Narendra Ahirwar vs State of M.P. and others

Law clearly expects the appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment but by cross-checking the reasoning of the evidence on record. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place, when the appeal is posted for hearing. This is the requirement of the Code of Criminal Procedure on a plain reading of sections 385-386 of Cr.P.C.

The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. In the case of Bani Singh and Others Vs. State of U.P., AIR 1996 SC 2439, the Apex Court while dealing with Section 386 of Cr.P.C held that when appellant and his lawyer are absent on appointed for hearing, the Court is not bound to adjourn the case, but should dispose of appeal on merits. The dismissal of appeal simpliciter for non-prosecution is not contemplated.

In a similar case of K.S. Panduranga Vs. State of Karnataka, 2013 Cr.L.J 1665 the Apex Court has held that it cannot be said that the Court cannot decide a criminal appeal in the absence of the counsel for the accused, even if the counsel does not appear deliberately or shows negligence in appearing.

This criminal appeal is pending since 1998, but none appeared on behalf of the appellant. Therefore, in view of aforesaid enunciation of law, the appeal is being decided.

This appeal has been preferred by the appellant- Harinarayan under Section 374 (2) of Cr.P.C, challenging the judgment, conviction and sentence dated 31.08.1998, passed by Special Judge, Raisen under the SC/ ST (Prevention of Corruption) Act, 1989 (for brevity the "Act, 1989") Raisen, in Special Case No. 330/1996, whereby the appellant has been convicted for offence under Section 3 (i) (xi) of the "Act, 1989" and sentenced to six months simple imprisonment with a fine of Rs.200/- and in lieu of fine fifteen days additional simple imprisonment.

The prosecution case in brief is that on 24.02.1996, the prosecutrix (PW 1) a member of Scheduled Caste, had gone to collect medicine. On her way back she missed the bus, therefore, was walking down to her village. On the way suddenly someone caught her hand. She was surprised and when she saw it was the accused- Harinarayan. The accused fell her on the ground because of which she sustained injuries. Her bangles were broken. She pushed him away and shouted. Hearing her shout Ramcharan Choudhary and his grand son came to the scene of crime. The accused while leaving the place of incident, threatened her to see her calling "Khangaran" ( her caste name). He said if she lodges any report, she would not be spared. The prosecutrix went to the village Hathora and informed the Sarpanch Hakam Singh (PW 3) and Chaukidar about the incident. When her brother Lakhu (PW 2) came, she also informed the same to him. She went to Chauki Jethari (PW 4) and then to Police Station Jaithari to lodge the report (Ex. P/1). The Station House Officer Pankaj Dixit (PW 6) lodged the F.I.R Ex. P/7 after receiving the copy of report. The prosecutrix was sent for medical examination. Spot map Ex. P/2 was prepared at the instance of the prosecutrix Lakhu (PW 2) and Hakam Singh (PW 3). Accused was arrested by arrest memo Ex. P/6. The caste certificate (Ex. P/5) issued by Sarpanch of the village Hathora. After due investigation, charge sheet has been filed. Learned trial Court framed charge under Section 3 (i) (xi) of the "Act, 1989" and under Section 323 of I.P.C.

The accused abjured guilt and pleaded innocence. The learned trial Court after adducing evidence held the appellant guilty for offence under Section 3 (i) (xi) of the "Act, 1989" and acquitted the appellant for offence under Section 323 of I.P.C and sentenced as mentioned above.

The impugned judgment has been assailed by the appellant on the ground that the appellant has been falsely implicated by the prosecutrix (PW 1). The F.I.R was lodged belatedly. The incident allegedly took place on 24.02.1996 and the F.I.R has been lodged on 27.02.1996. The prosecution failed to explain the delay in lodging the report. Testimony of prosecutrix (PW 1) is not corroborated by any other witness. The injuries have not been corroborated by any medical evidence. No independent witnesses have supported the prosecutrix due to political enmity. The appellant has been falsely implicated. No material witness has been examined except the prosecutrix (PW 1) whose statement is untrustworthy.

Learned P.L for the respondent/State at the other hand has opposed the contentions raised by the appellant and submitted that the prosecutrix had no reason to implicate the appellant falsely. Corroboration of the prosecutrix statement is not necessary. The prosecution has established the case. There is not any reasonable doubt in the prosecution story, therefore, interference is not warranted.

The prosecution has examined the prosecutrix (PW 1), her brother Lakhu (PW 2), Sarpanch Hakam Singh (PW 3), chaukidar, apart from the police witnesses, Shri M.L. Gathia (PW 5) the Sub Inspector, Police Chowki Jethari and Pankaj Dixit (PW 6) the Office-In charge, Police Station Deori.

Mansha Ram (PW 4) has not supported the prosecution case.

Lakhu (PW 2) and Hakam Singh (PW 3) are witnesses who have not seen the incident. It is stated that the prosecutrix (PW 1) narrated the incident to the Sarpanch Hakam Singh (PW 3) and Lakhu, her brother (PW 2) after she reached the village.

The prosecutrix (PW 1) has narrated the prosecution story in the following manner:- She was coming back to her village Deori from village Silwani via village Hathora. After she crossed the village Hathora, the accused/appellant followed her. After a distance she was caught by the accused. She also says that the accused fell her on the ground and assaulted her. She was molestated by the accused. She sustained injuries in this altercation. Her bangles were broken. Some bangles caused injury on her wrist. She sustained injuries on her legs. She went to lodge report on the following day.

It is observed in her report and statement under Section 161 Cr.P.C that she named two persons, arrived on her shout, at the scene of crime, but in her testimony before the Court, she has not spoken a word about these persons. Neither the prosecution examined Ramcharan Choudhary and his grand son, who allegedly came at the scene of crime on her shout.

The injuries have not been proved by any medical evidence. Lakhu (PW 2) is a witness, who is the brother of the prosecutrix. The prosecutrix informed the incident to him when he arrived at the village. Hakam Singh (PW 3) the Sarpanch of village Hathora also was informed by the prosecutrix, though these witnesses say that the prosecutrix was being molestated by the appellant- Harinarayan, but their statements do not have much evidenciary value because they are not eye witnesses. They are hearsay witnesses. Besides, the prosecutrix (PW 1) admitted that in her village there are two parties. The accused belong to the other party. Her husband- Chaman belonged to the other party. She also agrees that both the parties have enmity to each other. In this background, the statement of Lakhu Singh (PW 2), Hakam Singh (PW 3) who are not eye witnesses, cannot be relied upon. The statement of the prosecutrix (PW 1) has to be scrutinized minutely.

The test as to whether corroboration is necessary lies in the naturalness of the story deposed by the prosecutrix. If there be any doubt as regards its genuineness, there is need of caution and, therefore, corroboration. Though there is no rule of law that the testimony of the prosecutrix cannot be believed without corroboration on any material particulars, but her statement should be of sterling quality.

If we examine the statement of prosecutrix (PW 1), it would be seen that:-

(i) The eye witnesses Ramcharan Choudhary and his grand son were not examined, who could be supporting her allegations.

(ii) Medical evidence do not corroborate the prosecutrix''s evidence where as the incident occurred at 10 a.m on 24.02.1996.

(iii) She lodged the report on 27.02.1996 at about 09.30 am. The explanation given by the prosecutrix show that she had gone to Chauki Jethari of Police Station Deori for lodging the report but because the Officer-in-charge was not present, she could not lodge report. Therefore, went to the police station on the following day to lodge the report. But this explanation does not hold much water as the report has been lodged on the 3rd day of the incident.

The enmity between the two parties in the village exist, has been admitted by her. The accused- Harinarayan belonged to one party and her husband of the prosecutrix Chaman, belong to another party.

For the reasons mentioned above the statement of the prosecutrix does not seem to be of sterling quality.

The prosecution has not filed any "caste certificate" issued by the competent Authority. The investigation has been done by the S.H.O of Police Station Deori. In this regard it would be appropriate to refer the case of Bharat Singh Vs. State of M.P., 2006 (4) M.P.L.J, 171 wherein a Co-ordinate Bench of this Court has held as under:-

" (a) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989). Section 3 (1) (x), Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules. 1995, Rule 7 and Penal Code, Section 294- Accused persons- appellants allegedly threw stones and hurled abuse at complainants in the name of their caste, namely, Balai- chamar-Prosecution failed to establish by adducing cogent and reliable evidence that the complainant belonged to the Scheduled Caste or Scheduled Tribe community- In the Court statement he deposed that he belonged of BALAI caste but nowhere he has stated that his caste falls within the category of Scheduled Caste or Scheduled Tribe- Though the appellants admitted that the complainant belong to Balai community but that itself is not sufficient to establish that the complainant belonged to the Scheduled Caste community- Caste certificate from competent authority not filed- Investigation was done by SHO contrary to Rule 7- Conviction and sentence of appellants is therefore, not sustainable, 1999 (3) 582."

(b) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, Rule. 7-,

Provision is mandatory- Only those Deputy Superintendent of Police, specially appointed by the State Government or the Director of Police or the Superintendent of Police or the competent authority for the purposes of investigation the case, under the Act can investigate the offence under the Act- Investigation against appellants done by inferior officer of the police, than the Superintendent of Police duly appointed as per the provisions under Rule 7 has caused prejudice to the appellants because the Investigating Officer did not obtain the certificate from the competent authority to establish that the complainant belongs to the Scheduled Caste or Scheduled Tribe Community."

In the light of the above, there are discrepancy in the statements of the prosecutrix, the mandatory provision of Rule 7 of 1995 Rules has not been followed and caste certificate issued by the competent Authority has not been produced. Therefore, it would not be proper to sustain the impugned judgment. Hence, this appeal is allowed.

Conviction and sentence as aforesaid is hereby set aside. He is acquitted of the charges. He is on bail. His bail bond is discharged.