Full Judgment
1 HIGH COURT OF MADHYA PRADESH : JABALPUR SINGLE BENCH : HON. SHRI JUSTICE G.S. SOLANKI Criminal Appeal No.709/1997 Kailash Vs. State of Madhya Pradesh Shri Siddharth Datt, Advocate for the appellant Shri Y.D. Yadav, Panel Lawyer for the State. JUDGMENT
(25.07.2013) Appellant has preferred this appeal under Section 374 of Criminal Procedure Code being aggrieved by the judgment dated 19.03.1997 passed by Sessions Judge, Tikamgarh in Special Case No.71/1995, whereby the appellant has been convicted under Section 354 of I.P.C. and sentenced to R.I. for six months with fine of Rs.500/-, in default of payment of fine, simple imprisonment for two months.
2. The short case of prosecution is that, on 17.09.1995, at about 10 P.M., prosecutrix (P.W.-1) was alone at her home, her husband was gone to bring beedi and matches, at that time, appellant knocked the door, then she opened the door, appellant/accused entered into the house and told her for surrendering to the appellant and thereafter 2 he caught hold her hand and pressed her breast. On making hue and cry, Pukhanbai, sister-in-law of the prosecutrix came there, then appellant fled away from the spot. Prosecutrix narrated the story to her husband Jagannath (P.W.-2) and Sarpanch Ramkishan (P.W.-4). Thereafter prosecutrix lodged the First Information Report (Ex. P-1) at Police Station, Baldeogarh District Tikamgarh, on the next day, i.e., 18.09.1995. The case was registered against appellant under Section 354 of I.P.C.
3. Appellant was arrested and after usual investigation, he was charge sheeted under Section 354 of I.P.C. and Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989, (hereinafter referred to as the Act) before the Sessions Judge/Special Judge, Tikamgarh. The Sessions Judge framed the charge under Section 354 of I.P.C. and 3(1)(xi) of the Act.
4. Appellant abjured the guilt and pleaded false implication. He examined Deshraj (D.W.-1) in his defence.
5. On appreciation of evidence on record, though the trial Court acquitted the appellant under Section 3(1)(xi) of the Act, however, appellant has been convicted and sentenced hereinabove, hence this appeal.
6. Learned counsel appearing on behalf of the appellant submitted that the trial Court committed illegality in 3 not appreciating the evidence in its proper perspective. He further submitted that as per prosecution, Pukhanbai(P.W.-5), sister-n-law of the prosecutrix came there, but this fact has not supported the case of prosecution, in these circumstances, sole case rests on the statement of prosecutrix. Prosecutrix herself admitted in her cross-examination that number of persons were sitting in the shop of Dharamdas Sahu, which is situated infront of her house, but the prosecutrix has not examined any of such witnesses. He further submitted that as per examination of Sarpanch, he stated that prosecutrix said that appellant only caught hold her hand. In these circumstances, at the most, the prosecution only succeeded in proving the case under Section 323 of I.P.C. On the basis of aforesaid argument, learned counsel for the appellant prays for setting aside the conviction and sentence recorded by the trial Court.
7. Learned Panel Lawyer appearing on behalf of respondent/State has supported the conviction and sentence recorded by the trial Court and prays for dismissal of the appeal.
8. I have perused the statement of prosecutrix (P.W.-1), wherein she stated that at about 10 O'Clock in the night, appellant knocked her door. On opening the door, appellant caught hold her hand and pressed her breast. She 4 further stated that on making hue and cry, her sister-in-law Pukhanbai, came there and appellant fled away. Thereafter she narrated the incident to her husband, Chowkidar and Sarpanch and lodged the F.I.R. She admitted in her cross- examination that many persons were sitting in the shop of Dharamdas Sahu, which was situated infront of her house. Pukhanbai (P.W.-5), sister-in-law of prosecutrix has not supported the version of prosecutrix. She declared hostile by the prosecution. On examination, Pukhanbai (P.W.-5) specifically stated that prosecutrix, her sister-in-law (Bhabhi) has told nothing to her in regard to physical assault or pressing the breast. Though her husband Jagannath corroborated her version. He admitted in his cross-examination that Pukhanbai (sister) and his wife, both have narrated the story to him. Sarpach Ramkishan (P.W.-4) Chowkidar Dayali (P.W.-3) have stated that Jagannath (P.W-2) came to their house and called them to his house. On reaching his house, prosecutrix told them that appellant caught hold her hand. They specifically denied the fact in regard to outraging her modesty.
9. Defence witness Desraj stated that there is enmity between Jagannath and the appellant in regard to dispute of land. I think Desraj has been rightly disbelieved by the trial Court because the fact of dispute of land has not been asked in the cross-examination of Jagannath itself”
10. On careful scanning of statement of prosecutrix alongwith her admission that number of persons were sitting at the shop, infront of her house and the fact that related witness Pukhanbai (P.W.-5) has not supported her, possibility of outraging the modesty or making demand for any obscene is appears to be doubtful. However, considering the fact that when Pukhanbai (P.W.-5) rushed to the spot, prosecutrix told her that appellant came there and this fact consistently stated to her husband Jagannath, Chowkidar Dayali (P.W.-3) and Sarpanch Ramkishan (P.W.-4), it is proved on record that appellant caught hold the hand of prosecutrix. But the fact of outraging the modesty or making an assault with the intention to outrage the modesty is become doubtful.
11. In the circumstances, the trial Court committed illegality in recording the conviction under Section 354 of I.P.C., however, a lesser offence under Section 323 of I.P.C. is proved on record.
12. Thus, appeal is partly allowed. Conviction recorded under Section 354 of I.P.C. is hereby set aside. Instead appellant is convicted under Section 323 of I.P.C. and sentenced to fine of Rs.1,000/-, out of which, Rs.500/- has already been deposited. Remaining amount of Rs.500/- shall be deposited by the appellant within one month from today 6 before the concerned trial Court in connection with Special Case No.71/1995. Record of the trial Court be sent back alongwith copy of this judgment immediately for compliance and necessary action. (G.S. Solanki) Judge gn