Judgment:
HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR Single Bench: Hon'ble Shri Justice N.K.Gupta,J.CRIMINAL APPEAL NO.1549 OF 199.Chhotelal. Vs. State of Madhya Pradesh. ------------------------------------------------------------------------------------------- Shri Ashish Tiwari, Advocate for the appellant. Shri G.S.Thakur, Panel Lawyer for the respondent/ State. ------------------------------------------------------------------------------------------- JUDGMENT
(Delivered on the 27th day of July, 2012) This criminal appeal is preferred by the appellant being aggrieved by the judgment dated 3/9/1996 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, 1989 (for short “Special Act”.) Sidhi in Special Case No.92/1995, whereby the appellant was convicted for commission of offence punishable under Section 3(1)(xi) of the Special Act, 1989 and sentenced for six months' rigorous imprisonment with fine of Rs.500/-. In default of payment of fine, he was to undergo one month's rigorous imprisonment.
2. Prosecution case, in short, is that on 10.9.1995 at about 9:00 in the night, the prosecutrix (PW-1) was sleeping in her house. The appellant opened the door of her house and went inside her room. He had started pressing her 2 Cr.A.No.1549/1996 breasts. One her shouting, her husband Hradeylal (PW-2), father-in-law Budhlal (PW-4) came to the spot, who took the appellant outside of the house, and therefore a quarrel took place and ultimately the appellant ran away. The prosecutrix had lodged an FIR Ex.P-1 on the next day at about 8:30 AM in the morning. After due investigation, a charge sheet was filed before the Special Judge, Sidhi.
3. The appellant-accused abjured his guilt. He took a specific plea that he was falsely implicated in the matter. Actually, father of the appellant was running a grocery shop and some articles were given to the husband and father-in- law of the prosecutrix on credit. But when the appellant demanded the money, Hradeylal, Ramswaroop, Ramsajivan and Shivprasad assaulted the father of the appellant. When the appellant went to save his father, he was also assaulted. A counter report was lodged by the appellant, which was registered prior to the present FIR lodged by the prosecutrix. In defence one Babai (DW-1) was examined.
4. The learned Special Judge, Sidhi after considering the evidence adduced by the parties convicted the appellant for commission of offence punishable under Section 3(1)(xi) of the Special Act and sentenced as mentioned above.
5. I have heard learned counsel for the parties.
6. Learned counsel for the appellant has submitted that the appellant was falsely implicated in the matter. The 3 Cr.A.No.1549/1996 FIR lodged by the prosecutrix was registered at Crime No.103/95 whereas the FIR lodged by the appellant was registered at Crime No.104/95 and in that crime it was found that Hradeylal, Ramswaroop, Ramsajivan and Shivprasad were the culprits. Under such circumstances, due to that quarrel, the appellant is falsely implicated in the matter. It is also submitted that Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (for brevity “Special Rules”.) was violated. It was for the Dy. Superintendent of Police to investigate the matter, but the matter was investigated by mere a Head Constable. Under such circumstances, conviction directed by the trial Court is not sustainable. In support of his contention, learned counsel for the appellant has placed reliance upon the judgment of the Single Bench of this Court in the case of “Bhagwan Singh & others Vs. State of MP”., [2009(1) MPLJ 353 .. It is also submitted that the prosecutrix has admitted that there was too dark, and therefore it was not possible for her to identify the actual culprit. It is told that the appellant was held by Hradeylal and Budhlal, but it was not a truth, because if the appellant was held by so many persons, then he could not run from the spot. Actually the appellant was not there at all. He is falsely implicated in the matter. In the alternate, it is submitted that the appellant has faced this trial and appeal for last 17 years and he remained in the custody for three 4 Cr.A.No.1549/1996 days. In such circumstances, he may not be sent to the jail again.
7. On the other hand, learned counsel for the State has submitted that the trial Court has rightly convicted and sentenced the appellant, and therefore no interference is warranted from the side of this Court.
8. After considering the submissions made by learned counsel for the parties and looking to the evidence adduced by the parties, it is to be considered that whether Rule 7 of the Special Rules, 1995 was violated, if yes, then what would be the affect?. Whether the appellant can be convicted for any offence?. And whether sentence can be reduced?.
9. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 came into force in the month of May, 1995, whereas the present case was registered in the month of September, 1995, and therefore it was necessary for the Investigation Officer that the matter may be investigated by an officer having an equal and trained rank to the Deputy Superintendent of Police. The present case was investigated by the Head Constable and no reason is mentioned as to why the case was not investigated by the competent police officer. In the judgment of the Single Bench of this Court in the case of Bhagwan Singh (supra), it is mentioned that the provisions of Rule 7 of the Special Rules, 1995 are 5 Cr.A.No.1549/1996 mandatory in nature. Non-compliance of Rule 7 of the Special Rules, 1995 will not vitiate the entire trial, but vitiate the trial relating to the offence under the Special Act unless and until the offence under the Penal Code has nexus with the offence under the Special Act. In the light of the aforesaid judgment, it would be apparent that the prosecution flouted the mandatory Rule 7 of the Special Rules, 1995, and therefore the appellant could not be convicted for the offence punishable under Section 3(1)(xi) of the Special Act. However, equal and inferior offence in this case is under Section 354 of IPC and the appellant could be convicted for the offence punishable under Section 354 of IPC in the head of charge of Section 3(1)(xi) of the Special Act, and therefore proceedings are vitiated for the trial of offence punishable under Section 3(1)(xi) of the Special Act, but proceeding may be considered for the offence punishable under Section 354 of IPC.
10. The prosecutrix (PW-1), Hradeylal (PW-2) and Budhlal (PW-4) have stated that the appellant went inside the room of the prosecutrix and held her breasts. On her shouting, Hradeylal, Budhlal etc. went to the spot and held the appellant. It was mentioned by Hradeylal and Ramrati that however the appellant ran away from the spot whereas Budhlal has stated that the appellant was released, because of intervention of the villagers. The reason told by the witness Budhlal appears to be incorrect. It is an after 6 Cr.A.No.1549/1996 thought. In the FIR, it was mentioned that the appellant ran away from the spot, and therefore it cannot be accepted that he was released due to intervention of the villagers.
11. In the prosecution story, there are three types of lapses, which makes the case unnatural. Firstly, if the appellant was held by 3-4 persons, then there was no possibility that he could run away from the spot. Secondly, house of the prosecutrix was crowded by so many persons, and therefore in such crowded house, there was no possibility of any stranger to go inside the house of the prosecutrix and held her breasts. Thirdly, the prosecutrix has admitted that there was dark inside the room and she could not identify the appellant. The appellant was identified, because he was held by Hradeylal, Budhlal etc. If the appellant was held by 3-4 persons, then there was no possibility of his escape. Therefore, it cannot be accepted that the appellant was held after the incident. If the appellant was not held after the incident, then certainly his identification shall come in the clouds of the doubt, because the prosecutrix could not identify the appellant due to dark.
12. Head Constable Surendra Yadav (PW-5) has admitted that a case under Sections 324 and 325 of IPC was registered against Hradeylal, Budhlal etc. just after the present FIR, because they assaulted Santdhari the father of the appellant. If it was a case that the appellant was assaulted by Hradeylal, Budhlal etc. then it can be said that 7 Cr.A.No.1549/1996 the appellant was being assaulted because of his overt-act done with the prosecutrix. But it is nowhere mentioned as to why the witness Hradeylal etc. had assaulted Santdhari, father of the appellant. Under such circumstances, the story told by the appellant appears to be correct that when the victim Santdhari demanded his money for the goods supplied to Hradeylal etc. on credit, then he was assaulted. It was not possible for the appellant to go inside the house of the prosecutrix when his father was assaulted by Hradeylal etc.
13. Under such circumstances, looking to the aforesaid unnatural situation, it appears that since the witnesses Hradeylal and Budhlal had assaulted the victim Santdhari and there was possibility that Santdhari would lodge an FIR, a counter FIR was lodged against the appellant, son of the Santdhari to create a pressure of compromise. Therefore, possibility cannot be ruled out that a false case was prepared against the appellant. Under such circumstances, if any doubt is created, then benefit of doubt is to be given to the accused. After considering the aforesaid facts, it would be apparent that there was no possibility to the appellant to enter in such a crowded house in the night. Secondly, the actual culprit could not be held by any of the witnesses. Thirdly, the prosecutrix could not identify the actual culprit and fourthly soon after the incident caused with Santdhari, father of the appellant, it 8 Cr.A.No.1549/1996 was not possible for the appellant to do such a crime in the house of Hradeylal. Under such circumstances, where the entire prosecution case is doubtful, the appellant cannot be convicted for the offence punishable under Section 354 of IPC.
14. On the basis of above discussion, the instant appeal filed by the appellant is allowed. The conviction under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act, 1989 as well as the sentenced directed by the trial Court is hereby set aside. The appellant is acquitted from all the charges including the offence under Section 354 of IPC. The appellant would be entitled to get the fine amount back, if he has deposited the same before the trial Court.
15. At present the appellant is on bail and his presence is no more required. Hence, it is directed that his bail bonds shall stand discharged.
16. A copy of this judgment be sent to the trial Court with its record for information and compliance. (N.K.Gupta) Judge 27/07/2012 Ansari.