Genda Lal v. The State of Madhya Pradesh

Shri Pradeep Naveriya, Advocate. : For Respondent ****************************************************************** Shri Ajay Tamrakar, Panel Lawyer : J U D G M E N T 30/01/2012 This appeal has been preferred against the judgment dated 07/12/2004 passed by Special Judge, Sagar in Special Sessions Case No. 44/2003 convicting the appellant under section 354 IPC read with section 3(1)(11) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short SC/ST Act) and sentenced to 6 months R.I and Rs.500/- fine.

Facts of the case, in short, are that on 20/01/2003 at about

6.00 pm while prosecutrix aged 14 years (PW-1) went to answer the call of nature appellant came and subjected her to some indecent assaults. On raising alarm her mother Phoola Bai (PW- 2) and brother Santosh (PW-4) reached on the spot. There had been altercation and scuffle between them. Prosecutrix lodged FIR Ex.P-1 at police station Sagar Cantt. A case at Crime No. 2 Cr.A. No.2127/2004 36/2003 under section 354 IPC and section 3(1)(11) of SC/ST Act was registered against the appellant. During investigation, Spot Map Ex.P-2 was prepared. On 21/01/2003, appellant was arrested vide Ex.P-3 Arrest memo.

After completing investigation police Sagar Cantt. submitted a charge sheet against the appellant. Trial Court framed charges under section 3(1)(11) SC/ST Act and in alternative under section 354 IPC against the appellant. Appellant abjured guilt.

To substantiate the case of prosecution, statements of prosecutrix (PW-1), Phoola Bai, mother of prosecutrix (PW-2), Dhaniram, father of prosecutrix (PW-3), Santosh, brother of prosecutrix (PW-4), Malti Bai, sister-in-law Bhabhi (PW-5), R.K. Singh, the then D.S.P. (PW-6), and Balram, ASI (PW-7), were recorded. Appreciating the aforesaid evidence, trial court convicted and sentenced the appellant as above.

This appeal has been preferred by the appellant against the impugned judgment on the grounds that appreciation of evidence is not proper. Evidence of prosecution witnesses are suffering from material contradictions and omissions. There is no corroboration of the prosecution by independent witnesses. Conviction is bad in law and sentence is harsh. On the other hand, learned Panel Lawyer supported the findings of conviction and sentence both.

Prosecutrix (PW-1) stated that at the time of answering the call of nature, appellant came and forced to take her away. In Para 6 she stated that in the incident there had been some quarrel and even her mother was also slapped by the appellant on her face. Appellant had also reached police station prior to them and brought police force on the spot. Phoola Bai, mother (PW-2) stated that her daughter told her that appellant abused and pulled her. 3 Cr.A. No.2127/2004

Santosh, brother (PW-4) stated that he was also answering the call of nature at some distance from his sister. Hearing some noise he reached on the spot and saw the scuffling. In order to separate her sister there had been scuffle between them. His sister told to him that appellant had caught her hand. He has admitted that appellant lodged report first in time and then his sister lodged report about the same incident.

On perusal of aforesaid evidence of prosecution witnesses, it has been revealed that there had been some quarrel between the parties. Both reached to police station. Appellant reached to police station first in time. In such situation it can not be said that intention of outraging the modesty of prosecutrix (PW-1) is proved beyond doubt. Whatever proved beyond doubt is that criminal force was used by the appellant on the prosecutrix, on her brother and family members. Evidence of prosecutrix (PW-1) has been corroborated by the evidence of her mother and brother to the extent only that appellant intended to use criminal force on her. It has not been corroborated in the manner that force was used to outrage the modesty. There had been some other dispute and background of the quarrel. Trial court failed to appreciate the evidence of prosecution witnesses in that perspective.

As discussed above, conviction of appellant under section 354 IPC read with section 3(1)(11) of SC/ST Act is not sustainable rather appellant/accused is liable to be convicted under section 352 IPC only.

Appellant is acquitted under section 354 IPC and under section 3(1)(11) SC/ST Act. At this stage learned counsel for the appellant submitted that appellant has suffered custody period of 45 days. No useful purpose would be served in sending appellant back in jail in this case.

In view of totality and facts and circumstances of the case, for conviction of appellant under section 352 IPC, sentence of 45 4 Cr.A. No.2127/2004 days already undergone custody period and fine of Rs.500/- seem to be just, proper and sufficient. Appeal is allowed in part as indicated above. tarun/ (Tarun Kumar Kaushal) Judge