Omprakash vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred the preset appeal being aggrieved with the judgment dated 31.7.1998 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Rewa in Special Case No. 22/1995 whereby the appellant has been convicted of offence under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act (hereinafter referred to as the ''Special Act'') and sentenced to one year''s RI with fine of Rs. 500/-.

The prosecution''s case, in short, is that on 30.4.1995 at about 7:00 PM the prosecutrix (PW-1) after completion of her work of making bricks was going to her house situated at Village Nakta (Police Station Govindgarh District Rewa). She was followed by her co-workers Kusum, Baby, Asha and Kalli. Near a Nala, the appellant appeared at the scene of crime and hugged her with a bad intention. He insisted for her permission to have cohabitation. On her shouting, when her follower workers came to the spot, the appellant ran away. The prosecutrix came to her house and informed her husband Babulal (PW-4) and also Up-Sarpanch Balmik (PW-5). On the next date morning, she went to the Police Station Govindgarh and lodged an FIR Ex.P-1. After due investigation, a charge sheet was filed before the Special Court.

The appellant-accused abjured his guilt. He took a plea that the prosecutrix and her co-workers had been picking some mangoes from his garden, and when he shouted they went out. Also there was a dispute relating to an election of Sarpanch and there was political enmity between the husband of the prosecutrix and the appellants. In defence Hiralal (DW-1) and Munindra Prasad (DW-2) were examined.

The Special Judge after considering the evidence adduced by the parties, convicted and sentenced the appellants as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that no caste certificate was filed by the prosecutrix to prove that she was a member of scheduled caste or scheduled tribe. In this context, he has placed his reliance upon the judgment of Single Bench of this Court in the case of Shankarlal Vs. State of Madhya Pradesh, (2005) 1 MPHT 418 : (2005) 1 MPLJ 449 . Similarly, it is submitted that according to Rule 7 of the SC/ST (Prevention of Atrocities) Rules, it was for a police officer not below the rank of Dy. S.P. to investigate the matter, whereas the present matter was investigated by the Head Constable Lal Bahadur Singh (PW-7), and therefore a reliance is placed upon the judgment of the Single Bench of this Court in the case of ''Sunderlal Vs. State of MP'' [ 2012(2) MPHT 490 ] and the judgment of Chhattisgarh High Court in the case of Bahur Singh Vs. State of M.P., (2013) 1 CG.L.R.W. 95 : (2012) 4 CGBCLJ 562 .

If the contention of learned counsel for the applicant is considered, then it is true that the complainant did not file any caste certificate duly issued by the authorized officer, and therefore in light of the judgment of Single Bench of this Court in the case of Shankarlal (supra), it is not proved beyond doubt that the prosecutrix was a member of scheduled tribe. Similarly, it would be apparent that according to Rule 7 of the aforesaid rules, the investigation was required to be done by a police officer not below the rank of Dy.S.P. It appears that such rules were enforced in the month of March 1995, and therefore the possibility cannot be ruled out that the SHO of remote police station could not know about that rule. However, the concerned rule was enforced prior to the date of the incident, and therefore in the light of judgment passed in the case of Sundarlal (supra), the appellant could not be convicted of offence under Section 3(1)(xi) of the Special Act.

However, there is no specific rule relating to cadre of the investigation officer for investigation of IPC offences. When a charge by the superior offence of the same nature is framed, then according to the provisions of Section 222 of Cr.P.C., the accused can be convicted of inferior offence of the same nature. There is no need to frame a separate charge for inferior offence. In the present case, if the prosecutrix does not belong to scheduled caste or scheduled tribe, then offence under Section 354 of IPC will be made out. The offence under Section 354 of IPC is an inferior of the same nature to the offence under Section 3(1)(xi) of the Special Act, hence the case is to be examined on the merits as to whether the offence under Section 354 of IPC is constituted against the appellant or not.

The testimony of the prosecutrix (PW-1) is duly confirmed by the witnesses Kusum (PW-2) and Baby (PW-3). Babulal (PW-4), husband of the prosecutrix has also confirmed that in the evening the prosecutrix had informed about the incident. Balmik (PW-5) was working as Up-Sarpanch and the prosecutrix and her husband went to his house and informed the incident. The facts of the case were duly confirmed by the companions of the prosecutrix before the Up-Sarpanch Balmik (PW-5). On the next day morning the prosecutrix had lodged an FIR Ex.P-1. The learned counsel for the appellant has submitted that the FIR was belated. It would be apparent that the prosecutrix completed her work of bricks at an open field and thereafter she was going back to her house. The incident took place at 7:00 PM and thereafter the prosecutrix went to her house and intimated her husband about the incident. Again she went to the house of Up Sarpanch Balmik. Hence it was not possible for her to visit the Police Station Govindgarh on the same night and in the morning after completion of her domestic work, she went to the police station Govingarh and lodged an FIR at 1:00 PM. If she had completed her household work at her house, before leaving for the police station, then it makes no much difference. Being an illiterate person, she could not know that immediately she had to inform the police. However, the facts of the case were intimated to Up Sarpanch Balmik soon after the incident and Balmik has confirmed, the story told by the prosecutrix. Under these circumstances, it cannot be said that the FIR was belated or the prosecution case be discarded due to delay in the FIR.

Also the appellant took two different pleas of enmity. Firstly that the prosecutrix was picking some mangoes from his garden, and therefore he was falsely implicated in the matter. However, such suggestion as given to the prosecutrix, but such suggestion was not given to her companions like Kusum (PW-2) and Baby (PW-3). Under such circumstances, the appellant could not prove that the incident of stealing mangoes took place on which particular date and thereafter the prosecutrix had lodged the FIR against the appellant due to that reason.

Hiralal (DW-1) and Munindra Prasad (DW-2) have stated that the appellant had made a complaint that the women workers working on brick factory were in habit to pick up the mangoes from his garden. However, both the witnesses could not state that the appellant told him about such an incident against the prosecutrix in person and he told about the incident of particular date or time. On the basis of such evidence, the appellant could not prove his defence. It appears that hypothetical suggestion was given to the prosecutrix and the defence witnesses could not give the particulars of date and time against the prosecutrix so that she would have lodged a false FIR.

The various prosecution witnesses were suggested that the appellant was the follower of Laxmi Prasad, who lost the election before one Vinod Singh and the prosecution witnesses were the followers of Vinod Singh. The defence witnesses Hiralal (DW-1) and Munindra Prasad (DW-2) have stated that there was political enmity between the parties, but they could not establish that the appellant was the follower or worker to the candidate of Laxmi Prasad. There is no evidence to show that the prosecutrix and other witnesses were the followers of Vinod Singh, who won the election. None of the prosecution witness has accepted about the suggestion of such enmity, and therefore it appears that hypothetical suggestions were given to the witnesses. The appellant could not prove that there was enmity between the appellant and the husband of the prosecutrix on the basis of election of Panchayat.

On the basis of the aforesaid discussion, nothing could be brought by the appellant so that the testimony of the prosecutrix may be disbelieved. The testimony of the prosecutrix was duly corroborated by Kusum (PW-2), Baby (PW-3) and timely lodged FIR Ex.P-1. She told about the incident to her husband and Up Sarpanch. Hence the trial Court has rightly found that the appellant forcefully hugged the prosecutrix, and therefore he used the criminal force and outraged the modesty of the prosecutrix. Hence he has committed the offence under Section 354 of IPC.

So far as the sentence is concerned, the appellant was the first offender, who has faced the trial and appeal for last 28-29 years. He remained in the custody during the trial for approximately a week. Hence it would not be proper to send the appellant back to the jail, but it would be proper to impose a heavy fine upon the appellant.

On the basis of the aforesaid discussion, the present appeal filed by the appellant is hereby partly allowed. His conviction and sentence of offence under Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act are hereby set aside. The appellant is acquitted from that charge. However, under the head of same charge, the appellant is convicted of offence under Section 354 of IPC and sentenced to the jail sentence of the period for which he remained in the custody with fine of Rs. 10,000/-. The appellant is directed to deposit the remaining fine amount within two months from today, failing which he shall undergo RI for six months. If fine is deposited, then a sum of Rs. 5000/- be provided to the prosecutrix by way of a compensation. The name of the prosecutrix is not required to be mentioned and it would be the duty of the Special Court to provide that compensation to the prosecutrix.

At present the appellant is on bail, and his presence is no more required, therefore it is directed that his bail bonds shall stand discharged.

A copy of this judgment be sent to the trial Court along with its record for information with a direction that if fine is not deposited within the stipulated period, then procedure under Section 68 of IPC shall be adopted for recovery of fine amount.