Judgment:
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.Criminal Appeal No.865/1997 Satya Narayan & others VERSUS State of Madhya Pradesh --------------------------------------------------------------------------- Shri A.Usmani, counsel for the appellants. Shri Ajay Tamrakar, Panel Lawyer for the State/respondent. ---------------------------------------------------------------------------
JUDGMENT
(Delivered on the 23rd day of November, 2012) The appellants have preferred this appeal against the judgment dated 10.4.1997 passed by the learned Special Judge under SC/ST (Prevention of Atrocities) Act, 1989, Katni in Special case No.2/1995, whereby the appellants were convicted for the offence punishable under section 3 (1) (xi) of SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter it will be referred to as 'Special Act') and each sentenced for 2 years' rigorous imprisonment with fine of Rs.250/- and in default of payment of fine, one month's rigorous imprisonment was also directed against each of the appellants. -:- 2 -:- Criminal Appeal No.865 o”
2. The prosecution's case, in short, is that, on 17.3.1995, at about 6 p.m., in the evening, the complainant prosecutrix (P.W.2) went to answer the call of nature alongwith two other prosecutrixes, M (P.W.4) and U (P.W.10) at Savarkar Ward, Katni. When they were coming back, the appellants surrounded all the three prosecutrixes. They picked up the complainant prosecutrix and the prosecutrix U (P.W.10). They tried to take them in the bushes but, on their shouting Jamna Prasad, Shankar, Raju etc. came to the spot and therefore, the appellants left the prosecutrixes. Thereafter, a quarrel took place between the appellants and the brothers of the prosecutrix. Shankar was assaulted in his head by the appellants. The complainant prosecutrix went alongwith her parents to the Police Station Katni, where she had lodged an FIR, Ex.P/1. Various victims were sent for their medical examination. Dr. Sharma (P.W.3) examined the witness Shankar at Civil Hospital, Katni and gave his report, Ex.P/3. He found one lacerated wound near his right ear and one abrasion on his face. After due investigation, a charge-sheet was filed before the Special Court.
3. The appellants abjured their guilt. They did not take any specific plea in the case but, they have stated that -:- 3 -:- Criminal Appeal No.865 of 1997 they were falsely implicated in the matter. However, no defence evidence was adduced.
4. The learned Special Judge, after considering the evidence adduced by the prosecution, acquitted the appellants for the offence punishable under section 3 (1) (x) of the Special Act but, convicted them for the offence punishable under section 3 (1) (xi) of the Special Act and sentenced them as mentioned above.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellants has submitted that only three prosecutrixes and one Shankar were the eye witnesses but, so many persons claimed themselves to be eye witnesses in the case. For example Raju (P.W.1), Santosh Kumar (P.W.5), Jamna Prasad (P.W.6) have also claimed themselves to be eye witnesses. It was not established in the evidence given by the various prosecutrixes that any force was used by the appellants against the prosecutrixes. Some of them said that the appellants pulled the complainant prosecutrix and the prosecutrix U (P.W.10), whereas the prosecutrix M (P.W.4) did not say anything about the criminal force, whereas the complainant prosecutrix has stated that the prosecutrixes were dragged on the Earth by the appellants, whereas no injury was found to any of the prosecutrixes. Shankarlal, -:- 4 -:- Criminal Appeal No.865 of 1997 who sustained the injuries in the incident could not identify any of the appellants. The prosecutrixes have accepted that the day of the incident was a day of a festival of Holi and all the culprits were present there with their faces coloured by some dark and silver colours. Under such circumstances, the appellants could not be identified by any of the prosecutrixes. The complainant prosecutrix has accepted that the culprits were captured by her brothers and they were present at the Police Station when she lodged an FIR. However, such statement is false. The incident took place on 17.3.1995, whereas the appellants were arrested on or after 19.3.1995. If the appellants were present in the Police Station then, what was the problem to the police in not arresting the appellants on the same day. Hence, it is prayed that the appellants were falsely implicated in the matter and they may be acquitted. It is also submitted that caste of the prosecutrix was not established beyond doubt and therefore, no offence punishable under section 3 (1) (xi) of the Special Act is made out. The appellants have faced the trial and appeal for the last 17 years and they were the first offenders and teenagers, therefore, they should not be sent to the jail again.
7. On the other hand, the learned Public Prosecutor has submitted that the conviction as well as the sentence -:- 5 -:- Criminal Appeal No.865 of 1997 directed by the trial Court appears to be correct and no interference can be done in this appeal.
8. 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 appellants can be accepted?. And whether the sentence directed against the appellants can be reduced?.
9. Shankarlal (P.W.11), a Ward Member of the Municipal Committee, Katni had issued a certificate, Ex.P/10 to prove the caste of the complainant prosecutrix. It was mentioned that she was 'Choudhary' by caste and therefore, she was a member of Schedule Caste. In the cross-examination, he has accepted that he had no power to issue such a certificate under the Special Act. He gave the certificate on the basis of some Government list but, no reference or serial number from that list was given in the certificate. Similarly, there is no caste 'Choudhary', which is shown to be in the schedule caste by the notification issued for the State of M.P. Under such circumstances, by the certificate, Ex.P/10, which was issued by an unauthorized person, it is not proved beyond doubt that the prosecutrixes were the members of schedule caste and therefore, the -:- 6 -:- Criminal Appeal No.865 of 1997 appellants could not be convicted for the offence punishable under section 3 (1) (xi) of the Special Act.
10. So far as the offence punishable under section 354 of IPC is concerned, eye witnesses Raju, the complainant prosecutrix (P.W.2), prosecutrix M (P.W.4), Santosh Kumar (P.W.5), Jamna Prasad (P.W.6), Shankarlal (P.W.7) and the prosecutrix U (P.W.10) were examined as eye witnesses. Out of them, Raju (P.W.1) has turned hostile. It is apparent that when the brothers of the prosecutrix went to the spot to save them, a quarrel took place and Shankar sustained some injuries in the quarrel. If Santosh and Jamna Prasad were present at the spot then, there is no reason as to why they did not sustain any injury in the quarrel with the appellants. It is apparent that Santosh Kumar and Jamna Prasad were not the eye witnesses and they claimed themselves to be eye witnesses at the time of lodging the FIR. Jamna Prasad has stated that the appellants torn the clothings of the prosecutrixes but, no such torn clothings were seized by the police and therefore, the testimony of the witness Jamna Prasad appears to be unbelievable.
11. The main eye witness in the case was Shankar, who sustained the injury in the incident but, if the evidence given by the witness Shankar is perused then, it would be clear that he could not identify any of the accused persons. -:- 7 -:- Criminal Appeal No.865 of 1997 He has stated that on hearing the cries of various girls, he went to the spot then, he found that 4-5 culprits were dragging the three prosecutrixes and someone assaulted him on his head. Hence, he became unconscious and he did not knot as to who assaulted him. He has admitted in para 7 of his cross-examination that when he reached to the spot, the culprits had started running and therefore, he was not sure that the appellants were the culprits. Under such circumstances, the testimony of the witness Shankar is not at all helpful in identifying the appellants. All the three prosecutrixes gave a different story relating to the use of criminal force by the accused persons upon them. The prosecutrix U (P.W.10) has stated in her statement that the culprits took them by crossing the railway line and thereafter, they committed rape with all the prosecutrixes one by one. During the rape, they did not shout and thereafter, the prosecutrixes went back to their houses. The story told by the prosecutrix U (P.W.10) appears to be hypothetical. There was no allegation of rape done by this witness in her case diary statement. No such allegation was made in the FIR. If the prosecutrixes were picked up or dragged and on their shouting, Shankar intervened in the matter then, it was not possible for the culprits to commit rape upon them. The story told by the prosecutrix U -:- 8 -:- Criminal Appeal No.865 of 1997 (P.W.10) clearly indicates that she was telling a fictitious story before the trial Court.
12. Similarly, if the statement given by the prosecutrix M (P.W.4) is perused then, it would be clear from her statement that no criminal force was used by the culprits. She has stated that on their shouting, some persons including the witness Shankar rushed to the spot and thereafter, the culprits assaulted the witness Shankar. She has accepted in her cross-examination that she did not knot the names of the culprits but, she could identify them. She has accepted that faces and hair of the various culprits were coloured with red, blue or yellow paints. She has accepted that the appellants were not of her locality. She did not see the appellants prior to the incident. In the cross- examination, the learned counsel for the defence could bring the fact that the appellants dragged all the three prosecutrixes. However, no corresponding injury was found to any of the prosecutrixes. Under such circumstances, by the statement of the prosecutrix M, it appears that no criminal force was used by the culprits or they could not be identified properly. She could not show any reason by which names of the appellants could be known by the witness at the time of lodging the FIR. -:- 9 -:- Criminal Appeal No.865 o”
13. The complainant prosecutrix (P.W.2) has stated that the appellants held all the three girls and torn their clothes but, it is no where mentioned in the FIR, Ex.P/1 that the clothes of various girls were torn. In the FIR, it was alleged that the appellants picked up all the three girls to take them but, the complainant prosecutrix (P.W.2) did not confirm this allegation in her statement. Under such circumstances, it is not proved that the prosecutrixes were picked up by the appellants. FIR is not a substantive piece of evidence and therefore, facts mentioned in the FIR cannot be accepted as such. The version of the complainant prosecutrix (P.W.2) that the appellants torn the clothings of all the three girls was no where mentioned in the FIR and therefore, it is an allegation, which is an after thought. Hence, the complainant prosecutrix could not say about any criminal force or assault done by the culprits to outrage their modesty.
14. The complainant prosecutrix has accepted in para 12 of her statement that the culprits had their faces coloured by polish and colours. She has denied that the appellant Nanhe held her. She could not tell the reason as to how she could knot the names of the appellants, though the FIR was lodged against the appellants by name. The complainant prosecutrix did not accept that the appellants were priorly -:- 10 -:- Criminal Appeal No.865 of 1997 known to her. She has stated that when she went to the Police Station to lodge the FIR, the appellants were present there in the Police Station and they told their names. However, such a version given by the prosecutrix is unbelievable because if the appellants were present in the Police Station at the time of the incident then, there was no problem to arrest them by the police on the same very day, whereas the appellants were arrested after two days.
15. On the basis of the aforesaid discussion, it appears that some culprits had committed misbehaviour with the prosecutrixes and it was informed to the brothers and father of the complainant prosecutrix that some 4-5 persons of 'Nishad' community had done such a crime and therefore, names of the appellants were mentioned in the FIR on the basis of suspicion only, otherwise there was no reason to mention the names of the appellants in the FIR by the complainant prosecutrix or by the prosecutrix M. The prosecutrix U had already stated in her case diary statement that she was a guest in the house of her sister and therefore, she did not knot any of the appellants. Under such circumstances, it is not proved beyond doubt that the appellants were the persons, who had done some obscene act with the various prosecutrixes in the incident. If any doubt is created then, benefit of doubt is to be given to the -:- 11 -:- Criminal Appeal No.865 of 1997 accused persons and hence the appellants cannot be convicted for the offence punishable under section 354 of IPC even.
16. On the basis of the aforesaid discussion, the appeal filed by the appellants appears to be acceptable. They are entitled to get the benefit of doubt. Consequently, the appeal is hereby allowed. The conviction as well as the sentence directed against the appellants for the offence punishable under section 3 (1) (xi) of the SC/ST (Prevention of Atrocities) Act is hereby set aside. The appellants are acquitted from the charge of offence punishable under section 3 (1) (xi) of the Special Act. They would be entitled to get the fine amount back, if they have deposited the same before the trial Court.
17. At present, the appellants are on bail. Their presence is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged.
18. A copy of the judgment be sent to the trial Court along with its record for information and compliance. (N.K.GUPTA) JUDGE 23 11/2012 Pushpendra -:- 12 -:- Criminal Appeal No.865 of 1997