Fulloo @ Phoolchand & Anr. vs The State Of M.P.
2024 Latest Caselaw 14235 MP

Madhya Pradesh High Court

Fulloo @ Phoolchand & Anr. vs The State Of M.P. on 15 May, 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 15 th OF MAY, 2024
                 CRIMINAL APPEAL No. 1665 of 2001

BETWEEN:-
1.    FULLOO @ PHOOLCHAND S/O HARI KISHAN,
      AGED ABOUT 20 YEARS, OCCUPATION LABOUR,
      R/O VILLAGE NAGPURMAFI PS BALDI TEH
      HARSHOOD,   DISTRICT KHANDWA (MADHYA
      PRADESH)

2.    JADIYA @ CHHAGANLAL S/O MISHRILAL, AGED
      ABOUT 21 YEARS, R/O VILLAGE NAGPURMAFI PS
      BALDI TEH HARSHOOD, DISTRICT KHANDWA
      (MADHYA PRADESH)

                                                              .....APPELLANTS
(NONE)

AND
THE STATE OF MADHYA PRADESH

                                                              .....RESPONDENT
(BY MS. VINITA SHARMA - PANEL LAWYER)

      Reserved    on : 02.05.2024

      Pronounced on:15.05.2024

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

Against the judgment of conviction and sentence passed by Special & Sessions Judge (East Nimar), Khandwa, on 28.9.2001 in Special (Criminal) Case No.18/2001 this appeal has been preferred whereby the appellants (hereinafter referred to as "accused") were convicted of the offence of Section

354 IPC and Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (for short, "Act") and were sentenced for the offence of Section 3(1)(xi) of the Act to six months rigorous imprisonment and fine of Rs.1,000/- with additional rigorous imprisonment of one month, in case of non-payment of fine.

2. Facts relevant for the decision of this criminal appeal are that on 14.1.2001 prosecutrix was on her way back from river to her home at around 12:00 hours; both the accused restrained her, caught hold of her hands, pressed her breasts and when she screamed, they both fled away after giving threat of killing if she shared the incident with any other person; the prosecutrix was so frightened that

she did not narrate the incident to her family members but on the next day she shared it with her husband and mother-in-law and on 16.1.2001 got the FIR registered against the accused persons. She was medically examined, the investigation was undertaken, the charge-sheet was filed and the trial followed. Upon its conclusion, the impugned judgment was delivered whereunder the accused persons were acquitted of the offence of Section 506 IPC.

3. The grounds raised in this criminal appeal are that the statements of prosecutrix are contrary to her FIR, marked as Ex.P-1; further, there is contradiction in the statements of prosecutrix and other witnesses examined by the prosecution; there was an exceptional delay in lodging the FIR; there was previous enmity between the two sides and for this reason, a false FIR was registered. It was, therefore, prayed that the judgment of trial court, being illegal, erroneous and contrary to law, should be set aside and the appellants should be acquitted or at least be given the benefit of Probation of Offenders Act as they both were under the age of 21 years.

4. State has opposed the present appeal claiming that the impugned judgment deserves no interference.

5. At the stage of final hearing, accused persons failed to appear and argue, hence arguments only on behalf of State were heard and the record is perused.

6. Both the accused persons have been convicted in this case under Section 354 IPC and Section 3(1)(xi) of the Act. Interestingly, no caste certificate of prosecutrix was filed in evidence by the prosecution and it appears that only on the basis of admission made by the accused persons during their examination under Section 313 Cr.P.C. it has been held by the learned trial court that prosecutrix belonged to scheduled tribe category. Therefore, this court has first to examine whether the conviction of accused under Section 3(1)(xi) of the Act is sustainable.

7. The learned trial court has held the caste of prosecutrix proved also on the basis that she was not cross-examined on this fact and also on the ground that there was admission by the accused persons in answer to question no.1 of their examination under Section 313 of Cr.P.C. that the complainant belonged to scheduled tribe. It may be mentioned here that the judgment of Bhagwat Singh v. State of Madhya Pradesh 2006 (1) ANJ (MP) 355 has laid down the course that should be adopted in a trial under the provisions of the Act and that procedure says that the prosecution should file a valid certificate of caste/tribe

duly issued by an authorized person and mere oral testimony regarding the caste/ tribe of the victim is not sufficient. For this, the decision of Manohar Sawai Rathod v. State of Maharashtra 2007 Cr.L.J. (NOC 785) 202 is also relevant here, which has laid down that mere statements of aggrieved person about his caste/tribe is not sufficient and the prosecution has also to prove this fact by producing documentary evidence.

8. The Apex Court in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) AIR 2010 SC 2352 has held that the answers given by the accused to the questions put under Section 313 Cr.P.C. are not per se evidence because firstly, they are not on oath, and secondly, they are not subjected to cross-examination and they are nevertheless subject to consideration by the court to the limited extent of drawing an adverse inference against such accused for any false answers given voluntarily and to provide an additional/missing link in the chain of circumstances.

9. On the basis of foregoing discussion, it is not established that prosecutrix belonged to scheduled tribe category, hence conviction of accused persons under Section 3(1)(xi) of the Act cannot be upheld.

10. This case is based upon the sole testimony of prosecutrix. According to prosecution story, there was no eyewitness present on the scene. The incident occurred when the prosecutrix was returning to her home from the river. She has claimed during her testimony that she was all alone on river and no villager met her on the way until she reached the village itself. According to her, the distance of place of incident from the village was around half a kilometer. This shows that the incident occurred on an isolated place and accused persons were two in numbers, therefore the possibility of their over powering the lone prosecutrix appears to be more feasible, but here it is claimed by the prosecutrix that upon her screaming the accused persons left her, gave her threats and then fled away. Interestingly, no third person arrived on spot upon hearing the screams of prosecutrix. This narration of incident itself shows the unnatural conduct of a crime monger. Both the accused had the occasion and the power to take further steps in commission of crime as there was no other

person present to resist them, but instead they are shown to have fled away from the place.

11. Admittedly, the matter was not reported to the police immediately. According to FIR, marked as Ex.P-3, the incident occurred in the afternoon of 14.1.2001 at 12:00 hours while report was lodged on 16.1.2001 at 16:00 hours. The reason for delay is claimed to be that the prosecutrix was frightened but if that was the reason then it was also supposed to be disclosed how the prosecutrix gathered courage to share the incident with her family members and report the matter to the police. The statements of prosecution witnesses are silent on this point.

12. It has been claimed by the prosecutrix that in the incident her bangles were broken resulting into injuries on five-six places. Further, she also claims to have sustained injuries on her breasts and, according to her, these were three to four in numbers from which blood had oozed out. According to prosecutrix, all these wounds had healed in five-six days. Interestingly, prosecution has not examined the medical officer nor has produced the MLC report of prosecutrix in evidence. That report is enclosed with the record and it reveals that the medical officer found no external injury on the person of prosecutrix when she was examined on 16.1.2001 i.e. just two days after the incident and, according to it, there were not even the injury marks found on the person of prosecutrix.

13. The statements of husband of the prosecutrix (P.W.2) reveals that a report was lodged against him also and the said report was prior in time. According to him, the accused persons had lodged that report one day prior to the FIR lodged by the wife of this witness i.e. prosecutrix. Although it is claimed by P.W.2 that no case was instituted on the basis of that report of accused persons, but he has admitted that he had given abuses to accused

persons on the date of incident itself. At one hand, the prosecution is claiming the reason for delay in lodging the FIR to be the non-sharing of incident by the prosecutrix with her family members on the date of incident on account of fright but here P.W.2, her husband, is admitting that he had given abuses to accused persons on the date of incident upon which a complaint was made against him by the accused persons. This shows that prosecution has made efforts to conceal vital facts in the case and has also put a false explanation for the delay caused in lodging the FIR.

14. In the light of above discussion, the story of prosecution is found to be vulnerable for the reasons that it is not corroborated by the statements of any eyewitness, there was exceptional delay in lodging the FIR and the reason assigned for delay has been found to be false, the medical evidence does not support the prosecution story and previous dispute between the parties is established on the basis of admission made by the husband (P.W.2) of prosecutrix. Accordingly, the accused persons cannot be held guilty for

outraging the modesty of prosecutrix by using criminal force.

15. On the basis of foregoing discussion, the conviction of accused persons for the offence of Section 354 IPC and Section 3(1)(xi) of the Act is set aside and they are acquitted of the offence.

16. The accused persons are on bail, their bail-bonds stand discharged. The fine amount, if any, deposited by the accused persons be refunded to them.

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

(ANURADHA SHUKLA)

JUDGE ps

Date: 2024.05.16 13:17:30 +05'30'