Somar Say vs State Of Chhattisgarh

The present appeal arises out of the impugned judgment of conviction and order of sentence dated 27.11.2001 passed by the learned Special Judge (SC & ST Prevention of Atrocities Act), Ambikapur, District – Surguja (C.G.), in Special Criminal Case No. 36/2000 whereby, the learned Special Judge has convicted and sentenced the appellant as under :-

Conviction

Sentence

U/s 451 of IPC

R.I. for 1 year and fine of Rs. 1000/- in default of fine additional R.I. for 3 months.

U/s 3(1)(xi) of SC & ST (Prevention of Atrocities) Act, 1989

R.I. for 1 year and fine of Rs. 1000/- in default of fine additional R.I. for 3 months. Both the sentence shall run concurrently.

Brief facts of the case are that on the date of the incident i.e. 17.09.1999 prosecutrix was sleeping after having a meal and her husband was sleeping on the floor, then at about 11-12 hours at night accused/appellant entered her house, removed the bulb of the room and sat on the cot, touched her and tried to outrage her modesty then she shouted to wake up her husband, he got up and saw the appellant. When the husband of the prosecutrix got up the appellant ran away from the spot. Thereafter, the said incident was told to Sitaram, Kuwar and Rambharosh in the morning. On the next date of the incident, there was voting in the village due to this, transportation was affected, therefore they could not go to lodge a complaint. On 20.09.1999 the prosecutrix along with her husband went police station to lodge a report. On being made report police lodged an offence punishable under Sections 451, 354 of the IPC and under Section 3 (1)(xi) of the SC & ST Prevention of Atrocities Act. During the course of the investigation, statements of the witnesses were recorded, a spot map was prepared and on proving guilt the accused/appellant was arrested.

So as to hold the accused/appellant guilty, the prosecution has examined as many as 6 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case.

Upon consideration of oral and documentary evidence, the trial Court held that the prosecution has established the guilt of the accused/appellant under Section 451 of IPC and Section 3(1)(xi) of SC & ST (Prevention of Atrocities) Act, 1989 and sentenced him as mentioned above. Hence, this appeal.

Learned counsel for the appellant submits that the impugned judgment is contrary to the facts, law and circumstances of the case. The learned trial Court has failed to consider that there was hardly any reliable evidence on record to warrant the conviction of the appellant under the aforementioned Sections of the IPC and the Special Act. He next submits that the trial Court ought to have considered that the prosecutrix (PW-1) and her husband Sushil Kumar (PW-2) are not reliable witnesses as their statements suffer from many material discrepancies. He also submits that the case of the prosecution itself shows that there was no light in the room at the time of the incident and the electric bulb was taken off by the accused in the said situation the possibility of the wrong implication of the name of the appellant cannot be fully ruled out in this case. Thereafter he submits that there is no evidence on record to say that the appellant has entered into the house of the prosecutrix with an intention to commit such an offence for the reason that she belongs to the Adiwasi Community. The prosecution has not produced any caste certificate to show that the prosecutrix belonged to the said community, therefore, the judgment is liable to be set aside.

On the other hand State counsel supported the impugned judgment of conviction and order of sentence.

Heard counsel for both the parties and perused the material available on record including the impugned judgment.

In the instant case, only three documents have been exhibited by the prosecution i.e. FIR (Ex.-P/1), Spot Map (Ex.-P/2) and Arrest memo (Ex.-P/3), the caste certificate has not been filed by the prosecution but the accused/appellant has admitted this fact that the prosecutrix is belonging to Cherwa caste and she is a tribal lady. According to the FIR, the incident had taken place on 17.09.1999 and the report was lodged on 29.09.1999. The said delay in lodging the FIR was caused due to non-availability of transportation because of voting in the village.

Prosecutrix has stated in her examination-in-chief in para 3 as under:

3-  मेरी नींद खुल गई, तब मैंने अपने पति को उठाई, मेरे पति ने चिमनी जलाया तब आरोपी सोमार साय भागने लगा, चिमनी मेरे पति के द्वारा जालाये जाने के कारण रोशनी हो गई, इस रोशनी से मैंने तथा मेरे पति ने आरोपी सोमार साय को देखे। मेरे घर मे जहां बल्ब लगा था उसे आरोपी निकाल लिया था। आरोपी हम लोगों को देखकर भाग गया।

In para 11 she has stated as under :

11- यह सही है कि आरोपी को बल्ब निकालते नहीं देखा था। यह कहना गलत है कि जब तक मेरे पति चिमनी जलाए तब तक आरोपी सड़क तक निकल गया था। अभियुक्त जब घर से बाड़ी की ओर निकल रहा था और दौडने का प्रयास कर लिया था तभी मैं आरोपी को देख लिया था एवं पहचान लिया था क्योंकि वह गांव का आदमी था।

Sushil Kumar (PW-2) has stated in para 2 as under:

2-तभी करीब 11 बजे मुझे मेरी पत्नी उठिए-उठिए बोली और बोली कि कोई घर में घुसा है। सिरहाने में चिमनी रखा हुआ था, जिसको में जलाया तो देखा कि आरोपी सोमार साय घर में था, जो चिमनी जलाने के बाद भाग गया।

Rambharosh (PW-3) and Mohanlal (PW-5) have stated that Sushil Kumar told that the accused entered into his house in the night. Prosecutrix in para 9 denied that some dispute arose between the appellant and Rambharosh but she has stated herself that their dispute has been settled.

Statement of the prosecutrix and her husband are not reliable because they did not tell anybody about the said incident that night and lodged FIR after three days of the incident and their explanation is also not reliable with regard to the said delay in lodging the FIR. Rambharosh (PW-3) and Mohanlal (PW-5) have stated that Sushil told about the said incident to them, therefore, they are hear-say witnesses and Sushil Kumar has admitted in para 11 as under:

11- रामभरोष मेरा चाचा है। यह कहना सही है कि रामभरोष से सोमार साय का झगड़ा पहले चल रहा था। अभी झगड़ा नहीं चल रहा है क्योंकि आरोपी जिस चीज की मांग किया था वह पा गया है। आरोपी के नाम से काबिज में लिखा गया और वह ले लिया। यह कहना गलत है कि इसी विवाद के कारण हम लोग आरोपी को झूठा फसा रहे हैं।

In the instant case, this fact is also not believable that in the same room where the prosecutrix and her husband were sleeping and at that time appellant entered into the room and tried to outrage the modesty of the prosecutrix. But the learned trial Court did not appreciate this fact and convicted the appellant. In the criminal justice system prosecution has to prove its case beyond reasonable doubt and the defence has to prove the only probability of his defence. In the present case, the husband of the prosecutrix admitted that there was enmity between the appellant and his uncle (Rambharosh), but the trial Court did not appreciate this fact and the cause of delay in lodging the FIR has also not been properly explained by the prosecution, therefore, the prosecution has failed to prove its case beyond a reasonable doubt.

As discussed above, the impugned judgment of conviction and order of sentence is set aside. The appeal is allowed and the accused/appellant is acquitted of the charges levelled against him. Amount of fine, if deposited by the appellant, shall be refunded to him. As the appellant is on bail, he need not surrender and his bail bonds and sureties stand discharged.