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2020 DIGILAW 178 (RAJ)

Suresh Kumar v. State of Rajasthan

2020-01-21

SANDEEP MEHTA

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JUDGMENT : Sandeep Mehta, J. 1. The appellant Suresh Kumar has been convicted and sentenced as below vide judgment dated 19.11.1994 passed by the learned Special Judge, Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act Cases, Sri Ganganagar in Criminal Case No. 92/1994: Offences Sentences Fine Fine Default sentences Section 354 IPC read with Section 3(1)(xi) of the SC/ST Act Six Months' R.I. Rs. 1,000/- 1 Month's S.I. 2. Being aggrieved of his conviction and sentences, the appellant has preferred this appeal under Section 374(2) Cr.P.C. 3. Learned counsel Shri Kharlia, vehemently and fervently urges that even if the entire set up by the prosecution case is accepted, ex-facie, the conviction of the appellant for the offence under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the SC/ST Act') cannot be sustained because there is no allegation of an of the prosecution witnesses that the accused committed the offence under Section 354 of the Indian Penal Code with the intention that he was doing so with a person belonging to the scheduled caste category. He thus urges that the conviction of the appellant as recorded by the trial court is liable to be set aside to this extent as being grossly illegal. Regarding the charge under Section 354 IPC, the contention of Shri Kharlia was that the allegation levelled against the appellant that he outraged the modesty of the first informant Smt. Hardeep Kaur (PW-2), is trumped up and fabricated. As per Shri Kharlia, as a matter of fact, the members of the complainant party assaulted the accused who lodged a first information report against them at an earlier point of time and the present case was instituted against the accused purely as a counterblast. Shri Kharlia further submitted that as per the statement of Hardeep Kaur (PW-2), the accused dragged her by the hand and as a result thereof, her bangles were broken and she received injuries on her hands. But this allegation is not corroborated because the lady was not even subjected to medical examination. He thus urges that the appeal should be allowed and the appellant be acquitted of the charges levelled against him. But this allegation is not corroborated because the lady was not even subjected to medical examination. He thus urges that the appeal should be allowed and the appellant be acquitted of the charges levelled against him. In arguendo, his submission is that, even if the conviction of the appellant under Section 354 IPC is to be sustained, then too, the accused appellant, who does not have any criminal antecedents, deserves to be given benefit of probation because the incident took place way back in the year 1992. 4. Per contra, learned Public Prosecutor, vehemently and fervently opposes the submissions advanced by Shri Kharlia and urges that the FIR of the incident dated 02.09.1992 was lodged promptly on same day. Regarding the criminal case lodged by the appellant, the contention of learned Public Prosecutor was that no documents pertaining to the said case were brought on record in defence evidence and thus, the accused cannot claim any advantage on the strength thereof. He further submitted that the victim had no reason for falsely implicating the appellant in this case and thus, her evidence cannot be discarded only on the ground that the accused had lodged a report of assault, etc. prior in point of time against the husband of the victim. He further submits that the broken bangles of the complainant were recovered by the I.O. during investigation when site inspection was carried out and thus, the allegation of the complainant that the accused outraged her modesty, is duly corroborated. On these grounds, learned Public Prosecutor sought dismissal of the appeal. 5. I have given my thoughtful consideration to the submissions advanced at Bar, have minutely and threadbare perused the impugned judgment and have re-appreciated the evidence available on record. 6. The prosecution case is primarily founded on the evidence of Smt. Hardeep Kaur (PW-2). On a careful re-appraisal of her testimony, it is clear that in her entire statement, she has not alleged that the accused caught hold of her hand or that he outraged her modesty for the specific reason that she belonged to the scheduled caste community. Therefore, conviction of the appellant for the offence under Section 3(1)(xi) of the SC/ST Act cannot be sustained keeping in view the ratio of Hon'ble the Supreme Court decision in the case of Masumsha Hasanasha Musalman vs. State of Maharashtra reported in AIR 2000 SC 1876 . Therefore, conviction of the appellant for the offence under Section 3(1)(xi) of the SC/ST Act cannot be sustained keeping in view the ratio of Hon'ble the Supreme Court decision in the case of Masumsha Hasanasha Musalman vs. State of Maharashtra reported in AIR 2000 SC 1876 . Regarding the charge under Section 354 IPC, it may be mentioned here that the highest case as set up by the complainant in her evidence is that the accused caught hold of her hand and dragged her towards the wheat crop with the intention of outraging her modesty. During this grappling, her bangles broke. In cross-examination, the lady admitted that when the accused caught hold of her right hand, her bangles broke and she got hurt thereby. However, she was not subjected to medical examination. She further admitted that the accused had lodged a criminal case on the very same day regarding he having been assaulted by her husband Roshan Lal (PW-3) and her brother-in-law Gurcharan (PW-4). The evidence of the other prosecution witnesses is inconsequential in nature because, they admittedly arrived at the spot well after the incident with the lady was over. On a perusal of the statement of the I.O. Abhimanyu Singh (PW-1), it is clear that the seizure of the broken bangles was effected as late as I.O. on 15.09.1992 i.e. after more than 13 days of the incident. Thus, this seizure is absolutely unbelievable and unworthy of credence. The I.O. also admitted that the dhani of the complainant is at a distance of 300 yards from the place of the incident. The complainant Smt. Hardeep Kaur, her husband Roshan Lal (PW-3) and her brother-in-law Gurcharan (PW-4) admitted in their cross-examination that the accused had lodged a criminal case against them. It is true that the FIR of the case lodged at the instance of the accused was not proved at the trial but, a site inspection plan pertaining to the said FIR (255/1992) prepared on 02.09.1992 was proved as Ex. D/2 which in itself shows that investigation of the FIR lodged by the accused for the offences under Sections 341, 323 and 34 of the IPC was initiated before the FIR of the complainant party came to be registered. Manifestly thus, the accused has a justification in his claim that the FIR lodged against him was by way of a counterblast. Manifestly thus, the accused has a justification in his claim that the FIR lodged against him was by way of a counterblast. The highest allegation of the prosecutrix as against the accused is that he caught hold of her hand and tried to drag her. Considering in light of the fact that the accused also registered a case of criminal assault and causing simple hurt against the members of the complainant party, the possibility of this grappling having taken place in the course of this mutual fight, cannot be ruled out. 7. In this background, I am of the opinion that the conviction of the appellant for the for the offence under Section 354 i.e. outraging the modesty of the complainant Smt. Hardeep Kaur (PW-2) cannot be sustained and he deserves to be acquitted by giving him the benefit of doubt. 8. Accordingly, the appeal deserves to be and is hereby allowed. The impugned judgment dated 19.11.1994 passed by the learned Special Judge, Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act Cases, Sri Ganganagar in Criminal Case No. 92/1994 is set aside. The accused appellant Suresh Kumar is acquitted of the charges. He is on bail. He need not surrender. His bail bonds stand discharged. 9. However, keeping in view the provisions of Section 437-A Cr.P.C., the appellant shall furnish a personal bond in the sum of Rs. 40,000/- and a surety bond in the like amount before the learned Trial Court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, he shall appear before the Supreme Court. 10. Record be returned to the trial court forthwith.