Madhya Pradesh High Court
Bholu vs The State Of Madhya Pradesh on 21 November, 2022
Author: Vivek Rusia
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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 21st OF NOVEMBER, 2022
CRIMINAL APPEAL No. 1199 of 2012
BETWEEN:-
BHOLU S/O NANURAM, AGED ABOUT 22 YEARS, OCCUPATION:
LABOURER VILL.CHIKHALDA,TEH.KUKSHI (MADHYA
PRADESH)
.....APPELLANT
(SHRI HARISH JOSHI LEARNED COUNSEL FOR THE APPELLANT)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU.P.S.KUKSHI
DISTT.DHAR (MADHYA PRADESH)
.....RESPONDENTS
( SHRI KAMAL KUMAR TIWARI, LEARNED COUNSEL FOR THE
RESPONDENT/STATE)
This appeal coming on for orders this day, JUSTICE VIVEK
RUSIA passed the following:
JUDGMENT
Today, the appeal is listed for consideration of an
application under Section389 (1) of Cr.P.C. but with the consent
of parties heard finally on limited ground.
This criminal appeal is preferred under Section 374 of the
Cr.P.C. against the impugned judgment of conviction and order of
sentence dated 10.04.2022 passed in Spetial Criminal Case
No.57/2010 by Special judge, SC/ST (PA) Act, 1989 whereby the
appellant has been convicted under Section 363, 366, 376 of IPC
and Section 3(2-v) of Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (hereinafter will the referred
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as ''Act,1989 for convenience) and sentenced to undergo 3 Years
R.I., 5 Years R.I., 7 Years R.I. and Life Imprisonment with fine
of Rs.100/- each with default stipulation.
The facts of the case in short are as under:
[2] The prosecution case, in a nutshell, is that on 11.05.2010,
the appellant took the prosecutrix on the pretext of marriage. Her
mother searched her but could not find. Thereafter on 13.05.2010,
a missing person report was lodged Ex.P/5. On 03.07.2010, when
appellant took the prosecutrix at Village Ajandi. Upon
information, the relatives of prosecutrix reached there. The
prosecutrix was recovered Ex.P/4 and an FIR was registered
Ex.P/2. The appellant was arrested 06.07.2010 since then he is in
custody.
[3]. Being endorsed, the investigating officer took up the case for
investigation, recorded the statements of the material witnesses
under Section 161 of Cr.P.C, arranged for medical examination of
the prosecutrix, . The investigating officer also seized the school
certificate of the prosecutrix and visited the place of occurrence
accompanied by the prosecutrix and her parents and prepared
spot map.
[4]. After completion of the investigation, the investigating
officer submitted the charge-sheet against the accused-appellant
and the learned Special Judge after taking cognizance framed the
aforesaid charges.
[5]. During trial, the prosecution examined as many as 12
witnesses. On completion of recording of evidence, the accused
was examined under Section 313 of Cr.P.C, to which he strongly
denied the allegations brought against him by the prosecution and
claimed to be tried.
[6]. After hearing the arguments of both sides and on going
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through the evidences and materials available on record, the
learned Special Judge found the accused-appellant guilty of
committing offence and, accordingly, convicted and sentenced
him as afore-stated.
[7] Being aggrieved by and dissatisfied with the said judgment
and order of conviction and sentence, the accused appellant has
preferred the instant appeal before this Court.
[8] Learned counsel for the appellant submits that the
appellant has completed 12 years of his jail sentence. So far as
conviction and sentence for the offence under Section 363, 366
and 376 of IPC is concerned, the appellant undergone the
sentences, thus he is not assailing finding of the aforesaid
sentence. So far as conviction of 3 (2-v) of Act, 1989 is
concerned, the ingredients of the same are missing in this case. It
is not the case of the prosecution that this appellant has
committed the aforesaid crime knowingly that she belongs to
reserved category. The prosecutrix in her statement has not
alleged that she was subjected sexual assault because she belongs
reserved community, therefore, conviction under Section 3(2-v)
of Act, 1989 is bad in law.
[9] Government Advocate opposes the aforesaid submission
and prays for dismissal of appeal.
We have heard learned counsel for the parties and
examined the case.
[10] We have examined the evidence of PW-2 (prosecutrix) and
PW-3 (mother of prosecutrix). They both supported the case of
prosecution but they have not specifically stated that the offences
under Indian Penal Code have been committed because the
prosecutrix belongs to the reserved community. Learned counsel
for the appellant further submits that earlier the cast of the
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appellant was in the reserved category but later on it was
removed.
[11] The Apex Court in the case of Khuman Singh vs. State of
M.P. reported in (2020) 18 SCC 763 whereby the Apex Court has
held that if the offence against a members of the SC/ST has been
committed unknowingly that they belongs to particular
community, the conviction is not sustainable under the aforesaid
section.
[12] From the evidence and other materials on record, there is
nothing to suggest that the offence under section under Section
363, 366, 376 of IPC were committed by the appellant only
because the prosecutrix was belonging to a Scheduled Cast.
[13] In the result, the conviction of the appellant under Section
3(2-v) of Act, 1989 of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, is set aside and he is acquitted
from the said charge. The conviction of the appellant under
Section 363, 366 and 376 of IPC are maintained and he was
undergone imprisonment to the period awarded to him.
Accordingly, the appeal is partly allowed.
[14] The accused shall be set at liberty forthwith, if he is not
required in any other case.
[15] Fine amount if any deposited by the accused for the
offence punishable under Section 3(2-v) of Act, 1989 of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act shall be returned to him with due identification.
[16] Office to communicate this order to concerned jail
authority forthwith where the accused is now in incarceration.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
praveen
Digitally signed by PRAVEEN
NAYAK
Date: 2022.11.22 10:54:27 +05'30'
