Mastana vs The State Of Madhya Pradesh
2024 Latest Caselaw 4000 MP

Madhya Pradesh High Court

Mastana vs The State Of Madhya Pradesh on 12 February, 2024

Author: Anuradha Shukla

Bench: Anuradha Shukla

                                 1
 IN      THE     HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                          BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                    ON THE 12 th OF FEBRUARY, 2024
                 CRIMINAL APPEAL No. 2032 of 2006

BETWEEN:-
MASTANA S/O LATE SHEIKH SHANI MUSHALMAN,
AGED ABOUT 30 YEARS, OCCUPATION: LABOUR R/O
VILLAGE  UMARHAR,    TEHSIL AND     DISTRICT
CHHINDWARA (MADHYA PRADESH)

                                                               .....APPELLANT
(NONE)

AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION CHAND, DISTRICT CHHINDWARA (MADHYA
PRADESH)

                                                              .....RESPONDENT
(BY SHRI PRASANNJEET CHATTERJEE - PANEL LAWYER)

      Reserved on      : 24.01.2024
      Pronounced on: 12.02.2024

      This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
                                  JUDGMENT

This appeal has been preferred against the judgment passed on 26.9.2006 b y Special Judge, Chhindwara, in Special Case No.39/2005 holding the appellant convict for the offence of Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (conveniently referred to henceforth as "the Act") and sentencing him to undergo rigorous

imprisonment for six months and fine of Rs.500/- with a default clause to undergo rigorous imprisonment for additional one month, in case of non- payment of fine.

2 . The facts of the prosecution case may be summed up as, the prosecutrix had gone to her maternal uncle's home at Amarwara, Tahsil and District Chhindwara, along with her mother; on 27.10.2004 at around 8:30 p.m. she and her maternal aunt had gone for easing themselves out in an open place in the rear side of the house; while returning therefrom, prosecutrix was restrained by the appellant forcing her not to leave; apprehending his bad intentions, prosecutrix asked her aunt to go home and inform the uncle; her aunt

immediately rushed to the house and informed the inmates about the incident; they all reached to the spot immediately; on seeing them, the appellant ran away; as there was some ceremony in the uncle's house of prosecutrix, therefore, report of this incident could be made on 30.10.2004 upon which FIR was registered at Crime No.241/2004 in Police Station, Chand. The investigation was undertaken and the charge-sheet was filed. The appellant was convicted and sentenced as aforesaid.

3 . In summary, the grounds raised in this appeal are that the learned Special Judge erred in law and on facts while passing the impugned judgment; appellant did not commit any offence of outraging the modesty of prosecutrix and he was falsely implicated in the case; the prosecution witnesses had given contradictory statements despite being interested witnesses; the appellant had proved its defence through defence evidence but that was totally ignored by the trial court. It is, therefore, prayed that the appeal should be allowed and the appellant should be acquitted.

4. Learned counsel for the State has opposed the appeal by submitting

that from the prosecution evidence, guilt of appellant is clearly proved and, therefore, the trial court did not commit any error in finding the appellant guilty for the aforesaid offence. A prayer for rejection of the appeal was accordingly made.

5. No one had appeared on behalf of appellant to argue the matter finally. The arguments only on behalf of State were heard.

6 . Prosecution has examined the prosecutrix (P.W.2), her mother (P.W.6), her uncle (P.W.1), her relative (P.W.5) and other witnesses relating to the official proceedings and the investigation. The caste certificate of prosecutrix has been marked as Ex.P-1 in the evidence and the same is issued by Naib Tahsildar, Chhindwara. It is an established legal proposition that the Naib Tahsildar was never authorized to issue a caste or a tribe certificate for the purpose of prosecution under the provisions of the Act. Therefore, it cannot be successfully claimed that the caste of prosecutrix was proved to be of scheduled caste category on the basis of this document issued by an unauthorized person.

7. Besides the caste certificate of Ex.P-1, the prosecution has relied upon the oral testimony to prove that the prosecutrix was a member of scheduled caste category but it has been held in the case of Manohar Sawai Rathod v. State of Maharashtra 2007 Cr.L.J. (NOC 785) 202 that mere statements of

aggrieved person about his caste are not sufficient and the prosecution requires to prove this fact by some reliable documentary evidence.

8 . The prosecution witnesses, namely the prosecutrix (P.W.2) and her relatives P.W.1, P.W.5 and P.W.6 have coherently stated that the prosecutrix belonged to the scheduled caste category but mere oral submission in this

regard is not sufficient. As has been discussed earlier and also in the judgment of Bhagwat Singh v. State of Madhya Pradesh 2006 (1) ANJ (MP) 355 that the prosecution is required to prove that the victim belonged to a vulnerable caste or tribe and for this reason the crime was committed, but here only oral statements have been made. It may be not out of reference to mention here that the prosecutrix was a resident of different village and had come to her relatives' place where the incident allegedly occurred. There is no evidence to prove that the appellant was acquainted with the ancestry and the caste of prosecutrix. Therefore, in absence of specific proof regarding the fact that prosecutrix was a member of scheduled caste category, the conviction of appellant under Section 3(1)(xi) of the Act is not sustainable.

9. The alleged act of appellant was that he used criminal force to outrage the modesty of prosecutrix and to prove this fact, the statements of not only the prosecutrix (P.W.2) but also the girl who was accompanying her at the time of incident, namely (P.W.5), have been recorded before the trial court. They both have been consistent in their narration of incident. The appellant has failed to prove any inimical relationship between him and the prosecutrix or her relatives. Although defence witness Poosa (D.W.1) has been examined to prove the fact that at the time of incident appellant was in the house of this witness, but this witness has admitted that even on hearing the rumor of the incident he did not take any steps to inform the police about the presence of appellant with this witness at the alleged time of incident. It is also relevant to note here that there is a variance in the suggestions given by the defence side to the prosecution witnesses about the identity of person with whom the appellant was at the time of incident. To the prosecutrix (P.W.2) and her uncle (P.W.1), the suggestions have been given by the defence side that appellant was in the tractor of Ram

Dinesh at the alleged time of incident. To the other relatives of prosecutrix, namely (P.W.5) and (P.W.6), the suggestions have been given that appellant was in the house of his brother at the alleged time of incident. This variance in defence plea reveals that it is not worthy of credit, hence statements regarding plea of alibi given by defence witness Poosa (D.W.1) cannot be given any weight.

1 0 . On the basis of corroborative testimony of prosecutrix and her relatives, it is proved that the appellant used criminal force to outrage the modesty of prosecutrix. Though it is claimed that appellant is physically handicapped but there is no certificate filed to disclose the percentage of disability. In the absence of any such evidence, it cannot be assumed that appellant was not physically fit to commit the crime of outraging the modesty of a woman by using criminal force. Further, it has been claimed by the relative of prosecutrix, namely (P.W.1), in para 7 that appellant drives a tractor and this fact has not been challenged during the cross-examination of victim, therefore the plea of disability has no gravity.

11. On the basis of above discussion, it is held proved that the appellant by using criminal force with a bad intention on the prosecutrix outraged her modesty and, thus, committed the offence of Section 354 IPC, which is an offence of lesser gravity but of similar nature in comparison to the offence of Section 3(1)(xi) of the Act.

1 2 . Accordingly, the appellant is held convicted for the offence of Section 354 IPC and looking to the nature of his act, he is sentenced to rigorous imprisonment of three months and fine amount of Rs.5,000/- which shall be payable to the prosecutrix as compensation under Section 357(1)

Cr.P.C. In case the appellant makes default in payment of fine, he shall undergo additional rigorous imprisonment for four months. The enhanced fine amount shall be paid within a period of one month from the date of this judgment.

13. The appellant is already on bail and his bail-bonds stand discharged.

14. Let a copy of this judgment be send to the trial court along with its record for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Date: 2024.02.13 10:35:33 +05'30'