Madhya Pradesh High Court
The State Of M.P. vs Bahadur Singh & Ors on 16 February, 2012
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
HIGH COURT OF MADHYA PRADESH PRINCIPAL BENCH AT JABALPUR
CRIMINAL APPEAL NO. 1002/1998
State of M.P.
Versus.
Bahadul Singh and others
For appellant/State : Shri Rakesh Kesharwani, P.L.
For respondents : Shri Arun Kakoniya, Adv.
JUDGMENT (Oral)
(16.02.2012) U.C. MAHESHWARI J.
1. This appeal is preferred under Section 378 of Cr.P.C. on behalf of the State against the judgment dated 8.8.1997 passed by the Special Judge, Panna, constituted under the SC/ST (Prevention of Atrocities) Act, in short "The Act", in Special Case no. 53/97 whereby the respondents have been acquitted from the charge of Section 3 (1) (xi) and 3 (1) (x) of the Act.
2. The facts giving rise to this appeal in short are that on dated 22.3.1995 at about 6 o'clock in the evening at village Gadarpur when the complainant victim - Smt. Rajkumari was cleaning her house, the respondent no. 1 - Bahadur Singh came there and after holding her hand with bad intention asked her to go with him inside the godown. On which she cried and shouted then her husband Kallu, (PW-2) and his elder brother Kripal (PW-3) came there, on which the respondent no. 1 started to abuse with filthy languages to the prosecutrix as well as her husband and said Kripal. By the time other brothers of respondent no. 1 namely Malkhan Singh and Darshan Singh, respondent nos. 2 and 3 came there and threatened the victim, her husband and his brother with criminal intimidations to kill them. The incident was witnessed by Rajaram, Siyaram Patel, whom the earlier story was also narrated by the complainant. Thereafter she accompanied with her husband came to the Police Station - Ajaygarh where on her report in writing (Ex. P-1) a Crime No. 33/95, (Ex.P-2) was registered against the respondents for the offence of Sections 354 and 506/34 of IPC. In the course of investigation, offence of Section 294 of IPC and 3 (1) (xi) of the Act were also invoked. On completion of the investigation, the respondents were charge sheeted. After committing the case to the Special Court, on framing the charge of Section 3 (1) (xi) and 3 (1) (x) of the Act against the respondent no. 1 while the charge of Section 3 (1) (x) of the Act against the remaining respondents, they abjured their guilt, on which the trial was held. On appreciation, the respondents have been acquitted from all charges of Act, on which the State has come to this court with this appeal to hold the conviction against the respondents for the alleged charges.
3. Shri Rakesh Kesharwani, learned PL after taking me through the record of the trial court by referring the depositions of the prosecutrix, her husband so also other witnesses said that prosecution had successfully proved the case but on consideration its evidence was not considered by the trial court with proper approach. On proper appreciation, the respondents ought to have been convicted for the alleged charges. In continuation, he said that in any case for the sake of arguments on re-appreciation of evidence if it is deemed that the alleged act was not committed by any of the respondents with intention to humiliate or harass the prosecutrix, her husband or his brother on account of their caste covered under the Act, then in view of the language of the charges framed against the respondents, on considering the available evidence of the prosecution, the offence of Section 294 of IPC is made out against all the respondents while in addition to it, the offence of Section 354 of IPC is also made out against the respondent no. 1 and prayed to convict the respondents accordingly by allowing this appeal.
4. Responding the aforesaid arguments, Shri Arun Kakoniya, learned counsel for the respondents argued that the approach of the trial court extending the acquittal to the respondents from the alleged charges does not require any interference at this stage on two counts, firstly such version being based on proper appreciation could not be interfered by re- appreciation of the evidence to adopt some other view at the stage of appeal. Secondly, he said that the prosecution has utterly failed to prove by any documentary or other reliable evidence that the complainant
-Rajkumari and her family members were belonging to such community which is covered under the Act. In the lack of such evidence, the respondents could not be convicted under any of the offence of the Act. In continuation he said that in the lack of framing any specific charge of Section 294 and 354 of IPC against the respondents, mere on the basis of language of the charges framed such charge could not be deemed to be the charge of Section 294 or/ and Section 354 of IPC. Thus, they could not be convicted under such Sections. He also argued that in case the Court comes to conclusion that offence of Section 294 and 354 of IPC are made out against them, then in that circumstance taking into consideration the compromise applications filed with the joint signatures of the parties, which have been verified today by the court, such offences being made compoundable under Section 320 of Cr.P.C, by allowing the compromise, the respondents be acquitted from such charge accordingly and prayed to decide this appeal accordingly.
5. Having heard the counsel, keeping in view their arguments, I have carefully gone through the record of the trial court, so also the impugned judgment. In order to prove the case the prosecution has examined as many as eight witnesses, out of which Smt. Rajkumari, (PW-1) - the complainant, Kallu (PW-2), the husband of the complainant, Kripal (PW-4), brother of the husband of the complainant and one Siyaram Patel, (PW-3) were examined either as victims or eye witness of the incident. On going through their depositions, I have found that all such witnesses had categorically stated that on the aforesaid date and time initially the respondent no. 1 holding the hand of prosecutrix complainant with bad intention tried to outrage her modesty and thereafter he accompanied with respondent no. 2 and 3 abused to the complainant, her husband and brother of her husband with filthy languages in a public view in front of their house by which they felt annoyed themselves. On re- appreciation of the aforesaid available evidence, I am of the considered view that offence of Section 354 against the respondent no. 1 while the offence of Section 294 of IPC against all the respondents are made out. But it appears from the record that in the lack of any framed specific charge of such Section of IPC, such aspect was not considered by the trial court. Infact it appears that the trial court appreciated the available evidence only in the light of aforesaid framed charge of Section 3 (1) (x) and 3 (1) (xi) of the Act and on such appreciation, by extending the benefit of doubt acquitted the respondents from such charges of the Act. In view of the aforesaid, I do not agree with the approach of the trial court to extend the acquittal to the respondents on account of benefit of doubt from the charge of Section 3 (1) (x) and 3 (1) (xi) of the Act. In the available circumstances, of the case, I am of the considered view that in the lack of any documentary and reliable evidence showing that the complainant and her family was falling under the community defined and covered under the Act, the respondents from the charge of the Act could have been acquitted only on such count. It is apparent fact that the caste certificate of the complainant or her family has neither been produced nor proved on the record. Besides this initially, FIR (Ex. P-1 & P-2) was lodged against the respondents only for the offence of Section 354 and 506/34 of IPC. In such FIR, I have not found any material ingredients showing that any of the alleged offence was committed by the respondents with intention to humiliate or harass the complainant or her family members on account of their caste covered under the Act. So in all these circumstances, it is held that the prosecution has utterly failed to prove the charge of Section 3 (1) (x) and 3 (1) (xi) of the Act respectively against the respondent no. 1 and the respondents. So ultimate approach of the trial court acquitting the respondents, although on other grounds from the charge of Section 3 (1) (xi) and 3 (1) (x) does not require any interference at this stage. So till this extent the findings of the trial court is hereby affirmed.
6. Even after affirming the aforesaid findings, I deem to examine the matter, keeping in view the provision of Section 222 of the Cr.P.C., according to which on the basis of factual matrix and particulars stated in the charge framed, on appreciation of the evidence, if any of the offence defined under the law is made out against the accused, like the respondents then they could be convicted on the same charge for such offence. As per aforesaid discussion, it has been found to be proved that the respondent no.1 at the house of the complainant after holding her hand with bad intention tried to outrage her modesty and in continuation of such act all the respondents in front of the house of complainant, so also in a public view abused her and her above mentioned other family members with filthy languages and annoyed them. In his regard, the sufficient factual matrix were stated by the trial court in the charges framed for the offence of the Act. So by virtue of Section 222 of Cr.P.C., in view of the language of the charges framed, on appreciation of the available evidence, the respondent no.1 is held guilty for the offence of Section 354 of IPC while all the respondents including respondent no.1 also are held guilty for the offence of Section 294 of IPC.
7. After holding guilty to the respondents under Section 354 and 294 of IPC respectively, I proceed to consider the impact of compromise of the parties, which has been verified from the parties today, as stated in the proceeding.
8. It is undisputed legal position that offence of Section 354 and 294 of IPC both are made compoundable under Section 320 of Cr.P.C. So IA No. 1186/12, which has been filed with the joint signatures of the parties, the complainant, Rajkumari as well as respondents permitting them to compound the offence in the available circumstances, the same is allowed and complainant is permitted to compound the alleged offence. Pursuant to it, IA No. 1187/12, an application filed with the joint signatures of the complainant and the respondents to place factum of compromise on record is taken for consideration. By allowing the same, the placed compromise between the complainant, Rajkumari and the respondents are accepted. Consequently, by virtue of Section 320 (8) of Cr.P.C., the respondents are acquitted from the charge of Section 354 and 294 of IPC till the extent of complainant- Rajkumari. So far offence of Section 294 of IPC till the extent of Kallu (PW-2) and Kripal, (PW-4) are concerned, keeping in view the aforesaid factum of compromise, in the available circumstances, instead to impose any punishment on the respondents, I deem fit to extend them the benefit of Probation of Offenders Act. So with respect of offence of Section 294 of IPC, till the extent of said victim Kallu and Kripal, the respondents are hereby extended the benefit of Section 4 of the Probation of Offenders Act. In such premises, it is directed that on furnishing the requisite bail bond of Rs.5000/- (Rs. five thousand) under the aforesaid Act to the satisfaction of the trial court within thirty days from today with an undertaking that any of the respondents will not involve himself in any criminal activities for two years, they be released on probation. In case the requisite bail bonds are not furnished by the respondents within the prescribed period, then the trial court shall be at liberty to take appropriate steps against them in accordance with the prescribed procedure under the law.
9. The appeal is allowed in part, as indicated above.
( U.C. Maheshwari ) Judge bks