Madhya Pradesh High Court
Shivcharan vs The State Of M.P. Judgement Given By: ... on 12 March, 2014
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH
PRESENT : HON'BLE SHRI JUSTICE N. K. GUPTA
CRIMINAL REVISION NO.1204/2003
Shivcharan
Vs.
State of M.P.
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Shri Amit Dubey, counsel for the applicant.
Shri Prakash Gupta,, Panel Lawyer for the State.
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ORDER
(Delivered on the 12th day of March, 2013) The applicant was convicted for offence punishable under Sections 354, 323, 506 of I.P.C and sentenced with three months rigorous imprisonment for each count vide judgment dated 13.9.2001 passed by the JMFC, Multai, District Betul in Criminal Case No.299 of 1994. Also his Criminal Appeal No.16 of 2001 was dismissed by the the learned Additional Sessions Judge, Multai vide judgment dated 15.9.2003. Being aggrieved with the aforesaid judgments passed by both the Courts below the applicant has preferred the present revision.
2. The prosecution's case in short is that on 26.4.1994 at about 8.00 p.m the prosecutrix (PW1) was going to her field situated at Village Jambadi (Tahsil Multai, District Betul), 2 Criminal Revision No.1204/2003 when she passed in front of the house of the applicant, then applicant asked her as to where she was going and thereafter, he started chasing. Near the river, the applicant held the prosecutrix and also pressed her breasts. He threw the prosecutrix on earth by holding her neck and sat on her chest and thereafter, he tried to kill the prosecutrix by throttling. In the meantime, Jaganlal (PW2) and Pandu, brothers of the prosecutrix came to the spot then, the applicant ran away. Before leaving the spot, he showed a knife and threatened the prosecutrix not to tell about the incident to the family members. Dinesh Kirad saw the applicant when he was running. The prosecutrix gave a written report Ex.P/1 to the Police Station, Multai, she was directed for her medico legal examination to Primary Health Centre, Multai. Dr. R. S. Pade (PW3) examined the prosecutrix and gave his report Ex.P/2. He found two scratches to the prosecutrix on his neck. After due examination, a charge sheet was filed before the trial Court.
3. The applicant abjured his guilt. He took a specific plea that he was falsely implicated due to dispute related to the property. However, no defence evidence was adduced.
4. The learned JMFC after considering the prosecution's evidence has convicted and sentenced the applicant as mentioned above whereas, the appeal filed by the applicant was dismissed.
5. I have heard learned counsel for the parties. 3
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6. In criminal revision, generally the concurrent findings of both the Courts below should not be disturbed relating to the facts. In the present case, both the Courts below found that the applicant had committed the crime and they believed the prosecutrix. However, it is an exceptional case in which it would be necessary to appreciate the evidence again because, both the Court below have come to the perverse conclusion. The allegations made by the prosecutrix appear to be unnatural. It was not possible for the prosecutrix to go in the dark night to her field at about 8.00 p.m. She did not mention any reason as to why she was going to the field in the night. There is a lot of contradiction between the statements given by the prosecutrix (PW1) and her brother Jaganlal (PW2). No independent witness is examined whereas, FIR was lodged with delay of at least 10 hours. FIR is prepared by some law knowing person and it was a typed document.
7. It is alleged by the prosecutrix (PW1) that when the appellant started leaving the spot, he raised a knife and gave a threat to the prosecutrix. According to the FIR Ex.P/1, if the brothers of the prosecutrix had already reached to the spot then there was no need to the applicant to give a threat, not to inform about the incident to anybody in the family because the incident was in the knowledge of at least two brothers of the prosecutrix. Consequently, Jaganlal (PW2) has stated that he could not reach to the spot in presence of 4 Criminal Revision No.1204/2003 the applicant. He went thereafter and the entire story was told by the prosecutrix. He has also accepted that in his case diary statement, he did not say anything about threat given by the applicant. Under such circumstances, looking to the material contradictions, it appears that no threat was given by the applicant to the prosecutrix. It appears that the person who prepared the FIR had inserted such a fact so that the fact relating to delay in FIR may be explained. Under such circumstances, both the Courts below have committed an error of law in convicting the applicant for offence punishable under section 506 of I.P.C.
8. Similarly, it was not proved beyond doubt that either the applicant outraged the modesty of the prosecutrix or had voluntarily caused hurt to the prosecutrix. If the applicant was interested to outrage the modesty of the prosecutrix, then there was no need to the applicant to throw the prosecutrix on earth and try to throttle her and if he was interested to the assault the prosecutrix then there was no need to touch the breasts of the prosecutrix. The prosecutrix (PW1), has stated in her examination-in-chief, that the applicant held her neck, shown the knife and he had done nothing except this. Thereafter, when she was declared hostile by A.D.P.O, she accepted that the aforesaid act done by the applicant was to take her chastity. However, she did not say that the applicant touched her breasts. Under such circumstances, looking to the allegation made by the 5 Criminal Revision No.1204/2003 prosecutrix, it appears that the factual position as shown in the FIR was not proved by the substantial evidence. The FIR is a corroborative piece of evidence, which can be used in support of substantial evidence. When the prosecutrix (PW1) did not state against the applicant about such a fact by which it could be concluded that he tried to outrage the modesty of the prosecutrix then by holding the neck or throwing her on earth and trying to throttle, it cannot be said that the applicant was interested to outrage the modesty of the prosecutrix. No ingredients of section 354 of I.P.C could be proved by the prosecutrix (PW1) and therefore, both the Courts below have wrongly convicted the applicant for offence punishable under section 354 of I.P.C.
9. So far as the offence under Section 323 of I.P.C is concerned, the testimony of the prosecutrix is supported by Dr. R.S. Pade (PW3) who, found two small scratches on the neck of the prosecutrix. However, for injury no.1, which was found on the right side of the neck, he had mentioned that its size was equal to a very small grain whereas, second injury was a one cm long abrasion on right neck. If someone tries to throttle another person then such abrasion should be caused on both the sides of the neck because throttling cannot be done by a single hand. The prosecutrix in paras 3 and 4 of her statement has admitted that there was a dispute between the applicant and the prosecutrix, soon before the incident. She went to the house of the applicant and thereafter, on the 6 Criminal Revision No.1204/2003 next day a Panchayat took place in the village. She denied the suggestion that the prosecutrix demanded some empty bags from father of the applicant. However, no witness of concerned Panchayat was produced before the Court. Even Dinesh Kirad, whose name was mentioned in the FIR was not examined by the prosecutrix though he was an independent witness.
10. It is also pertinent to note that when a Panchayat took place on the next date of the incident, why the factum of the Panchayat was not mentioned in the FIR Ex.P/1. The FIR Ex.P/1 is a typed document duly prepared by some law knowing person who, inserted some facts which could not be natural. As discussed above, the prosecutrix could not show any reason as to why at 8.00 p.m in the night, she was going to the field and therefore, the entire story appears to be unnatural. If the incident took place at 8.00 p.m in the night then FIR could be lodged on the next day morning up to 10.00 a.m but, it was lodged at 8.00 p.m. Again it would be apparent that the FIR was unnaturally prepared by some law knowing person but, lodged with delay of 8-10 hours therefore, delay in FIR creates a suspicion in the prosecution story. Also the prosecutrix has mentioned in the FIR (Ex.P/1) that her brothers including Jaganlal came to the spot and thereafter, the applicant gave a threat, but Jaganlal has categorically admitted that he reached to the spot when the applicant had already left the place and the entire story was 7 Criminal Revision No.1204/2003 told by his sister. Looking to this material contradiction, delayed FIR, dispute between he parties and unnatural allegations, it would be apparent that the testimony of the prosecutrix was not believable. It cannot be accepted that the applicant tried to throttle the victim. It cannot be accepted that the applicant tried to throttle the victim. If he had thrown the prosecutrix on earth then certainly she must have sustained some injuries of falling on earth. Hence the applicant cannot be convicted for offence punishable under section 323 of I.P.C. Both the Courts below have committed an error of law and fact and convicted the applicant for offence punishable under section 323 of I.P.C.
11. On the basis of the aforesaid discussion, it would be apparent that there was no basis to convict the applicant for any offence under Section 354, 323 or 506 of I.P.C and therefore, looking to the perverse decision given by both the Courts below, it is a fit case whereby the present revision filed by the applicant can be accepted. Consequently, the present revision filed by the applicant is hereby allowed. The conviction as well as the sentence directed for offence punishable under sections 354, 323, 506 of I.P.C are hereby set aside. The applicant is acquitted from all the charges appended against him.
12. At present the applicant is on bail and his presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. 8
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13. Copy of the order be sent to both the Courts below along with their records for information and compliance.
(N. K. Gupta) Judge 12.03.2014 bina