CF0000053114 p ‘ . ‘T § , gum M; cwazwgagww @yw ‘ H gggugém a. 9\3 CRmA PE No.84? :9 O 95 SANJ KUMR MORA, BBLU, Sn o Shr mat sa aya, Age ab ’19 ye edent of Vla Wadraf Na,P.$. Basa btpur Diic Sarguja (M.P.) . , strt , U lML APAL : F 19; t. VE rsus EA STE 0‘ P. THUGH P. $2 Bas a m: Pur,iri Dst c: 1 Sarg a, P ) g NxjPsAaE § g E am C REmr K } ‘ gf°$ ‘Jw‘... g . gig; ; ‘ (: AY A Y @ A o f i h Prad Mr d out ars, Rsi ilge agr \ x §§PONDQ ¥w AT ? m RQ uj (M. . I gRIMI gwAiggmUNaR 3§g ON 324%2) 0F; ig CGD OF cmpL PROE Uglg/l @i HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 81‘5 of 1995 APPELLANT Sanjay Kumar Morya _ Q VERSUS State of Madhya Pradesh RESPONDENT Shri A. K. rasad, counsel for the appellant. P Shri Neeraj Mehta,‘ Panel lawyer for respondent/State. C5IMINAL APPEAL UNDER SECTION 374 lZl OF THE CODE OF CRlMlNAL PROCEDURE. JUDGMENT (05.05.201 0) \ . This appe‘al is directed against the judgment dated 24.05.95 passed by Special Judge, Ambikapur, District Sarguja in Special Case No. 149/94 convicting the accused/appellant for the offences punishable under Sections 354 IPC and Section 3 (1) (XI) of the Scheduled Caste and Scheduled Tribe (Prevention of atrocities) Act, 1989 and sentencing him to undergo rigorous imprisonment for six months and pay fine of Rs. 500 in-default of payment of 0ne to further undergo rigorous imprisonment for six months, on each count. 2. Case of the prosecution in brief is that on 12.11.1994 a written report Ex. P-1 was lodged by Shanti Devi (PW-1), the mother of the §s prosecutrix alleging that on 31.10.1994 at about fpm. when her l daughter (the prosecutrix PW-2) aged about 18 years came out from her house for collecting fire wood, taking advantage of i darkness prevailing at that time, the accused/appellant caught hold ‘ of her and made an attempt to drag her with bad intention and upon hearing the cri’es raised bythe prosecutrix when she and her mother came out from the house, on seeing them the accused/appellant fled away. Based on the written report, F.l.R (Ex. P-4) was registered against the accused/appellant for the offence punishable under sections 354, 506 ~ ll IPC and 3 (1) (XI) of the Scheduled Caste and Scheduled Tribe (Prevention of atrocities) Act, 1989. After ”A- ,‘ investigation, chaiian was filed on 20.11.94 under the said sections and the accused/appeiiant was prosecuted accordingly. 3i In order to estabiish the guilt of the accused/appellant the p‘rosecution has examined 04 witnesses. Statementg of the accused/appellant .was also recorded under Section 313 of the Cpde of Criminal Procedure in which he denied the charges levelled a‘gainst him and pleaded his innocence and false implication in the case. l 4. After hearing the parties‘rthe trial Court has convicted and sentenced the accused/appellant for the offences as mentioned abov‘e. 5. tHeard counsel for the parties and perused the material available on record including the judgment under challenge. 6. Counsel for the appellant submits that there’is 12 days delay in lodging the FIR which has not satisfactorily been explained by the prosecution. According to him, the appellant has been falsely implicated in the case for the'reason that earlier he was beaten by the family members of the prose'cutrix for which a report was also lodged by him. He submits that to take revenge, this report has been lodged against the accused/appellant. In respect of offence under section 3 (1) (XI) of the Scheduled Caste and Scheduled Tribe (Prevention of atrocities) Act, 1989, it has been argued that no cbgent and clinching evidence has been adduced by the prosecution to show that the prosecutrix belongs to Sch$duled Caste or Scheduled Tribe community nor any document whatsoever has been produced by the prosecution to this effect and in these circumstances the appellant cannot be convicted under Section 3 (1) (XI) of the Scheduled Caste and Scheduled Tribe (Prevention of atrocities) Acti‘ Counsel tor the appellant also submits that during the pendency of the appeal the present appellant and the prosecutrix have filed the applications under sections 320 (2) and 320 (5) ofthe Code of Criminal Procedure duly suppOrted by their affidavits, for compromising the matter. (g? i VT ‘v l l ...3_ 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the conviction of the accused/appeilant is in accordance with the material available on record and therefore no interference is warranted with the same. Q 8. Shanti Devi (PW-1) — the mother of the prosecutrix and lodger ‘of the FIR has stated in her evidence that she belongs to Harijan community and on the date of incident when her daughter (the prosecutrix) aged about 18 years had come out of her house to Collect the fire wood, immediately thereafter she heard her cries. On hearing the cries raised by her daughter, she came out and saw the ascUsed/appeliant running away from the spot. Though she tried to catch hold of the accused/appellant, she did not succeed in it. Thereafter, she went to the house of village Sarpanch to inform the incident. She has stated that her daughter had informed her that the accused/appellant had caught hold of her hand and tried to drag her with an intention to outrage her modesty. On the second day, she went to the. police station to lodge the report but as the Station House Officer of the said Police Station was not there, the report cOuld not be lodged. ln cross examination, this witness has stated that prior to the date of incident on 1.7.1994 the accused/ appellant was beaten by her, her daughter (the prosecutrix) and her son Arun Kumar. She has stated that about the said incident the report was lodged by the brother of the accused/appellant on 1.7.1994 itself. She has admitted that in the incident the accused/appellant had suffered injuries and was also medically examineb for the same. In respect of certain contradictions and omissions this witness has . stated that all the things were disclosed but if the same were not recorded by the police, she cannot tell the reason for that. Prosecutrix (PW—2) has stated that on the date of incident when she, g had come out of her house to collect the fire wood, accused/appellant caught hold of her and started dragging her buti, as in the meanwhile her mother and maternal grand mother reached there, he left the spot. She has stated that while leaving the spot, the accused/appellant had left his slippers which were subsequently seized by the police. In cross examination, this witness has stated that the accused/appellant used to write love letters but no such 1‘- @ w complaint was made by her to anyone. She has however admitted that there was no Iight outside the house and she had not seen the accused/appellant. She has stated that on the date of incident she had not gone to the poiice station to lodge the report. However, on the second day her mother had gone there to do so but as the Station House Officer was not there, the report couid not be lodged. On the third day also her mother had gone to lodge the report but it could not be lodged even on that day. Independent witness namely Deomania (PW-3) has not supported the case of the prosecution and has been declared hostile. Ajit Singh Patle (PW—4) who had investigated the matter has however supported the case of the pro‘se‘cution. ._C/_ (H 9. gClose scrutiny of the evidence available on record reveals that there is an inordinate unexplained delay in lodging the FIR. Record also shows that Shanti Bai (PW-1) and the prosecutrix (PW-2) have stated that as the Station House Officer of the concerned Police Station was transferred elsewhere. the report could not be lodged by her promptly whereas the Station House Officer himself has stated that though he was not present in the said police station, other staff members were very much there on duty. Shanti Devi (PW-1) has admitted that prior to the date of incident, the accused/appellant was beaten by her and the family members for which the report was also lodged by him against them and that being the situation possibility of false implication in the case cannot be ruled out As regards the offence under the prOVISIons of the SpeCIal Adt no certificate whatsoever Including any document which Is a sme qua none for thel offence of such a nature, has been fled by the prosecution to show that the prosecutrix belongs to the scheduled caste or scheduledl tribe category Moreover the appellant and the prosecutrix havel filed the applications under sections 320 (2) and 320 ( ) of the Code‘ of Criminal Procedure stating therein that they have compromised the matter outside the Court but as the offence alleged is not“ co‘mpoundable in nature, no order can be passed on those applications. l __ *‘Jx_ 10. Having thus subjected the entire material to carefui examination, this Court reaches the conclusion that the trial Court has not appreciated the evidence adduced by the prosecution in its proper perspective. In this view of the matter, the judgment impugned convicting and sentencing the accused/appellant as mentioned above cannot be sustained. 10. Consequently, the appeal is allowed. Impugned judgment is hereby set aside. Appellant is acquitted of the charges levelled against him. As the appellant isalready enjoying the bail, bail bonds pN/s ":r:\ furnished by him stand discharged. Sd/- V , “3 ’ Pritinker Diwaker Judge