Madhya Pradesh High Court
Munna Singh Parihar & Anr, vs The State Of M.P on 16 June, 2012
IN THE HIGH COURT OF MADHYA PRADESH,
JABALPUR
SB: Hon'ble Mr. Justice N.K.Gupta, J.
A.F.R
Criminal Appeal No.195/1996
Munna Singh and another JUDGE
Vs.
State of Madhya Pradesh
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Shri Suyash Tripathi, Advocate for the appellants.
Shri G. S. Thakur, Panel lawyer for the respondent-State.
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JUDGMENT
(Delivered on the 26th day of June, 2012) The appellants have preferred this appeal against the judgment and conviction dated 12.1.996 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act shahdol in Special Case No.36 of 1994 whereby the appellant Munna Singh was convicted for offence punishable under Section 354 of I.P.C and Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter it is referred as the "Special Act") and sentenced for six months rigorous imprisonment with fine of Rs.200/-. The appellant Munna Singh has also to undergo additional sentence for one month's rigorous imprisonment in default of payment of fine whereas, the appellant Bhaiyalal was convicted for offence punishable under Section 323 of I.P.C and sentenced for six month's rigorous imprisonment.
2. Prosecution's case in short is that on 14.1.1994 at about 4.00 p.m in the evening the prosecutrix (P.W.1) came to her house situated in the outskirts of Village Mauhari, Police Station Bijuri, District Shahdol from her field. After some time the appellants came to her house and asked about her 2 Criminal Appeal No.195 of 1996 husband. Thereafter, the appellant Munna Singh held the right hand of the victim and tried to pull her in the house. He also touched her breasts. The prosecutrix made hue and cry and therefore, her husband Farzul (P.W.2) and witness Shivram (P.W.3) came to the spot. Appellant Bhaiyalal who had a stick at that time with him assaulted the husband of the prosecutrix on his head and various parts of the body and thereafter, both of the appellants ran towards the village. The prosecutrix told about the incident to her parents-in-law and thereafter, she went to the Police Station Bijuri, District Shahdol with her husband. FIR was lodged on the same very day at about 8.30 p.m. In Police Station Bijuri a case was registered against the appellants. Victim Farzul was sent to the hospital for his examination and treatment. Dr. Gautam (P.W.6) found six simple injuries to the victim Farzul on his person. After due investigation charge sheet was submitted before the Special Court.
3. The appellants abjured their guilt. They did not take any specific plea in the case. However, it as alleged that the appellants were falsely implicated due to previous enmity. In support of their defence Phoolbai (D.W.1), Ashok Kumar (D.W.2) were examined. After considering the evidence adduced by the parties learned Special Judge convicted and sentenced the appellants as mentioned above.
4. I have heard the learned counsel for both the parties at length.
5. Learned counsel for the appellants has submitted that a false case was registered against the appellants. They were falsely implicated due to enmity. A separate quarrel took place with Farzul and other persons in which Farzul sustained the injuries. Thereafter, a false case was lodged related to Section 354 of I.P.C etc. It is also submitted that 3 Criminal Appeal No.195 of 1996 the defence witnesses were reliable but, learned Special Judge did not believe the defence witnesses. It is further submitted that the prosecutrix was not of scheduled tribe and therefore no offence punishable under Section 3(1)(xi) of the Special Act is made out. Learned counsel for the appellant has also placed his reliance upon the judgment passed by this Court in case of "Shankarlal Vs. State of M.P". [(2005) (1) MPLJ 449] to show that there was no intention of the appellant Munna Singh to outrage the modesty of the prosecutrix because she was of the scheduled tribe and therefore, no offence under Section 3(1)(xi) of the Special Act is made out. It is also submitted that case is very much old. The appellants are suffering from the trial and the appeal since the year 1994 and therefore, their sentence may be reduced to the period which they have already undergone in custody.
6. On the other hand learned Panel Lawyer has submitted that conviction and sentence passed by the Special Court are correct and appropriate. Learned Panel Lawyer placed his reliance on the judgment of the Hon'ble Apex Court in the case of "Vidyadharan Vs. State of Kerala", [(2004 (2) MPLJ 251] to show that offence under Section 3(1)(xi) of the Special Act is made out and judgment passed by this Court in the case of Shankarlal (supra) appears to be per incuriam.
7. In the present appeal there are only four points which are to be decided. Firstly as to whether the prosecutrix was a Member of the Scheduled Tribe ? Secondly that whether the incident took place and the appellants committed the crime for which they are convicted? Thirdly whether no offence under Section 3(1)(xi) of the Special Act is made out against the appellant Munna Singh ? And lastly that whether any interference can be done in the sentence inflicted on the appellants ?
4Criminal Appeal No.195 of 1996
8. Farzul (P.W.2) in para 1 of his statement has stated about his caste and claimed to be a member of the scheduled tribe. The prosecutrix (P.W.1) has also stated in para 1 of her statements that she was "Pav Gond" and therefore, she was a member of scheduled tribe but, in para 5 of her cross examination she has accepted that she is "Pav Thakur" and not a person of scheduled caste. She had shown lack of her knowledge that whether "Pav Thakurs'" are tribal persons or not. Due to the statement of the prosecutrix in para 5 it was submitted that the prosecutrix was not of scheduled tribe. However, both the appellants in their statements under Section 313 of Cr.P.C have accepted that the prosecutrix and her husband were Gond and therefore, member of scheduled tribe. If any fact is admitted by the accused in his accused statement then there is no need to prove that fact by the prosecution separately. Looking to the FIR Ex.P/1 where it was mentioned by the concerned Police Officer that since the prosecutrix was "Pav Gond" which is a tribal community and therefore, a case was registered for offence punishable under Section 3(1)(xi) of the Special Act from the very beginning. Under such circumstances, when the appellants have admitted the caste of the prosecutrix then it will make no difference if caste certificate is not submitted or proved by the prosecution. Under such circumstances, it is apparent that the prosecutrix was a member of the scheduled tribe.
9. Prosecutrix (P.W.1), Farzul (P.W.2) and Shriram (P.W.3) have stated the entire story that the appellant Munna Singh held the right hand of the prosecutrix and tried to pull her in the house and also pressed her breasts. Thereafter, on hearing the hue and cry of the prosecutrix, Farzul and Shriram reached to the spot. Appellant Bhaiyalal assaulted the victim Farzul by a stick causing him so many injuries. Their statements are duly supported by the FIR Ex.P/1 lodged at Police Station Bijuri soon after the incident. It is submitted 5 Criminal Appeal No.195 of 1996 by the learned counsel for the appellants that there was enmity between the parties. Some suggestions were given in that respect to the prosecutrix and her husband that there was an enmity between Munna Singh and Ashok and Ashok went with the prosecutrix to lodge the FIR but, the witnesses denied about the presence of Ashok at the time of lodging the FIR. A suggestion was given to the husband of the prosecutrix that he had some quarrel with Gangaram but, it was not established that the appellants have any relation with Gangaram and therefore, they were falsely implicated. Under such circumstances, the defence could not establish any enmity between the parties.
10. Defence witnesses Phoolbai (D.W.1) and Ashok Kumar (D.W.2) were examined for the fact that on 14.1.1995 when Bhaiyalal was going on a tractor, Farzul came to the spot and assaulted Bhaiyalal by a stick. No such incident was suggested to either the prosecutrix or Farzul in their cross examination. The defence witnesses appear to be concocted witnesses. They were examined in the month of January 1996. Phoolbai has stated about the incident which took place one year back whereas witness Ashok Kumar gave a specific date of incident and that was 14.1.1995. Looking to the version of these witnesses it appears that they are stating about the incident which occurred on 14.1.1995 but, as per FIR the incident committed by the appellants took place on 14.1.1994. If the witness Farzul assaulted the appellant Bhaiyalal one year after the incident then by this act of Farzul it cannot be said that there was an enmity between the parties prior to the incident and the appellants are falsely implicated in the matter. On the contrary it appears that the defence witnesses were tutored and since they were not genuine they could not tell the actual period of the incident and they could not say about the incident which took place one year prior to their statements whereas the incident in question took place 6 Criminal Appeal No.195 of 1996 two years prior to their statements. Under such circumstances, the defence witnesses are not believable. No enmity could be established between the parties by them and no inference can be drawn that the appellants could be falsely implicated in the crime.
11. Testimony of the prosecutrix is duly supported by other witnesses though they are interested. But there is no rule that testimony of interested witnesses may not be accepted. Evidence given by Farzul, husband of the proseuctrix is very natural. He has accepted that after hearing the cries of his wife, he came to the spot and he saw that the appellant Munna Singh had held the hand of his wife and thereafter, Bhaiyalal assaulted him. He has stated that his wife informed him that the appellant Munna Singh has also pressed her breasts. It is true that during the trial the prosecutrix has stated that she was held by both the appellants but, the portion which was mentioned by her in the FIR can be believed. Under such circumstances, where there is no enmity between the parties there is no reason for false implication of the appellants, and testimony of the prosecutrix is corroborated by her husband and witness Shriram and also by the First Information Report Ex.P/1, injuries of the witness Farzul were proved by Dr. Gautam (P.W.6) in his report Ex.P/4 thus the testimony of the prosecutrix and her husband is believable. Therefore, learned Special Judge has rightly held that the appellants Munna Singh had outraged the modesty of the prosecutrix by using criminal force and appellant Bhaiyalal had voluntarily caused hurt to the victim Farzul.
12. Learned counsel for the appellants has submitted that there was no intention of the appellant Munna Singh to outrage the modesty of the prosecutrix on the basis of her caste and therefore, no offence punishable under section 3(1) 7 Criminal Appeal No.195 of 1996
(xi) of the Special Act will be made out. Learned counsel for the appellant placed his reliance on the judgment of this Court in the case of Shankarlal (supra). Also reliace was placed on the judgment of this Court in the case of "Dabloo alias Shahjad Vs. State of M.P.", [2007 (1) MPLJ 250] which is on the same point. On the other hand learned Panel Lawyer placed his reliance on the judgment passed by the Hon'ble Apex Court in the case of Vidyadharan (supra). For ready reference some portion of para 10 of the judgment passed by Hon'ble Apex Court in the case of Vidyadharan (supra) may be perused which is as under :
"Section 3(1)(xi) of the Act which deals with assaults or use of force to any woman belonging to a Scheduled Caste or Scheduled Tribe with the intent to dishonour or outrage her modesty is an aggravated form of the offence under Section 354 of I.P.C. The only difference between Section 3(1)(xi) and Section 354 is essentially the caste or the tribe to which the victim belongs.
If she belongs to a Scheduled Caste or Scheduled Tribe, section 3(1)(xi) applies. The other difference is that in Section 3 (1)(xi) dishonour of such victim is also made an offence."
By perusal of aforesaid portion and law laid by Hon'ble the Apex Court the difference between the offence punishable under Section 354 of I.P.C and Section 3(1)(xi) of the Special Act is clear that if offence punishable under Section 354 of I.P.C is committed on a prosecutrix who, belongs to either Scheduled Caste or Scheduled Tribe then offence under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act shall be made out. Difference is of the caste of the prosecutrix. Under such circumstances, where judgment passed by Hon'ble the Apex Court is binding over all the subordinate Courts therefore, the contrary view taken in the judgments passed by this Court in the case of Shankarlal (supra) and Dabloo alias 8 Criminal Appeal No.195 of 1996 Shahjad (supra) may not be accepted as a binding precedent. Being contrary to the law laid by Hon'ble the Apex Court judgments of both the cases i.e Shankarlal's case (supra) and Dabloo alias Shahjad's case (supra) are per incuriam. In the light of the judgment passed by Hon'ble the Apex Court in the case of Vidyadharan (supra) it would be clear that since appellant Munna Singh has outraged the modesty of the prosecutrix belonging to Scheduled Tribe by using criminal force then offence under Section 354 of I.P.C as well as 3(1)
(xi) of the Special Act are clearly made out. Learned Special Judge did not made any error in convicting the appellant Munna Singh for offence punishable under Section 3(1)(xi) of the Special Act.
13. As far as the sentence is concerned the trial Court has awarded minimum jail sentence to the appellant Munna Singh for offence punishable under Section 3(1)(xi) of the Special Act and therefore, no reduction in that sentence can be done because there is a statutory provision relating to minimum sentence. However, it appears that a very lesser amount of fine was imposed upon the appellant Munna Singh. No appropriate compensation can be granted from the fine. In the absence of the counter appeal fine amount cannot be increased. However, it is directed that out of that fine amount a sum of Rs.200/- be paid to the prosecutrix by way of compensation.
14. As far as the sentence of the appellant Bhaiyalal is concerned his offence is not so grave. He has faced the trial including the appeal for last 18 years and therefore, under such circumstances, it would not be proper to send him in the jail again. He remained in custody for two days in all. Looking to the period of the trial and appeal where the appellant Bhaiyalal was directed to remain present before the various Courts including this Court for 17 years and also 9 Criminal Appeal No.195 of 1996 looking to his period of custody it would be proper that his sentence may be reduced to the fine only but, looking to the injuries to the victim maximum fine is to be imposed.
15. On the basis of the aforesaid discussion the appeal filed by the appellant Munna Singh is not acceptable and therefore, it is hereby dismissed. Appellant Munna Singh is directed to surrender before the trial Court within a month from today and trial Court is directed to execute the jail sentence imposed upon Munna Singh. Appeal filed by Bhaiyalal is partly allowed. Conviction directed under Section 323 of I.P.C is hereby confirmed but his sentence is reduced to the period which he has already undergone in custody with a fine of Rs.1000/- in addition. The appellant Bhaiyalal is directed to deposit the fine amount before the trial Court within two months from today. In default of payment of fine he has to undergo for three months rigorous imprisonment. If fine is deposited by Bhaiyalal then victim Farzul shall receive a sum of Rs.700/- out of that fine as compensation.
16. Copy of the judgment be send to the trial Court with its case file for information and compliance.
(N.K.GUPTA) Judge 26/6/2012 bina