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Madhya Pradesh High Court · body

2016 DIGILAW 842 (MP)

Sunil v. State Of M. P.

2016-09-20

S.K.PALO

body2016
JUDGMENT : This Criminal Appeal has been preferred under section 372 of the Criminal Procedure Code being aggrieved with the judgment dated 18-9-1998 passed by Special Judge (Prevention of Atrocities), Betul in Special Case No. 4/98, whereby the appellant has been convicted for the offence punishable under section 3(1)(xi) of the SC ST (POA), Act 1989 (in short “Act, 1989”) and sentenced to undergo R.I for six months and fine of Rs. 1,000/- in lieu of fine, the appellant has to undergo additional simple imprisonment for two months. 2. According to the prosecution story, the prosecutrix (PW 3) is a minor girl and a member of Scheduled Caste, whereas the appellant is not a member of SC or ST. The prosecutrix (PW 3) on 11-11-1997 at 6:00 p.m. had gone to the backyard of her house to collect the cattle. It was a little dark then. When she was collecting the cattle, the appellant came there and shut her mouth by one hand and caught her right hand and dragged her towards the field. The prosecutrix (P.W 3) escaped from his clutches and shouted :— “mother”. When her mother Guntay came out from her house, the appellant left the prosecutrix (PW 3) and ran away. But before he left, he threatened the prosecutrix not to inform anyone or else he will cut her into to pieces. The prosecutrix (PW 3) narrated the incident to her mother. On 13-11-1997 the prosecutrix, her parents and the accused were called by the Panchayat. Other persons such as Ghuran (PW 1), Raghunath (PW 2), Radheshyam (PW 6) were also present at the Panchayat. When the prosecutrix (PW 3) narrated at the Panchayat about the incident, the appellant slapped her. The Panchayat scolded the appellant. Due to fear of defame, the prosecutrix (PW 3) did not lodge report till 19-11-1997. With the help of Ghuran (PW 1), she went to the police station and lodged report Ex. P/1. Har Prasad (PW 5), Sub-Inspector lodged the report. The crime was investigated by Gurumukh Das (PW 4) S.D.O.P. and after investigation, charge sheet has been filed for offence under section 354 of Indian Penal Code and section 3(1)(xi) of the “Act, 1989”. 3. Learned trial Court framed charges under section 3(1)(xi) of the “Act, 1989”. The appellant pleaded not guilty and false implication. 4. The crime was investigated by Gurumukh Das (PW 4) S.D.O.P. and after investigation, charge sheet has been filed for offence under section 354 of Indian Penal Code and section 3(1)(xi) of the “Act, 1989”. 3. Learned trial Court framed charges under section 3(1)(xi) of the “Act, 1989”. The appellant pleaded not guilty and false implication. 4. The learned trial Court after adducing evidence convicted the appellant for offence under section 3(1)(xi) of the ‘Act, 1989’ and sentenced him as aforesaid. 5. Learned counsel for the appellant has challenged the conviction and argued that evidence adduced by the prosecution was not sufficient to prove the offence under the “Act, 1989”. It is claimed that the delay of 9 days in lodging of the F.I.R is not properly explained. The trial Court accepted the plea of compromise. As the offence under the “Act, 1989” is not compoundable, hence, could not be compound the offence. The learned trial Court should have considered this fact that the appellant has not slapped the prosecturix (PW 3), because she belong to SC, nor he had any knowledge that she is a member of SC. The learned trial Court has also erred in placing reliance in the testimonies of the prosecutrix and the witnesses. 6. In response, learned Panal Lawyer for the State while making reference to the incriminating pieces of evidence on record, submitted that the conviction was well merited and the impugned judgment does not call for any interference. 7. Having regard to the arguments advanced, I have gone through the impugned judgment and record of the trial Court. The prosecutrix (PW 3) is a member of SC as per the prosecution story, but no caste certificate has been furnished by the prosecution issued by a Competent Authority in this regard. The prosecutrix, no doubt, has claimed that she is a member of SC but no caste certificate has been produced by her. 8. In this regard the earlier decision of this Court in Bharat Singh vs. State of M. P., 2006(4) M.P.L.J. 171 can be referred to in which it has been held as under : (a) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989). 8. In this regard the earlier decision of this Court in Bharat Singh vs. State of M. P., 2006(4) M.P.L.J. 171 can be referred to in which it has been held as under : (a) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989). S. 3(1)(x), Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, R. 7 and Penal Code, S. 294 — Accused persons-appellants allegedly threw stones and hurled abuse at complainants in the name of their caste, namely, Balai-chamar — Prosecution failed to establish by adducing cogent and reliable evidence that the complainant belonged to the Scheduled Caste or Scheduled Tribe community — In the Court statement he deposed that he belonged of BALAI caste but nowhere he has stated that his caste falls within the category of Scheduled Caste or Scheduled Tribe — Though the appellants admitted that the complainant belong to Balai community but that itself is not sufficient to establish that the complainant belonged to the Scheduled Caste community — Caste certificate from competent authority not filed — Investigation was done by SHO contrary to Rule 7 — Conviction and sentence of appellants is therefore not sustainable. 9. The prosecutrix (PW 3) in her deposition has stated that she did not lodge a report earlier for she was threatened by the accused to cut her into pieces. But in the report, she states that she did not lodge the report for she was apprehending fear that she will be defamed. The alleged incident took place on 11-11-1997 at about 6:00 p.m. at Malegaon under Police Station Multai. The report was lodged on 19-11-1997 at about 11:40 a.m. at Police Station AJK, Betul. The non-explanation of the delay in lodging the F.I.R weakens the prosecution story. 10. The prosecutrix (PW 3) states that her uncle Ghuran (PW 1) asked her to gather the cattle. It was semi dark in the evening. When she was gathering the cattle, the accused came behind her and closed her mouth by one hand and pulled her. She removed his hand and started shouting. Her mother shouted “where is my daughter.” Prosecutrix (P.W 3) said to the accused that she will narrate the incident to her parents. The accused threatened her saying that he will cut her and her parents into pieces. The accused left the place. She removed his hand and started shouting. Her mother shouted “where is my daughter.” Prosecutrix (P.W 3) said to the accused that she will narrate the incident to her parents. The accused threatened her saying that he will cut her and her parents into pieces. The accused left the place. When she returned home, she narrated the incident to her uncle (father’s elder brother) Guran (PW 1). 11. Ghuran (PW 1) deposes that it was evening. He asked the prosecutrix to gather the cattle from the backyard. At that time mother of the prosecutrix shouted that someone is taking away the prosecutrix. Hearing this he ran towards the backyard but could not see anyone. He returned home after few minutes. The prosecutrix (PW 3) came and was crying. When the prosecutrix (PW 3) was asked by him and her mother, why she was crying, she did not say anything to them. Both prosecutrix and her mother did not say anything for two days. After two days, a village Panchayat was organized there. The prosecutrix was called. When Raghunath asked the prosecturix (PW 3) what has happened, the prosecutrix (PW 3) narrated that the accused caught her. When the prosecutrix said the name of the accused, the accused present there, slapped the prosecutrix (PW 3). The prosecutrix did not say why the accused caught her. Panchayat told the prosecutrix (PW 3) to take appropriate action. After 4-5 days, the prosecutrix (PW 3) came to him to lodge the report. Therefore, he accompanied the prosecutrix (PW 3) to lodge the report. This witness is an incidental witness but he did not say that he saw the accused nor he could see the prosecutrix at the time of the incident. Guntay the mother of the prosecutrix has not been examined. Raghunath (PW 2) was the witness, who was present in the Panchayat. He also narrates that when the prosecutrix named the accused at the Panchayat, the appellant present there immediately slapped her saying that why she is defaming him. The accused/appellant was separated from the prosecutrix and the Panchayat asked the prosecutrix to take appropriate action. 12. In his cross-examination Raghunath (PW 2) has stated that the prosecutrix had narrated to him that she bitten on the hand of the accused but when the hand of the accused was seen, no such teeth bite injury was found. The accused/appellant was separated from the prosecutrix and the Panchayat asked the prosecutrix to take appropriate action. 12. In his cross-examination Raghunath (PW 2) has stated that the prosecutrix had narrated to him that she bitten on the hand of the accused but when the hand of the accused was seen, no such teeth bite injury was found. Therefore, Panchayat people asked the prosecutrix to take her own action against the appellant. 13. The cross-examination of prosecutrix (PW 3) is very important. The prosecutrix deposed that there was a commotion in the backyard. After she returned from gathering the cattle, she also heard the shouts of the village people saying that thieves have come. When she entered towards the backyard, the villagers were running towards that side saying that thieves have come. She and her mother were sitting outside. When she returned, her mother asked her the village people were saying that the “Chaddi Gang” have entered into the village but none was caught. She said to her mother that someone of the “Chaddi Gang” thieves is also seen in the backyard. This statement of the prosecutrix makes the prosecution story suspicious. 14. The prosecutrix (PW 3) also states that the accused slapped her before the Panchayat, in the Panchayat the matter was settled by compromise. But after some days, her uncle (father’s elder brother) Ghuran (PW 1) asked her to lodge report, therefore, she lodged the report. 15. Radheshyam (PW 6) is a school teacher narrated the story in a different manner. According to him the prosecutrix (PW 3), after two days of the incident narrated at the Panchayat that someone has threatened her. The prosecutrix was in her field when some one came and covered her mouth by a black cloth and threatened her, she could identify that it was the appellant. The appellant was there at the Panchayat and slapped the prosecutrix. After deliberation, the Panchayat settled the matter. 16. In his cross-examination, Radheshyam (PW 6) has said that the person who threatened her looked like the appellant. The appellant asked her why she is naming him as an example. Therefore, he slapped her. The prosecutrix (PW 3) said that she did not tell the name of the appellant but stated that the person looked like the appellant. 16. In his cross-examination, Radheshyam (PW 6) has said that the person who threatened her looked like the appellant. The appellant asked her why she is naming him as an example. Therefore, he slapped her. The prosecutrix (PW 3) said that she did not tell the name of the appellant but stated that the person looked like the appellant. Radheshyam (PW 6) has further said of his own motion, that prosecutrix said that earlier the appellant had outraged the modesty of a girl. Therefore, she assumed that it was the appellant. These statements give rise to a probable and reasonable doubt in the prosecution story, which has not been considered by the trial Court. It is the established principle of criminal jurisprudence that benefit of doubt goes to the accused. In the circumstances, the appellant may be given the benefit of doubt. 17. Besides, the fact that the prosecutrix is not clear about the identification of the appellant, the prosecution has also failed to establish that because she belongs to the SC, she was subjected to humiliation or insult. 18. In this regard reliance can be placed on Dabloo @ Shahjad vs. State of M.P., 2007(1) M.P.L.J. 250 in which it has been held that :— Appellant molested prosecutrix to outrage her modesty — Act was not committed by the appellant against prosecutrix only because she belonged to a particular community — Held, the appellant could be convicted under section 354, Penal Code and not under section 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 19. The above view is fortified by the judgment of Nirbhay Singh vs. State of M.P., 2010(1) M.P.L.J. 207 in which it has been held that :— Nothing in the statement of the complainant that the alleged offence was committed by the appellant with an intention that the complainant who was a cobbler by caste be insulted or humiliated — Court below committed an error in convicting the appellant for offence punishable under section 3(1)(x) of the Atrocities Act — Conviction and sentence of the appellant under section 3(1)(x) of the Atrocities Act set aside and sentence awarded under section 324 if maintained. 20. 20. There was no evidence to show that the appellant used criminal force against the prosecutrix to degenerate her modesty only because she belong to a particular caste or community whereby there was no such circumstances to suggest that her modesty was intended or tried to degenerate simply because she belongs to a particular community. Thus the ingredients under section 3(1)(xi) of the “Act, 1989” were not proved by the prosecution. 21. In the present case, the accused/appellant was involved in the incident is itself not established beyond reasonable doubt. Therefore, this Court is of the opinion that the appellant is entitled for the benefit of doubt. 22. In the result on the basis of the aforesaid legal and factual analysis, this Court is of the view that the conviction and sentence of the appellant passed by the trial Court under section 3(1)(xi) of the “Act, 1989” is not sustainable. Therefore, the same is hereby set aside. The appellant is acquitted for the offence punishable under section 3(1)(xi) of the “Act, 1989”. He is on bail. His bail bond is discharged.