Kamal Balai vs State Of Madhya Pradesh

Submissions were sought to be made on I.A. No.3138/2019, which is second application for suspension of jail sentence of the applicant - Kamal Balai S/o Radheshyam Balai, earlier having been rejected. However, learned counsel for the applicant seeks to make final submissions at motion hearing stage.

Prayer is allowed.

Final submissions were made on this criminal revision filed under Section 397 read with 401 of Cr.P.C.

The applicant was earlier convicted under Section 354 (two counts) of IPC and sentenced to 3 years RI with fine of Rs.1,000/- and in default, to suffer additional 3 months SI vide judgement dated 23.09.2015 by the Judicial Magistrate First Class, Khachrod, Ujjain in Criminal Case No.258/2013. The judgement of the JMFC has been upheld by the Appellate Court vide judgement dated 04.12.2018 passed by the Additional Sessions Judge, Khachrod, Ujjain in Criminal Appeal No.414/2015. Against the Appellate Court judgement, this criminal revision has been filed by the applicant.

The prosecution story in short was that on 16.05.2013 at around 3.00 PM, complainant Seema along with her younger sister Parvati had gone to pick wood in the jungle near the village and as the younger sister moved ahead, applicant - Kamal, intending to outrage the modesty of the younger sister, grasped her chest and tore down the kurta worn by her. When the younger sister shouted, complainant Seema also arrived at the spot and the applicant thereafter, assaulted her as well and tore down her blouse as well.

Report was lodged the next day as parents of the two sisters arrived late in the evening. FIR was registered and investigation was carried out and charge-sheet under Sections 354, 354(A-1) (1) and 354(D)(1) of IPC on two counts were filed against the applicant.

After trial, Trial Court acquitted the applicant from charges under Sections 354(A-1)(1) and 354(D)(1) of IPC however, applicant was convicted under Section 354 of IPC, as already described and the conviction and sentence has been maintained by the Appellate Court.

Learned counsel for the applicant submits that charge against the applicant is not proved, as it is very apparent from her statement that she had arrived at the spot when she heard the cries of her younger sister and at that time, applicant assaulted her as well. It is submitted that blouse of elder sister has not been seized. The circumstances in which the assault was allegedly caused by the applicant, it cannot be stated to have outraged the modesty of elder sister. He further submits that he would not press on the arrival of conclusion of conviction of the applicant in respect of outraging the modesty of the younger sister Parvati (PW-1) however, he would limit his prayer only to the quantum of sentence and he would make submissions that the same be reduced from 3 years RI to minimum 1 year RI, as prescribed under Section 354 of IPC.

Learned Public Prosecutor for the State was also heard.

Original record of the case was perused.

The prosecution has examined Parvati (PW-1), Seema (PW-2, O. P. Pastariya (PW-3), Thavar (PW-4) and Investigating Officer R. C. Bhati (PW-5). The accused has examined two defence witnesses in his support namely, Kuldeep (DW-1) and Bhawarsingh (DW-2).

Considering the statement of Seema (PW-2), elder sister who although states that the applicant had pushed her causing her to fall as also tore down her blouse apart however, there is no injury on the person of Seema because of fall and another fact that her blouse has not been seized which could have substantiated her court deposition hence, offence under Section 354 of IPC is not found proved against the applicant in respect of complainant Seema. As far as Parvati (PW-1) is concerned, her conviction has not been challenged.

Perusal of deposition of Parvati (PW-1) shows that charge under Section 354 of IPC is appropriately found proved against the applicant in respect of outraging her modesty. However, it can also be seen that kurta of PW-1 although seized, has not been produced before the Court. The Presiding Officer ought to be very careful that all the items seized be produced before the Court during trial. Seema (PW-2) in para-6 of her statement admits that villagers have complaint against them and that police had arrived by the villagers complaint to take their statements. This shows that the villagers had been having some complaint against the sisters and the family. However, it has not brought out any proof and on this count as to why the villagers had riled up against the sisters.

After due consideration, offence under Section 354 of IPC for outraging the modesty in respect of Parvati (P-1) is found proved but in the circumstances as already described, the quantum of sentence is reduced from 3 years RI to 1 year RI and at the same time, fine amount imposed upon him in enhanced from Rs.1,000/- to Rs.2,000/-. On failing to pay the fine amount of Rs.2,000/- by the applicant, then he shall be required to undergo imprisonment of 4 months RI for the default.

Consequently, this revision application on the point of conviction is rejected. The revision application thus stands allowed partly to the extent indicated hereinabove. However, the applicant is acquitted from the charges under Section 354 of IPC for outraging the modesty of complainant Seema (PW-2). Any fine amount, paid in respect of offence under Section 354 of IPC in respect of complainant Seema (PW-2) shall be returned back to the complainant.

With the aforesaid modifications in the quantum of sentence, this revision application stands disposed of, in above terms. The order pertaining to property passed by the Courts below stands affirmed.

A copy of this order along with original record be sent to the Trial Court for due compliance.

Certified copy, as per rules.