Pappu @ Shashikant Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
sc/st (prevention of atrocities) act - section 3(1)(xi) -1. the appellant has preferred the present appeal being aggrieved with the judgment dated 22.5.1998 passed by the special judge under sc/st (prevention of atrocities) act, damoh in special case no.136/1997 whereby, the appellant has been convicted of offences under section 3(1)(xi) of the sc/st (prevention of atrocities) act (hereinafter it would be referred as the special act ) and sentenced to six months rigorous imprisonment with fine of rs.500/-, in default of payment of fine one month's simple imprisonment. 2. the prosecutions case in short, is that, on 20.10.1997 at about 7.00 p.m the prosecutrix (pw1) was working in a hut situated in her husband's field at village ghanshyampura (police station batiagarh, district damoh). at about 7.00 p.m the appellant went inside the hut and switched off the lamp which was burning inside the room and thereafter, he hugged the prosecutrix. on her shouting ratan (pw2), husband of the prosecutrix and rajkumar (pw3), son of the prosecutrix, came to the spot and then, the appellant ran away. thereafter, the prosecutrix along with her son rajkumar went to police station batiagarh and lodged the fir ex.p/1. after due investigation the charge sheet was filed before the special court. 3. the appellant abjured his guilt. he took a plea that he was falsely implicated in the matter due to political enmity between the appellant and husband of the prosecutrix. however, no defence evidence was adduced. 4. after considering the evidence adduced by the parties, the special judge convicted and sentenced the appellant as mentioned above. 5. i have heard the learned counsel for the parties. 6. in the present case the prosecutrix (pw1) was examined who, has stated about the incident. ratan (pw2) and rajkumar (pw3) have corroborated the fact that on shouting of the prosecutrix when they went to the spot, they found the appellant running away from the spot. the prosecutrix had lodged an fir ex.p/1 within 1 hours of the incident. prima facie the testimony of the prosecutrix is confirmed by other witnesses, and since the hut of the prosecutrix was constructed in a field there was no possibility of arrival of any independent witness. however, the prosecutrix and her husband have improved the prosecution story in comparison to the fir which creates a doubt in the prosecution story. it is to be mentioned that the prosecutrix has accepted in para 7 of her cross examination that she got six children in all, out of them four were alive. the eldest daughter was 17 years old and therefore, the prosecutrix was approximately 32-35 years old woman at the time of incident whereas, the appellant was 27 years old and therefore, he could not be interested to commit rape upon an elderly woman without her consent. 7. the prosecutrix in fir ex.p/1 has mentioned that the appellant went inside the hut and switched off the lamp and thereafter, he hugged the prosecutrix and therefore, the police has registered a crime of outraging the modesty of the prosecutrix. however, the prosecutrix has stated in her examination-in-chief that when the appellant was trying to remove her sari, she shouted and her husband as well as her son came to the spot. ratan (pw2) has stated in the cross examination that when he heard cry of his wife he was 400-500 steps away from the spot. similarly rajkumar (pw3) has also stated in his cross examination that he was 400 steps away from the spot and he and his father reached to the spot simultaneously. if the appellant would have left the prosecutrix and ran away immediately on her shouting then neither ratan nor rajkumar could see the appellant from a distant place because in that period they could not reach near the spot. hence the prosecutrix improved her version. she has stated in the cross examination that the appellant gave her a kick and thereafter she fell down on earth. the appellant had laid down upon her and hugged her in a lying position. at that time he had dropped his underwear upto knees. if the appellant had done such an act then certainly such fact should have been mentioned by the prosecutrix in the fir. also when she laid down on the earth and thereafter, the appellant hugged her then she would have cried from very beginning. 8. in the fir it was not mentioned that the appellant hugged the prosecutrix when she was lying on earth. thereafter, the prosecutrix and witnesses have improved the story. ratan (pw2) and rajkumar (pw3) have stated in their case diary statement exs. d/1 and d/2 respectively that when they went inside the hut, they found that the prosecutrix was lying on earth and the appellant was also lying upon her and thereafter, he ran away. however, before the court ratan (pw2) and rajkumar (pw3) have again taken a somersault and they denied that they gave such a statement to the police. looking to the conduct of these witnesses, it appears that the statements given by ratan and rajkumar to the police were according to the improvement done by the prosecutrix. the prosecutrix herself has stated that when her husband came, she was lying on earth. she had improved the story that the appellant dropped his pants as well as underwear upto his knees. the appellant could not do such an act unless the prosecutrix was ready for cohabitation. if the prosecutrix would have started shouting when the appellant hugged her then certainly the appellant could not dare to drop his under garments upto to his knees. if the prosecutrix was kicked by the appellant so that she would have fallen on earth then such fact would have been mentioned in the fir. 9. in the aforesaid circumstances, if material contradiction between the statement of the prosecutrix and fir are considered and contradiction between the statements of witnesses ratan and rajkumar are considered with their previous statement before the police, then two sets of stories are possible. firstly, that when the witnesses came to the spot the prosecutrix was lying one earth and the appellant was also lying upon her by dropping his pant and underwear up to his knees. if that story is true, then why such story was not mentioned in the fir itself. if such story is true then it would be apparent that the prosecutrix did not shout when the appellant hugged her and suddenly her husband and son had come to the spot and therefore, the appellant ran away. in that case the prosecutrix appears to be consenting party, otherwise the appellant could not drop his clothes without her consent. 10. if the second possibility is considered then the appellant came inside her hut switched off the lamp and hugged her and she started shouting then ratan, her husband and rajkumar, her son, who, were approximately 400 steps away from the spot could not come and the appellant would have immediately ran away from the spot. he could not drop his underwear and pant in that case. hence, the witnesses could not see the appellant. similarly when the lamp was switched off by the appellant immediately on entering in the house then even the prosecutrix could not identify the culprit in dark. the time of incident is about 7.00 p.m and lamp was burning inside the hut which indicates that there was sufficient darkness so that lamp was burnt and if lamp was switched off then the prosecutrix could not see the appellant. it is not alleged by the prosecutrix that the appellant told some words and she could identify the appellant on the basis of his voice. on the contrary, she had claimed in the fir that the appellant was seen by her husband and son. 11. if both the stories are considered then either the prosecutrix could not see the actual culprit and to implicate the appellant she exaggerated her version and if another story is relied then it appears that the prosecutrix was a consenting party. in both the caes, the appellant could not be convicted of offence under section 3(1)(xi) of the special act or offence under section 354 of i.p.c. the special judge has committed an error in convicting the appellant. 12. on the basis of the aforesaid discussion where there is a doubt that either the prosecutrix could not see the actual culprit or she was a consenting party, the appellant cannot be convicted of offence under section 3(1)(xi) of the special act then the appeal filed by the appellant should be accepted and consequently, it is hereby accepted. the conviction as well as the sentence imposed by the trial court of offence under section 3(1)(xi) of the special act are hereby set aside. the appellant is acquitted from the charge of section 3(1)(xi) of the sc/st (prevention of atrocities) act as well as section 354 of i.p.c. he would be entitled to get the fine amount back if he has depostied before the trial court. 13. at present the appellant is on bail. his presence is no more required before this court and therefore, it is directed that his bail bonds shall stand discharged. 14. copy of the judgment be sent to the courts below along with its record for information and compliance.