Nathuram vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred this appeal against the judgment dated 18.1.1997 passed by the learned Special Judge under SC/ST (Prevention of Atrocities) Act, Tikamgarh in Special case No. 17/1995, whereby the appellant was convicted for the offence punishable u/s 354 of IPC and section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter it will be referred as the ''Special Act'') and sentenced for 1 year''s rigorous imprisonment with fine of Rs. 250/- and in default of payment of fine, 1 month''s additional rigorous imprisonment was also directed. The prosecution''s story, in short, is that, on 11.2.1995, at about 4 p.m. in the evening, the prosecutrix (P.W. 1) went to her field, situated at Ratanganj (Police Station Budhar, District Tikamgarh) to reap the crop of Kandi. After sometime, the appellant came and met her. He directed the prosecutrix to lay down, so that he could do the intercourse with her. The prosecutrix shouted upon him and directed to go away and thereafter, the appellant held both the hands of the prosecutrix and tried to threw her on the Earth but, the prosecutrix again stood up and shouted and therefore, Nandlal, wife of Nandlal and Ramcharan (P.W. 4) came to the spot and thereafter, the appellant ran away. The prosecutrix went to her house and told the entire story to her mother-in-law Pyari Bai (P.W. 5). Since her father-in-law was not available on that day, she could not lodge the FIR. On 13.2.1995, at about 9 a.m. in the morning, the prosecutrix had lodged an FIR, Ex. P/1. After due investigation, a charge-sheet was filed before the Special Judge/Sessions Judge, Tikamgarh.

The appellant abjured his guilt. He took a specific plea that he was falsely implicated due to enmity and in defence, Tijua (D.W. 1) and Ganeshi Bai (D.W. 2) were examined.

The learned Special Judge/Sessions Judge, after considering the evidence adduced by the parties, convicted the appellant for the offence punishable u/s 354 of IPC and section 3(1)(xi) of the Special Act and sentenced him as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that the trial Court has erred in convicting the appellant for the offence punishable u/s 3(1)(xi) of the Special Act because no caste certificate was submitted on behalf of the prosecutrix to show that she was a member of Scheduled caste or Scheduled Tribe. The appellant was falsely implicated due to enmity. Name of the witness Nandlal and his wife was mentioned in the FIR but, they were not examined by the prosecution, whereas Ganeshi Bai (D.W. 2), wife of the witness Nandlal was examined in defence, who told that no such incident took place with the prosecutrix. Under such circumstances, it would be apparent that the appellant was falsely implicated in the matter. For appreciation of evidence of the prosecutrix, the learned counsel for the appellant has placed his reliance upon the judgment passed by the Single Bench of this Court in case of "Ramvilas Vs. State of Madhya Pradesh", [(2008) (IV) MPJR, SN 7]. It is further submitted that the appellant has faced the trial and appeal for last 15 years and therefore, he may not be sent to the jail again. For consideration of the sentence, the learned counsel for the appellant has placed his reliance upon the judgment passed by Hon''ble the Apex Court in case of Alam and Others Vs. State of Rajasthan,

On the other hand, the learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct and no interference can be done in the appeal.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellant can be accepted? And whether the sentence imposed upon the appellant can be reduced?

The prosecutrix (P.W. 1), Ramcharan (P.W. 4), Pyari Bai (P.W. 5) have stated about the incident. The prosecutrix did not told about her caste in her statement. No caste certificate is submitted by the prosecutrix to the police. No caste certificate was obtained by the Investigating Officer from the authorized officer. Under such circumstances, it is no where proved that the prosecutrix was a member of either scheduled caste or scheduled tribe. Hence, the appellant could not be convicted for the offence punishable u/s 3(1)(xi) of the Special Act. The learned Special Judge has erred in convicting the appellant for the said offence.

The prosecutrix has stated that the appellant came to the spot and held her hands. Thereafter, he pressed her breasts and tried to drag the prosecutrix towards the forest but, on her shouting, Nandlal came to the spot and therefore, the appellant ran away. The prosecutrix did not state before the Court that anyone except the witness Nandlal came to the spot and therefore, it is highly doubtful as to whether the witness Ramcharan (P.W. 4) reached to the spot or not. In the FIR, Ex. P/1, it was mentioned that Nandlal, his wife and Ramcharan came to the spot, who saw the incident. Ganeshi Bai (D.W. 2), wife of Nandlal was examined as defence witness, who has stated that no such incident took place before her. Nandlal appeared before the trial Court but, he was given up by the prosecution. Under such circumstances, it is apparent that Nandlal and his wife have not corroborated the version given by the prosecutrix.

The incident took place on 11.2.1995, at about 4 p.m., in the evening, whereas FIR was lodged on 13.2.1995. FIR was lodged with delay of at least 45 hours. The reason for such delay was told by the prosecutrix in the FIR that her father-in-law was out of station and he came in the evening of 12.2.1995 and thereafter, she went to the Police Station on the next day morning along with her father-in-law. The prosecutrix (P.W. 1) and Pyari Bai (P.W. 5) have accepted that father-in-law of the prosecutrix went to the forest to get some wood from the forest and he came on the same day evening along with his son i.e. husband of the prosecutrix. The defence counsel tried to give so many suggestions, so that the prosecutrix and her mother-in-law may go back to their original version stated in the case diary statement but, they ultimately accepted that father-in-law of the prosecutrix came back to the house in the evening of 11.2.1995 and therefore, the prosecutrix could lodge the FIR on the next day morning. Under such circumstances, it is apparent that the FIR was delayed by atleast 24 hours. No reason for that delay has been given by the prosecutrix. Father-in-law and husband of the prosecutrix were not examined before the trial Court. Under such circumstances, this possibility cannot be ruled out that to get the claim from the Government, a false report was lodged by the prosecutrix by making deliberation and consultation with her father-in-law etc.

The prosecutrix had lodged an FIR, Ex. P/1 but, the Investigation officer, Head Constable Madan Mohan (P.W. 6) has accepted that during the investigation, a written report, Ex. P/3 was also present in the case diary, which was given by the prosecutrix. However, the case was not registered on the basis of Ex. P/3. In the FIR, Ex. P/1, it is no where mentioned that the appellant pressed the breasts of the prosecutrix, whereas in the written report, Ex. P/3, such fact was mentioned and the prosecutrix has also stated before the trial Court about that fact. It is a material contradiction between the statement of the prosecutrix and the FIR, Ex. P/1. The witness Tijua (D.W. 1) has stated that initially he let out his land to Ramcharan (P.W. 4) and thereafter, the land was taken from Ramcharan and given to the accused/appellant and therefore, Ramcharan had annoyance with the appellant as well as with the witness Tijua. He has also stated that the witness Ramcharan was brother-in-law of the prosecutrix. Under such circumstances, the testimony of the prosecutrix comes in the clouds of doubt.

The evidence given by the witness Ramcharan is strange. It was mentioned in the FIR that at the time of the incident, Ramcharan, Nandlal and wife of Nandlal came to the spot but, Ramcharan has stated that at the time of the incident, he and Nandlal were removing a water motor from a well. He told that Nandlal was in the well and removing the water motor and therefore, he could not come to see the incident. When it was mentioned in the FIR that the incident was seen by the witness Nandlal then, why his brother Ramcharan was not ready to show his presence at the spot. This fact was no where answered by the witness Ramcharan. It appears that the prosecutrix has prepared a case against the appellant with the help of witness Ramcharan and her relatives but, when Nandlal and his wife Ganeshi Bai changed their view and they were not ready to support the prosecution''s case then, not only the witness Nandlal was given up but, the witness Ramcharan tried to show that the witness Nandlal was not present at the spot. Looking to the evidence of the witness Ramcharan, his testimony does not appear to be acceptable beyond doubt.

According to the FIR, Ex. P/1, the prosecutrix named three witnesses who saw the incident, whereas one witness Ramcharan is not believable, second witness Nandlal was given up and third witness Ganeshi Bai told against the prosecutrix. Under such circumstances, where the FIR was lodged with delay of at least 24 hours and no reason of that delay has been explained, the testimony of the prosecutrix appears to be disbelievable. In the light of the judgment passed by the Single Bench of this Court in case of Ramvilas (supra), testimony of the prosecutrix cannot be believed beyond doubt. Hence, by the evidence of the prosecutrix and witness Ramcharan, it cannot be said that the appellant used any criminal force upon the prosecutrix to outrage her modesty and therefore, if any doubt is created then, benefit of doubt is to be given to the accused. The appellant cannot be convicted even for the offence punishable u/s 354 of IPC.

On the basis of the aforesaid discussion, it was not proved that the prosecutrix was of scheduled caste or scheduled tribe, the appellant could not be convicted for the offence punishable u/s 3(1)(xi) of the Special Act. The testimony of the prosecutrix and the witness Ramcharan is not at all believable and therefore, it is not proved beyond doubt that the appellant outraged the modesty of the prosecutrix by using any criminal force upon her and therefore, he cannot be convicted for the offence punishable u/s 354 of IPC. A benefit of doubt is to be given to the appellant. Hence, the appeal filed by the appellant can be accepted and consequently, it is hereby accepted. The conviction as well the sentence directed by the trial Court against the appellant for the offence punishable u/s 354 of IPC and section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act is hereby set aside. He is acquitted from all the charges. The appellant would be entitled to get the fine amount back from the trial Court, if he has deposited the same.

At present, the appellant is on bail. His Presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance.