Daulat Khan And Another vs State Of Madhya Pradesh

1- The appellants have preferred the present appeal being aggrieved with the judgment of conviction and order of sentence dated 29-04-2006 passed by learned Special Judge (Atrocities Act), Datia whereby appellant No.1 -Daulat Khan has been convicted for the offence under Sections 457 of IPC and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Atrocities Act') read with Section 354 of IPC and sentenced to 2 years' RI with fine of Rs.1,000/- and 2 years' RI with fine of Rs.2,000/- with default stipulation and appellant No.2 -Rinchoo alias Shyam Lal has been convicted for the offence under Sections 341 and 354/34 of IPC and sentenced to fine of Rs.500/- and 1 year's RI with fine of Rs.1,000/- with default stipulation.

2- As per the case of prosecution, both the accused were living ten days prior to the incident with the brother of Mansharam, namely Man Singh. On the date of incident i.e. 10-09-2005, around 8:00 pm husband of the prosecutrix, Mansharam after taking dinner went to participate in hymn night (भजन रात्री) at village and both the accused accompanied him. Victim was sleeping along with her two girl children at home and Mansharam (PW-5) put the latch from outside. After conclusion of hymn, Mansharam (PW-5) returned back to his home along with the accused and Mansharam (PW-5) stopped midway to address the call of nature and taking advantage of the situation, accused marched forward by which one of the accused Rinchoo stopped at the door of Mansharam (PW-5) and another accused Daulat Khan entered the house of Mansharam (PW-5) while opening the latch from outside and pressed the breasts of complainant (PW-3). Initially complainant thought it is her husband who is making advancement, therefore, keep mum but when Daulat Khan held right hand of the victim then she resisted. Meanwhile husband of victim Mansharam (PW-5) entered the house who saw accused Daulat Khan who immediately escaped from the spot. Complainant (PW-3) came out from her house and narrated the incident to the village people. She got some bruises because of breaking of bangles when Daulat Khan held her hands.

3- Case was registered on 11-09-2005 in the morning vide Ex-P/3 against the appellants. After due investigation, charge-sheet was filed before the concerned Magistrate, who committed the case to the Special Judge, Datia.

4- Appellants abjured their guilt. They stated that they have been falsely implicated in the matter just because of certain property related dispute with the husband of complainant.

5- After considering the evidence (oral as well as documentary) led by the parties and the submissions made by the counsel for the parties, trial Court convicted the appellants as referred above. Being crestfallen by the same, accused preferred the appeal taking exception to the judgment of conviction.

6- It is submitted by learned counsel for the appellants that false case has been registered against them and due to some dispute shared by the complainant and her husband with their neighbour, false case has been registered. Story indicates an improbable event. Trial Court erred in convicting the appellants and awarded the jail sentence. Alternatively, learned counsel for appellants submits that Sections 457 and 341 of IPC nowhere prescribes any minimum sentence. Even otherwise Section 354 of IPC after Amendment Act, 2016, minimum sentence has been prescribed. Since case is of September, 2005, and appeal is of year 2006 and at that point of time, Section 354 of IPC nowhere prescribed minimum sentence, therefore, looking to the period consumed in appeal, conviction be maintained and they be released on the imprisonment already undergone by the appellants. Fine amount may be raised.

7- Learned counsel for the respondent/State opposed the prayer made by the appellants and submitted that the prosecution witnesses proved the story of prosecution. He relied upon different paras of impugned judgment of conviction to bring home the fact that trial Court rightly passed the impugned judgment, which needs no interference.

8- Heard learned counsel for the parties at length and perused the evidence available on record.

9- It is a case wherein trial Court convicted appellant No.1 for the offence under Section 457 of IPC and Section 3(1)(xi) of the Atrocities Act read with Section 354 of IPC and appellant No.2 has been convicted for the offence under Section 341 and 354/34 of IPC. So far as ingredients of offence under the Atrocities Act is concerned from the contents of FIR and statement recorded under Section 161 of IPC and even from the statement of victim (PW-4) and her husband Mansharam (PW-5), no ingredients found wherein accused committed any act on the basis of the caste of complainant or her husband. No such aspersion of verbal abuse is referred but since she was member of Scheduled Caste community, therefore, it is to be seen whether incident actually occurred or not.

10- Prosecution witness Ramkishore (PW-1) did not support the story of prosecution and declared hostile. Same is the case with other prosecution witness Ban Singh (PW-2). Only complainant (PW-4) and her husband Mansharam (PW-5) supported the story of prosecution. In cross-examination, Mansharam (PW-5) accepted the fact that he reached the police station around 8 am in the morning and explained Station House Officer (Town Inspector) and Deewan Ji about the incident and they recorded statements whereas Janved Singh (PW-3), Head Constable posted at the concerned Police Station, admitted the fact that the complainant did not turn up at the Police Station before 10:30 am in the morning. Complainant (PW-4) in her cross-examination accepted the fact that she is having house related dispute with her neighbour Man Singh and she further admitted that appellant No.2 -Rinchoo is co-brother of Man Singh. Although she denied the fact that she intends to take wall of the house of Man Singh into their fold and no Panchayat held for this purpose but her admission regarding existing dispute with the accused party has material bearing.

11- So far as injury sustained by the complainant (PW-4) is concerned, it renders the case of prosecution doubtful because in cross-examination she accepted that her 10 bangles (चूडियां) were broken when the accused Daulat Khan took her and blood oozed out but surprisingly prosecution did not exhibit the medical examination of complainant. On close scrutiny of record medical examination of victim was seen by this Court. Such medical examination dated 11-09-2005 (although not exhibited) has been undertaken by the doctor of Community Health Center, Bhander at 1:00 pm meaning thereby immediately after registration of FIR medical examination took place and in the said medical report, doctor categorically gave the finding that according to him all injuries are performed by self-infliction with malafide intention. Pattern of injury suggests that it is possible that injury can be caused on the basis of events narrated. Although it has not been exhibited but record indicates so. Even otherwise, it is highly improbable that when three persons are moving together in a same direction and one stopped for a minute or so to address the call of nature then two accused persons would come for such adventure while knowing fully well that there was only a minute or so at their disposal, because they knew the fact very well that husband of complainant is following them and may reach at any moment. This aspect makes the case doubtful and has not been considered by the Court and caused illegality.

12- Even otherwise, the complainant did not get alert when her door was opened and she did not feel her husband when accused Daulat Khan pressed her breasts. It is surprising that she thought that it is her husband who entered and doing such activity. It further raises doubt because the accused knowing fully well that two children are sleeping with the complainant, therefore, no possibility exists for commission of any mischief still they went ahead. Such story renders the case unbelievable.

13- Moreso, trial Court ignored the fact that any stranger coming in the house and in darkness he is not only finding the correct person but also knowing the exact anatomy of complainant to satiate his lust. Such aspect has not been clarified by prosecution whether light was on, or if light was on then why prosecutrix could not differentiate between her husband and accused and if light was not available or complainant and her children were sleeping in the dark then how accused Daulat Khan could locate the target.

14- From the cumulative analysis it further appears that the co-accused Rinchoo never entered into the house of complainant and allegedly stood in front of the door. Still he suffered conviction for the offence under Section 354/34 of IPC. Common intention can be at times shared and executed at the spur of moment but here the story indicates an improbable event because for two minutes, Mansharam (PW-5) lagged behind and within those two minutes such common intention cannot be precipitated and shared by the accused persons. Therefore, co-accused Rinchoo could not have been convicted with the aid of Section 34 of IPC.

15- In the considered opinion of this Court, prosecution could not prove its case beyond reasonable doubt and the very genesis of incident appeared doubtful. Therefore, conviction of appellants for the charges as referred above is bad in law. Resultantly, the appeal preferred by the appellants/accused is allowed. Impugned judgment of conviction and sentence dated 29-04-2006 passed by the Special Judge is hereby set aside. Appellants are on bail, their bail bonds stand discharged. They are set free.

16- Copy of the judgment along with record be sent to the trial Court for information and necessary compliance.