State of M.P. & Ors. vs Man Mohan Mathur & Ors.

This appeal has been preferred under Section 374 (2) of Cr.P.C being aggrieved by the judgment dated 14.09.1998 passed by Special Judge under SC/ST (Prevention of Atrocities) Act, 1989 (for short "Act, 1989"). The appellant has been convicted for offence under Section 3 (1) (11) of SC/ST (Prevention of Atrocities) Act, 1989, and sentenced to rigorous imprisonment for six months with fine of Rs.100/- and in default of fine simple imprisonment for fifteen days.

The prosecution case in brief is that on 07.09.1996 at village Neemtola, the minor prosecutrix lodged a report at Police Station Lanji that her parents had gone out for their work. She was alone with her younger sister namely Ramuna Bai at home. Ramuna Bai had gone to fetch water from the tape. The prosecutrix was sweeping the house. The appellant/accused Rajju @ Rajendra who is a neighbour of the prosecutrix lurkingly entered into the house of the prosecutrix, caught her and tried to take her into the room. She was made to lay on the ground. He tried to pull out her inner garments. The prosecutrix kicked him. Even though the appellant/accused tried to caught hold of her and assault her sexually. When she tried to stand up, the appellant/accused again made her laid and she started shouting. The appellant in this struggle tried to commit rape with her. When she shouted, the accused opened the door and ran away. She also tried to hit him by the tin box. Lalita Bai (PW 2), Ashok Kalar (PW 4) saw the accused running away from the house. The prosecutrix then informed the villagers about the incident. When her mother Meera Bai (PW 3) came to the house, she narrated the incident to her. On her report Crime No. 173/1996 was lodged. After due investigation, charge sheet has been filed. Learned trial Court framed charges under Section 3 (1) (11) of the "Act 1989." The accused abjured guilt and pleaded false implication.

Learned trial Court after adducing evidence held the appellant convicted for offence and sentenced as mentioned above.

The appellant has challenged the judgment of conviction and sentence on the ground that the prosecution has failed to prove the ingredients of offence under Section 3 (1) (11) of the "Act, 1989." The prosecutrix belongs to the community of Scheduled Caste, has not been proved. The prosecution witnesses are full of omissions, contradictions and improvements. No implicit can be placed on such kind of testimony to base conviction. The F.I.R has been lodged after lapse of two hours. The learned trial Court appreciated the evidence by shifting the burden on the accused and did not consider the lapses in the cross-examination.

The learned trial Court has not appreciated the evidence properly and in its proper perspective. Therefore, the conclusion is erroneous causing great miscarriage of justice to the appellant. The witnesses, the prosecutrix (PW 1), Lalita Bai (PW 2), Meera Bai (PW 3), Ashok (PW 4) are interested witnesses. Their testimony cannot be based for conviction.

Learned G.A for the respondent/State vehemently opposed the contentions and submits that the trial Court has analyzed the evidence correctly. There is no scope for any interference.

Perused the evidence and the judgment impugned. The prosecutrix (PW/1) aged about sixteen years has stated that she was alone at her house. Her younger sister had to gone out to fetch water. Her parents had gone to the field. She was sweeping the house. Suddenly, her neighbour (accused) entered into her house. The prosecutrix had stated that she belongs to "Mana" caste. But no caste certificate has been filed, issued by the competent Authority. Witnesses Meera Bai (PW 3), Ashok Kalar (PW 4), Lalita Bai (PW 2) are the neighbours who searched after the incident. Lalita Bai (PW 2) has admitted that she has seen the accused running away from the house of he prosecutrix. Ashok Kalar (PW 4) has also stated that he saw the accused running away from the house of the prosecutrix. These witnesses admit that there was dispute between the father of the accused and the father of Ashok Kalar (PW 4) and the father-in-law of Lalita Bai (PW 2). Their evidence, therefore, cannot be relied without any suspicion.

Meera Bai (PW 3) is one of the neighbours of the prosecutrix. She has stated that when she heard the cries, she came to the scene of crime. The prosecutrix narrated her that the accused tried to ravish her. She is a hearsay witnesses.

Paratram (PW 6), Patwari, prepared panchnama Ex. P/4 and Ex. P/6 spot map at the instance of the prosecutrix (PW 1). Dr. R.K. Gohiya (PW 5) examined the appellant/accused and found him to be capable of performing sexual intercourse. He found smegma on the private part of the accused. His report is Ex. P/5.

Dr. (Smt.) R. Gohiya (PW 7) is the medical officer examined the prosecutrix on 07.09.1996. She has given the opinion that no definite finding can be given with regard to the recent sexual intercourse. Her report is Ex. P/7. However, she has observed that the hymen of the prosecutrix was old, torn at three, six and nine position. She has given the opinion on the query report Ex. P/8, that the redness found on the private part could be due to a hard object or may be due to forcible penetration.

It would be appropriate to note that the prosecutrix submitted that the accused did not commit sexual intercourse but he was trying to do so. During this struggle, she hit the accused by means of a tin box and during this altercation, the accused could not commit the offence of rape.

The investigation has been done by Town Inspector, Lanji Salim Khan (PW 8). He lodged the report Ex. P/1. The prosecutrix was sent for medical examination. Accused was arrested by him and was sent for medical examination. Spot map Ex. P/3 was prepared by him. The seizure memo Ex. P/9 was prepared by which the articles received from hospital has been seized from Constable, Suraj Lal. A towel has been seized from prosecutrix (PW 1), alleged to be the towel of accused, which was left in the house of the prosecutrix. By seizure memo Ex. P/2, the semen slide of Rajju @ Rajendra has been seized on production from Suraj Lal. It would be appropriate to mention here that the towel which has been seized from the prosecutrix has not been identified There is nothing on record to establish that the towel seized belong to the accused/appellant.

Awadhesh Goswami, C.S.P (PW 9) has been examined and he stated that the report Ex. P/1 has been scribed by Salim Khan the then Town Inspector. He has recorded the statements of the witnesses under Section 161 Cr.P.C and after investigation charge sheet has been forwarded by him. The report received from the Forensic Science Laboratory is Ex. P/12. Ex. P/12 shows that Article A- the skirt and Article C- semen slide prepared from the accused/appellant has been confirmed but Article B- vaginal slide prepared from the prosecutrix do not confirm presence of semen. The sample of Article A is not sufficient for chemical examination for serum test. Therefore, it cannot be linked with the semen of the accused/appellant. It would be appropriate to mention here that Awadhesh Goswami (PW 9) C.S.P is not below the rank of Dy.S.P. However, the Dy.S.P had not conducted the investigation as a whole. Almost all the investigations have been done by the Town Inspector Salim Khan (PW 8). Only the statements of the witnesses have been recorded and the charge sheet has been forwarded by the C.S.P (PW 9). 14. The intention of the legislature is that in the cases of such nature under the "Act, 1989," the Investigation Officer should conduct the investigation who is not below the rank of Dy.S.P in the above circumstances. 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."

It would be appropriate to note that in a similar case reported as Shyam Lal Vs. State of M.P. (Now State of Chhattisgarh), 2011 (3) Crimes 257 (Chhatt.), wherein the Chhattisgarh High Court has observed that:-

" Scheduled Caste and Scheduled

Tribe (Prevention of Atrocities) Act - Section 3 (1) (xi) " Appellant entered inside house of prosecutrix, a married woman and pulled her sari and she became naked- Prosecutrix belonged to scheduled caste- Appeal against conviction- No document was filed to establish the caste of prosecutrix- Prior to her marriage she belonged to caste which came in category of OBC- By marriage her caste would not change- No evidence if accused in committing offence of outraging modesty of prosecutrix intended to commit that offence because prosecutrix belonged to scheduled caste- Conviction under SC and ST Act could not be sustained- Appellant however was liable to be convicted under Section 354 IPC- Sentence awarded for period which he had remained in jail with fine."

The Chhattisgarh High Court allowed the appeal partly setting aside the conviction under Section 3 (i) (xi) of the "Act, 1989."

In the present case, the offence under Section 354 of I.P.C has been proved. Therefore, it would be appropriate to convict the appellant for offence under Section 354 of I.P.C. Otherwise also the incident allegedly took place on 07.09.1996. The learned trial Court pronounced the judgment on 14.09.1998. Almost 21 years have been elapsed in between. At this stage, after 21 years of the date of the incident it would not be appropriate to amend the charge and remit the case back to the trial Court for a de novo trial. Even though a Court can alter charge with the available material but if prejudice is caused to the accused by altering the charge then it is not permissible for the Court to amend the charge.

In the case of Anant Prakash Sinha Alias Anant Sinha Vs. State of Haryana And Another, (2016) 6 SCC 105, the Hon''ble Apex Court has held that it is obligatory on the part of the Court to see that no prejudice is caused to the accused. The accused must always be made aware of the case against him so as to enable him to understand defence that he can lead. The prosecutrix was habitual of sexual intercourse and this fact was established beyond doubt by the report submitted by the medical officer. However, her ravishment by the accused has not been proved. The prosecutrix (PW 1) has said that the accused attempted to commit sexual intercourse. Though there is no rule that on the sole evidence of the prosecutrix, conviction cannot be based. The evidence of prosecutrix should be reliable and inspire confidence, then only conviction can be based on the sole testimony of the prosecutrix.

The statement of the prosecutrix is not corroborated by cogent evidence. The chances of false accusation cannot be ruled out. Therefore, giving the benefit of doubt to the accused/appellant this appeal is allowed. The appellant is acquitted for from he charges of offence under Section 3 (1) (11) of SC/ST (POA) Act, 1989. Appellant is on bail. His bail bonds are discharged.