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Madhya Pradesh High Court · body

2016 DIGILAW 797 (MP)

Mukesh v. State of M. P.

2016-09-08

SHEEL NAGU

body2016
ORDER 1. This appeal is directed against the judgment and order dated 15.2.2005 passed by the Special Judge (Atrocities), Guna (M.P.), in Special Case No. 307/2002, convicting present appellant/accused for the offence punishable under section 456 of IPC and also under section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989, for brevity the Act, for six months R.I. with a fine of Rs. 500/- and again six months R.I. with a fine of Rs. 1,000/-, respectively with default stipulations. 2. The prosecution versions during trial is as follows : The prosecutrix lodged the report at Police Station Mungaoli to the effect that on 13.10.2002 when she was sleeping in night in the room along with family members, after bolting the door of the room from inside, at around 1 a.m the accused-appellant entered the house after opening the door. Thereafter, he caught hold of her hands and tried to outrage her modesty. When she raised hue and cry, her husband who was also sleeping nearby woke up. On raising hue and cry, persons of the vicinity collected there. On the report, FIR as per Ex.P/1 was lodged by the police. Crime No. 317/2002 was registered for offences punishable under sections 456, 354 of IPC as well as section 3(1)(xi) of the Act. After completion of investigation charge-sheet was filed before the Court competent jurisdiction. 3. The appellant/accused pleaded not guilty. The prosecution in order to bring home the charges, examined prosecutrix (PW1), Biharihal, husband (PW2), Durgaprasad (PW3), Munnalal (PW4) and the I.O. Smt. Suman Gurjar (PW5) and produced documentary evidence. The appellant denied all the incriminating circumstances appearing against him in the evidence of the prosecution witnesses by adducing evidence of DW1 Ramsajiwan and DW2 Champalal. In sum and substance, his defence was one of total denial and that of false implication. 4. After hearing the learned counsel appearing on both sides and on assessment of oral as well as documentary evidence, the learned Special Judge by the judgment under appeal held that the evidence on record satisfactorily established that the prosecution has proved the appellant guilty of the offence punishable under section 456 of IPC and section 3(1)(xi) of the Act, and accordingly convicted and sentenced the appellant, as aforesaid. 5. Aggrieved by the said judgment of conviction and order of sentence, the appellant has filed the present appeal. 6. 5. Aggrieved by the said judgment of conviction and order of sentence, the appellant has filed the present appeal. 6. Learned counsel for the rival parties are heard and the record of the trial Court is also perused. 7. With regard to the conviction recorded for the offence punishable under section 3(1)(xi) of the Act, it is seen from the record that the prosecution attempted to prove the foundational ingredients of the victim being a member of the SC and ST community by caste certificate issued by the Councillor Smt. Vinita Jain of Ward No.2 of Nagar Panchayat Mungaoli, dated 16.10.2002, Ex.P-5, which was sought to be proved by the Investigating Officer Smt. Suman Gurjar (PW5). 8. The said certificate is of no avail to the prosecution as it has not been issued by the competent authority. After the decision of the apex Court in the case of Ku. Madhuri Patil v. Addl. Commissioner Tribal Development, reported in AIR 1995 SC 94 , laying down the forum and procedure for assailing caste/tribe status, detailed instructions have been issued by the State of M.P. vesting the power of issuance of caste/tribe certificate upon Revenue Officer not below the rank of Deputy Collector as mandated by rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (for short, 'Rules') framed by the Central Government. The Councillor of Nagar Panchayat has no authority to issue such certificate and therefore the said certificate is of no avail to the prosecution for establishing that the victim was a member of the SC/ST Community. As such, the foundational ingredients of offence under section 3(1)(xi) of the Act of victim belonging to SC/ST Community having not been established, the said offence is not made out and therefore conviction and sentence in regard to this offence is wholly unwarranted. 9. As regards conviction for offence punishable under section 456 of IPC, after taking into account the evidence placed on record and marshalling and scrutinizing the findings recorded by the trial Court, this Court is of the considered view that there is no illegality or perversity in recording finding of guilt against the accused as the allegations of section 456 of IPC appear to be have been proved beyond all reasonable doubt. The conviction under section 456 of IPC is therefore well merited and calls for no interference by this Court. 10. The conviction under section 456 of IPC is therefore well merited and calls for no interference by this Court. 10. Now, coming to the point of sentence, the argument of the learned counsel for the appellant is that the appellant was not convicted earlier and has no criminal history. He is a simple villager and therefore by keeping him in jail for short term of six months, no useful purpose will be served and by sending him to jail, there is possibility that he will come in contact with the hardened criminals and as such the appellant ought to have been dealt with under the provisions of Probation of Offenders Act. 11. Perusal of the record reveals that the appellant and the prosecutrix of the present case are residents of the same place. The appellant has no previous criminal history. The maximum sentence which was awarded to the appellant is of 6 months rigorous imprisonment. The incident has occurred on 13.10.2002, i.e., about 14 years back. The appellant had been under continuous shadow of prosecution, since long. There is every possibility that if he is sent to jail for the offence which was committed by him 14 years ago, he will come in contact of hardened criminals in jail. It further reveals from perusal of the impugned judgment that though the appellant had made prayer before the learned trial Court that benefit of Probation of Offenders Act be given to him but the learned trial Court refused to give benefit to him in view of bar contained in section 19 of the Act. Now, the appellant stands acquitted of the said offence under the Special Act and therefore question of statutory bar come in way does not arise. 12. The apex Court in one of its recent decisions in the case of State through Central Bureau of Investigation, Anti Corruption Branch, Chandigarh v. Sanjiv Bhalla and another, reported in (2015)13 SCC 444 , after considering its earlier views on the application of Probation of Offenders Act and section 360 of CrPC has held as under :- “24. These decisions indicate that the philosophical basis of our criminal jurisprudence is undergoing a shift-from punishment being a humanising mission to punishment being deterrent and retributive. These decisions indicate that the philosophical basis of our criminal jurisprudence is undergoing a shift-from punishment being a humanising mission to punishment being deterrent and retributive. This shift may be necessary in today's social context (though no opinion is expressed), but given the legislative mandate of sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act, what is imperative for the Judge is to strike a fine balance between releasing a convict after admonition or on probation or putting such a convict in jail. This can be decided only on a case by case basis but the principle of rehabilitation and the humanising mission must not be forgotten. 25. There are other legislative requirements that need to be kept in mind. The Probation of Offenders Act provides, in section 5 thereof for payment of compensation to the victim of a crime (as does section 357 of the Criminal Procedure Code). Yet, additional changes were brought about in the Criminal Procedure Code in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including the right to file an appeal against the grant of inadequate compensation. How often have the Courts used these provisions ? 27. This being the position in law, there is a necessity of giving justice to the victims of a crime and by arriving at a fair balance, awarding a just sentence to the convicts by treating them in a manner that tends to assist in their rehabilitation. The amendments brought about in the Criminal Procedure Code in 2006 also include a chapter on plea bargaining, which again is intended to assist and enable the trial Judge to arrive at a mutually satisfactory disposition of a criminal case by actively engaging the victim of a crime. It is the duty of a trial Judge to utilise all these tools given by Parliament for ensuring a fair and just termination of a criminal case.” 13. It is the duty of a trial Judge to utilise all these tools given by Parliament for ensuring a fair and just termination of a criminal case.” 13. In view of the above having regard to the facts and circumstances of the case, absence of antecedents of the appellant and the provisions of Criminal Procedure and Probation of Offenders Act, 1958, it appears expedient that benefit of section 4 of the Probation of Offenders Act be extended to the appellant herein and as such the judgment and order of the trial Court is liable to be modified to that extent. 14. (a) The appeal is, therefore, allowed in part. The impugned judgment of conviction and sentence recorded by the trial Court for offence under section 3(1)(xi) of the Act is set aside. (b) So far as offence under section 456 of IPC is concerned, the finding of guilt recorded by the trial Court is maintained but the sentence awarded to the appellant is suspended and it is directed that the appellant shall be released under the provisions of section 4 of the Probation of Offenders Act on probation of good conduct for a period of two years from today on his furnishing a personal bond in the amount of Rs 50,000/- (Rs. Fifty thousand only) with two sureties of like amount to the satisfaction of the trial Court to the effect that he shall keep peace and be of good behaviour during the said period of two years and shall appear to receive sentence when called upon by the trial Court. The bond shall be furnished by the appellant before the trial Court within a period of one month from today. In case the appellant fails to comply with the above direction, the appeal shall stand dismissed and sentence awarded to him shall be restored. (c) However, the fine amount imposed by Court below qua section 456 shall be paid to the victim as compensation as per section 5 of the Probation of Offenders Act, 1958. (d) During the period of probation, the appellant shall render his services as volunteer with the District Red Cross Society, Ashoknagar and shall be available to work as volunteer under any of the scheme floated by the said organization. (d) During the period of probation, the appellant shall render his services as volunteer with the District Red Cross Society, Ashoknagar and shall be available to work as volunteer under any of the scheme floated by the said organization. For this purpose, the appellant shall communicate copy of this order to the Chairman of the District Red Cross Society, Ashoknagar and shall furnish his current address, telephone number and other details to him, so that he can be requisitioned for working as volunteer. In turn, the Chairman of the District Red Cross Society, Ashoknagar shall file compliance report to this Registry by every month. 15. A copy of this order be sent to the trial Court concerned along with record for necessary compliance. 16. A copy of this order be also sent to the Chairman of the District Red Cross Society, Ashoknagar for doing the needful. Sameer Kumar Shrivastava for appellant; Prakhar Dhengula, Panel Lawyer for respondent/State.