Madhya Pradesh High Court
Gopal vs The State Of Madhya Pradesh on 2 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 2 nd OF FEBRUARY, 2024
CRIMINAL APPEAL No. 2068 of 2008
BETWEEN:-
GOPAL S/O RAM PRASAD, AGED ABOUT 45 YEARS,
VILL.REWAPUR PS.NAYA HARSUD DI.KHANDWA
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI SOMESH GUPTA -ADVOCATE AS AMICUS
CURIAE)
AND
THE STATE OF MADHYA PRADESH PS.NAYA HARSUD
DI.KHANDWA (MADHYA PRADESH)
.....RESPONDENT
(BY MS. SEEMA SAHU - PANEL LAWYER)
Th is appeal coming on for hearing this day, t h e court passed the
following:
JUDGMENT
By the present appeal filed under Section 374(2) of the Code of Criminal
Procedure, the appellant has challenged the judgment of conviction and order of
sentence passed by Special Judge, SC/ST (Prevention of Atrocities) Act
Khandwa in Special Case No.67/2007 whereby the appellant has been
convicted under Sections 354 of IPC and sentenced to undergo 6 months RI
and fine of Rs. 100/- and in default, to further undergo 1 month RI and Section
3(1)(11) of SC/ST (Prevention of Atrocities) Act and sentenced to undergo 6
months RI and fine of Rs. 250/- and in default, to further undergo one month
RI.
2. As none appeared on behalf of the appellant, Shri Somesh Gupta,
Advocate who is present in the Court, has been requested to assist the Court on
behalf of the appellant as amicus curiae.
3. The facts necessary for disposal of the present appeal in brief are that on
07.07.2007 at about 4:00 pm, when prosecutrix after attending the nature call
was coming to her home with Vipda Bai then appellant came there and insulted
the prosecutrix and used criminal force with intention to outrage her modesty.
on 10.07.2007, prosecutrix has lodged FIR at Police Station-Naya Haraud
District-Khandwa, thereupon the case of offence under Sections 354 of IPC
and Section 3(1)(11) of SC/ST Act was registered against the appellant and
after investigation, the challan is filed against the accused under the said
offence. During the trial, the prosecution has examined the prosecutrix (PW-1),
Kodai (PW-2), Vipdabai (PW-3), Amar Singh (PW-4), Dropadabai (PW-5), Dr.
Ashish Raj Mishra (PW-6), Vijay Kumar (PW-7) and R.S. Hadila (P-8). While
Gopal accused/appellant was examined as defence witness himself.
4. Thereafter, learned trial Court after considering the evidence on record by
impugned judgment convicted and sentence the appellant as mentioned in para 1
above. Against this, appellant has preferred appeal.
5. It is submitted by the learned amicus curiae for the appellant that the
incident was of year 2007 and since then the accused is facing mental agony.
Appellant has no criminal antecedent, he is first offender. After getting the bail,
he never misused the liberty. There was no mens rea behind the incident so a
liberal view on the point of sentence under Sections 354 of IPC be taken by the
Court, so he prayed that the sentence be reduced to period already undergone
by him and so far as the offence of under Section 3(1)(11) of SC/ST
(Prevention of Atrocities) Act is concerned, that is not proved in absence of
caste certificate issued by appropriate authority.
6. Per contra, Learned Panel Lawyer for the respondent/State submitted that
learned trial Court has properly appreciated the evidence on record and has
rightly convicted and sentenced appellant but he did not dispute that the caste
certificate was issued by the Sarpanch who is not authorized under the Special
Act to issue the caste certificate.
7. Having hearing learned counsel for the parties and careful perusal of the
record, it reveals that prosecutrix (PW-1) stated in her statement that she
belongs to ST community but in this regard the caste certificate (Ex. P/3) was
issued by Gram Panchayat, Harsud and Sarpanch of that panchayat Dropadi
Bai has deposed in favour of this certificate, she admits in her cross-
examination that she did not issue the certificate as per the record of the Gram
Panchayat. Therefore, this certificate Ex. P/3 does not inspire the confidence of
the Court as well as the certificate is issued by the gram panchayat and
sarpanch of gram panchayat had no authority to issue such certificate. The
authorized person are revenue officer or Sub Divisional Officer. No reason has
been assigned by the prosecution that why this certificate has not been taken
from SDO or Tehsildar. Therefore, in the absence of such available
documentary evidence which could have been gathered by the prosecution and
submitted before the Court, it is not established that the prosecutrix was the
member of ST community.
8. In Criminal Appeal No. 406/1998 (Shankarlal Vs. State of MP)
Coordinate Bench of this Court vide judgment dated 04.07.2013 held that it is
necessary to prove that the accused has insulted the complainant with intent to
humiliate him/her on the ground of complainant being a member of scheduled
caste.
9. In Chalaniya Dheemar Vs State of Madhya Pradesh, ILR 2012 MP
189 and Pillu Alias Pyarelal Vs State of Madhya Pradesh, ILR 2012 MP
1309, it has been specifically held by coordinate Bench of this Court that if
caste of victim is not proved by cogent and reliable document issued by the
competent authority, then mere oral deposition of witness would not be
sufficient to prove the caste certificate.
10. In the above factual backdrop when the prosecution failed to prove the
offence under Section 3(1)(11) of SC/ST (Prevention of Atrocities) Act,
conviction and sentence of appellant under Section 3(1)(11) of SC/ST
(Prevention of Atrocities) Act is hereby set aside. Fine amount imposed under
this section if deposited by the appellant, be returned to him.
11. So far as the conviction under section 354 of IPC is concerned in that
regard prosecutrix (PW-1) has supported the prosecution version that the
appellant has used criminal force against her to outrage her modesty. This
version is supported by Kodai (PW-2), Vipda Bai (PW-3) and further
supported by the medical evidence (Ex. P/4) i.e. MLC and further supported
by FIR (Ex. D/1) and these witnesses remained intact in their cross examination
and the statement of witnesses in this regard render proved that the offence
under 354 of IPC was committed by the accused/appellant, therefore, the
conviction of appellant under 354 of IPC is hereby affirmed.
12. As far as the the sentence in aforesaid offence is concerned, it is
apparent from the perusal of the record that the incident took place in the year
2007, since then the accused is facing mental agony. The appellant remained in
custody for 1 day. He was of 45 years old at the time of incident. The
prosecution has not brought any past criminal antecedents of the appellant on
record and he did not misuse the liberty granted to him under the bail. There is
no minimum sentence prescribed under Section 354 of Indian Penal Code at
that time, I deem it proper to reduce the jail sentence of the appellant to the
extent of the period which he has already undergone.
13. Accordingly the appeal is partly allowed. The appellant is acquitted
from the charges under Section 3(1)(11) of SC/ST Act and sentence with
regard to the offence under Section 354 is reduced to the period already
undergone by him and the sentence of fine amount is maintained. The appellant
is on bail. Bail bonds and personal bonds of the appellant are hereby
discharged. The order of the trial Court regarding disposal of the property shall
be intact.
14. The record of the learned trial Court along with the copy of the judgment
be sent back forthwith to the concerned trial Court for compliance and
necessary action.
(RAJENDRA KUMAR VANI)
JUDGE
L.R.
