Manish Kumar @ Pappu vs The State Of M.P.
2024 Latest Caselaw 15314 MP

Madhya Pradesh High Court

Manish Kumar @ Pappu vs The State Of M.P. on 22 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 22 nd OF MAY, 2024
                                            CRIMINAL APPEAL No. 1996 of 2004

                          BETWEEN:-
                          MANISH KUMAR @ PAPPU, SON OF RAJ KUMAR
                          SENGAR, AGED ABOUT 25 YEARS, RESIDENT OF
                          KUMHARI   MOHALLA,   AMARWADA,   DISTRICT
                          CHHINDWARA (MADHYA PRADESH)

                                                                                           .....APPELLANT
                          (BY MS. PREETI SINGH - ADVOCATE)

                          AND
                          THE STATE OF MADHYA PRADESH

                                                                                        .....RESPONDENT
                          (BY SHRI PRASANNJEET CHATTERJEE - PANEL LAWYER)

                                Reserved    on : 15.05.2024
                                Pronounced on: 22.05.2024

                                This appeal having been heard and reserved for judgment, coming on

                          for pronouncement this day, the court delivered the following:
                                                           JUDGMENT

In this criminal appeal, the judgment delivered on 19.11.2004 in Special Case No.16/2004 by Special Judge, Chhindwara, has been challenged whereby the appellant (hereinafter referred to as "accused") was convicted of the offence of Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (for short, "Act") and was sentenced to six months rigorous imprisonment and fine of Rs.500/- with additional simple

imprisonment of 11/2 month, in case of non-payment of fine.

2. Facts relevant for the decision of this criminal appeal may be summed up as, on 16.5.2003 the prosecutrix was coming back from her work along with another lady; it was 1:00 a.m. in the night; the accused came in front of her near the school and asked for sexual favour and also promised to pay money for it; he caught hold of the hand of prosecutrix to which she resisted and screamed; accused threw her on ground and tried to forcibly carry her; she was rescued by Rajkumari Bai, who was accompanying her; prosecutrix sustained injuries in both the hands and her bangle was broken; there were injuries also in her heal and neck; she reported the matter on the same night at around 1:30 a.m. in Police Station, Amarwada; she was medically examined; the crime was

investigated and the charge-sheet was filed. Upon conclusion of trial the impugned judgment was passed, acquitting the accused of the charge of Section 354 IPC as he was being convicted and sentenced for the offence of Section 3(1)(xi) of the Act.

3. The grounds raised in this criminal appeal are that the trial court erred in law and also on facts by holding the accused guilty of the offence of Section 3(1)(xi) of the Act while there was no reliable evidence to support the caste of prosecutrix; merely by holding the hand of prosecutrix, it was not proved that the accused was intending to outrage her modesty; the entire prosecution case was based upon single testimony of prosecutrix, while there was no independent corroboration; even the testimony of prosecutrix failed to prove the ingredients of crime; the accused was aged merely 25 years at the time of alleged commission of offence. It was, therefore, prayed that the appeal should be allowed and the accused should be acquitted.

4. State has opposed the appeal claiming that no interference is warranted in

the impugned judgment.

5. Both the parties have been heard and the record has been perused.

6. This appeal has been argued on the ground that there was no reliable evidence on the record of the trial court to arrive at a conclusion that the prosecutrix belonged to scheduled tribe category. In this regard, the prosecution has relied upon the caste certificate of Ex.P-8. Interestingly, this certificate was issued by Naib Tehsildar although it bears the description of the office of Sub-Divisional Officer. Undisputable, Naib Tehsildar was never authorized to issue caste/tribe certificates.

7. Thus, it is established that the learned trial court was in error in relying upon the caste certificate of Ex.P-8 which was issued without any authority. In the light of this observation, it is held that the caste of complainant was not duly proved in the case by any credible document.

8. The learned trial court has held the caste of victim proved also on the basis that she was not cross-examined on this fact that she belonged to scheduled tribe category. 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.

9. From the foregoing discussion, it is established that the prosecution has

failed to prove the caste of prosecutrix either through any credible documentary evidence or otherwise, therefore the conviction of accused for the offence of Section 3(1)(xi) of the Act cannot be upheld.

10. The court has now to examine whether any lesser offence is proved on the basis of the prosecution evidence. The lesser offence in this case would be of Section 354 IPC as the ingredients of offence of Section 354 IPC and 3(1)

(xi) of the Act are identical except that the offence of Section 3(1)(xi) of the Act is made out when the prosecutrix belongs to a scheduled caste or a scheduled tribe category.

11. To prove the offence of Section 354 IPC, the prosecution has relied upon the testimony of prosecutrix (P.W.1), Rajkumari Bai (P.W.2), who was accompanying the prosecutrix at the time of fateful incident; Santosh Thakur (P.W.3) and Pawan Tiwari (P.W.4) as eyewitnesses, Dr. Sushil Kumar Dubey (P.W.5), who had medically examined the prosecutrix, Ramkesh Singh (P.W.6), who seized the bangles given by prosecutrix, Assistant Sub-Inspector Sushil Kumar Shrivastava (P.W.7) and Deputy Superintendent of Police L. L. Meena (P.W.8), who conducted the investigation. The defence has not given any oral testimony in this case.

12. The prosecutrix has narrated the incident in her court testimony by claiming that she was on her way to house after working in a marriage programme and it was 1:00 a.m. in the night when accused started giving filthy abuses and suddenly caught her by hand. According to prosecutrix, she fell on the ground and was rescued by Pawan and Santosh, who had arrived there. According to her, Rajkumari Bai was also there. In her entire statement, she has failed to state a single word about the sexual favour which, according to FIR of

Ex.P-1, was being demanded by the accused. The statements of prosecutrix have also failed to reveal the motive of accused in holding the hand of prosecutrix.

13. Rajkumari Bai (P.W.2), who according to FIR of Ex.P-1 was accompanying the prosecutrix at the time of this incident, has corroborated only a part of prosecution story and has stated that on their way, accused met them and asked the prosecutrix to bring water. According to this witness, accused committed no offence with the prosecutrix in her presence. Santosh Thakur (P.W.3) and Pawan Tiwari (P.W.4) have also claimed that they did not see any incident where any act of outraging the modesty of prosecutrix or using criminal force upon her was committed by accused. They only claimed that there was a dispute between the prosecutrix and the accused but they failed to make any averment that the accused used criminal force to outrage the modesty of prosecutrix. This shows that all the three important witnesses, who were examined by prosecution to prove the alleged crime, have not supported its story.

14. The prosecution has relied upon the statement of Dr. Sushil Kumar Dubey (P.W.5) who medically examined the prosecutrix and found four visible injuries on her person which were only in the nature of abrasions. They were on the wrists of two hands, on posterior part of right elbow and on the heal of left leg. According to him, these injuries could not have been sustained on account of fall while it was claimed by prosecutrix that she fell on the ground when accused caught hold of her hand. The injuries in different parts of hands suggest that there would have been some scuffle, but the statements of prosecutrix do not make any such revelation.

15. Ex.P-7 is the spot-map which was prepared by the Investigating Officer.

The time of incident suggests that the act of using criminal force for outraging the modesty of a woman was committed in the dark of night when nobody was around except the woman accompanying the prosecutrix; but spot-map, Ex.P- 7, suggests that the place of incident was hardly 75 meters away from the Basic School and 150 meters away from the place where the marriage ceremony was going on. Basic School was the place from where the prosecutrix was coming and the food was prepared. Thus, it can be assumed that the alleged offence was not committed in an isolated place and this finding is supported by the fact that Santosh Thakur (P.W.3) and Pawan Tiwari (P.W.4) were so close-by that they allegedly reached on spot on just hearing the screams. These circumstances make it unreasonable that accused would ask for sexual favour from prosecutrix in a place which was in the vicinity of a marriage ceremony and food preparation venue. It seems further improbable that at such a place accused would use criminal force upon prosecutrix or would attempt to forcibly carry her for his evil motive, particularly when she was accompanied by

another woman.

16. It has been argued on behalf of accused that no pieces of bangle were recovered from the place of incident while, according to prosecutrix, her bangle was broken causing injuries in her wrists. It may also be mentioned here that the place was inspected on the very next day at around 11:30 a.m., still the Investigating Officer could not find the broken pieces of bangle at the place identified by prosecutrix as the place of incident.

17. In the light of aforesaid discussion, this court finds that there is no corroboration of prosecution story by independent witnesses; even the prosecutrix failed to state on oath the reason of using criminal force upon her

by the accused; her oral testimony was not corroborated by medical evidence; there was no recovery of pieces of bangle from the spot, etc., hence this court comes to the conclusion that it would not be safe to hold the accused guilty merely on the basis of non-satisfactory testimony of prosecutrix. It is not a case where the incident was not witnessed by any other person. According to prosecution, there were at least three persons who could have testified but they all failed to corroborate the prosecution story and this goes against the credibility of prosecution case.

18. On the basis of discussion made so far, the accused is acquitted of the offence of Section 3(1)(xi) of the Act and no case of Section 354 IPC is made out against him. Accordingly, this appeal is allowed by setting aside the impugned judgment.

19. The accused is already on bail. His bail-bonds stand discharged. The fine amount, if any, deposited by the accused be refunded to him.

20. 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