HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT, JABALPUR
PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA
CRIMINAL APPEAL NO.1125/1997
State of Madhya Pradesh
........................................................................................................... For the appellant : Shri Ajay Tamrakar, Advocate from Legal Aid.
For the respondent: Shri G. S. Thakur, Panel Lawyer. ........................................................................................................... JUDGMENT
(Delivered on the 14th day of August, 2012) The appellant has preferred this appeal against the judgment dated 23.5.1997 passed by the Special Judge under SC/ ST (Prevention of Atrocities) Act (hereinafter it is mentioned as the "Special Act") Seoni in Special Case No.24 of 1996 whereby the appellant was convicted for offence punishable under Section 3(1)(xi) of the Special Act and sentenced for six months rigorous imprisonment.
2. The prosecution's case in short is that on 31.12.1995 at about 7.00 p.m in the evening the prosecutrix (PW2) went in the khaliyan of Kadhori at Village Begarwani (P.S Dhanora Dist. Seoni) to fetch some grass for her cow. When she prepared the bundle 2
of grass and kept it on her head, the appellant came to the spot, threw away the bundle from her head and threw her also on the earth and thereafter, he tried to commit rape upon her. On shouting of the prosecutrix the appellant ran away from the spot. Since the husband of the prosecutrix had gone to the Jabalpur to do some work and therefore, after his arrival from Jabalpur the prosecutrix lodged and FIR at Police Station Dhanora on 5.1.1996. The prosecutrix was directed for her medico legal examination. Dr. Mahesh Kumar Sahlam (PW1) after examining the prosecutrix gave a report Ex.P/1. He found that there was an old healed wound on her back which could be seven days old. After due investigation a charge sheet was filed before the Special Judge under the Special Act.
3. The appellant abjured his guilt and took a specific plea that he was falsely implicated in the matter because the husband of the prosecutrix had done some encroachment on the land of the appellant and to pressurize the appellant a false case was created against him. In defence some documents like panchanama, copy of the revenue record, FIR dated 16.3.1995 etc. were produced and defence witness Kadhorilal (DW1), Jagat Singh (DW2), Dalchand (DW3) and Santram (DW4) were also examined.
4. After considering the evidence adduced by the parties, the learned Special Judge has acquitted the appellant from the charges punishable under Section 376 read with Section 511 of I.P.C but convicted him for the offence punishable under Section 3
3(1)(xi) of the Special Act and sentenced as mentioned above.
5. I have heard learned counsel for the parties.
6. The learned counsel for the appellant directed by the Legal Aid has submitted that there was a dispute of land between the parties and it was very well proved by the defence documents. Kadhorilal (DW1) has stated that the prosecutrix or her husband never kept any grass etc. in his khaliyan and therefore, there was no possibility for the prosecutrix to prepare a bundle of grass in his khaliyan. Similarly Kotwar Dalchand (DW3) has stated that he was never informed about such incident either by the prosecutrix or her husband. Head Constable Santram Tiwari (DW4) has proved the FIR dated 16.3.1995 lodged by the proseuctrix against her husband that he assaulted her. Under such circumstances, it is submitted that a fake case was prepared by the prosecutrix. It is further submitted that no caste certificate was submitted by the prosecutrix and the case was investigated by Shri D.S. Markam, Inspector of Harijan Kalyan Prakosht, Seoni. That was violative of rules and therefore, the appellant could not be convicted for offence punishable under section 3(1)(xi) of the Special Act. In the alternate it is submitted that the appellant remained in the custody for few days and therefore, his sentence may be reduced to the period for which he has already undergone in the custody.
7. On the other hand the learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct. There is no basis by which any 4
interference can be done in the appeal.
8. After considering the submissions made by the learned counsel for the parties in the case it is to be considered that whether it is proved that the prosecutrix was a member of a scheduled caste or a scheduled tribe? Whether Rule 7 of the SC/ST (Prevention of Atrocities) Rules (hereinafter mentioned as "Rules") was violated ? If Yes then the effect ? Whether the appellant can be convicted for any offence ? and Whether the sentence imposed against the appellant can be reduced ?
9. It is apparent that no valid caste certificate is submitted from the side of the prosecutrix or her husband. A certificate Ex.P/4 was given by the Sarpanch of the Gram Panchayat, Begarwani but, Sarpanch was not entitled to issue any caste certificate. Prosecutrix (PW2) and her husband Raisingh (PW3) have orally submitted that they were of the caste Pradhan which comes in the scheduled tribe but, it was not accepted by the appellant. Under such circumstances, in the absence of the valid certificate it was not proved that the prosecutrix was of any scheduled tribe.
10. According to Rule 7 of the Rules the investigation was to be done by the Police Officer having a rank equivalent to Dy.S.P of Police and therefore, in the present case where the investigation was done by an Inspector it is apparent that violation of Rule 7 of the Rules has been done. It is the settled view of the Hon'ble Apex Court that the violation of Rule 7 of the Rules is fatal 5
and due to that violation the accused cannot be convicted for any offence punishable under the Special Act. However, the accused can be convicted for the analogous offence which falls within the purview of provisions of the I.P.C Under such circumstances, the appellant cannot be convicted for offence punishable under Section 3(1)(xi) of the Special Act but, he can be convicted for offence punishable under Section 354 of I.P.C which is equivalent and analogous offence. The appellant can be convicted for offence punishable under section 354 of I.P.C in the head of charge of the offence punishable under Section 3(1)(xi) of the Special Act.
11. The prosecutrix and her husband have stated that at the time of incident the prosecutrix was making a bundle of grass in the khaliyan of Kadorilal and the appellant pushed her and tried to commit the rape. Before the trial Court the prosecutrix has alleged that the appellant had committed rape upon her. However, she has exaggerated her evidence. In her FIR (Ex.P/1) there is no allegation of the offence of the rape. It appears that the prosecutrix was telling a falsehood in the trial Court about the rape. The prosecutrix and her husband have stated that the incident was informed to so many persons in the village by the prosecutrix but Kotwar Dalchand (DW3) has denied categorically that he was informed about the incident. The FIR Ex.P/1 lodged by the prosecutrix with delay of at least 6 days and reason for the delay was shown that her husband went to Jabalpur for some 6
reason and therefore, when he came back, the prosecutrix went with him and lodged an FIR.
12. Raisingh could not tell the exact dates of his visit to the Jabalpur. He has tried to inform the Court that he went to Jabalpur on 29.12.1995 and came back on Thursday i.e. 4th January then FIR could be lodged on the same day in the evening or in the early morning of next day i.e 5th January but, FIR was lodged at about 6.00 p.m in the evening on 5.1.1996 and therefore, it appears that the FIR was lodged by the prosecutrix and her husband with consultation amongst friends etc. and therefore loses its importance.
13. Raisingh has denied that there was a dispute of any land between the appellant and him but, he has accepted that the prosecutrix had lodged an FIR against him about the assault. Thereafter, he denied that a revenue case was initiated between him and the father of the appellant. However, by panchanama (Ex.D/1) which was admitted by the prosecutrix it is apparent that the possession of the witness Rai Singh was shown on the land of the appellant. Similarly looking to the various revenue documents it appears that there was a dispute pending between the appellant and husband of the prosecutrix about the possession of some land. Under such circumstances, the appellant could establish the enmity between the husband of the prosecutrix and himself. Enmity is a double edged weapon by which either one party can falsely implicate another one or one 7
party can commit any crime with another party and therefore, the testimony of the prosecutrix and her husband should be seen with a great caution.
14. It is apparent from the evidence adduced by the prosecution that the prosecutrix has no opportunity to get a bundle of grass in the khaliyan of Kadorilal and therefore, the genesis of crime comes under the clouds of doubt. Secondly there was enmity between the parties., Thirdly, it is not established that the husband of the prosecutrix went to Jabalpur and he remained there for such a long period. Learned counsel for the appellant has placed his reliance on the judgment passed by the Single Bench of this Court in the case of "Ramvilas Vs. State of M.P." (2008 (II) MPWN 96) in which it is held that if FIR was lodged in a delayed manner after taking advise from the enemy then the testimony of prosecutrix becomes doubtful.
15. In the present case if all the infirmities are considered simultaneously then it would be apparent that no grass was kept by the prosecutrix or her husband in the khaliyan of Kadorilal so that there was no opportunity to the prosecutrix to visit the place of incidence at that time. There was an enmity between the husband of the prosecutrix and the appellant due to a piece of land and there were chances that the appellant could be prosecuted by the prosecutrix in a false manner. FIR was lodged with delay of six days and if the reason told by the husband of the prosecutrix is accepted then still it was delayed by 8-10 hours and 8
it appears that it was lodged after consultation with some law knowing person. There was no medical evidence for corroboration of the testimony of the prosecutrix. A healed wound was found which could be a wound due to a boil, not due to an assault. Under such circumstances, a reasonable doubt is created in the case and looking to the delay in FIR, in the light of law laid by this Court in the case of Ramvilas (supra), prosecution's story becomes doubtful. Therefore, if any doubt is created then, its benefit shall go to the appellant and he cannot be convicted for the offence punishable under Section 354 of I.P.C.
16. On the basis of the aforesaid discussion it would be apparent that the appellant cannot be convicted for offence punishable under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act. Testimony of the prosecutrix appears to be doubtful and therefore, the appellant cannot be convicted for the offence punishable under section 354 of I.P.C. The learned Special Judge has erred in convicting the appellant for the aforesaid offence. Consequently, appeal appears to be acceptable hence it is accepted. Conviction as well as sentence directed by the trial Court for the offence punishable under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act is hereby set aside. The appellant is acquitted from all the charges appended against him.
17. At present the attendance of the appellant is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.
18. Copy of the judgment be sent to the trial Court along with its record for information.