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Madhya Pradesh High Court · body

2016 DIGILAW 698 (MP)

Harinarayan v. State Of M. P.

2016-08-16

S.K.PALO

body2016
JUDGMENT : This appeal under section 374(2) of Criminal Procedure Code has been preferred against the judgment dated 30-7-2002, passed by Special Judge (Prevention of Atrocities), Sagar in Special Case No. 107/2001, whereby the appellant has been convicted for the offenses punishable under section 354 of Indian Penal Code and also under section 3(1)(xi) of SC and ST (Prevention of Atrocities) Act, 1989 and sentenced to undergo 6 months rigorous imprisonment with fine of Rs. 500/- and in default of fine additional 1 month rigorous imprisonment has been awarded. For the offence under section 354 of Indian Penal Code no separate sentence has been passed. 2. According to the prosecution case on 19-3-2001, at about 8 A.M. in Village Hathkhoh, P.S. Deori, District Sagar the appellant/accused tried to outrage the modesty of the prosecutrix, who is the member of SC/ST category by using criminal force, because of this the utensil in which she was carrying water fell down, thereafter she came back to the village and informed about the incident to Kunarsan (PW-1), her father-in-law, Ramcharan (PW-2) and Mohan (PW-7). Police after investigation filed charge-sheet. 3. Learned trial Court framed charges under section 354 of Indian Penal Code and 3(1)(xi) of SC and ST (Prevention of Atrocities) Act, 1989. The appellant abjured guilt and pleaded false implication. The learned Court below after adducing evidence has held appellant guilty and sentenced as stated above. 4. Learned P.L. for respondent/State making reference to the incriminating pieces of evidence on record submitted that the conviction was well merited and the impugned judgment does not warrant any interference. 5. Kavita Rani (PW-3), Kunarsan (PW-1) and Ramcharan (PW-2) have stated that the prosecutrix is a member of “Adivasi” which falls under the category of Scheduled Tribe. Caste certificate (Exhibit-P-2) has been issued by Kamla Bai (PW-5) who is the ‘Sarpanch’ of the village. The caste certificate issued by the ‘Sarpanch’ has not been challenged nor it is contended that the complainant do not belong to Scheduled Tribe category. Kamla Bai (PW-5) claiming herself to be the ‘Sarpanch’ of the village has stated that the complainant-Kavita Rani belongs to ‘Gond’ caste. However, in her cross-examination she has stated that she did not see any record before issuing the ‘caste certificate’. There is no reasons to disbelieve the caste certificate issued by the ‘Sarpanch’-Kamla Bai (PW-5). 6. Kamla Bai (PW-5) claiming herself to be the ‘Sarpanch’ of the village has stated that the complainant-Kavita Rani belongs to ‘Gond’ caste. However, in her cross-examination she has stated that she did not see any record before issuing the ‘caste certificate’. There is no reasons to disbelieve the caste certificate issued by the ‘Sarpanch’-Kamla Bai (PW-5). 6. On perusal of the statement of Kavita Rani (PW-3), it is found that at about 8 A.M. she had gone to the “Nalah” for fetching water. When she was returning home, the appellant/accused crossed him on the way while crossing the appellant/accused caught her hand and asked her not to move. But she fled from the spot. The utensil in which she had collected the water fell down on the ground and on reaching her home, she informed about the incident to her father-in-law, thereafter along with her father-in-law she had gone to lodge report (Exhibit-P-1). It was further stated that after holding her hand appellant/accused had asked the prosecutrix to allow him to commit sexual intercourse. When she was running away the appellant/accused asked her ‘Gondni Kaha Bhaag Ke Jati Hai’ meaning thereby “Gondni where will you go”. She further made it clear in her cross-examination that accused/appellant wanted to commit sexual intercourse with her. She has also stated that immediately she rushed to her house and informed about the incident to her father-in-law and Ramcharan. Ramcharan has been examined as PW-2 and has corroborated the statement of the prosecutrix (PW-3). She has stated that appellant/accused caught hold of her hand and there was an altercation, therefore the utensil in which she was carrying water fell down. Kunarsan (PW-1) has also supported the statement at the prosecutrix. The incident was happened around 9 months back at about 8/9 o’ clock in the morning when he was at home, Kavita Rani informed that the appellant/accused (Harinarayan) met her on the way and stopped her, therefore she returned back to home. 7. It is observed that there was no enmity between the parties. There is no reason why the complainant and her father-in-law would implicate the accused/appellant falsely. The prosecutrix is a lady of village background and is not much literate. Therefore the omissions and contradictions are but natural. Moreso, the testimony of prosecutrix was recorded after a gap of 9 months of the incident. There is no reason why the complainant and her father-in-law would implicate the accused/appellant falsely. The prosecutrix is a lady of village background and is not much literate. Therefore the omissions and contradictions are but natural. Moreso, the testimony of prosecutrix was recorded after a gap of 9 months of the incident. That being so the statement is bound to have minor discrepancies. But, the discrepancies are minor in nature, it does not go to the root of case and because of minor in nature, her whole statement cannot be discarded. 8. Keeping in view the above, it would be appropriate to hold that the appellant/accused has committed offenses under section 354 of Indian Penal Code and also under section 3(1)(xi) of SC and ST (Prevention of Atrocities) Act, 1989. The learned trial Court has sentenced the appellant to 6 months rigorous imprisonment with fine of Rs. 500/- and in default of fine additional 1 month rigorous imprisonment. 9. Learned counsel for the appellant submits that the incident took place in the year 2001 and fifteen years have been elapsed. It would not be appropriate to send the appellant to jail, who had remained in custody for three days, i.e. from 11-4-2001 to 14-4-2001, therefore he be released by sentencing him for the period already undergone. 10. Learned P.L. for respondent/State opposed the same stating that there is minimum sentence prescribed under section 3(1)(xi) of SC and ST (Prevention of Atrocities) Act, 1989. 11. Considering the above submission it is found that the appellant was 24 years of age in 2001, when the incident took place, and more than fifteen years have been passed in between. In such circumstances it is not deemed proper to send the appellant immediately to jail custody. The appellant/accused is now almost 40 years of age and is living a settled life. Justice would be met if he is given the benefit of Probation of Offenders Act 1958. Following the law laid down in Ramesh Kumar @ Babla vs. State of Punjab reported in 2016 SAR (Criminal) 669, it would be appropriate to grant benefit of Probation of Offenders Act, 1958 to the appellant. Therefore, confirming the conviction, if he is given the benefit of Probation of Offenders Act, 1958 to the appellant. The appellant be released on executing a bond of Rs. Therefore, confirming the conviction, if he is given the benefit of Probation of Offenders Act, 1958 to the appellant. The appellant be released on executing a bond of Rs. 30,000/- and a surety of the like amount before the satisfaction of the trial Court and serving sentence of rigorous imprisonment for 6 months when called upon to do so and in the meantime to keep the peace and be of good behaviour. 12. With the aforesaid modification in sentence the appeal is allowed in part.