I81fc^®811®i^tlPti^Iii!^^ IN THE'HIGH COURT OF MADHTA PRADESH AT 'JABALPURo Criminal Appeal No. ^VJ /96» APPELLANT. (IN JAIL) -,J^f • RESPOHDENT, Vr^^-S> s^> -Versus- < Hasrat ^nsari S/Oo Rahmat Al^1' By Cast Muslaman, aae 25 •years R/o» Vill- Chandarna'gar PS- Ramanujganj Distt- Sargujd^ MP^ State of M»P* through Police Station Raraanajganj, Distt- Sarguja^ MP» ^ CRIMINAL APPEAL U/S» 374(2) OF THE CODE OF CRIMINMi v,s^' PROCEDURE. ^ MIfiM ^OURT OP 5MMATTE55ARM AT 6$L15PU^ Singl®Bench •• Hon*bJ« Mr. Justic®PritinKer Diwaker Criminal ApDeal No. 619 of 1996 APPELLANT KESPONDENT Hazrat Ansarj, s/o Rahmat A II Versus The State of AAadhya Pradesh Shri Shokti Raj Sinha, counsel for the appeiiont. Shri Vivek Sharma, Ponel Lawyer for the State. CRIMINAL APPEAL UNDER SECTION 374 f2) OF THE CODE OF CRIMINAL PROCEDURE JUD6MENT (14.01.2011) This appeal is directed against the impugned Judgment ond order dated 23.03.1996 passed by Specid Judge, Ambikapur, Sarguja in Special Crjminaj Case 114/95 convicting the accused/appellant under Section 3 (1) (xi) of the Schedujed Caste <& Scheduled Tribe (Prevention of Atrodties) Act, 1989 and sentencing him to undergo rigorou? imprisonment for four years with fine of Rs.500/-, in default of payment of fine to further undergo simple imprisonment for one month. 2. Case of the prosecution in brief is that on 20.5.1995 at about 7.10 pm F.I.R. (Ex.P-1) was lodged by the prosecutrix (PW-1), aged about 20 years, alieging that on 19.5.1995 at about 8 pm when she was returning along with her brother after selling Tendu leaves on her bicycle, on the way, accused/appellant caught hold of her hand and tried to pull her and during this process her shir^ was torn ond bangjes were broken. She has furl-her stated that when she cried, accused/appeliant fjed awoy from the spot and after reaching home she norrated the entire incident to her mother and father, thereafter, she has algo stated that she is Schedujed Tribe by caste and had his brother uvould not have there, the accused/appejlant could have insujted her. Based on this F-I.R., offences under Sections 354 IPC and 3 (l)(xi) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act was registered agdnst the accused/appellant. After investigation chailanwos fited on 15.9.1995 under Sections 354 IPC and 3(l)(xi) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. 3. So as to hojd to accused/appellQnt guilty, prosecution has examined .02 witnesses in supporl- of its case. Stotement of the accused/appellouit was dso recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges leveljed against him and pieaded his innocence and false implication in the case. Aparl' from this, witness namely Nateshwar Singh (bW"l) has also been examined by the defence in support of its case.. 4. By the impugned judgment, the accused/appelloint hos been convicted for the offences under Sections 354 IPC ond 3(l)(xi) of the Scheduled Caste di Scheduled Tribe (Prevention of Atrocities) Act, however, has been sentenced only under Seetion 3(l)(xi) of the Scheduled Caste di Scheduled Tribe (Prevention of Atrocities) Act. Hence, this apped. 5. Counsej for the appeljant submits that on the date of incident, there was absoiutely dark ond the prosecutrix has identified the occused/appel lo.nt only on the basis of his voice. He submits that no voice identification has been held and, therefore, the benefit of doubt should be extended to the accused/appellont. He furt-her submits that imporl'ant witness AAcinoj, brother of the prosecutrix has not been excmined by the prosecution and on this ground also, benefit of doubt f ~",^ should be given to the accused/appellant. He fuM-her submits that even mother and father of the prosecutrix to whom she narrated the entire incident hove not been examined. Lostly it has been argued that on the dote of incident neither the appetlant nor the prosecutnx had gone to sell fencfu \ea\/es ar\d this has been categorically stated by the defence witness Nateshwar Singh (DW-1). 6. On the other hand support'ing the impugned judgment it has been argued by the State counsel that conviction of the accused/appeltant is in accordance with lawoind it hardly moikes any difference even if the prosecutnx alone has been examined bythe prosecution. 7. I have heard counsel for the pcrties and perused the material available on record incjuding judgment impugned. 8. Prosecutrix (PW-1) has stated in her evidence that on the date of incident ot about 8 pm when she along with her brother was returning to her house on her bicycle after selling Tendu leave, on the woy when she stopped her bicycle to pick up the towej of her brother lying down, accused/appellant came to her running, caught hojd of her and had tried to pull her. She has stated that during scuffle her shirt was torn and her bangles were also broken and when she raised cries, her brother came there and, thereofter, the accused/appellant fled away from the spot. She hos furl-her stated that she went to her house weeping and she narrated the entire incident to her mother and father and on the second day F.I.R. was lodged. She has also stated that her shi^ ond bongles were seized by the police vide Annexure P-2. In her cross-examination, there appears to be some contradictions cnd omissions in her ^a ^-^^^ "^""^,. ^ /"€ •^ ^ ^^;/ ^': stotement from that of her statement recorded under Section 161 of the Code of Criminal Procedure. She has further admitted the fact thatat the time of incident, it was dark in the night and she has denied the fact that there was ony dispute between her father and the father of the accused/appetjant. She has furl'her stated that she had identified the accused/appejlant on the basis of his voice, though she hois denied the fact that she could not identify the accused/appellant because of darkness. 9. P.S. Markam, A.S.I. (PW-2) whife support-ing the case of the prosecution has stated that the F.I.R. (Ex.P-1) was lodged, seizure of the shirt and bangles were made vide Ex.P-2, spot map wos prepared vide Ex.P-3, however, no witness in respect of the seizure or preparation of the spot map has been examined bythe prosecution. 10. AAinute examination of the witnesses in particular the statement of the prosecutrix creates a doubt in the mind of this Courl- thort- as to whether the accused/appellant was rightly identified by the prosecutrix or not. Prosecutrix admits that on the date of incident, it was dark in the night. She has also stated that she identified the accused/appellant on the basis of his voice. This apart, AAanoj (brother of the prosecutrix) import'ant witness of the prosecution has not been examined ond similorly the mother and father to whom the entire incident was narrated by the prosecutrix immediately after the incident have also not been examined. AAerely on the basis of evidence as collected by the prosecution, it will not be safe for this courl- to uphold the conviction of the accused/appellant under Section 3(l)(xi) of the Schedujed rm~ ..^.^-...';-' .^'^.'":;-, J VS-S^^ 'j ^\ ' 7"" 'i ^ \^' Caste <& Scheduled Tribe (Prevention of Atrocities) Act and that being so benefit of doubt must go in favour of the accused/appellant. 11. To conclude, the appeal is allowed. Impugned judgment dated 23.3.1996 is hereby set aside. Appellant is acquitted of the charges levelled against him. Since appellant is already on bail, his bail bonds stand discharged. .,.... —.. —..„ -.„.--.„..-..3— g^_ Pritinker Diwaker Judge