Yogesh vs The State Of M.P.
2024 Latest Caselaw 12326 MP

Madhya Pradesh High Court

Yogesh vs The State Of M.P. on 2 May, 2024

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                     BEFORE
                                     HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
                                                   ON THE 2 nd OF MAY, 2024
                                             CRIMINAL APPEAL No. 1268 of 2002

                           BETWEEN:-
                           YOGESH, S/O. CHINTA MAN PARIHAR, AGED ABOUT 19
                           YEARS, R/O. VILLAGE ASHTA, P.S. BARGHAT, DISTRICT
                           SEONI (MADHYA PRADESH)

                                                                                            .....APPELLANT
                           (BY SHRI RAVI KANT AGRAWAL - ADVOCATE)

                           AND
                           THE STATE OF M.P. THROUGH P.S. BARGHAT (MADHYA
                           PRADESH)

                                                                                          .....RESPONDENT
                           (BY SHRI VINOD TIWARI - PANEL LAWYER FOR THE STATE)

                                 This appeal coming on for final hearing this day, the court passed 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 07.08.2002 in Special Criminal Case No.49/2001 passed by Special Judge, Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, Seoni (M.P.) whereby appellant/accused has been convicted under Section 451 of IPC and sentenced to undergo R.I. for six months and a fine of Rs.100/-, Section 354 of IPC and sentenced to undergo R.I. for six months and Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act, 1989 and sentenced to undergo R.I. for six months and a fine of Rs.100/- with default stipulations.

2 . The prosecution case before Trial Court was that on 08.10.2001 at 19:30, the victim was at home in village Ashta. At 7:30 pm, she was laying in her home alongwith her children, the appellant entered into her home and called her b y Bhabhi-Bhabhi and asked about her husband then he caught hold her hand. He was carrying towards the Badi and stated that she would understand why he is carrying her toward the Badi on that she cried. Her sister-in-law Sunita and niece Varsha reached there looking to them, the accused ran away from the spot. After five minutes, he returned back on that her brother-in-law (Nandoi) Jaidev and sister-in-law Sunita heard and they reached to appellant. He caught hold the feet of Jaidev and started begging pardon, when her husband

came to home and she narrated the story to him and lodged an FIR on 09.10.2001 at 13:50 at Police Station Barghat. On that basis, the FIR as crime no.174/2001 was lodged under Section 354 of IPC and Section 3(1)(xi) of SC/ST (POA) Act. The victim was medically examined. The caste certificate was obtained. Witnesses were examined and after usual investigation, the chargesheet under Sections 458, 354 of IPC and Section 3(1)(xi) of SC/ST (POA) Act was filed before the CJM. On commitment, the case was submitted to Special Judge.

3. Trial Court framed the charges under Section 458, 354 of IPC and Section 3(1)(xi) of SC/ST (POA) Act. Appellant abjured guilt and pleaded his innocence and prayed for trial.

4. Trial Court recorded the statement of the prosecution witnesses and examined the appellant. The appellant in his support has examined Roshanlal (DW-1) as a defence witness. After hearing the parties, Trial Court has acquitted the appellant from charges punishable under Section 458 of IPC but

convicted as stated in column no.1 of the judgment, hence this appeal.

5. Learned counsel for appellant has submitted that the statement of the victim recorded in the FIR (Ex.P-1) and the police statement Ex.D-1 are totally different from the statement made before the Court. She has stated that appellant came into her home thrice. From the spot map and statement of the witnesses, it is clear that the house of the victim is attached to the house of Sunita (PW-4) and Jaidev (PW-3). It is impossible that the accused time and again came in her home and she cried, the neighbours that are relatives of the victim have not seen the incident. The witness Jaidev Bhilave (PW-3) in his statement has clearly admitted that he has not heard the voice of appellant and he has also admitted that when the accused came, he asked him that has he misbehaved with the victim? The appellant has clearly stated that he came to demand his credited amount and he asked that he has further stated that he has not committed any mistake and after that he returned to his home.

6. Learned counsel for appellant further argued that the accused has supplied the seeds of paddy and also supplied some pigeons to victim family. The amount of these items were not paid so he went to demand the money from the husband of the victim. As he was not in the home, the victim and her husband Dharmendra Shainde (PW-2) conspired for false report.

7. Learned counsel for appellant has also submitted that to constitute the offence punishable under Section 3(1)(xi) of SC/ST (POA) Act. The caste

certificate is to be proved. In this case, the caste certificate has not been proved. On that basis, the appellant cannot be convicted for the offence punishable under Section 3(1)(xi) of SC/ST (POA) Act. Hence, the appellant be acquitted.

8. In last, learned counsel for appellant has submitted that if appellant is

not acquitted looking to the age of appellant at the time of incident, the duration of 23 years, the appellant is facing the criminal proceeding. The appellant's punishment be limited upto the period as already undergone and the fine amount as imposed by the Trial Court.

9. Learned Panel Lawyer for the State has submitted that Trial Court has discussed the contradictions and omissions. The statements of victim are supported by independent witnesses Jaidev Bhilave (PW-3) and Sunita (PW-4). There are no chances of appellant being falsely implicated. Hence, no interference is called for in the judgment. The appeal be dismissed.

10. I have gone through the record.

11. In this case, as per Ex.P-4, caste certificate was issued by Tehsildar Barghat Seoni but no witness was examined to prove the caste certificate on what basis the caste certificate was issued. Furthermore, the Tehsildar is not competent authority to issue the caste certificate as Sub Divisional Officer, Revenue is competent authority to issue the caste certificate. Thus, the caste is not proved and on the basis of admission of the appellant regarding the caste, no adverse inference can be drawn. Only on the basis of surname, no inference can be drawn regarding the caste of victim. The SC/ST (POA) Act, 1989 was legislated to prevent the atrocities on the basis of the caste of a particular person. Hence, the caste is utmost important factor in the cases of SC/ST Act.

12. Furthermore, from the facts and circumstances as stated that the appellant called the victim as a Bhabhi-Bhabhi and as per evidence as has to be discussed, he was calling the husband of the appellant as a Bhaiya. In the above scenario, it does not appear that the offence was committed only on the basis of the caste. On this point, the judgment of the Apex Court in the caste of Dashrath Sahu v. State of Chhattisgarh, 2024 SCC OnLine SC 72 held as

under:-

"9. Section 3(2)(v.) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Penal Code, 1860 punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3(2)(v.) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Penal Code, 1860 is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v.) of the Act arises. In that view of the matter, we think, both the trial court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial court as well as by the High Court ought to be set aside.

10. In the said judgment, this Court dealt with a case involving offence under Section 3(2)(v) of the SC/ST Act. The language of Section 3(1)(xi) of the SC/ST Act is pari materia as the same also provides that the offence must be committed upon a person belonging to Scheduled Castes or Scheduled Tribes with the intention that it was being done on the ground of caste."

13. Considering the conviction for the offences punishable under Sections 451 and 354 of IPC, on this point, the complainant victim (PW-1) has stated that on 08.10.2001 at 8:30 pm, her husband was not at home and she was on the bed and making her babies to sleep. The appellant came into her home and called her Bhabhi-Bhabhi. On appellant's call, she left the bed and asked

what happened? At that time, her niece Varsha came with the vegetables and returned the accused remained in her home. After five minutes, accused re- entered at her home and called her to come towards the outside. Then she asked what happened? There is no person in her home and she reached on the front gate. The accused caught hold her hand and asked to come towards the other direction and started pulling her towards the outside and she asked why he is carrying towards that direction? The appellant said that it will take five minutes after that she may return, on that she make left her hand and went on her sister-in-law's home and narrated whole story. The accused further returned and her brother-in-law Jaidev (PW-3) called the accused that the accused started begging pardon. She has further stated that she lodged an FIR (Ex.P-1).

1 4 . The witness Jaidev Bhilave (PW-3) on the material point has supported that the accused came into victim's home and caught hold her, on that victim (PW-1) informed him and the victim went to his home. The accused further returned and when he asked why he has done so. He replied that he has

done nothing wrong.

15. Sunita (PW-4) on the material point has supported that the victim at the time of incident was in her home alone with her two baby girls. The victim has informed her that the accused has caught hold her and tried to pull her.

16. The husband of the victim Dharmendra (PW-2) has supported that when he returned from Barghat market at 10:00 pm. Her wife has narrated the story to him.

17. The victim was elaborately cross-examined and no doubt there are certain contradictions, in the cross-examination and the series of the incident has been changed. From the statement, it also came that the accused came thrice in her home against the prosecution case that once the appellant came and

caught hold the appellant and tried to pull her towards the Badi. In next time when she came to beg pardon to Jaidev Bhilave (PW-3). On the material point that when her husband was not at home, the appellant entered into the her home and caught hold her by hand and started pulling her towards the Badi and asked that it is only five minutes work, she may return after that. The witness is intact. Jaidev (PW-3) and Sunita (PW-4) have clearly supported the statement of the victim (PW-1). The FIR was lodged on the next day i.e. 09.10.2001 at 13:50. This fact was supported by Kailash Bhardwaj (PW-5). The reason behind filing the report on next day, it is mentioned that it was time of night and there was no means of transport so the FIR was lodged in delay.

18. The Investigation Officer D.S. Bhadhoriya (PW-6) after investigation has filed the chargesheet.

19. In this case, the appellant has taken the defence that he went to victim's home to demand price of paddy seeds and pigeons, he supplied to the victim's husband. But only on that basis, no woman of the young age shall falsely implicate anyone in the case which her reputation may also be damaged. From the cross-examination of the victim, it has not been brought on the record that she or her husband was of such a nature that they have filed the false cases against the persons. Once when the appellant came to know that her husband was not at home, by twice he visited her home.

20. Thus, on the material points, the accused without the permission of victim entered into her home with the intention to commit the offence punishable with imprisonment and applied criminal force upon the woman with the intention to outrage her modesty.

21. Thus, the offence punishable under Section 451 and 354 of IPC is

proved beyond reasonable doubt. On that point, the Trial Court has rightly concluded and convicted the appellant under Sections 451 and 354 of IPC but conviction of the appellant under Section 3(1)(xi) of SC/ST (POA) Act cannot be maintained as the caste of the victim is not proved and the offence was not committed only on the basis of the caste of the victim. Hence, the appellant is acquitted from the charge for the offence punishable under Section 3(1)(xi) of SC/ST (POA) Act.

22. Considering the point of sentence before the amendment in IPC before 03.02.2013, the offence of Section 354 of IPC was not compulsorily punishable with the imprisonment. At that time, the offence under Section 354 of IPC was punishable with the imprisonment up to two years or with fine or b o t h. The offence under Section 451 of IPC is punishable with the imprisonment of either description for a term which may extend to two years and also by fine.

23. Looking to the above facts and at the time of offence, the appellant was only of 19 years age and the victim was older to him. The fact that he is facing the criminal case since 2001. Thus, no purpose will be served to resend the appellant into custody. Hence, the jail sentence of the appellant for the offence punishable under Sections 354 and 451 of IPC is limited to the period already undergone and fine amount is enhanced from 100/- to 5000/- for offence punishable under Section 451 of IPC and amount of Rs.5,000/- is imposed for the offence punishable under Section 354 of IPC. The amount of fine Rs.200/- imposed by the Trial Court and deposited before the Trial Court shall be adjusted in the fine amount imposed by this Court.

2 4 . The appellant shall deposit the rest of the fine amount Rs.9,800/- before the Trial Court within three months from today in default, he shall serve

the simple imprisonment of three months for each default consecutively.

25. As a result, the appeal is allowed for the offence under Sections 451 and 354 of IPC is modified as above and the appellant is acquitted for the offence punishable under Section 3(1)(xi) of SC/ST (POA) Act and sentenced is quashed imposed by Trial Court for that offence.

26. A copy of this order along with record be sent back to the trial Court.

(DEVNARAYAN MISHRA) JUDGE HK