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Madhya Pradesh High Court · body

2023 DIGILAW 1009 (MP)

Anil Kumar v. State Of Madhya Pradesh

2023-12-18

DUPPALA VENKATA RAMANA

body2023
JUDGMENT : The appellants are herein preferred this appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment of conviction and sentence dated 19-5-2000 passed by the learned Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989 (hereinafter referred to as “the Act of 1989”) in Session Trial No. 49/99 convicting for the offence punishable under section 3(1)(xi) of the Act of 1989 and sentencing rigorous imprisonment for one year and pay fine of Rs.500/- each, in case of non-payment of fine, they should undergo additional R.I. for 15 days each. 2. Background facts in a nutshell are as follows : On 28-3-1998 at about 7:30 p.m. the complainant-Sharmila came to the police station- AJK, Rewa stated that when she was in the house at about 4:00 p.m., four persons of her village came to her house and Anil Tiwari asked her to give a glass of water and she has given a glass of water then Shiv Kumar asked a glass of water when she went inside the house to get the water at the same time Shiv Kumar Came her behind and caught her hand and Anoop Tiwari and Ramcharit followed him and all of them put the hand on her back to which she shouted and on hearing her voice wife of Ramsiya’s, Gori’s and Kishan’s came there, at that time, Anoop shouted her by using her caste “Kolin” and shouting to set fire to her house with a matchstick, immediately she went inside the house to pick up her child namely Navin and those people set fire her house and ran away towards the village when she raised alarm her husband Ramesh, Buddh sen and Subedar came there and they went to the police station, informed the same to B. D. Sharma, who in-charge of police station recorded her statement registered the same in a case of Crime No. 9/98 for offences under sections 452, 354, 436 r/w 34 of IPC and 3(2)(iv) and 3(1)(xi) of the Act of 1989. He examined the witnesses and recorded their statements and on 10-1-1999 all the appellants/accused were arrested and there was a dispute between the complainant and appellants/accused with respect to the plot bearing No. 53/8 and 53/12 and after completion of investigation a charge-sheet was filed before the Special Judge, Rewa by SDOP, Sirmour. 3. He examined the witnesses and recorded their statements and on 10-1-1999 all the appellants/accused were arrested and there was a dispute between the complainant and appellants/accused with respect to the plot bearing No. 53/8 and 53/12 and after completion of investigation a charge-sheet was filed before the Special Judge, Rewa by SDOP, Sirmour. 3. The learned Special Judge took the cognizance and framed the charges for the offence under sections 3(1)(xi) and 3(2)(iv) of the Act of 1989 and under sections 436 and 354 r/w 34 of IPC against all the appellants/accused, and they abjured their guilt and stated that they did not take any specific plea in this case, however it as alleged that the appellants were falsely implicated due to previous enmity and pleaded not guilty and they claimed to be tried. In support of his defence, Sampat Kol (DW-1) and Hanman Pandey (DW-2) were examined 4. During the trial, the prosecution examined as many as five witnesses and exhibited some documents i.e. (Ex.P-1) spot map prepared by Investigating Officer B. K. Jha, (Ex.P-2) daily diary report “Rojnamcha Sanha” and (Ex.P-3) first information report marked on behalf of the prosecution in support of their case. 5. After recording the evidence of prosecution witnesses the learned Special Judge examined the appellants/accused under section 313 of Cr.P.C. wherein they have pleaded innocence further specifically pleaded that all the allegations made against them are false, further they too have stated that in order to settle the earlier dispute between the PW-1- Sharmila and the appellants/ accused, she filed this case against them. 6. Thereafter, the learned trial Court had heard the learned counsel for the parties and ultimately considering the evidence of prosecution witnesses and submission of the learned counsel for both the sides convicted and sentenced the appellants/accused under section 3(1)(xi) of the Act of 1989 as stated (supra). 7. Aggrieved by the said conviction and sentence imposed by learned Special Judge, the present appeal is filed. 8. Now the short point that arises for consideration in this appeal is : “whether there is any flaw or illegality or impropriety in the findings recorded by the trial Court ? 9. Learned counsel for the appellants has advanced arguments that this case came to be registered against the appellants/accused herein just because the appellants and complainant (PW-1) belong to different community. 9. Learned counsel for the appellants has advanced arguments that this case came to be registered against the appellants/accused herein just because the appellants and complainant (PW-1) belong to different community. Further he would submit that the case was registered on account of previous enmity with the appellants. Further he would submit that in order to establish the charge u/s 3(1)(xi) of the SC/ST Act it is essential to prove the prosecutrix belongs to scheduled caste or scheduled tribe community and criminal force was used on her by the appellants who are not the members of scheduled caste or scheduled tribe community but the prosecution agency failed to produce caste certificate of the prosecutrix (PW-1) Sharmila that she belongs to scheduled caste or scheduled tribe community. It is one of the essential ingredients in which the prosecution failed to prove, it is clear that the prosecution failed to prove their case beyond reasonable doubt and the conviction and sentence imposed by Special Judge is liable to be set aside. 10. Further he would submit that registration of FIR and the statements of witnesses recorded by station in-charge whereas the charge-sheet filed by SDOP, Sirmour, therefore, the investigation done by the SDOP is perfunctory as it is not in accordance with the statute. As per Rule 7, it is manifest that all Dy. Superintendents of Police cannot investigate the offence under the Act. Only those Dy. Superintendents of Police who specially appointed by the State Government or Director General of Police or Superintendent of Police or the Competent Authority for the purpose of investigating the case, but in the present case the investigation conducted by Station House Officer and not by the officer as envisaged under Rule 7 of the Rules. Therefore, the whole trial is vitiated, conviction and sentenced imposed by the Special Judge is liable to be set aside. Further submit that (PW-1) Sharmila exaggerated the facts while examined by the police which have not stated in the FIR, further he would submit that the wife of Ramsiya, Gori and Kishan who are the eye witnesses to the incident as stated by PW-1 in her report, on hearing her voice they came there but the investigating officer purposefully had not examined them. For non-examination of material witnesses would fatal to the prosecution case and entertained doubts and, therefore, conviction and sentenced imposed by the Special Judge is not sustained and appellants are not guilty of offence under section 3(1)(xi) of Act of 1989, no scope for convicting the appellants and the conviction and sentence passed by the Special Judge against the appellants are liable to be set aside. 11. Learned counsel for the respondent argued that as many as five witnesses examined and supported the case of prosecution, further he would submit that there was no suggestion put to PW-1 that she does not belong to scheduled castes or scheduled tribes community. In the absence of above suggestions, they cannot raise the dispute about the community of PW-1 that she does not belong to the scheduled caste or scheduled tribe community and the learned counsel for the State has submitted that the accused/appellants have admitted in their 313 examination that the prosecutrix is a scheduled caste community, therefore, prosecution is not obliged to lead any evidence regarding the fact whether the prosecutrix belongs to scheduled caste or scheduled tribe community or not and, therefore, the appeal is devoid of merits and is liable to be dismissed. 12. I have carefully considered the submissions of the learned counsel for the parties and perused the evidence available on record. On a close careful scrutiny of the judgment in paragraph-39 came to a conclusion that on perusal of oral and documentary evidence presented in this case he found that (PW-1) Sharmila-complainant who is a married tribal woman and her modesty was outraged by the appellants/accused and the act done by them is definitely disgusting and serious crime and convicted the appellants/accused under section 3(1)(xi) of SC/ST Act, 1989. 13. On perusal of the record, (PW-1) Sharmila stated that she belongs to a tribal community and appellants-accused belongs to Pandit Caste and approximately one and half years ago at about 4:00 pm when she was in her house all the four appellants/accused came there and Anil Tiwari asked a glass of water, she gave water to him later he went away. After some time, Anil came along with Shiv Kumar and asked her to give water as soon as she went inside the house to get the water, Shiv Kumar followed on her back and put both hands on her breast and when she tried to save herself the accused Anil caught her both hands and other two accused persons Anoop and Ramcharit molesting her and all four of them caught hold of her and started teasing her and in this scuffle her bangles were broken. In her cross-examination, she stated that on the date of the incident she does not know whether the accused abused her by calling her caste “Kolin” whether she was reported to the Harizan Police Station or not and further stated that she does not know that any abuse or assault is reported to the Harizan Police Station. Further stated at the time of incident when she had shouted, the accused got fire their hut then the wives of Ramsiya, Gauri and Kishan came to the scene of occurrence. 14. (PW-2) Mughni W/o Krishna Kol she stated that her house in a short distance from Sharmila’s house when she heard Sarmila’s voice she went there and Sharmila informed that the accused who are in the Court scuffling with her. In cross-examination, she stated that after she reached then the other two women reached the Sharmila’s house, further stated that after 10 to 15 minutes the people surrounding the Sharmila house came there, she saw that the Sharmila house got fired but she did not see any of the accused setting the fire. 15. (PW-3) Vinod Kumar, who is working as Sub-Divisional Police Officer he stated that a case in crime No. 9/98 was registered under sections 354, 436, 452 r/w 34 of IPC against the appellants/accused and he transcribed the statements of witnesses. In his cross-examination, he stated that he is not sure whether there was any enmity between the appellants/accused and Sharmila. 16. (PW-4) Vishesh Prasad Verma working as head constable he stated that on 28-3-1998 Sharmila came to the police station at 7:30 pm and submitted oral report, as per her request and he prepared report and entered in daily diary entry vide No. 479. 17. 16. (PW-4) Vishesh Prasad Verma working as head constable he stated that on 28-3-1998 Sharmila came to the police station at 7:30 pm and submitted oral report, as per her request and he prepared report and entered in daily diary entry vide No. 479. 17. PW-5 Ram Kumar Mishra Assistant Sub-inspector stated that the daily diary report No. 479 registered as FIR in case of Crime No. 9/98 dated 2-4-1998 under section 436, 354, 452 and 34 of IPC and section 3(2)(iv) and 3(1)(xi) of SC/ST Act against the appellants. His statement was recorded by Shushil Ranjan, SDOP. 18. From the scrutiny of the evidences of the prosecution witnesses, it appears that no case under sections 3(1)(xi) of the SC/ST Act has been made out against the accused-appellants as there is nothing in the evidence of PWs, that the accused/appellants has used force to a scheduled tribe woman with intent to outrage her modesty. Ex.P/3 never stated that all the accused used force or assault against her for outrage her modesty but she stated that Shiv Kumar followed behind her back and caught hold of her hand whereas she stated in her evidence that all of them came behind and put their hands from her back and pressing her breast and further she stated that all the four accused caught hold her hand and she tried to push them broken her bangles which is nothing but an exaggeration of facts with intent to see that the accused are to be convicted, the evidence of PW-1 is contrary to the FIR, therefore, it requires corroboration from any independent source to substantiate the case of the prosecution. On perusal of evidence of (PW-2) Mughani w/o Krishna, her evidence is nothing but hearsay, she was not an eye witness to the incident. She stated that when she went to the house of Sharmila she stated that all the accused fired her house but in her cross-examination stated that she did not see any of the accused setting fire on her house. She reached the house of PW-1 after 10-15 minutes of the incident. The other two witnesses who are wives of Ramisya and Gauri came there but they have not cited as witnesses by the prosecution though they are material witnesses to the prosecution case. Therefore, the evidence of PW-1 alone cannot be accepted or believed in the absence of independent evidence. The other two witnesses who are wives of Ramisya and Gauri came there but they have not cited as witnesses by the prosecution though they are material witnesses to the prosecution case. Therefore, the evidence of PW-1 alone cannot be accepted or believed in the absence of independent evidence. The rest of the witnesses PW-3 to PW-5 who are none other than the police officers. They are always interested in prosecution case to see that accused are to be convicted. Their evidence cannot be considered in the absence of any corroborative evidence. 19. Convicting the accused under section 3(1)(xi) of SC/ST Act, first of all, the prosecution has to prove that the PW-1 belongs to scheduled caste or scheduled tribe community and the appellants are elite class (upper caste), but in the present case caste certificate of PW-1 has not been produced which plays a vital role. 20. At this juncture, Bharatsingh and another vs. State of M.P., 2007 (1) MPHT 451 , relevant para-4 read as follows :— …………. this Court is of the considered view that the conviction of the appellants is not sustainable because the prosecution has failed to establish by adducing cogent and reliable evidence that the complainant (P.W. 1) Rameshwar belonged to the Scheduled Caste or Scheduled Tribe community. In the Court statement Rameshwar (P.W. 1) has deposed that he belongs to Balal caste but no-where he has stated that-his caste falls within the category of Scheduled Caste or Scheduled Tribe. None of the prosecution witnesses has stated so though the appellants have admitted that the complainant belong to Balal community but that itself is not sufficient to establish that the complainant belonged to the scheduled caste community. Learned trial Court, without any evidence on record has held in para 8 of the judgment that the complainant Rameshwar (P.W. 1) and Sobalsingh (P.W. 2) belong to the Scheduled Caste Community. The prosecution has not filed any caste certificate issued by the duly competent authority to prove that the caste of the complainant Rameshwar falls within the category of Scheduled Caste. Filing of caste certificate is sine-quo-non. The prosecution has not filed any caste certificate issued by the duly competent authority to prove that the caste of the complainant Rameshwar falls within the category of Scheduled Caste. Filing of caste certificate is sine-quo-non. In the present case, the learned trial judge without any evidence on record has held in para-39 of the judgment that he found Sharmila was married tribal woman, the prosecution has not filed any caste certificate issued by duly competent authority to prove that the caste of the complainant Sharmila falls within the category of Scheduled Castes or Scheduled Tribes and PW-1 deposed that she belongs to tribal caste but nowhere she has stated that her caste falls within the category of scheduled caste or scheduled tribe. None of the prosecution witnesses stated so though the complainant PW-1 has admitted she belongs to the scheduled tribe but that itself is not sufficient to establish PW-1 belongs to the scheduled tribes community. 21. Another judgment of this Court in the case of Shankarlal vs. State of M. P., 2005(1) M.P.L.J. 449 , the relevant pars-5, 6 and 7 read as follows : “5. ……………...In the present case, the prosecution has not led any evidence to the effect that the caste, to which the prosecutrix belongs, is included in the Scheduled Caste or Scheduled Tribe………... 6. In the testimony of prosecutrix (P.W.1), it is said that she is ‘Chamar’ by caste and the appellant has admitted this fact. She has not said that she is a member of SC or ST or whether her caste is included in the list of SC caste. Her husband (P.W. 2) has deposed that he is “Suryawanshi Chamar” by caste. The prosecution has not led any evidence to the effect that “Suryawanshi Chamar” is the caste which has been included in the list of SC or ST. In the absence of any such evidence, this fact cannot be taken for granted that prosecutrix belongs to the SC or ST community. As being one of the essential ingredients, this fact was required to be proved beyond any reasonable doubt by the prosecution. 7. Assuming that it is established that the prosecutrix belongs to SC or ST, still it is difficult to hold that the offence under section 3(i)(xi) of the Act is established. As being one of the essential ingredients, this fact was required to be proved beyond any reasonable doubt by the prosecution. 7. Assuming that it is established that the prosecutrix belongs to SC or ST, still it is difficult to hold that the offence under section 3(i)(xi) of the Act is established. There is no evidence to show that the appellant used criminal force to the prosecutrix to outrage her modesty only because she belonged to a particular caste or community. There is no such circumstance to suggest that her modesty was intended or tried to be outraged, simply because she belonged to a particular community. It is thus clear that the ingredient of section 3(1)(xi) of the Act is not proved and conviction of the appellant under section 3(1)(xi) of the Act deserves to be set aside…….. 22. In a case of Bharatsingh (supra), the relevant para-5 and 6 read as follows :— 5. The next glaring defect in the prosecution case is that the investigation was done by Surendra Singh Jhala (P.W. 3), SHO P.S. Pipalranwa whereas according to Rule 7 of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as the ‘Rules’) the investigation shall be made by a police officer not below the rank of a Deputy Superintendent of Police. Rule 7 of the ‘Rules’ is reproduced as under : Rule 7. Investigating Officer. — (1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implication of the case and investigate it along with right lines within the shortest possible time. (2) The Investigating Officer so appointed under sub-section (1) shall complete the investigation on top priority basis within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police of the State Government. (3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer-in-charge of prosecution and the Director General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer. 6. …………………. (3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer-in-charge of prosecution and the Director General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer. 6. …………………. on going through the Rule 7, it is manifest that all Deputy Superintendents of Police cannot investigate the offence under the Act., Only those Deputy Superintendents of Police, specifically appointed by the State Government or the Director General of Police or the Superintendent of Police or the competent authority for the purposes of investigating the case, under the Act can investigate the offence under this Act.……………. . 23. In the present case, registering FIR and examining the witnesses and prepared map at the scene done by PW-3 to PW-5. The charge-sheet filed by Shri Sushil Ranjan Singh, SDOP which clearly shows even if cognizance is taken on police report initiated by breach of mandatory provision relating to the investigation, there can be no doubt that the result of the trial which follows. It cannot be set-aside unless the illegality and investigation can be shown to have brought about miscarriage of justice. In the present case, the whole investigation done by various police officers PW-3 to PW-5 and as per Rule 7 not below the rank of Dy. Superintendent of Police should be investigated into the matter under the Act of 1989, therefore, the investigation conducted in contrary to rule 7, therefore, whole trial is vitiated for non-compliance of Rule 7. 24. Apart from the investigating officers, even did not obtain certificate from the competent authority to establish that the complainant-Sharmila belongs to scheduled castes and scheduled tribes community shows that the Investigating Officer was not aware of the provision of the Act and the Rules and investigated the matter in a routine manner and the investigation ought to have been done by designated police officer he would have probably first ascertained whether the complainant comes within the category of scheduled caste or scheduled tribe community. In view of foregoing legal and factual analysis, this Court is of the view the conviction and sentence passed by the Court below is not sustainable. 25. In view of foregoing legal and factual analysis, this Court is of the view the conviction and sentence passed by the Court below is not sustainable. 25. Assuming that it is established that the prosecutrix belongs to scheduled caste and scheduled tribes community, still it is difficult to hold that the offence under section 3(1)(xi) of the Act is established, there is no evidence to show that the appellants used criminal force to the prosecurix to outrage her modesty only she belongs to particular community. There is no such circumstances to suggest that her modesty was intended or tried to be outraged. It is, thus, clear that ingredients of section 3(1)(xi) of Act is not proved and conviction of the appellants under section 3(1)(xi) deserves to be set aside. 26. Further in the present case the evidence of PW-2 who is alleged to be an eye witness to the incident. On perusal of her evidence she came to the house of PW-1 after 5 to 10 minutes, PW-1 Sharmila informed her that the accused are the persons who caused the incident and fired the hut she has categorically stated in her evidence that she did not see any of the accused setting the fire, she was tutored by Sharmila that the accused has come to the spot, therefore, PW-2 is not at all eye witness to the incident, if her evidence is discarded they remain the evidence of PW-1 who is an interested in prosecution case and having admitted that there was an enmity between her and appellants with regard to plots in 53/8 and 53/12 for construction of the house. When there was an enmity between the parties it is a double edged weapon to implicate the accused falsely to settle the issues in connection with construction of the house in plots 53/12 and 53/8, when there was an enmity between them the independent evidence is necessary in the present case there is no such evidence to corroborate with the evidence of PW-1, her evidence shows nothing but exaggeration which has not stated in the FIR. Further the members of scheduled caste or scheduled tribe may misuse the provisions of law as a class. On the other hand the member of scheduled caste or scheduled tribe due to lodging report much less false one. Further the members of scheduled caste or scheduled tribe may misuse the provisions of law as a class. On the other hand the member of scheduled caste or scheduled tribe due to lodging report much less false one. On perusal of the record either in the FIR or 161 statement she has not stated that she belongs to scheduled caste or scheduled tribe community and accused are elite class and caste of the accused is not mentioned in the FIR, therefore, offence under section 3(1)(xi) is not made out. 27. In the light of the above judgments stated (supra) in order to justify a conviction there must be some cogent and material evidence on record as discussed above, I am of the considered opinion that the evidence on record is an vogue, such evidence is not enough to bring home the charge under section 3(1)(xi) of SC/ST Act. 28. On considering the evidence, there is no specific incident narrated against the accused/appellants by any of the witnesses. I find that there must be a proof of direct or indirect acts of incitement of commission to outrage her modesty by using force by the appellants and merely making omnibus statements that the accused-appellants uses force with intent to outrage her modesty would not suffice for conviction and considering the facts that the evidence is weak in nature then to sustain the conviction. The evidence on record must be shown complete that any other hypothesis than that of the guilt of the accused should not be possible. The evidence should not only be consistent with the guilt of the accused but should be inconsistent with their innocence as directed in the cases referred above. 29. Similarly, I find that there must be concrete evidence to show that the accused in some manner responsible. No such evidence is available on record to sustain conviction. On analyzing of the evidence, it is clear that there is no material to establish the guilt of the accused/appellants on the ground that none of the witnesses stated about using force with intent to outrage her modesty, the evidence of PW-1 is nothing but exaggeration which has not stated in the FIR. Apart from the facts and circumstances of the present case, proof of caste is a necessary requirement and further want of conduction of investigation by not below the rank of Dy. Apart from the facts and circumstances of the present case, proof of caste is a necessary requirement and further want of conduction of investigation by not below the rank of Dy. Superintendent of Police, serious prejudices has been caused to the appellants, conviction rendered unsustainable. 30. Probably, the trial Court impressed upon the facts that the complainant-Sharmila is belonged to Scheduled Tribes which is nothing but imaginary without leading to the evidence of producing caste certificate, the Court should not be emotional while deciding the criminal case where the strict prove is called for to establish the guilt of appellants/accused. On the basis of suspicion and emotion, appellants should not be convicted by criminal case. The investigation officer did not obtain caste certificate of the prosecutrix and no witnesses is examined to prove the caste of prosecutrix, since it is not at all proved that the prosecutrix was either of scheduled the scheduled caste or scheduled tribes, therefore, the appellants could not be convicted for the offences under section 3(1)(xi) of the Act of 1989. 31. For the aforesaid reasons, in the present case the findings of the learned trial Court is erroneous and unsustainable due to lack of proper appreciation of fact and law as indicated above, consequently, the appeal is allowed. 32. The judgment and order dated 19-5-2000 passed by learned Special Judge (SC/ST Act) in S.T.49/99 in Crime No. 9/1998 is set-aside. The appellants/accused are acquitted from the charges and set them at liberty forthwith. They are entitled to receive back a sum of Rs.. 500/- of fine each from the trial Court, if deposited. 33. The bail bonds submitted by appellants are discharged. 34. Return the lower Court records along with copy of judgment.