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HIGH COURT OF JUDICATURE AT JABALPUR
(M.P.)
SINGLE BENCH
Criminal Appeal No. 559/2008
Bhole Maharaj @ Bhole Mishra
Vs.
State of Madhya Pradesh
Shri M.R. Patel, learned counsel for the
appellant.
Ku. Kamlesh Tamrakar, learned PL for the State.
Date of hearing: 25/01/2011
Date of Judgment: 26/04/2011
JUDGMENT
Appellant has preferred this appeal under
Section 374(2) of the Code of Criminal Procedure,
being aggrieved by the judgment dated 28/2/2008
passed in Special Case No. 74/2007 by Special Judge,
Atrocity, Panna, whereby the appellant has been
convicted under Section 3(1)(xi) of the Scheduled
Castes & Scheduled Tribes (Prevention of Atrocities)
Act (hereinafter referred to as ‘the Act’) and sentenced
to undergo rigorous imprisonment for 6 months and
fine of Rs. 2,000/-, with default stipulations.
2. Prosecution case in short was that on
8.10.2007 at about 7 O’clock in the evening
complainant Phoolabai (PW2) went to the flour mill of
the appellant to fetch flour. It is alleged that when
complainant entered into the room to took her flour,
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appellant caught hold of her and told her that he
wants to intercourse with her. On this, complainant
abused the appellant and told him that she informed
her husband about the misdeed. The appellant told
her that she is free to say this fact to anyone he did
not care for it. Complainant narrated the story to her
husband, Chhanulal (PW3). Thereafter her husband
went to the house of Sarpanch but he was not at
home. On the next day when Sarpanch came, she and
her husband narrated the story to him and then
lodged a report on 9/10/2007 at 9.15 at Police
Station, Simariya.
3. After usual investigation, the appellant was
charge sheeted before the Chief Judicial Magistrate,
Panna, who committed the case for trial to the Special
Judge, Atrocity. Learned Special Judge framed the
charges against the appellant under Section 354 of
IPC and Section 3(1)(xi) of the Act. Appellant abjured
the guilt and pleaded false implication and further
pleaded that he only asked the money for grinding the
said flour. He examined Ramesh Lodhi (DW1) and
Chhabirani (DW2) as his defence witnesses in his
favour.
4. On appraisal of evidence on record, trial
Court convicted and sentenced the appellant as
mentioned hereinabove. Hence this appeal.
5. Learned counsel for the appellant
submitted that the trial Court committed illegality in
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not appreciating the evidence on record in its proper
perspective. He further submitted that statement of
Phoolabai (PW2) has not corroborated by the medical
evidence, therefore he prays for setting aside the
impugned judgment and conviction and sentence
recorded against the appellant by the trial Court and
further prays for acquittal of the appellant.
6. On the other hand, learned counsel for the
State has supported and justified the impugned
judgment and finding of the Trial Court.
7. I have perused the impugned judgment,
evidence and other material on record.
8. Complainant Phoolabai (PW2) deposed that
at 7 O’clock in the evening when she went to flour
mill of appellant to fetch the flour, the appellant was
standing at the door of his flour mill. She further
deposed that when she entered into the room to take
her flour, appellant followed her and caught hold of
her as well as told her that he wants to intercourse
with her. She further deposed that it is shameful on
the part of the appellant. She further deposed that the
appellant told her that she is free to narrate the fact to
anyone, then she narrated the incident to her
husband. According to her, her husband went to
Sarpanch but he was not available on the very day
then next day her husband met with Sarpanch and
then went for lodging the report alongwith Sarpanch
and lodged the report Ex.P/3.
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9. Her version was supported by her husband
Chhanulal (PW3) and Sarpanch Ramlagan (PW6).
10. Chhanulal (PW3) admitted that he had
money transaction with the appellant and still
Rs.700/- is unpaid but he denied the suggestion that
he has been falsely implicated to the appellant to
avoid the payment of Rs.700/-.
11. Though defence witnesses Ramesh Lodhi
(DW1) and Chhabirani (DW2) have stated that there
was a dispute between the appellant and Chhanulal,
when Chhanulal came to take his flour but this fact
was not put to the prosecutrix Phoolabai and her
husband Chhanulal. In this way defence witnesses
have narrated different story then the prosecution
story. In these circumstances, defence has not
appeared to be probable and consistent and rightly
disbelieved by the trial Court. It is also not believable
that a husband will stake reputation of his wife for
avoiding the payment of only Rs. 700/-, to the
appellant.
12. Learned counsel for the appellant
submitted that mere caught hold by accused to the
prosecutrix does not amount to an offence under
Section 354 of IPC. He placed reliance on 2008 (1)
MPWN 27, Ramratan Vs. State of M.P.. The fact of
this case is different then the case relied on by the
counsel for the appellant. In that case parties were
tensed relationship with each other as well as
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according to the prosecution story there was two eye
witnesses who have not supported the version of
prosecution but in this case the incident was took
place in the evening and according to the prosecution
story itself there was no eye witness. In this case
prosecutrix not only deposed that appellant caught
hold of her but she further deposed that appellant told
her for intercourse. This fact is amount to use a
criminal force with intention to outrage her modesty.
The version of the prosecutrix is consistently
supported by her husband Chhanulal (PW3) and
same is supported by FIR Ex.P/3 and Ex.P/4.
13. On perusal of the statement of prosecutrix
Phoolabai (PW2) and Chhanulal (PW3), husband of the
prosecutrix, I do not find anything in regard to their
caste. Sarpanch Ramlagan (PW6) only stated that he
had issued the caste certificate Ex.P/6. On perusal of
Ex.P/6, it reveals that Phoolabai is Kumhar and
belonging to Harijan caste, I am of the view that the
trial Court committed illegality in believing the mere
this certificate because prosecution is duty bound to
prove each and every ingredient of offence and
particularly the caste to which prosecutrix /
complainant belongs and same comes under the list of
Scheduled Caste. Word ‘Harijan’ is not a caste, as
mentioned hereinabove, prosecutrix and her husband
had not deposed regarding their caste. In these
circumstances prosecutrix is belonging to the
Scheduled Caste is not proved on record.
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14. In the result, appeal is partly allowed and
his conviction and sentence recorded under Section
3(1)(xi) is hereby set aside and appellant is acquitted
to the aforesaid charge. But at the same time trial
Court rightly found proved the basic offence under
Section 354 of IPC. Same is hereby affirmed and
looking to the facts and circumstances of the case,
ends of justice would be met, if appellant be convicted
for jail sentence already undergone two days and fine
amount be enhanced from Rs. 2,000/- to Rs.
10,000/-. Thus the sentence is altered to
aforementioned extent. Rs. 5,000/- be paid to the
prosecutrix as compensation under Section 357 of
Code of Criminal Procedure.
15. Appellant is on bail. His bail bond and
surety bond stand cancelled. Appellant is directed to
deposit enhanced fine amount within two months.
16. Record of the trial Court be sent back
alongwith copy of this judgment immediately for
compliance and necessary action.
(G.S. SOLANKI)
JUDGE
ravi