchand has accepted that when he was informed by his wife, the appellant was not visible. He went to the place and found the appellant and thereafter, the appellant was coming with him till he did not make any allegation as told by the prosecutrix. If the appellant would have committed such a crime with the prosecutrix then being guilty conscious he would not have started to come with Moolchand. It appears that a false allegation has been made against the appellant, then he held the neck of Moolchand due to anger. 10. It is strange that the appellant after pressing the breast of the prosecutrix moved further without doing anything again and no one had seen him while he was moving. According to the evidence given by Moolchand, he did not chase the appellant but he went to that place where there was possibility of his presence. Under such circumstances, the story told by the Moolchand also appears to be unnatural. According to the evidence given by Moolchand, he did not chase the appellant but he went to that place where there was possibility of his presence. Under such circumstances, the story told by the Moolchand also appears to be unnatural. The possibility cannot be ruled out that due to instigation of Mahendra Singh, the prosecutrix had alleged before her husband and thereafter, a quarrel took place between Moolchand with the appellant due to any other reason, which was seen by Chukhra. When the prosecutrix had told about the incident to her employer Mahendra Singh then, it was for Mahendra Singh to explain the position by appearing as a witness, but he did not appear before the trial Court as a witness. Hence, an adverse inference would be drawn against Mahendra Singh then, a doubt would be created that, due to instigation of Mahendra Singh, a false FIR has been lodged by the prosecutrix and her husband. 11. Evidence given by Moolchand clearly indicates that in the past, the appellant did not done anything like that. Also if he had an opportunity to do such a crime with the prosecutrix then, he would have proceeded for cohabitation. When the incident was informed by his wife, Moolchand could see the culprit going on the way but he could not see the culprit. In para 5 of his statement, he has stated that he could not hear the cries of his wife, whereas he went to hold the appellant and the appellant came with him but when an allegation was made then, the appellant held the neck of witness Moolchand. Moolchand has accepted that at the time of his examination as a witness before the trial Court, Mahendra Singh was present in the Court. Hence, looking to the unnatural allegation and unnatural conduct of Moolchand as well as prosecutrix, it appears that the appellant has been falsely implicated by the prosecutrix due to instigation of Mahendra Singh. The appellant cannot be convicted of offence under Section 354 of the IPC also. The trial Court has committed an error in convicting the appellant. 12. On the basis of aforesaid discussion, if any doubt is created then, the benefit of doubt is to be given to the accused. The prosecution could not prove beyond doubt that the appellant used any criminal force to outrage the modesty of the prosecutrix. The trial Court has committed an error in convicting the appellant. 12. On the basis of aforesaid discussion, if any doubt is created then, the benefit of doubt is to be given to the accused. The prosecution could not prove beyond doubt that the appellant used any criminal force to outrage the modesty of the prosecutrix. He cannot be convicted of offence under Section 354 of the IPC or Section 3(1)(xi) of the Special Act. Under these circumstances, appeal filed by the appellant appears to be acceptable and consequently, it is hereby allowed. The conviction as well as sentence imposed by the trial Court for the offence punishable under Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act is 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. 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. 14. Copy of the judgment be sent to the trial Court alongwith its record for information and compliance.