Makku Lal & Anr. vs The State Of M.P.
2022 Latest Caselaw 6185 MP

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   IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                       BEFORE
           HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                           ON THE 26TH OF APRIL, 2022
                     CRIMINAL APPEAL No.2059 of 1998

   Between:-

    1. MAKKULAL S/O CHATAR GOULI
    AGED ABOUT 19 YEARS, R/O
    DHOKYA PATHAR, TAHSIL AND
    DISTRICT BETUL (M.P.)

    2. SHAMBHULAL S/O RONYA
    GOULI, AGED 17 YEARS. R/O
    DHOKYA PATHAR, TAHSIL AND
    DISTRICT BETUL (M.P.)
                                                                     ......APPELLANTS
   (BY SHRI G.P. PATEL, ADVOCATE )

    AND

   THE STATE OF MADHYA PRADESH.
                                                                       ...RESPONDENT


   (BY SHRI TEEKARAM KURMI, PANEL LAWYER FOR THE
   RESPONDENT/STATE)
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       This appeal coming on for final hearing this day, Justice Dinesh
Kumar Paliwal, passed the following:
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                                JUDGMENT

This appeal under Section 374 (2) of the Cr.P.C. has been preferred against the judgment of conviction and order of sentence dated 21.08.1998 by Special Judge, SC/ST (Prevention of Atrocities) Act, Betul passed in Special Case No. 63/1997 (State of MP Vs. Makkulal and another) by which the appellants have been convicted and sentenced for commission of offence under Section 3(1)(xi) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as POA Act) and have been sentenced to undergo R.I. for one year and fine of Rs. 200/- and in default of fine further one months S.I.

2. In brief the facts are that on 25.10.1997 at around 2:30 pm Bhutto Bai (PW-2) resident of Kodaroti, P.S.Betul lodged an FIR stating that she is a farmer and her field is out of village Kodaroti. Her house is situated at field. In the intervening night of 24-25/10/1997, her husband after dinner had gone to sleep in the hut for safety of engine. She was sleeping in her home, at around 2 a.m. her younger son started weeping due to which she woke up and was feeding to her son. There are no doors in the house. Two persons entered into her house and lit the torch. In the light of torch, she identified both of them. When she tried to raise alarm, Makkulal with bad intention pressed her mouth from his hand and started to press her breast by another hand and Shambhu Lal started to open her sari. She gave a blow from her hand in the hand of Makkulal due to which he removed his hand from her mouth, she raised alarm. Hearing the alarm raised by Bhutto Bai (PW-2), her husband who was sleeping in the hut alongwith torch came towards her house side. Seeing her husband coming, both fled away, though

her husband identified them in the light of torch. If her husband had not reached there, both persons had done bad things with her. Hearing noise, Gannu Gond also reached there, whom she narrated entire story. She also informed Sukhlal about the incident. She alongwith her husband and Gannu Gond went police station to lodge the FIR. On the basis of narration given by the Bhutto Bai (PW-2), FIR Ex.P/5 was registered in Police Station-Betul by Head Constable Darbari Lal (PW-3). On the basis of Ex.P-5, FIR Ex. P/1 was recorded by ASI R.K. Tiwari. After investigation, charge sheet was filed before Court.

3. Learned Judge framed charge against the accused/appellants for commission of offence under Section 3(1)(xi) of POA Act. Accused/appellants abjured their guilt and claimed to be tried.

4. In order to prove its case, the prosecution has examined five prosecution witnesses namely Gurmukhdas Lakhani (PW-1), Bhutto Bai (PW-2), Darbarilal (PW-3), Chabbulal (PW-4) and Gannu (PW-5).

5. The learned counsel for the appellants submitted that learned trial Court has not properly appreciated the evidence of prosecution witnesses. Prosecution has not led any evidence to prove that complainant Bhutto Bai (PW-2) is a member of SC/ST community, in want of evidence by the prosecution, learned trial Court was not justified to convict the appellants under Section 3(1)(xi) of POA Act. Learned counsel further contended that learned trial Court has misread and mis-appreciated the evidence of Bhutto Bai (PW-2) whose evidence has not been corroborated by any other witnesses. Learned trial Court has not considered the fact that appellants and Bhutto Bai (PW-2) were having the dispute over cattle

grazing and their relations were strained. Therefore, they have falsely been implicated. Learned trial Court has misread the evidence of witnesses and has not considered the contradictory evidence of Bhutto Bai (PW-2), her husband Chabbu Lal (PW-4) and Gannu (PW-5) in proper perspective. No source of light was available in the so called house of Bhutto Bai (PW-2). In this regard the evidence of Bhutto Bai (PW-2) and Gannu (PW-5) is contradictory. Learned trial Court has not appreciated the prosecution evidence in the proper perspective and appellants have been convicted without any cogent and reliable evidence against them. Learned counsel has prayed that impugned judgment of conviction being against the evidence available on the record is erroneous. Hence, he has prayed that impugned judgment may be set aside and the appellants/accused may be acquitted for the commission of aforesaid offence.

6. On the other hand, learned Panel Lawyer for the respondent/State has supported the judgment of conviction rendered by the trial Court and has pointed out that learned trial Court has properly appreciated the prosecution evidence. Charge has been proved. Learned trial Court has not committed any error in accepting the prosecution case, judgment passed by the trial Court does not suffer from any infirmity. Therefore, it does not call for interference. Thus, he has prayed to dismiss the appeal.

7. I have heard rival submissions put-forth by learned counsel for the parties and perused the trial Court record.

8. After hearing learned counsel appearing on behalf of the parties it is to be examined that to prove the charge under Section 3(1)(xi) of the

POA Act, the sufficient material is available on the record or not. In this context the definition of scheduled caste and scheduled tribe enumerated under Section 2(1)(c) of the Act requires consideration, however it is reproduced as under:-

2. Definition.-(1) In this Act unless the context other wise requires,-

(c) "Scheduled Castes and Scheduled Tribes" shall have the meaning assigned to them respectively' under clause (24) and clause (25) of article 366 of the constitution.

9. The provision of the Section 3(1)(xi) of the POA Act is also required to be seen which is reproduced as under.:-

3. Punishments for offence of atrocities.- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty ;

10. Bhutto Bai (PW-2) in his testimony has deposed that she is from Korku society and accused persons are from Goli society. Same is the evidence of her husband Chabbu Lal (PW-4).

11. In this case, it also can not be over looked that prosecution has not produced any evidence on record to prove that Bhutto Bai (PW-2) belongs to scheduled caste or scheduled tribe as Korku society as no caste certificate issued by the competent authority has been produced and proved by the prosecution. Therefore, merely on the basis of oral evidence that

complainant belongs to Korku society is not enough. It is required to prove that Korku society or caste falls within the caste specified in the presidential notification issued under Article 341 of the Constitution of India. In the case of Harlal Vs. State of M.P. ILR (2013) MP 1440 it has been held that "in the present case prosecution has not filed any caste certificate issued by the competent authority proving the fact that the complainant belongs to sub cast Jatia which falls within the Jatav caste notified by the presidential notification. Prosecution has not brought unimpeachable, cogent, oral evidence of the Investigating Officer to prove the fact that the Jatia sub caste falls within the caste Jatav, which is notified as a Scheduled Caste for the purpose of State or Union territory. In absence of the aforesaid legal evidence charge under Section 3(1)(10) of Prevention of Atrocities Act is not found proved."

12. It is clear that prosecution has not been successful to prove that Bhutto Bai (PW-2) and her husband Chabbu Lal (PW-4) belong to scheduled caste or scheduled tribe. Therefore, learned trial Court was not justified to convict the appellants for commission of offence under Section 3(1)(xi) of the POA Act.

13. Next question arises whether accused persons attempted to outrage the modesty of Bhutto Bai (PW-2) by pressing her mouth and breast.

14. Chabbu Lal (PW-4) is the husband of Bhutto Bai (PW-2). In para 6 of his cross examination, he has stated that after hearing noise of "thief thief" when he reached at his house, her wife narrated him the incident. He has admitted that he had neither seen the accused persons on the spot nor had seen them fleeing from the spot. He has refused to identify

them while running from the spot.

15. Gannu (PW-5) in his cross examination has stated that when he reached on the spot after hearing the noise of "thief thief" Bhutto Bai (PW-

2) had narrated the incident to him and had also stated that she had identified the accused persons in the light of lamp and he had seen the lamp burning in the house of Bhutto Bai (PW-2). Thus, as far as the reliability of evidence of Chabbu Lal (PW-4) and Gannu (PW-5) is concerned they are hearsay witnesses and have reached on the spot after incident. Hence, no reliance can be placed on their hearsay evidence as they had neither seen the accused on the spot nor fleeing from the spot.

16. Darbarilal (PW-3) is scribe of Ex. P-5. Gurmukhdas Lakhani (PW-1) is the investigation officer. In his cross examination, Gurmukhdas Lakhani (PW-1) has admitted that he had recorded the statement of witnesses on 14.11.1997 almost after 15-16 days of the incident. He further admitted that the statements of witnesses recorded by him are not in his own handwriting. He has stated that he had not recovered any torch from the accused persons and from complainant's husband.

17. In this case the entire prosecution case hinges on the evidence of Bhutto Bai (PW-2). Her evidence requires to be re-appreciated by this Court. Bhutto Bai (PW-2) has deposed that she knew both the accused persons. She belongs to korku society and accused persons belong to Goli society. Eight days before Deepawali, at around 3 am she along with her feeding son was sleeping in her house built at field. Her husband was sleeping in a hut situated on other field. She was awakening as she was feeding her son. Both the accused persons entered into her house and lit the

torch at this when she raised alarm, Makku Lal pressed her mouth by his hand and pressed her breast and Sambhu Lal tried to open her sari. Hearing alarm raised by her, her husband came running from the hut. Her husband was having a torch. She had identified the accused persons in the light of the torch. She had narrated entire story to her husband and Gannu Gond, village Patel and Sarpanch. She had lodged FIR Ex.P/5.

18. In her cross examination, Bhutto Bai (PW-2) has admitted that accused persons cattle had entered in her field for a number of times and had damaged her crops owing to which she had asked them for a number of time not to allow their cattles to enter into her field. She has admitted that she had abused accused persons for number of time as their cattle had caused damage to her crops. She has further stated that even after her abusing, accused persons cattle continue to enter into her filed due to which she had spat and strained relations with the accused. The aforesaid admissions made by Bhutto Bai (PW-2) makes it clear that she was having dispute with appellants/accused over the issue of entry of their cattle in the field of Bhutto Bai (PW-2) as cattles were causing damage to her crops.

19. In her cross examination, Bhutto Bai (PW-2) has stated that after entering into room, accused had lit the torch and in the light of torch she had identified them. She has specifically stated that there was no other source of light in her house to identify the accused. She has admitted that her husband had not seen accused persons. The aforesaid evidence of Bhutto Bai (PW-2) appears suspicious. Even if for the sake of argument it is assumed that appellants/accused were having any torch and they had lit the torch towards the face of Bhutto Bai (PW-2) who was sleeping with her feeding

child. It was not possible for her to recognize the accused persons who had lit the torch toward her face and not towards their own face. Therefore, the evidence of Bhutto Bai (PW-2) that he had identified the appellants/accused in the light of torch of appellants/accused, appears manufactured and suspicious.

20. The evidence of Bhutto Bai (PW-2) about availability of light in her house where she was sleeping is also contradictory to the evidence of Gannu (PW-5). Gannu (PW-5) in his cross examination has stated that Bhutto Bai (PW-2) had told him that he had identified the accused person in the light of lamp and he had seen a lamp burning in the house of Bhutto Bai (PW-2) whereas Bhutto Bai (PW-2) has nowhere stated that lamp was burning in her house. It appears that she is purposefully speaking a lie about identification of accused in the torch light. Therefore, the evidence of Bhutto Bai (PW-2) in the light of the evidence of Gannu (PW-5) does not appear worth credence. It also cannot be looked over that Bhutto Bai (PW-2) was having spat with appellants/accused over the entry of cattles in her field, which were causing damage to her crop and over that issue she had rebuked appellants/accused for number of occasions. Therefore, the possibility of false implication of the appellants/accused with a view to teach them a befitting lesson by Bhutto Bai (PW-2) also cannot be ruled out. Therefore, the evidence of Bhutto Bai (PW-2) who had strained relations with appellants/accused does not inspire confidence.

21. Learned trial Court in para 8 of the judgment has mentioned that Chhabu Lal (PW-4) has supported the evidence of her wife Bhutto Bai (PW-2) as he had identified the appellants/accused in the light of torch. It

appears that learned trial Court has not read the whole evidence of Chhabu Lal (PW-4). In his cross examination, he has clearly stated that he had neither seen the accused persons on the spot nor he had seen them fleeing from the spot. Thus, it is apparent that the learned trial Court has misread the evidence of Chhabu Lal (PW-4). It is a settled position of law that conviction can be based even on solitary evidence of a witness if his/her evidence is found reliable and trustworthy.

22. In this case solitary evidence of Bhutto Bai (PW-2) does not inspire confidence. Hence, learned trial Court was not justified in accepting her evidence as truthful.

23. Thus, in the light of aforesaid analysis of the evidence, this Court is of the considered view that learned trial Court has committed material illegality by not appreciating the evidence of prosecution witnesses in proper perspective.

24. Therefore, for the reasons mentioned hereinabove, the findings recorded by the learned trial Court convicting the appellants/accused for commission of offence under Section Section 3(1)(xi) of POA Act are not worth upholding.

25. Consequently, the appeal filed by the appellants is hereby allowed, impugned judgment of conviction and order of sentence dated 21.08.1998 by Special Judge, SC/ST (Prevention of Attrocities) Act, Betul passed in Special Case No. 63/1997 is set aside. The appellants Makkulal and Shambhulal are acquitted of the offence punishable under Section 3(1)

(xi) of the POA Act. Their bail bond shall stand discharged.

26. Trial Court record along with copy of the judgment be immediately sent down to the Court of Special Judge SC/ST (Prevention of Atrocities) Act Betul.

(DINESH KUMAR PALIWAL) JUDGE

L.R.

Digitally signed by LALIT SINGH RANA Date: 2022.04.27 18:31:03 +05'30'