^ .L^ ^'vi;.^ < IN THE HIGH COURT QF MADHYA PKADESH AT JABALPTiR Griininal _A@peal No.--'7^ /1995 i\\ C3> ^ <A M'PEIi&ANT .^,*—" rfe'^P-^—. .<Wfl*lff<t*t*"": l»»»»*t*»*' ^^ •^- >«tl>*W**"'^ "* RESPOHDENTS Versas i {Crtewtg Bashir Khaa, S/o Abdul Majid ,by caste Mohd» aged aboa-t 38 years, R/0 village Maheshpur p.S.Sitapur, Oist-b. Surguja. M.P. State of Madbya pradesh t-hrougli P.S. Sitapur Distt. Surguja M.P. C&IMINAL APPEA& U/S-374(2)0F THE CODE OF CRIMINAL PROCEDURE, 1973. ~'s ^ B^ s.r<- -. / \. "'i .I^ViS^ €^, HIGH COURT OF CHHAmSGARH : BILASPUR Single Bench : Hon'ble Shri Manindra Mohan Shrivastava, J. Criminal Apueal No.371 of 1995 APPELLANT Bashir Khan Versus RESPONDENT: State of Madhya Pradesh (now the StateofC.G.) (Criminal Appealjmder Section 374 (21 of the Cr.P.C) Appearance: Shri A. K. Prasad, counsel for the appellant. Shri Rakesh Jha, Dy.. Govt. Advocate for the State. ORAL-JUDGMEST (Delivered on 20U1 September, 2011) 1. This appeal is directed against the judgment of conviction and order of sentence dated 21st February, 1995 passed by learned Special Judge, Ambikapur in Special Criminal Case NqJ35/1994, whereby and whereimder, the learned Special Court, after: h^lding the appellant guilty of commission of offence un'der Section 3(1) (xi) oPthe Scheduled Castes and the s^. Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act of 1989°) as also Section 354 '. ' 'of the IPC, has sentenced him under Section 3 (1) (xi) of the Act .//' :»-^-: i-^, *s& •^-^ ^ (^ of 1989, to undergo R.I. for 6 months with a fine of Rs.500/- and in default of payment of fine, further R.I. for 3 months. 2. The case of the prosecution is that on 2.10.1994, complainant- Alomani (P.W.2), who belongs to Uraon tribe, had gone to the field of one Dilchaman and while she was returning after collecting paddy, the appellant. and other accused-Am.ar Sai arrived at the spot and caught hold of the complainant-Alomani and also assaulted her and used force, pressed her chest and thereby outraged her modesty. On a call made by the complainant, Vifal Singh (P.W.l) and Bishun Singh (P.W.6) and others reached t.o the spot to rescue her. The brother of the coinplainant namely -Suleman Lakda (P.W.3) also arrived at, whereafter, the appellant and other accused fled away from the place of incident. FIR (Ex. P-2) 'was lodged by the complainant- Alomani, in which, it has been alleged that when the complainant was returning after collecting paddy, she was intercepted by the appellant and another accused- Amar Sai and force was used and her chest was pressed, outraging her modesty. The police, during the course of investigation, seized axe and broken bangles vide seizure memo of Ex.P-4 & Ex.P-5. The compldinant was sent for medical examination vide Ex.P-6, on which-;the doctor ob^rved that the complainant complains 'of pain over her back and chest. Caste certificate issued by Sarpanch on-3.10.1994 was seized vide Ex. P-8. After recording stafements 'of the witnesses and completing usual investigation, charge sheet was filed in the Court of Special ."tihr:ia"^ (•• it ^ CtB' ?!^- :(s!^ % Judge, Ambikapur, which was registered as Special Criminal CaseNo. 135/94. 3. The learned Special Judge framed charges against the appellant for commission of offence under Section 3 (l) (xi) of the Act of 1989 and Section 354 of the IPC. Appellant abjured guilt. 4. In order to prove its case, the prosecution examined Vifal Singh (P.W.l), complainant-Alomani (P.W.2), Suleman Lakda (P.W.3), Sanju Devi (P.W.4), Investigating Officer-K. M. S. Khan (P.W.5) and Bishun Singh (P.W.6). 5. In his examinatioh under Section 313 Cr.P.C. the appellant denied the circumstances and the incriminating evidence appearing against him in the evidence led by the prosecution and the appellant took specific defence that paddy of his agricultural field was remgved and his wife was assaulted and in that incident, he has been falsely impUcated on the allegation levelled in the case. 6. Vide impugned judgment of conviction and order of sentence - dated 21st ^ebruary, 1995, learned Special Judge, relying upon ». / ~ the evidenee led by the pr^secution, held the appellant guilty of commission of offence under Section 3 (1) (xi) ofthe Act of1989 as also Section 354 of the IPG, but, while convicting, the appellant has been convicted only under Section 3 (1) (xi) of the Actofl989. . •S;: !w^ :^,.^^" 7. Assailing the correctness and validity of the impugned judgment and conviction and order of sentence, learned counsel for the appellant subraits that the prosecution has completely failed to prove its case that any force was used or the complainant was assaiilted with intent to outrage her modesty so as to make out a case of commission of offence under Section 3 (1) (xi) of the Act of 1989. He submits that the evidence of the complainant - Alomani (P.W.2) even taken as it is, does not make out any case of commission of offence under Section 3 (1) (xi) of the Act of 1989 as there is no evidence to establish that there was any intention to dishonour or outrage her modesty, on the otiier hand, the evidence which has come, shows that there was a dispute on account of paddy having been removed from the field, which led to dispute between the parties. It is next submitted that the independent prosecution witnesses Vifal Singh (P.W.l) 85 Bishun Singh (P.W.6) have not supported the case of the prosecution, therefore, in any case, the prosecution has failed to prove its case beyond reasonable doubt and the appellant is~ entitled to be acquitted by giving him benefit of doubt. . / - 8. On the other hand, learned counsel for the State has •**... supported the impugned judgment of conviction and order of sentence and submitted that._ the complainant - Alomani (P.W.2) has clearly stated that the appellant obstructed her. She was beaten; she'was caught hold by her arms and her chest was pressed. He submits that this evidence is sufficient to hold the appellant guilty of the coramission of offence. He further submits that the version of the complainant is also supported by the testimony of her brother Suleman Lakda (P.W.3). 9. I have considered the rival submissions made by learned counsel for the parties and perused the records. 10. Complainant - Alomani (P.W.2) has stated in her testimony that she was returning after reaping crop along with Suleman, Indu, Bunti andDilcham.an and others and was lagging behind others. In her testimony, she has stated that the appellant and ofher persons were found stan4ing in way and Ejaj and Imtiyaj gave a call to stop her, upon which, the appellant and Amar Sai caught hold of her by her arms and told to pull her in and they also caught hold of her chest, upon~~which, she cried for help. Then, Suleman Ihdu and Bunty arrived and they snatehed away club and axe from. the hands of the appellant and other "persons. She has also stated that she was given a lathi blow by Bashir, -wAiicK resulted in injuiy on her back and bangles were •• / ' fcroken., ^ ^. Ih her cross-examination, she has admitted that she had gone to collect paddy from the field of Dilchaman. She has also admitted that a report has been lodged in the police station against her and other persons on the allegation of having t. 'l,. J( stolen crop from the field of Bashir. The testimony of the complainant (P.W.2) establishes that the incident happened when the complainant was retuming after collecting crop along with other persons. All that her statement discloses is that she was intercepted by Ejaj and Imtiyaz saying that she be caught and at that stage, the appellant caught hold of her by her arms and in that process, it is stated that the appeUant and Amar Sai caught hold of her chest. 11. Vifal Singh (P.W.l) and Bishun Singh (P.W.6) are the independent witnesses. In the FIR (Ex.P-2), the complainant has stated that these twio persons had arrived at the spot and were eye-witnesses 6f the incident. However, they have not supported the case of the coraplainant that her modesty was outraged or she was dishonoured. The testimony of two witnesses clearly shows that there was a dispute with regard to cutting of crops. It has alsp been stated that wife of Bashir and other persons were also present in the spot. In their examination-in-chief and cross-examination, they have remained consistent on their statement with regard to the manner in which the dispute arose between the parties.' . / ~ 12. Suleman -Lakda, brothgr of the complainant, has been *s- examined as P.W. 3. H-e also states that he and other persons including complainant were retuming after collectmg paddy from the Bled of Dilchaman and the appellant was pulling his sister arid also assaulted her. In his cross-examination, he has »& ?'•.:.:-£; ^ admitted that along with the appellant, his wife, his sister and other persons were also present. 13. Prom the entire evidence which has come on record and led by the prosecution only establishes that a dispute had arisen between the two parties. The appellant belongs to one party, whereas the complainant belongs to other party. The complainant was collecting paddy and was trying to remove it from a place, claimed to be a field belonging to appellant. Merely because during fhe course of scuffle, the appellant had caught hold one of the private parts of the complainant, is not sufficient to constitute an offence of outraging modesty. In order to establish an offence of commission of offence under Section 354 of the IPC or 3 (1) (xi) of the Act of 1989, the prosecution is required to establish beyond all reasonable doubt that force was used or the complainant was assaulted with an intention to dishonour or outrage her modesty. The evidence, which has come on record, indicates more towards the fight between the parties rather than use of any force or assault with an intention to outrage the modesty of the cpmplainant. Therefore, in the considered opinion of this Court, the prQsycution has utterly failed to prove the essential ingredierits of intention 'te.outrage modesty of fhe complainant. As has been discussed hereinabove, even the complainant (P.W.2) has not given any specific evidence in that regard. Therefore, in tte opinion of this Court the conviction of the appellant is unsustainable in law. Praveen 14. In the result, the impugned judgment of conviction and order of sentence dated 21st February, 1995 passed by learned Special Judge, Ambikapur in Special Criminal Case No.135/1994 is set aside. The appellant is acquitted ofthe charges. 15. As the appellant is on bail, he need not sun-ender. Bail bonds stand discharged. 16. The appeal is accordingly aUowed^ Sd//- Manindra Mohan Shrivastava T'.. jigC •• / •*0~