Madhya Pradesh High Court
Ashok Kumar vs The State Of M.P. on 5 March, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL APPEAL No.122 OF 2001
BETWEEN:-
ASHOK KUMAR S/O RAM BAHADUR
SHARMA AGE ABOUT 22 YEARS , R/O
VILLAGE KINHI P.S. RAMPAYALI, TAHSIL
VARASHIWANI, DISTRICT - BALAGHAT
M.P.
.....APPELLANT
(BY SHRI VINOD TIWARI - AMICUS CURIAE FOR APPELLANT)
AND
THE STATE OF M.P. THROUGH THE
POLICE CHAUKI - KHAIRLANJI, THANA
RAMPAYALI, TAHSIL - VARASHIWANI,
DISTRICT- BALAGHAT, M.P.
.....RESPONDENT
(SHRI K.S PATEL - PANEL LAWYER FOR STATE)
---------------------------------------------------------------------------------------
Reserved on : 17.01.2024
Pronounced on : 05.03.2024
.....................................................................................
2
This Criminal Appeal having been heard and reserved for order,
coming on for pronouncement on this day, Justice Gajendra Singh
pronounced the following:
JUDGMENT
This Criminal Appeal under Section 374(2) of the Code of
Criminal Procedure has been preferred being aggrieved by the judgment
dated 09.01.2001 in Special Criminal Case No.95 of 2000 by the 1 st
Additional Special Judge, Varashivani, District - Balaghat whereby the
appellant/accused has been convicted under Section 3(1)(xi) of the SC
and ST (POA) Act, 1989 and sentenced to 6 months R.I.
2. Facts in brief are that victim (PW-1) belongs to Bijwar caste
coming under scheduled tribe category in the State of M.P. whereas
accused does not belong to SC or ST category. On 02.02.2000 at 6 PM,
victim (PW-1) went in the house of Sursen Mahule for getting a bed.
Victim and appellant/accused was sitting on the cot. Wife of Sursen
handed over the bed to victim (PW-1). When she was returning with bed
then appellant/accused snatched her Saree and caught hold the hands of
victim (PW-1) and kissed on her cheek. Victim (PW-1) cried, Sursen and
his wife came to the place of incident and victim (PW-1) told the incident
to her husband and victim and her husband came to the house of Sursen.
Appellant/accused was also sitting in the house of Sursen. Sursen
apologized for his deed but victim (PW-1) lodged a report at Police Out
Post Khairlanji and a Crime No.89/2000 was registered at Police Station-
Rampayali, District - Balaghat. After the investigation a final report
under Section 354 of IPC and Section 3(1)(xi) of SC and ST (POA) Act,
1989 was submitted to the Court of JMFC, Waraseoni where a Crime
Case No.887/2000 was registered. Thereafter, case was committed to the
First Additional Special Judge, Waraseoni and a charge under Section
3(1)(xi) of SC and ST (POA) Act, 1989 alternative Section 354 of the
IPC was framed and appellant/accused abjured the guilt.
3. To prove the charge against the appellant/accused, prosecution has
examined the victim as PW-1, her husband as PW-2, Sursen as PW-3,
Shyam Lata Bai as PW-4 and Assistant Sub Inspector S.R. Sahu as PW-5.
4. In examination under Section 313 of Cr.P.C., appellant/accused put
the defence that he was coming inside the house of Sursen and victim
(PW-1) was going out side the house of Sursen and could not see to each
other and they come upon each other. He did not kissed the victim.
Thereafter, she demanded an amount of Rs.25,000/-. He denied then false
report was lodged. He is innocent.
5. Appreciating the evidence, trial Court found that victim (PW-1)
reliable and also found corroboration of PW-1 from the FIR (Ex.P-2) and
eye-witness Shyam Lata Bai (PW-4) and also recorded the reasons why
Sursen (PW-3) has not supported the prosecution and accordingly
convicted the appellant/accused under Section 3(1)(xi) of SC and ST
(POA), Act, 1989 and sentenced accordingly.
6. Feeling aggrieved by the judgment of conviction and sentence, this
appeal has been preferred on the ground that the conviction and sentence
and findings are perverse. Contradictory to material on record. Facts and
circumstances of the case does not prove the offence under Section 3(1)
(xi) of the SC and ST (POA) Act, 1989. No independent witnesses has
supported the prosecution case.
7. Trial Court failed to appreciate that the victim is the first offender.
There is no criminal antecedent of appellant, therefore, the benefit of
probation of Offenders Act ought to have been granted. None of the
offence is too much severe.
8. Heard.
9. Prosecution supported the conviction and sentence.
10. Perused the record.
11. Victim (PW-1) has denied all the suggestions put in defence by the
appellant/accused in para No.3 of her statement. Her cross-examination
contain only one paragraph and no material has been elicited in her cross-
examination. Shyam Lata Bai (PW-4) has corroborated the victim (PW-
1). In her cross-examination also no materiel has been elicited that could
substantiate the defence. Even Sursen (PW-3) corroborates the fact that
on the date of incident, appellant/accused was present in his house when
victim (PW-1) came to take the bed. Defence of appellant/accused that he
came upon victim innocently is not proved even to the standard of
preponderance of probability. Accordingly, it is proved that
appellant/accused used criminal force on the victim (PW-1) who is a
woman by kissing her cheek and that act shows his intention to outraige
the modesty of the victim (PW-1).
12. To that extent, the findings recorded in para-10 does not call for
interference but trail Court has not discussed the evidence regarding
victim's category coming under ST. In fact prosecution failed to adduce
the evidence in this regard. Accordingly, it is not proved that the victim
belongs to ST category. Therefore, appellant cannot be convicted under
Section 3(1)(xi) of SC and ST (POA) Act, 1989. Appellant/accused was
prosecuted under Section 3(1)(xi) of SC and ST (POA) Act, 1989
alternatively Section 354 of IPC. Appellant/accused cannot be convicted
under Section 3(1) (xi) of SC and ST (POA) Act, 1989 but rest of the
proved facts constitute the offence under Section 354 of the IPC and
hence, appellant/accused can be convicted under Section 354 of IPC.
Accordingly, he is acquitted from the Section 3(1)(xi) of SC and ST
(POA) Act, 1989 and is convicted under Section 354 of IPC.
13. In para Nos.12, 14 and 20 of the Ajahar Ali vs. State of West
Bengal, (2013) 10 SCC 31, it is held that :-
12. In the instant case, as the appellant has
committed a heinous crime and with the social
condition prevailing in the society, the modesty of a
woman has to be strongly guarded and as the
appellant behaved like a roadside Romeo, we do not
think it is a fit case where the benefit of the 1958 Act
should be given to the appellant.
14. The provisions of Section 354 IPC have been
enacted to safeguard public morality and decent
behaviour. Therefore, if any person uses criminal
force upon any woman with the intention or
knowledge that the woman's modesty will be
outraged, he is to be punished.
20. In Sadhupati Nageswara Rao v. State of
A.P. [(2012) 8 SCC 547 : (2012) 3 SCC (Cri) 979 :
(2012) 2 SCC (L&S) 638 : AIR 2012 SC 3242] this
Court observed that the courts cannot take lenient
view in awarding sentence on the ground of
sympathy or delay as the same cannot be any ground
for reduction of sentence.
14. In light of Ajahar Ali (supra) prayer of appellant/accused to enlarge
on Probation of Offenders Act, 1958 is also not fit to be allowed.
Sentence of 6 months rigorous imprisonment under Section 354 of the
IPC is commensurate to the offence proved. Appellant/accused will
undergo rigorous imprisonment for 6 months under Section 354 of IPC.
15. With such modification, this appeal is dismissed.
(GAJENDRA SINGH)
JUDGE
DPS
DHEERAJ PRATAP SINGH
2024.03.06 19:07:00 +05'30'
