Madhya Pradesh High Court
Shriram vs The State Of Madhya Pradesh on 29 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 29 th OF FEBRUARY, 2024
CRIMINAL APPEAL No. 324 of 2008
BETWEEN:-
SHRIRAM S/O FATTUJI NAYAK, AGED ABOUT 45 YEARS,
R/O SALYAKHEDA P.S. KHALWA DISTT. KHANDWA
(MADHYA PRADESH)
.....APPELLANT
(NONE)
AND
STATE OF MADHYA PRADESH THROUGH P.S. KHALWA
DIST.KHANDWA (MADHYA PRADESH)
.....RESPONDENT
(BY MS. VINITA SHARMA - PANEL LAWYER)
Reserved on : 22.02.2024
Pronounced on : 29.02.2024
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
JUDGMENT
I n this criminal appeal, the appellant has challenged the judgment of
conviction and sentence passed against him by Special Judge, the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for
brevity, "the Act"), Khandwa, on 25.1.2008 in Special Case No.43/2007 holding
him guilty of the offence of Section 457 IPC and sentencing him to rigorous
imprisonment for six months and fine amount of Rs.1,000/- with a default
clause to undergo rigorous imprisonment for two months, in case of non-
payment of fine.
2. The appellant shall hereinafter be referred to as "accused".
3 . Brief facts leading to this criminal appeal are that on the night of
20.3.2007, complainant was alone in her house as her husband had gone out; at
around 11:00 p.m. accused came inside her house and used criminal force to
outrage her modesty; complainant screamed, upon which accused ran away and
the brother-in-law of complainant saw him fleeing; in the absence of her
husband, complainant did not report the matter immediately to the police; on his
return, she went along with him and lodged the FIR on 22.3.2007; the matter
was investigated; as complainant belonged to scheduled tribe category, charge-
sheet under Sections 457 and 354 IPC and Section 3(1)(xi) of the Act was filed;
the learned trial court framed the charges and recorded the evidence. After
conclusion of trial, the judgment under challenge was passed holding the
accused guilty and punishing him as aforesaid.
4. The grounds raised in this appeal are that the learned trial court grossly
erred in convicting and sentencing the appellant under Section 457 IPC; the
judgment is perverse and contrary both on facts and law and is liable to be set
aside; on two major charges, namely Section 354 IPC and Section 3(1)(xi) of
the Act, the accused was not found guilty for the simple reason that lots of
contradictions and omissions were there in the testimony of prosecution
witnesses, still the accused was convicted for the offence of Section 457 IPC; it
was totally ignored by the learned trial court that accused was instrumental in
making reports against the family members of complainant regarding illegal
manufacturing of country liquor and outraging the modesty of a village woman;
taking avenge of it, accused was falsely implicated in the case; it was ignored
that there was a delay of two days in lodging the report; no evidence was given
about the commission of offence of lurking house trespass. It is, therefore,
prayed that the accused should be acquitted and the appeal should be allowed.
5. State has opposed the present appeal.
6. Record of the trial court is perused and arguments only on behalf of
State have been heard. No arguments were submitted on behalf of appellant for
remaining absent at the stage of final hearing.
7. Record of the trial court reveals that total six witnesses were examined
by the prosecution in this case. Prosecutrix (P.W.1), her husband (P.W.2) and
her brother-in-law (P.W.3) are the witnesses closely related to each other.
Ramdas (P.W.6) is the villager, who had gone along with prosecutrix to report
the matter to the police. The other two witnesses are - ASI Kanhaiyalal Pandey
(P.W.4), who scribed the FIR, and R. S. Hatela (P.W.5), who conducted the
investigation.
8. Prosecutrix (P.W.1) has claimed that she was sleeping in the chhapri
of her house, which did not have any door and at around 11-12 p.m. the
accused came and used criminal force to outrage her modesty. According to
her, she screamed upon which accused ran away and the brother-in-law of
prosecutrix, namely (P.W.3), has claimed that on hearing the screams of
prosecutrix, he came to the gate of his house and found that accused was
running away.
9. The husband of prosecutrix (P.W.2) has admitted the fact that he was
not in the house when the alleged incident occurred and he came to know about
it only on his return to the village. Therefore, the testimony of husband of
prosecutrix is only of hearsay nature.
10. The statements of prosecutrix (P.W.1) and her brother-in-law
(P.W.3) suggest that accused came inside the chhapri of the house of
prosecutrix to outrage her modesty by using criminal force, but no other person
saw him inside that place. The brother-in-law (P.W.3) of prosecutrix has merely
stated that he saw the accused running away, but he could not reveal that the
accused was coming out of the house of prosecutrix. Thus, his evidence is
based purely on assumption and nothing more. He has further disclosed that
prosecutrix never informed him about the purpose for which the accused had
come to her house but later contradicted himself. This witness was, therefore,
declared hostile by the prosecution, but he has also given statements
contradictory to the testimony of prosecutrix. According to him, he was told by
prosecutrix in the night itself that accused used criminal force to outrage her
modesty while prosecutrix (P.W.1) has claimed in her court testimony that she
did not meet her brother-in-law in the night of incident and met him only in the
morning. Thus, there are substantial contradictions in the testimony of these two
witnesses who are although closely related to each other.
11. Besides prosecutrix, her husband and brother-in-law, the prosecution
has relied upon the testimony of Ramdas (P.W.6) but his statements are also of
hearsay nature, therefore they do not have any credibility.
12. The accused has taken a plea of previous enmity between the parties
and for this, defence witness Chetan Giri (D.W.1) has been examined. Even
from the cross-examination of prosecution witnesses, it is an established fact
that accused was working in Gram Suraksha Samiti and he had made a
complaint against the husband of prosecutrix about manufacturing illicit liquor
and selling it. It is also admitted by prosecution witnesses, namely prosecutrix
(P.W.1), her husband (P.W.2) and her brother-in-law (P.W.3) that a case of
outraging the modesty of a girl was registered and undergoing against the son of
prosecutrix and in that case accused was instrumental in getting the FIR
registered. These facts clearly establish that accused was on inimical terms with
the family of prosecutrix and still only closely related witnesses were examined
on behalf of prosecution and even their court testimony was not corroborative
on substantial points.
13. The accused has also taken a plea that there is an unexplained delay in
lodging the FIR. Incidentally, the offence was committed in the night of
20.3.2007 and the matter was reported in the night of 22.3.2007. The reason for
delay is claimed to be the absence of husband of prosecutrix, but it is proved
from prosecution evidence that her brother-in-law living nearby and also two
grown up boys against whom criminal case was registered were there to
support her, therefore it doesn't seem probable that prosecutrix was in need of
assistance to timely inform the police. It has also been stated by the husband of
prosecutrix (P.W.2) that Sarpanch of the village was his brother. These facts
reveal that the reason given for delay in lodging the FIR is not very reliable.
14. Having considered all the aforesaid facts in their entirety, this court is
of the opinion that the conviction of accused/appellant under Section 457 IPC
is not sustainable, hence this appeal is allowed and the conviction as well as
sentence of accused/appellant under Section 457 IPC are set aside. The fine
amount, if any, deposited by the accused/ appellant be refunded to him.
15. The appellant is already on bail. His bail-bonds stand discharged.
16. Let the record of the trial court be sent back along with a copy of this
judgment for information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
ps
Date: 2024.03.01 15:55:05 +05'30'
