Madhya Pradesh High Court
Mohd.Arif vs The State Of M.P. on 17 May, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 17 th OF MAY, 2024
CRIMINAL APPEAL No. 909 of 2005
BETWEEN:-
MOHD.ARIF, S/O ABDUL AZIZ MUSALMAN, AGED 22
YEARS, R/O MALHARGARH, POLICE STATION,
KHALWA, DISTRICT KHANDWA (MADHYA PRADESH)
.....APPELLANT
(NONE)
AND
STATE OF MADHYA PRADESH
.....RESPONDENT
(BY SHRI PRASSANJEET CHATTERJEE - PANEL LAWYER)
Reserved on : 09.05.2024
Pronounced on: 17.05.2024
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court delivered the following:
JUDGMENT
This criminal appeal has been preferred against the judgment of Special Judge, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (for short, "Act"), Khandwa, delivered on 31.3.2005 in Special Criminal Case No.34/2003 whereby the appellant (hereinafter referred to as "accused") was convicted of the offence of Section 3(1)(xi) of the Act and was sentenced to six months rigorous imprisonment and fine of Rs.500/- with additional simple imprisonment of one month, in case of non-payment of fine.
22. Brief facts relevant for the decision of this case are that in the night of 11.7.2003 at around 8:30 p.m. prosecutrix, who belonged to scheduled caste category, was in her house and was lying on the bed when the accused arrived there; he sat on the bed and grabbed the breast of prosecutrix; she screamed upon which accused caught hold of her hand and asked her not to scream; upon hearing the screams, Munnalal, Ashok Kol, Govind and others arrived there upon which accused left the spot giving filthy abuses; on the same night, prosecutrix reported the matter to the police; she was medically examined and the investigation was held. The charge-sheet was filed and the trial followed. Upon conclusion of trial, the impugned judgment was passed, convicting and sentencing the accused.
3. The grounds raised in this criminal appeal are that the accused was residing in front of the house of prosecutrix and used to address her as "mami"; there is contradiction in the statements of prosecutrix regarding the details of molestation; the prosecutrix was aged 40 years while the accused was hardly 22 years old; it could not be believed that he would commit an act of molestation with a lady of this age, who was living in front of his house for last 20 years all alone; the real dispute was that complainant had taken an amount of Rs.500/- on credit from the accused and was not returning it; to avoid that financial liability, she got this false report registered; prosecution witnesses Munnalal and Gokul had enmity with accused, therefore they too supported the prosecutrix; the other alleged eyewitnesses Ashok and Govind have denied that any such incident. It was, therefore, prayed that the appeal should be allowed and the accused should be acquitted.
4. State has opposed this appeal.
5. At the stage of final hearing the counsel for accused did not appear and 3 submit the final arguments, therefore only the learned counsel for State was heard on merits. The record of the trial court has been perused.
6. The trial court has convicted the accused for the offence of Section 3(1)
(xi) of the Act holding that the prosecutrix belonged to scheduled caste category, but the record of the trial court reveals that the caste certificate of prosecutrix was not produced in evidence and merely on the basis of admission made by accused during his examination under Section 313 Cr.P.C., the finding of prosecutrix belonging to scheduled caste category was given.
7. The learned trial court has held the caste of prosecutrix proved on the basis that she was not cross-examined on this fact and also on the ground that there was admission by the accused in answer to question no.1 of his examination under Section 313 of Cr.P.C. It may be mentioned here that the judgment of Bhagwat Singh v. State of Madhya Pradesh 2006 (1) ANJ (MP) 355 has laid down the course that should be adopted in a trial under the provisions of the Act and that procedure says that the prosecution should file a valid certificate of caste/tribe duly issued by an authorized person and mere oral testimony regarding the caste/ tribe of the victim is not sufficient. For this, the decision of Manohar Sawai Rathod v. State of Maharashtra 2007 Cr.L.J. (NOC 785) 202 is also relevant here, which has laid down that mere statements of aggrieved person about his caste/tribe is not sufficient and the prosecution has also to prove this fact by producing documentary evidence.
8. The Apex Court in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) AIR 2010 SC 2352 has held that the answers given by the accused to the questions put under Section 313 Cr.P.C. are not per se evidence because firstly, they are not on oath, and secondly, they are not subjected to 4 cross-examination and they are nevertheless subject to consideration by the court to the limited extent of drawing an adverse inference against such accused for any false answers given voluntarily and to provide an additional/missing link in the chain of circumstances.
9. Thus, in the absence of any authentic caste certificate, the conviction of accused for the offence of Section 3(1)(x) of the Act cannot be upheld.
10. The record of trial court reveals that charge for the offence of Section 354 IPC was not framed against the accused but it cannot be challenged that the ingredients of offence of Section 354 IPC and Section 3(1)(xi) of the Act are identical except on the fact that under Section 3(1)(xi) of the Act, it is also required to be proved that the prosecutrix belonged to the scheduled caste/scheduled tribe category. Since her caste has not been proved in the case, therefore under the provision of Section 222 Cr.P.C. this court has now to examine whether the offence of lesser nature punishable under Section 354 IPC has been made out.
11. The prosecution has relied upon the testimony of prosecutrix (P.W.1), witnesses Munnalal (P.W.2) and Gokul (P.W.3) who saw the accused running away from the house of prosecutrix, Head Constable Kailashnath Dubey (P.W.5), who registered the FIR, and B. S. Dhamavat (P.W.6), who was the Investigating Officer. Ashok (P.W.4) has also been claimed to be present at the time of crime but he has not supported the prosecution story. Govind is also one of such witnesses and he has been examined as defence witness D.W.1 supporting the innocence of accused.
12. Admittedly, the prosecutrix was living all alone in her house. The time of the incident is between 8:00 p.m. and 9:00 p.m. on the night of 11.7.2003. According to prosecutrix, she was on her bed when accused arrived there, sat 5 on her bed, grabbed her breasts and when she resisted and screamed, he fled away. Some minor contradictions have been highlighted in her cross- examination about the words uttered by the accused at the time of incident but those words were not constituting any offence, hence contradiction on the words uttered has no relevance.
13. The statements of prosecutrix have been corroborated by the testimony of Munnalal (P.W.2) and Gokul (P.W.3). The names of both of these witnesses have been disclosed in the FIR itself, which is marked as Ex.P-1. They both heard the screams of prosecutrix and saw the accused fleeing away from her house. The statements of these two relevant witnesses were not challenged successfully during cross-examination. They remained stable on what was stated by them during police investigation.
14. The prosecution had also relied upon the testimony of Ashok (P.W.4) but he failed to support the prosecution case and claimed that accused was demanding money from prosecutrix and when prosecutrix came out of her house, she was drunk and was threatening that instead of repaying the amount, she would lodge the report. Similar are the statements of Govind (D.W.1). Interestingly, this incident occurred at around 8:30 p.m. and by 10:30 p.m. the FIR was registered on the same night. Had the prosecutrix been in drunken state, she would not have gone to the police station to report the matter on the same night and get her medically examined. Her medical examination form, marked as Ex.P-3, is also of the date of incident and it makes no reference that she was inebriated.
15. The accused has claimed that Munnalal (P.W.2) and Gokul (P.W.3) were on inimical terms with him but there is no evidence available on record which 6 would suggest any such enmity between them. Further, no suggestion was given to these witnesses by accused regarding this aspect of enmity.
16. Accused has taken the defence that he had given Rs.500/- on credit to the prosecutrix and was demanding them back. According to hostile witness Ashok, on the date of incident also, accused was asking his money back and similar are the statements of Govind (D.W.1) but it is not comprehendible why he had to ask for return of his money at such late hours and that too when the prosecutrix was living all alone in her house.
17. On the basis of foregoing discussion, this court comes to the conclusion that the prosecution has successfully proved that the accused used criminal force upon prosecutrix to outrage her modesty and this act of accused is punishable under Section 354 IPC.
18. In conclusion, it is held that the prosecution has not been able to prove the offence of Section 3(1)(xi) of the Act against accused but it is established that he committed the offence of Section 354 IPC, therefore accused is acquitted of the charge of Section 3(1)(xi) of the Act and holding him guilty of the offence of Section 354 IPC, he is sentenced to three months rigorous imprisonment and fine of Rs.5,000/-, which shall be payable as compensation to the prosecutrix. In case of non-payment of fine, the accused shall serve additional rigorous imprisonment for three months. The period already undergone in custody by the accused and the fine amount already paid by him shall be adjusted against the modified sentence.
19. The accused is already released on bail. His bail-bonds stand discharged. He be immediately taken into custody to make him suffer the modified sentence.
20. Let a copy of this judgment along with its record be sent to the trial court for information and necessary compliance.
7(ANURADHA SHUKLA) JUDGE ps Digitally signed by PRASHANT SHRIVASTAVA Date: 2024.05.20 12:44:19 +05'30' Adobe Reader version: 11.0.8