Prashant Dubey vs The State Of M.P.
2021 Latest Caselaw 8038 MP

                                    1
                                                          Cr.A. No.3007/1998


     THE HIGH COURT OF MADHYA PRADESH, JABALPUR

Criminal Appeal No.                 3007 of 1998
Parties Name                        Prashant
                                      Vs.
                                    The State of Madhya Pradesh
Bench Constituted                   Hon'ble Shri Justice Vishal Dhagat, J.

Whether approved for reporting Yes/No Name of Advocates for parties For Appellant:- Ms. Manju Khatri, Amicus Curiae.

For respondent/State:- Shri Gaurav Tiwari, learned Panel Lawyer.

Law Laid Down Significant paragraph numbers

(J U D G M E N T) 01/12/2021

Appellant has filed this appeal challenging conviction and sentence dated 30/11/1998 passed in Special Session Case No.59/98. Additional Session Judge, Sagar had convicted the appellant under Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, for rigorous imprisonment for period of one year and fine of Rs.2,000/- in default of fine, further rigorous imprisonment of six months is imposed upon the appellant.

2. As per the prosecution story, complainant Basanti @ Jaya Kori had lodged a complaint on 07/12/1997. It was stated that one Prashant Dubey took her to Maihar District Katni for marriage. He did marriage with prosecutrix at temple and both of them lived in Agrawal Lodge from 25/10/1996 to 02/11/1996. Police found them in suspicious position on 02/11/1996 and therefore, they were arrested by Police Station Motinagar. They were produced before City Magistrate, Sagar on 04/11/1996. Statements were recorded and it was found that appellant and complainant were husband and wife, therefore, they were released.

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3. On 19/01/1997, co-accused namely, Puneet Dubey, Umashanker Dubey and Pawan Dubey said to have visited the house of appellant and assaulted the complainant in Gwari Maholla. The brother of complainant Munnalal Kori was also assaulted by accused persons. On 27/09/1997, appellant left the house to take care of his ailing mother. Thereafter, one Vivek, brother of appellant came to house of complainant and demanded Rs.10,000/-. The said demand was met by brother of complainant. Later on, on 28/11/1997, Prashant Dubey, Umashanker Dubey, Puneet Dubey and Pawan Dubey again demanded money but complainant refused. It is submitted that appellant also demanded money and slapped her. On said day, her life was saved by intervention of Sushila, Manohar Jaat and Santosh Panti. If such persons would not have intervene then complainant could have been killed and thrown her in the well. After said incident, complainant had filed written complainant on 07/12/1997 stating therein that appellant using her dominant and influencial position sexually exploited the prosecutrix. Prosecutrix belongs to Scheduled Caste and appellant is Brahmin.

4. Learned trial Court framed charges against the appellant under Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Prosecution examined Jaya @ Basanti Kori (PW/1), Durga Bai (PW/2), Nand Kishore (PW/3), Deepak Sharma (PW/4), Sushila Rajput (PW/5), Laxmi Bai (PW/6), Manohar Jatav (PW/7), P.C. Sonker (PW/8), Manulal Kori (PW/9), Rajesh (PW/10), Santosh Kumar (PW/11) and Tulsiram Rotiya (PW/11) to prove prosecution case.

5. After considering the documents available on record and deposition of witnesses, Additional Session Judge acquitted co-accused persons in the case and convicted the appellant under Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

6. Appellant has challenged the conviction and sentence on ground that there was inordinate delay in lodging of FIR which shows that appellant

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was falsely implicated in the case. Prosecution story was not supported by independent witnesses and statement of complainant is contradictory and could not have been relied upon. On said ground, counsel for appellant pray for quashing conviction and sentence dated 30/11/1998.

7. Learned Panel Lawyer appearing for State supported the prosecution case and submitted that trial Court had rightly convicted the appellant. Prosecutrix was firm in her statement and she had stated that appellant had dominated the will of the complainant and sexually exploited her. In this circumstances, he made a prayer for dismissal of appeal.

8. Heard counsels for appellant as well as respondent/State.

9. First question for consideration before this Court is whether there was delay in lodging of FIR and appellant was falsely implicated in the case. Incident is said to have occurred between 25/10/1996 to 02/11/1996, 28/09/1997, 27/12/1997 and report of incident was lodged on 27/01/1998. In FIR, no reason for delay in lodging of complaint is given, however, it is mentioned that offence is continuing since 25/10/1996. Complainant has specifically denied that she had lodged a false complaint for getting money. She has denied that she had took advice of Advocate for lodging complaint. She has stated that she was assaulted on 07/12/1997 and after 6-7 days, she had lodged a complaint. Appellant and complainant were husband and wife and complainant tolerated the acts of her husband and tried to adjust with him to save her marriage. When acts of appellant went beyond toleration, she had lodged a report against him. Offence is said to have continued since 25/10/1996. In such circumstances, there is no delay in lodging report and it cannot be said that delay in lodging of report had vitiated the prosecution case. Delay in lodging report had occurred as complainant may have tried to save her marriage. There is no force in argument of the lawyer that due to delay, entire prosecution version is to be disbelieved.

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10. On going through the statement of prosecutrix, no omission and contradictions are pointed in the same. Contradictions and omission has not been brought to the notice of witnesses. Neither any contradiction and omission has been pointed out by the counsel during course of the arguments. In view of the same, it cannot be said that there is major contradiction and omission which makes prosecution case unbelievable.

11. Now, question which appears before this Court is whether offence under Section 3 (1) (xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is committed by appellant or not? Section 3(1) (xii) of Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act is quoted as under:-

"3. (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe-

(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;"

12. On perusal of evidence adduced by the parties, it is apparent that appellant and complainant were in love relationship with each other and had performed love marriage by going to Temple at Maihar and after marriage appellant and complainant lived together as husband and wife for quite some time. Independent decision was taken by complainant to do love marriage with appellant. Appellant as well as complainant had rebelled from their families to do love marriage. Husband and wife have relationship of mutual trust and respect with each other. If husband and wife is having conjugal relationship with each other, due to marriage, it cannot be said that husband has exploited the wife sexually. Act of appellant is not an act of false promise to marry complainant and thereafter exploiting her. Appellant as well as complainant lived as husband and wife for some time. Both of them were in love relationship with each other. Act cannot be said to have done by appellant as complainant belongs to Scheduled Caste. There might be marital

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differences between husband and wife and there may have been act of cruelty to complainant due to their marital relationship, but said acts will not fall within the ambit of Section 3 (1) (xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Act of appellant may constitute offences under common penal law, but appellant had not targeted the complainant as she belongs to Scheduled Caste and after giving her a false promise had committed sexual exploitation of complainant.

13. In view of aforesaid facts and circumstances of the case, appeal filed by appellant is allowed. Impugned judgment dated 30/11/1998 passed by Fourth Additional Session Judge, Sagar in Special Session Case No.59/98 convicting and sentencing appellant under Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is hereby set aside. Appellant is acquitted of the charges. The appellant is on bail. His bail bonds shall stand discharged.

14. A copy of this judgment be sent to the concerned trial Court along with its record for information and necessary compliance.

VISHAL DHAGAT (JUDGE) sp/-

SUNIL Digitally signed by SUNIL KUMAR PATEL DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh,

KUMAR 2.5.4.20=3ad456309c8cfa67fdf9acdac6949bbc6ea334 2f02b1af1bdaf3424a04c11d99, pseudonym=EB80E81424E3C3A3FCB5801D65B57341 9C2D9C68,

PATEL serialNumber=5011B37A3DD5E32019F501F10E878D 2F118732491B5F40BDC9923237D954365B, cn=SUNIL KUMAR PATEL Date: 2021.12.02 10:57:37 +05'30'