Dinesh Balmik vs State Of Madhya Pradesh

According to prosecution story, the prosecutrix aged about 16 years has alleged that she is studying in Class 11th and reside in Ajaygarh, District-Panna. On 26.08.2018 in the evening while she was going to a shop from her house and reached near the square one Chhotu Musalman has stopped her on way and asked for mobile number of her friend Bharti Raikwar. When she objected, Chhotu Musalman has caught her hands with intention to outrage her modesty and abused her. Thereafter, she made a cry and at the same time her uncle Anil came on spot due to which accused/Chhotu Musalman fled away from the spot and given threat if she disclosed the incident to anyone she will face with dire consequences.

During investigation, statement of prosecutrix under Section 161 and 164 of Cr.P.C. has been recorded in which the allegation against the Chhotu Musalman is made, but present applicant Dinesh Balmik has also been named by the prosecutrix for harassing her. The age certificate and caste certificate have been received by the prosecution agency and statement of other prosecution witnesses have been recorded. Spot map has been prepared and after investigation charge sheet has been filed against Chhotu Musalman and present applicant for the offences under sections 341, 294, 354 and 506 (Part-2) of IPC & section 7/8 of POCSO Act & sections 3(1)(w)(i) and 3(2)(va) of SC/ST (Prevention of Atrocities) Act. The matter has been referred to the Special Court Atrocities District Panna in Special Case No.3/2019 for trial of aforementioned offence. On 06.02.2019 against the applicant namely Dinesh Balmik the charge has been framed for the offence under sections 341 of IPC for obstructing the way of the prosecutrix, section 294 of IPC for abusing the prosecutrix, section 354 of IPC r/w section 7/8 of POCSO Act for caught holding hands of the prosecutrix with intention to outrage her modesty and criminal force and lastly under section 506 part 2 of IPC for giving threat to kill the prosecutrix on disclosing the evidence to anyone, hence, this present petition.

Learned counsel appearing on behalf of the applicant submits that there is no evidence against the applicant for commission of the alleged offences as there is no evidence to connect him with the present crime. It is further submitted that the prosecutrix has not named the present applicant in the FIR but lateron in the statement under sections 161 and 164 of Cr.P.C. she improved her version and added name of the present applicant that the similar nature of offence has been committed by the present applicant with her on the date of incident. It is submitted that in the whole story specific allegation against Chhotu Musalman has been made and in the said complaint nowhere role of the present applicant has been assigned. Therefore, the aforesaid statement so far as connecting the present applicant with the alleged crime is not admissible in evidence under any provision of the Evidence Act. The applicant has not used any criminal force and he was not in any kind of physical touch with the prosecutrix as per FIR and the allegation made against the applicant, therefore, no charge under section 354 of IPC and the other offences is made out against the applicant. Looking to the FIR only allegation added by the prosecutrix that the applicant was also troubling her. Except this nothing has been alleged by the prosecutrix against him. In support of the contention made by counsel for the applicant reliance has been made to the order passed by the co-ordinate Bench of this Court passed in the case of Balgoti Soni vs. Amit Pateria and others wherein in para 8 for framing of the offence under section 354 of IPC has been elaborately discussed for which the necessary ingredient, criminal force is required by the accused on the women concerned. In the present case, statements under sections 161 and 164 of Cr.P.C. of the prosecutrix do not reflect that there was any physical contact between the prosecutrix and the present applicant, therefore, no offence under section 354 of IPC is made out. Hence, the applicant is entitled to discharge from the alleged offences. However, the trial court without considering the evidence available on record has mechanically framed the charges against the applicant and pass the impugned order dated 06.02.2019, hence, the order is illegal and the same is liable to be set aside.

On the other hand, learned Govt. Advocate opposed the aforesaid contentions made by learned counsel for the applicant and supported the order passed by the trial court regarding framing of charges in aforesaid sections.

Having considered the contention of learned counsel for the parties and on perusal of the record, it is apparent that in the written complaint filed by the prosecutrix and also in FIR, there is no whisper about the present applicant. So far as the facts relating to present applicant for the first time comes in prosecutrix's statement recorded under Sections 161 and 164 of Cr.P.C. and that too this much of the fact that the present applicant was just creating trouble, therefore, this Court do not find any ingredient regarding constituting an offence under section 354 of IPC. Looking to the allegations against the present applicant there is no evidence that the applicant has ever abused the prosecutrix, therefore, section 294 of IPC is not attracted. As the applicant has not used any intimidation against the prosecutrix, therefore, the offence under section 506 part 2 of IPC is also not made out, as according to the prosecutrix, no threat to kill her was made as per the evidence. Further, the prosecutrix has not alleged that any remark, gesture or contact with sexual intent has ever been made by the applicant, therefore, no offence under section 7/8 of POCSO Act is made out against the applicant.

Considering the entire evidence available in the case diary and placed before this Court, this Court is of the view that the applicant has made out a case for setting aside the charges framed against him. Therefore, the revision petition is allowed. The impugned order dated 06.02.2019 passed by the Special Judge, SC/ST (P.O. Act), Panna in Special Case No.3/2019 for framing of charges under sections 341, 294, 354 and 506 (Part-2) of IPC & section 7/8 of POCSO Act with regard to Crime No.295/2018, P.S. Ajaygarh, District-Panna is hereby set aside and the applicant is discharged from the aforesaid charges.

Copy of the order be sent to the concerned court for information and compliance.