Madhya Pradesh High Court
Madhu vs The State Of Madhya Pradesh on 20 July, 2022
Author: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 20th OF JULY, 2022
CRIMINAL APPEAL No. 1594 of 2014
Between:-
MADHU S/O POONAM CHADRA PATEL , AGED
ABOUT 27 YEARS, VILLAGE PIPALDAGADI TEHSIL
DHARAMPURI (MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAMKRISHNA SHASTRI, ADVOCATE
THROUGH LEGAL AID)
AND
THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THRU. P.S. A.J.K. (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI BHASKAR AGRAWAL, GOVT. ADVOCATE)
This appeal coming on for hearing this day, JUSTICE
VIVEK RUSIA passed the following:
JUDGMENT
Today this appeal is listed on I.A. No.4630/2022, which
is first application under Section 389(1) of the Code of Criminal
Procedure, however, with the consent of the parties, appeal is
finally heard.
The present Criminal Appeal has been filed against the
judgment of conviction and sentence dated 29.02.2012 passed by
the Special Judge under Schedule Castes & Schedule Tribes
(Prevention of Atrocities) Act in Special Sessions Trial
No.21/2011, whereby the appellant was sentenced to undergo as
under:-
CONVICTION SENTENCE
Section Act Imprisonment Fine if Imprisonment in
deposited lieu of fine
details
366 IPC 05 years' R.I. Rs.100/- 01 month's R.I.
376(2)(G) IPC 10 years' R.I. Rs.100/- 01 month's R.I.
343 IPC 03 months' R.I. - -
3(2)(v) SC/ST (PC) Act Life Imprisonment Rs.100/- 01 month's R.I.
02. As per prosecution story, an F.I.R. was lodged against the
present appellant and one Bablu Patel at Police Station - Sagore,
District - Dhar at Crime No.158/2010 for the offence under
Sections 363, 366-A, 376(2)(G), 343, 506 Part II of the Indian
Penal Code & Section 3(2-V) of the Schedule Castes & Schedule
Tribes (Prevention of Atrocities) Act at the instance of SHO
Sagore. The allegation against the appellant is that he along with
another co-accused abducted the prosecutrix, detained her for nine
days and committed rape upon her repeatedly.
03. After the registration of F.I.R., the prosecutrix was
medically examined by Dr. Antimbala Solanki (P.W-1), in which
no definite opinion about the commission of rape was given. The
prosecutrix has been examined as P.W-2. In her statement, she
deposed that while she was working in a stone quarry, Bablu came
there, took her on motorcycle, thereafter, the present appellant and
Bablu have committed rape upon her. In the entire statement, she
has not stated that since she belongs to the schedule caste, she was
subjected to rape by the accused persons.
04. The prosecution has examined 12 witnesses to establish
the charges against the present appellant. The appellant alone was
tried as the another co-accused was absconding. After evaluating
the evidence came on record, the appellant has been convicted for
the aforementioned offences. So far as the conviction under Section
366, 376(2)(G), 343 and 506 Part - II of the IPC is concerned, he
has undergone the entire sentence as he is in custody since
29.09.2010. The only sentence which is required to be served is
Life Imprisonment on account of conviction under Section 3(2)(V)
of the Schedule Castes & Schedule Tribes (Prevention of
Atrocities) Act.
05. Learned counsel for the appellant has confined his
arguments only to the extent of conviction under Section 3(2)(V) of
the Schedule Castes & Schedule Tribes (Prevention of Atrocities)
Act, for which he has been sentenced to undergo Life
Imprisonment.
06. We have gone through the entire statement of prosecutrix
(P.W-2) and the findings recorded by the trial Court, in which
nowhere it is mentioned that offence of abduction and rape was
committed by the present appellant knowingly that the prosecutrix
belongs to the schedule castes. The Court has not recorded finding
to that effect also. The Apex Court in the case of Masumsha
Hasanasha Musalman v/s The State of Maharashtra reported in
(2000) 3 SCC 557 in paragraph - 9 has held as under:-
"9. Section 3(2)(V)of the Act provides that whoever, not
being a member of a Scheduled Caste or a Scheduled
Tribe, commits any offence under the Indian Penal Code
punishable with imprisonment for a term of ten years or
more against a person or property on the ground that such
person is a member of a Scheduled Caste or a Scheduled
Tribe or such property belongs to such member, shall be
punishable with imprisonment for life and with fine. In the
present case, there is no evidence at all to the effect that
the appellant committed the offence alleged against him on
the ground that the deceased is a member of a Scheduled
Caste or a Scheduled Tribe. To attract the provisions of
Section 3(2)(v) of the Act, the sine qua non is that the
victim should be a person who belongs to a Scheduled
Caste or a Scheduled Tribe and that the offence under the
Indian Penal Code is committed against him on the basis
that such a person belongs to a Scheduled Caste or a
Scheduled Tribe. In the absence of such ingredients, no
offence under Section 3(2)(v) of the Act arises. In that
view of the matter, we think, both the trial court and the
High Court missed the essence of this aspect. In these
circumstances, the conviction under the aforesaid
provision by the trial court as well as by the High Court
ought to be set aside."
07. In view of the law laid down by the Apex Court in the
aforesaid case, conviction under Section 3(2)(V) is hereby set
aside. Rest of the sentence are hereby confirmed. The appellant be
released from jail if he is not required in any other case.
Criminal Appeal stands partly allowed to the extent
indicated above.
Record of the trial Court be sent back along with copy of
this judgment.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2022.07.21 14:28:38 +05'30'
