Pappu @ Mahesh Kumar & Ors. v. State of Chhattisgarh

HIGH COURT OFCHHATTISGARH ATBILASPUR Crjminal Appeal No. 117 of 2006 Appellants Accused Pappu @ Mahesh Kumar and another ResRondent State of Chhattisgarh Vs Present: -^- Mr. Manoj Mishra, counsel for the appellants. Mr. Praveen Das, Dy. Govt. Advocate for the State. JUDGMENT (Delivered on 31stJanuary, 2013) G. Minhaiuddin.J of the Cr.P.C. against

This is an appeal preferred by the appellants under Section 374(2) the judgment of conviction and order of sentence dated 6.2.2006 passed by the Special Sessions Judge, Korba, in Special S.T.No.45/2004, cdnvicting each of the appellants under Section 354ofthe Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, and sentencing each of them to undergo Rl for 1 year and pay a fine of Rs.500/- respectively on each count. In default of payment of fine amount, each of them has to undergo additional Rl for 2 months on each count. Both the substantive jail sentences were directed to run concurrently.

Case of the prosecution, in brief, is that the prosecutrix is a resident of Village-Chuhanala, Podikala. On11.10.2002 at about 2 pm while the prosecutrix was going on bicycle from her home at Chuhanala to Mohanpur for bringing seeds, the appellants came from opposite direction on a motorcycle and intercepted the prosecutrix on way. Thereafter, with an intent to outrage the modesty of the prosecutrix, both the appellants having got down from the motorcycle caught hold of her hand and started dragging her towards a forest. However, on hue and cry being raised, by the prosecutrix, her brother Bharat Singh, Lalsai, Pardeshi Uraon, Amarsai and Phoolsai reached there and rescued her from the appellants. The said incident was reported by the prosecutrix at Police Station-Pasan, whereupon FIR (Ex.P/4) was registered against the appellants for the offence punishable under Sections 341, 294, 354 of the IPC and Section 3(1)(x)of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

During the course of investigation, domicile certificate and caste certificate of the prosecutrix were seized vide Ex.P/2 & P/3 respectively. After completing investigation, charge sheet was filed against the appellants for the abovementioned offence before the Court of Judicial Magistrate First Class, Katghora, from where the same was committed to the Court of Special Sessions Judge (Atrocities), Korba for trial.

During trial, examined 06 witnesses in all. Thereafter, statements of in order to substantiate its case, the prosecution appellants/convict were recorded under Section 313 of Cr.P.C., which they denied the circumstances appearing against them in the prosecution case, pleaded innocence.and false implication. In his defence.appellant No.1 Mahesh Kumar @ Pappu has stated that he had gone to the house of Pardeshi (PW-3) for recovery of fare of jeep taxi, on which Pardeshi (PW-3) had abused him and assaulted him with club on his head and while he (appellant Mahesh Kumar) was running away, then Ibbu @ Imran (appellantNo.2) took him to Police Station-Pasan on motorcycle. l-1e(appellant Mahesh Kumar @ Pappu) was also got medically examined. Appellantlmran @ Ibbu has stated in his defence that he had only taken appellant Mahesh @ Pappu to Police Station-Pasan on his motorcycle. They have also examined Samaylal and Vishwanath in their defence as DW-1 and DW-2 respectively.

Learned trial Court after hearing counsel for the respective parties the evidence, oral and documentary, and on close scrutiny of ayailable on record, by the impugned judgment convicted and sentenced the appellants as mentigned_above.

Heard learned counsel for the parties, perused the record of the trial Court as well as the impugned judgment.

In this appeal, the point for consideration is as follows: "Whether on the date of incident i.e. 11.10.2002 the appellants/convict had assaulted or used criminal force against the prosecutrix (PVV- 1), who is a member of Scheduled Tribe, with an intent to dishonour or outrage her modesty?"

In respect of the incident, the prosecutrix (PW-1) has stated that on the date of incident i.e. 11.10.2002 at about 2 pm, while she was going on her bicycle to Mohanpur appellants/convict stopped her and by holding her hand, dragged for bringing seeds, her into a forest for outraging her modesty. She has further stated that on her raising an alarm, her brother Pardeshi (PW-3) along with Lalsai, Amarsai and Phoolsai had reached the spot and rescued her from the appellants.

Pareshi (PW-3), who js brother of the prosecutrix, has corroborated the statement of the prosecutrix. The prosecutrix (PW-1) and her brother Pardeshi (PW-3) have stated that after the incident they had gone to Police Station-Pasan and an FIR (Ex.P/4) was lodged by the prosecutrix. As per statement of the prosecutrix (PW-1), addition to her brother Pardeshi (PW-3), Lalsai, Amarsai and Phoolsai had arrived at the spot and had witnessed the incident. However, Lalsai, Amarsai and Phoolsai have not been examined by the prosecution for proving the incident, and only Dhansai and Pardeshi have been examined as PW-2 and PW-3, who are father and brother of the prosecutrix (PW-1) respectively. Dhansai(PW-2) has admitted that he has neither witnessed the incident, nor had gone with his daughter (prosecutrix) for lodging the FIR. As such, the only evidence available on record regarding the incident is of prosecutrix (PW-1) and her brother Pardeshi (PW-3). lO.The appellants on being examined under Section 313 of Cr.P.C. have stated that appellant Mahesh @ Pappu had gone to the house of Pardeshi jeep, on which Pai-deshi (PW-3) had abused him and assaulted him with a lathi on (PW-3) for recovery of fare of taxi y his head, resulting in injury which had to be stitched by the doctor. The appellants have also stated that appellant No.2 Imran @ Ibbu had carried appellant No.1 Mahesh @ Pappu in an injured condition to the police station, where he had lodged a report against the family members of the prosecutrix.

So far as inflicting of injuries on the head of appellant No.1 Mahesh @ Pappu is concerned, the prosecutrix (PW-1) in para-6 of her statement has admitted that there was an injury on the head of appellant No.1 Mahesh @ Pappu, from which blood was oozing out. In addition to her statement, her brother Pardeshi (PW-3) in para-4 of his statement has admitted- that on account of scuffle between him and appellant Nb.1 Mahesh @ Pappu, Mahesh @ Pappu had fallen down on the road and had sustained head injury. Pardeshi in para-4 of his statement has also admitted that after (PW-3) sustaining of injury on head, appellant No.1 Mahesh @ Pappu had lodge a report and after saying that he had run said that he will away from the spot. In para-5 of his statement, Pardeshi (PW-3) has stated that it is correct to say that they were apprehending that (PW-1), threatened to lodge an FIR against Pardeshi a report may belodged by appellant No.1 Mahesh @ Pappu against them and therefore, in their defence, they had got a report lodged through prosecutrix (PW-1) against the appellants. As such, from the statement of Pardeshi (PW-3), who is brother of the prosecutrix it is found that had appellant No.1 Mahesh @ Pappu not (PW-3) and other family members of the prosecutrix, the present FIR (Ex.P/4) would not have been lodged by the prosecutrix (PW-1). Moreover, despite presence of independent witnesses in the form of Lalsai, Amarsai and Phoolsai, only father Dhansai (PW-2) and brother Pardeshi (PW-3) have been examined by the prosecution. As such, an adverse inference has to be drawn that had the independent witnesses been examined, they would not have supported the prosecution case. ll. Thus, in view of the aforementioned facts and the evidence, oral and documentary, available on record, it cannot be said that the prosecutiQn has been successful in establishing the guilt of the appellants beyond the shadow of reasonablg^doybt in respect of the offences punishable under Sections 354 of the IPC and Section 3(1)(xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, and in these circumstances, the appellants are definitely entitled to the benefit of reasonable doubt.