Devi Dayal vs The State Of Madhya Pradesh
2024 Latest Caselaw 14455 MP

Madhya Pradesh High Court

Devi Dayal vs The State Of Madhya Pradesh on 16 May, 2024

                                                            1
                                 IN     THE       HIGH COURT OF MADHYA
                                                      PRADESH
                                                    AT JABALPUR
                                                  BEFORE
                                  HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
                                                ON THE 16 th OF MAY, 2024
                                           CRIMINAL APPEAL No. 522 of 2010

                           BETWEEN:-
                           DEVI DAYAL S/O MAYARAM KURMI, AGED ABOUT
                           35 YEARS, SAKIN GRAM PAIMAD PS KOTWALI
                           RAISEN (MADHYA PRADESH)

                                                                                       .....APPELLANT
                           (BY SHRI NARENDRA NIKHARE - ADVOCATE FOR APPELLANT)

                           AND
                           THE STATE OF MADHYA PRADESH TH. ARKSHI
                           KENDRA KOTWALI RAISEN (MADHYA PRADESH)

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

                                 This appeal coming on for hearing this day, the court passed the
                           following:
                                                             ORDER

This appeal has been preferred being aggrieved with the judgment

passed by Special Judge (constituted under SC and ST (POA) Act, 1989, Raisen in Special Case No.97/2009 dated 09.03.2010 by which the appellant has been convicted for the offence punishable under Sections 456 and 354 of the IPC and sentenced to RI for 6 months and find amount of Rs.500/- for each of the offence with default stipulations.

2. In nutshell the prosecution case before the trial Court was that on

07.06.2009 the complainant (PW-1) was in her home along with her children her husband was not in the home. The accused Devidayal entered into her house and caught hold her hand with intend to outrage her modesty. She loudly cried for help then accused tried to ran away but neighbors Gajraj Singh, Mahesh, Kanchhedi Lal caught hold the appellant and at the same time her husband also returned the home and written report was filed before SHO, Police Station Kotwali, District Raisen (Ex.P-1), on that basis FIR as a Crime No.252/2009 under Sections 354 and 456 of the IPC and Section 3(1) (xi) of the SC and ST (POA) Act, 1989 was registered. The statements of witnesses were recorded. On next day i.e. 08.06.2009, the appellant was arrested and after the investigation

the charge sheet was filed before the Chief Judicial Magistrate, Raisen and after commitment the case was submitted for trial before the Special Judge, Raisen.

3. The trial Court framed the charges for the offence punishable under Sections 456 and 354 of the IPC and Section Section 3(1) (xi) of the SC and ST (POA) Act, 1989. The accused pleaded innocent and abjured the guilt and prayed for trial. The trial Court recorded the evidence of the prosecution witnesses and examined the appellant.

4. The appellant has examined as defence witness, Dr. P.S. Thakur as DW-1, Head Constable Dhanraj Singh as DW-2 and has submitted that the husband of the complainant had borrowed the money from him and when he demanded the money back, the false case was make registered against him. On 07.06.2009 he was at his home and Narayan called him and Gajraj Singh, Kanchhedi, Ram Bai, Narayan, Babli Bai and Bheem

Singh assaulted him and he has suffered the grievous injuries.

5. Trial Court after hearing the parties acquitted the appellant for the offence punishable under Section Section 3(1) (xi) of the SC and ST (POA) Act, 1989 but convicted and sentenced as stated in para-1 of the judgment.

6. Learned counsel for appellant has submitted that in the statement of complainant (PW-1) has stated that it was 10 PM and the appellant entered into her home and caught hold her and tried to carry inside of her house and on that she cried, then the witness Kanchhedi and Mahesh came there and her husband was not in house. But the witness Narayan (PW-2) has stated that her wife cried for help on that time he entered into his home and caught hold the appellant and on crying of her wife other villagers came on the spot and Kanchhedi @ Sardar Singh (PW-3) has stated that when Narayan (PW-2) called that some "Chor" (thief) has entered in his home, he went on the spot found that the Narayan has caught hold the appellant.

7. Further submitted that the statements of the witnesses are contradictory to each other and that cannot be relied upon. He has further submitted that from the defence evident it is clear that the appellant was brutally beaten by the complainant party due to previous enmity and on the same day and to save themselves from the legal proceedings, false case was registered. On the medical examination the injuries were found over

the body of the appellant and the investigating officer S.S. Kushwaha stated when the appellant was sent before him by the police station he

found that there were the injuries over the body of the appellant and he was medically examined. Thus the prosecution himself has admitted that the injuries were found over the body of the appellant and as per Police Officer Dhanraj Singh (DW-2) he has filed a complaint (Ex.D-4) against the victim and witnesses and as per Dr. P.S. Thakur (DW-1), five injuries from face to legs were found that has been proved by examination of doctor. But the trial Court has committed error not relying on the defence version and convicting the appellant for the offence punishable under Sections 354, 456 of the IPC.

8. Shri Vinod Tiwari, Panel Lawyer for State has argued that the trial Court has rightly convicted and sentenced the appellant, no case of interference is made out.

9. I have gone through the record.

10. In this fact from the evidence of the prosecution and the facts stated in Ex.D-4, this complaint filed by the appellant to Police Authority, it is clear that on 07.06.2009 at 8 PM, the appellant was in his village and it is also clear that some incident has taken place in which complainant party and the appellant were involved. The complainant (PW-1) has stated that it was 8 PM at night, the appellant entered into her home and caught hold her hand and tried to carry her inside her home, she cried for help, on hearing that Kanchhedi and Mahesh reached in her house. Her husband also reached at that time, accused tried to ran away but villagers caught hold the appellant. Further she has stated that she went to Police Station and written application (Ex.P-1) has been submitted and on that basis, the FIR was lodged as Ex.P-2.

11. From cross-examination, it is also clear that when the appellant entered into her house, the gate of house was opened and witness Narayan (PW-2) has supported that on the date of incident at 8 PM, he was returning to his home after closing his shop and when reached near his home, heard the noise of chilla chot and when he reached in his home, the appellant was caught hold in his home. His wife told him that the appellant has caught hold her and tried to carry her inside the room and on that villagers gathered, where Kanchhedi, Mahesh and Gajraj came there and after that they lodged the FIR.

12. Witness Kanchhedi (PW-3) has also stated that he was at his home, Narayan called him that there is thief in his home and on that he went to Narayan's home and saw there that Narayan has caught hold appellant. Narayan told him that the appellant tried to molest her wife and they have lodged an FIR.

13. On the material point that the husband firstly reached on the spot or villagers reached on the spot, there is some contradictions. But if we minutely observed the evidence, the complainant (PW-1) and Narayan (PW-2) are stating the same fact that when Narayan reached on his home, the other persons have caught hold the appellant.

14. In the cross-examination Narayan (PW-2) has admitted in para-5 that firstly he caught hold the appellant and after that villagers came, only this contradictions nothing has been brought on record.

15. In the cross examination of the complainant on the side of the accused/appellant, it has been suggested that the husband of the

complainant has stopped the appellant near the Canal and demanded the money and from there her husband Kanchhedi and Gajraj caught hold the appellant and brought to there home and he was tide with the piece of stone and was beaten by rod and stick and assaulted in such a manner that the appellant became unconscious and after that they have lodged the false report.

16. In para-6 of the cross examination of Narayan (PW-2) it has been suggested that Narayan has borrowed the money from the appellant and on that reason the dispute has taken place in the Canal and Narayan and other prosecution witnesses caught hold the appellant and brought to his house and tiding the appellant with stone and assaulted him and putting him on Jeep and brought to Police Station and lodged a false report. Suggestions of the same set has been given to PW-2 Sardar Singh.

17. From this point of view, if we perused the complaint (Ex.D-4) the appellant has mentioned that he was going to Kaluram Kahtri on his motorcycle and when he was near the Canal of Paimath near the house of Takhat, Narayan called him that he will also go with him and when he stopped, Narayan (PW-2) has asked him to reach Narayan home. On that he accompanied Narayan and Devidayal and reached in his home Gajraj, Kanchhedi, Ram Bai, Narayan, Balli, Bheem Singh tied his hands and legs and assaulted him. Thus in this complaint the plaintiff has not mentioned a

single word that there was any dispute regarding the money or Narayan has borrowed any money and when he demanded money the quarrel has taken place.

18. No doubt as per statement of Dr. P.S. Thakur (DW-1), it is

clear that the injuries in the face, on the eye, on the head and legs were found but injuries were simple in nature and as per judgment of trial Court on the complainant's report the case was registered and after investigation the report under Section 169 of the Cr.P.C. was sent and police has filed complaint under Sections 182 and 211 of the Cr.P.C., in para-14 of the judgment the trial Court has discussed this fact.

19. Thus the appellant was brought by the complainant's husband Narayan to his home and after that he was beaten, is not probabilized. It is possible that appellant has entered into the house of a person of same village to molest the victim and he was caught in the house, the husband of the complainant and other persons of the locality has assaulted him but on that basis total case of prosecution does not become the doubtful. As the prosecution agencies itself has medically examined the appellant and registered a criminal case. After due investigation a final report was submitted under Section 169 of the Cr.P.C. The statement of complainant is supported by her husband and the neighbourer Kanchhedi. FIR was immediately lodged on the same date of incident on 07.06.2009 and investigating Officer S.S. Kushwaha (PW-6) has not found any contrary fact against the complainant.

20. From the above discussion, it is clearly establish that on 07.06.2009 at 8 PM, the appellant trespassed into home of the complainant and caught hold the complainant a woman with clear intention to molest her.

21. Trial Court has convicted the appellant under Section 456 of the

IPC that is for lurking house trespass by night but in this case it is clear that the gates of the house of victim were open as complainant has herself admitted. There is no evidence that the appellant after taking precaution to conceal his identity from the owner of the house trespassed. Thus the lurking house trespass by night is not proved. Only the offence of house trespass with intention to commit an offence punishable with imprisonment (Section 451 of the IPC) is proved and offence of Section 354 of the IPC is also proved.

22. Thus the appellant is being acquitted from the charge under Section 456 of the IPC in place of that with the help of Section 222 of the Cr.P.C. is convicted for the offence punishable under Section 451 of the IPC and conviction of the appellant 354 of the IPC is maintained.

23. Considered the point of sentence. The offence has taken place more than 14 years since offence was committed and the appellant was in custody from 08.06.2009 to 09.06.2009 and he has also suffered the injuries.

24. Looking to the above facts and circumstances of the case, the jail sentence of the appellant is limited to the period already under gone and the fine amount under Section 451 of the IPC is enhanced from Rs.500/- to Rs.5,000/- and for the offence under Section 354 of the IPC, the fine amount is enhanced from Rs.500/- to Rs.5,000/-. The amount already deposited by the appellant shall be adjusted in the amount of the fine amount. Rest of the fine amount Rs.9,000/- shall be deposited by the appellant within a period of 3 months from the date of judgment by this Court. In default he shall suffer R.I. for a period of 3 months for each

default.

25. With the above modification, this appeal is partly allowed.

26. With the copy of order, the record of the trial Court be returned back.

27. Record of this case be consigned to the record room.

(DEVNARAYAN MISHRA) JUDGE DPS