State Of M.P. vs Phool Singh on 6 July, 2017

1 CRA.344/2011

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON’BLE MR. JUSTICE G.S. AHLUWALIA

Criminal Appeal No.344/2011
State of M.P.
-Vs-
Phool Singh

None for the appellant.
None for the respondent.
__
JUDGMENT

(06/07/2017)

The lawyers are reported to be abstaining from work.
This appeal is pending since 2011 and it is apparent from
the record that the accused/respondent on the date of the
incident i.e. 21.9.2005 was aged about 70 years.

The Supreme Court in the case of Surya Baksh Singh
Vs. State of U.P. reported in (2014) 14 SCC 222 has held
as under:

“24. It seems to us that it is necessary for the
appellate court which is confronted with the
absence of the convict as well as his counsel,
to immediately proceed against the persons
who stood surety at the time when the convict
was granted bail, as this may lead to his
discovery and production in court. If even this
exercise fails to locate and bring forth the
convict, the appellate court is empowered to
dismiss the appeal. We fully and respectfully
concur with the recent elucidation of the law,
profound yet perspicuous, in K.S. Panduranga
v. State of Karnataka (2013) 3 SCC 721. After
a comprehensive analysis of previous decisions
our learned Brother had distilled the legal
position into six propositions: (SCC p. 734,
para 19)
“19.1. that the High Court cannot dismiss
2 CRA.344/2011

an appeal for non-prosecution simpliciter
without examining the merits;

19.2. that the Court is not bound to adjourn
the matter if both the appellant or his
counsel/lawyer are absent;

19.3. that the court may, as a matter of
prudence or indulgence, adjourn the matter
but it is not bound to do so;

19.4. that it can dispose of the appeal after
perusing the record and judgment of the trial
court.

19.5. that if the accused is in jail and
cannot, on his own, come to court, it would be
advisable to adjourn the case and fix another
date to facilitate the appearance of the
appellant-accused if his lawyer is not present,
and if the lawyer is absent and the court
deems it appropriate to appoint a lawyer at the
State expense to assist it, nothing in law would
preclude the court from doing so; and
19.6. that if the case is decided on merits in
the absence of the appellant, the higher court
can remedy the situation.”

25. The enunciation of the inherent powers of
the High Court in exercise of its criminal
jurisdiction already articulated by this Court on
several occasions motivates us to press Section
482 into operation. We reiterate that there is
an alarming and sinister increase in instances
where convicts have filed appeals apparently
with a view to circumvent and escape
undergoing the sentences awarded against
them. The routine is to file an appeal, apply
and get enlarged on bail or get exempted from
surrender, and thereafter wilfully to become
untraceable or unresponsive. It is the bounden
duty cast upon the Judge not merely to ensure
that an innocent person is not punished but
equally not to become a mute spectator to the
spectacle of the convict circumventing his
conviction. (See Stirland v. Director of Public
Prosecutions 1944 AC 315, quoted with
approval by Arijit Pasayat, J. in State of Punjab
v. Karnail Singh (2003) 11 SCC 271.) If the
court is derelict in doing its duty, the social
fabric will be rent asunder and anarchy will rule
everywhere. It is, therefore, imperative to put
an end to such practice by the expeditious
disposal of appeals. The inherent powers of the
High Court, poignantly preserved in Section
482 CrPC, can also be pressed into service but
with care, caution and circumspection.”

3 CRA.344/2011

The Supreme Court in the case of Hussain Vs. Union of
India by its order dated 9.3.2017 passed in Cr.A. No. 509 of
2017 has held as under:

“27. To sum up:

(i) The High Courts may issue directions to
subordinate courts that –

(a) Bail applications be disposed of
normally within one week;

(b) Magisterial trials, where accused are
in custody, be normally concluded within six
months and sessions trials where accused are
in custody be normally concluded within two
years;

(c) Efforts be made to dispose of all
cases which are five years old by the end of
the year;

(d) As a supplement to Section 436A,
but consistent with the spirit thereof, if an
undertrial has completed period of custody in
excess of the sentence likely to be awarded
if conviction is recorded such undertrial must
be released on personal bond. Such an
assessment must be made by the concerned
trial courts from time to time;

(e) The above timelines may be the
touchstone for assessment of judicial
performance in annual confidential reports.

(emphasis added)

(ii) The High Courts are requested to ensure
that bail applications filed before them are
decided as far as possible within one month
and criminal appeals where accused are in
custody for more than five years are concluded
at the earliest;

(iii) The High Courts may prepare, issue and
monitor appropriate action plans for the
subordinate courts;

(iv) The High Courts may monitor steps for
speedy investigation and trials on
administrative and judicial side from time to
time;

(v) The High Courts may take such stringent
measures as may be found necessary in the
light of judgment of this Court in Ex Captain
Harish Uppal (supra).”

Therefore, this Court is left with no other option but to go
through the record and decide the appeal.

This criminal appeal under Section 378 of Cr.P.C. has
been filed against the judgment dated 16.12.2010 passed by
4 CRA.344/2011

Special Judge, Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, Vidisha in Special S.T.No.
129/2005 by which the respondent was acquitted of the
charge under Section 323 of IPC as well as under Section 3 (1)

(xi) of Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act.

The necessary facts for the disposal of the present
appeal in short are that on 22.9.2005, the prosecutrix lodged
a FIR alleging that the grocery shop of the respondent is
situated near the house of the prosecutrix. The prosecutrix
had gone to the shop of the respondent to purchase sugar. The
respondent after giving the sugar demanded the money. In
reply, it was stated by the prosecutrix that she would make
the payment after her husband comes back. The moment she
was about to leave the shop, at that time, the respondent with
an evil intention caught hold of her hand and started pulling
her inside the shop. The prosecutrix said that she would
inform her father, at that time the respondent requested not to
narrate the incident to anybody and he would give clothes to
her. Thereafter, the prosecutrix came back to her house and
informed her mother about the incident who went to the shop
of the respondent but he was not there. On the next day, her
father came back who was informed about the incident by her
mother. In the morning, the prosecutrix along with her father
and mother went to the house of the respondent where the
respondent by calling her father by his caste name assaulted
on the head of her father by an utensil, as a result of which he
has sustained injury. On these allegations, the police
registered the crime for offence under Sections 354, 323, 294
of IPC and under Section 3 (1) (xi) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act. After arresting
the respondent and completing the investigation, the police
filed the charge sheet for offence under Sections 354, 294,
5 CRA.344/2011

323 of IPC and under Section 3 (1) (xi) of Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act.

The Trial Court by order dated 12.12.2005 framed
charges under Section 3 (1) (xi) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act and under
Section 323 of IPC.

The respondent abjured his guilt and pleaded not guilty.
The prosecution in order to prove its case examined
prosecutrix (PW-1), Imratbai (PW-2), Ramcharan (PW-3),
Samar Singh (PW-4), Suryakant Sharma (PW-5) and Dr. B.P.
Sharma (PW-6).

The respondent did not examine any witness in his
defence.

The prosecutrix (PW-1) has stated that after weighing
the sugar, the respondent kept the same on the scale and
when she picked up the sugar at that time the respondent
caught hold of her hand and pulled her towards him. When the
prosecutrix was running away, at that time the respondent
stated that the prosecutrix should come to him for a night and
he would do whatever is demanded by the prosecutrix. He
would give her Saree, Blouse and Silver Payal but she should
not inform anybody. The prosecutrix started crying and came
out of the shop. Thereafter, she went to the house of the
respondent and informed his wife, who expressed her
helplessness. The wife of the respondent also requested not to
narrate the incident to anybody and offered that they would
amicably settle the issue. Thereafter, the incident was narrated
to her mother by the prosecutrix. Her mother also talked to
the wife of the respondent who informed that the respondent
has gone to Vidisha. It was further stated that her father had
gone on duty in the night and when he came back, the
incident was narrated to him and when he talked to the
respondent about the incident at that time the respondent
6 CRA.344/2011

assaulted her father by an utensil and accordingly the FIR
Ex.P/1 was lodged. The spot map Ex.P/2 was also prepared. In
cross-examination, the prosecutrix admitted that she is
residing in a one room rented house along with her husband
which is situated in front of the shop of the respondent. She
further admitted that on earlier occasions also, she had
purchased goods from the shop of the respondent on credit
basis and on the date of incident she had purchased the sugar
worth Rs. 2/-. She further admitted that in FIR (Ex.P/1) and
police case diary statement Ex.D/1 the fact that the
prosecutrix raised alarm and the respondent had offered Sari,
Blouse and Silver Payal is not mentioned but she could not
explain the reason for the same. She further admitted that in
FIR Ex.P/1 and police case diary statement Ex.D/1 the fact of
an offer made by the respondent with the prosecutrix should
stay with him for a night is also not mentioned and she could
not explain the reason for the same. She further admitted that
the fact of narrating the incident to the wife of the respondent
is also not mentioned in her police case diary statement
Ex.D/1 and police report Ex.P/1 but admitted that she has
stated for the first time in the Court. She further stated that
the incident was narrated by the prosecutrix on the next day
to her father as her father was not in the house on the date of
incident. She further admitted that in the FIR Ex.P/1 and
police report Ex.D/1 the fact that the wife of the respondent
had offered to settle the matter amicably and not to inform
the respondent to anybody is not mentioned and she could not
give reasons for the same. She further stated in police report
Ex.P/1 the fact that the mother of the prosecutrix had also
gone to the house of the respondent where she met with his
wife was mentioned. However the said fact is not mentioned in
FIR Ex.P/1, but the prosecutrix was not confronted with FIR
Ex.P/1. She further admitted that on earlier occasions also the
7 CRA.344/2011

prosecutrix had taken grocery from the shop of the respondent
on credit basis and on the date of the incident, total amount of
Rs. 100/- was outstanding against her. However, she denied
that the false FIR was lodged as she was not interested to pay
the outstanding amount.

In examination-in-chief, this witness has further stated
that the respondent had assaulted her father by an utensil but
in the police case diary statement Ex.D/1 she had stated that
the respondent had assaulted her father by fists and blows.

Imratbai (PW-2) has stated that the respondent after
catching hold the hand of the prosecutrix threw her on the
ground and locked the door and the prosecutrix after pushing
the respondent came out of the shop after opening the door.
The prosecutrix talked to the wife of the respondent who also
expressed her helplessness thereafter the prosecutrix
informed the incident to this witness and they went to the
house of the respondent but either the respondent had left for
some place or went in hiding. She further stated in cross-
examination that the FIR was lodged by her and further denied
that as there was some dispute between the prosecutrix and
the respondent on the question of repayment of money,
therefore, the false FIR has been lodged. She further admitted
that there is no dispute between the complainant and the
respondent on the question of caste. She further admitted that
an amount of Rs. 100/- is outstanding against the prosecutrix.
She further stated that at the time of the incident, lot of
persons had gathered there and the respondent is aged about
70 to 80 years.

Ramcharan (PW-3) has stated that in the morning at
about 8-9 he came back and was informed by the prosecutrix
about the incident. In cross-examination, the attention of this
witness was drawn to his case diary statement Ex.D/2 in which
it was mentioned that on 21.9.2005 he was in his house when
8 CRA.344/2011

he was informed about the incident but this witness could not
explain as to how this fact is mentioned in his case diary
statement. Further, this witness denied that he went to the
shop of the respondent on the next day and the respondent
abused him.

Samar Singh (PW-4) has stated that on the statement
made by the prosecutrix, FIR Ex.P/1 lodged by him. Medical
requisition form Ex.P/3 was prepared for the medical
examination of Ramcharan (PW-3). Merely on the saying of
the prosecutrix that she is Adiwasi by caste, the offence under
Section Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act was registered. He further denied that the FIR
was registered on the dictations of the parents of the
prosecutrix and thereafter her signatures were obtained on the
FIR.

Suryakant Sharma (PW-5) had investigated the matter,
the spot map Ex.P/2 was prepared, the statements of the
witnesses were recorded, the respondent was arrested on
26.9.2005 vide arrest memo Ex.P/4, the caste certificate of
the prosecutrix and the father of the prosecutrix was collected
from the Gram Panchayat Gyaraspur which are Ex.P/5 and
Ex.P/6. This witness in cross-examination has stated that he
did not record the statements of the neighbourers as they had
clearly stated that no such incident has been witnessed by
them.

Dr. B.P. Sharma (PW-6) had medically examined
Ramcharan (PW-3) and had found the following injuries:

(1) One lacerated wound on left parietal region above
ear of size about 1 ½ cm. X ½ x ½.

The MLC report is Ex.P/.7. In cross-examination, this
witness had admitted that the injury could have been
sustained by fall.

If the evidence of the witnesses are considered then it is
9 CRA.344/2011

clear that the prosecutrix (PW-1) has made several
improvements which were not mentioned in the FIR Ex.P/1
and in the case diary statement Ex.D/1. Furthermore, the
prosecutrix (PW-1) has admitted that an amount of Rs. 100/-
was outstanding towards her as she had purchased several
goods on credit basis. There is an improvement that the
prosecutrix (PW-1) had informed the wife of the respondent
about the incident. There is further improvement that the
respondent had offered the prosecutrix (PW-1) to stay for a
night and had offered Sari, Blouse and Silver Payal. There is a
discrepancy as to when the prosecutrix (PW-1) informed her
father Ramcharan (PW-3). Ramcharan (PW-3) in his case diary
statement Ex.D/2 had stated that the prosecutrix had
informed him on 21.9.2005 itself whereas in his evidence he
has stated that he came back to his house on 22.9.2005 and
at that time he was informed about the incident by the
prosecutrix (PW-1) and further there is a discrepancy with
regard to the manner in which the injury was caused to the
father of the prosecutrix. In police case diary statement
Ex.D/1 the prosecutrix (PW-1) has stated that the respondent
had assaulted her father by fists and blows whereas in her FIR
Ex.P/1 as well as in Court evidence she has stated that the
respondent had assaulted her father by means of an utensil.
However, Ramcharan (PW-3) has not clarified that in what
manner the respondent had assaulted. On the contrary, in
paragraph 4 of his cross-examination, Ramcharan (PW-3) has
specifically denied that he went to the shop of the respondent
in the morning on the next day and the respondent abused
him. Dr. B.P. Sharma (PW-6) has stated that the injury could
have been caused by fall. Imratbai (PW-2) has stated that
there is no dispute between the prosecutrix and the
respondent on the issue of caste. Prosecutrix (PW-1), Imratbai
(PW-2) and Ramcharan (PW-3) have not stated in their Court
10 CRA.344/2011

evidence that the respondent had called them by their caste
name. Thus, it is clear that the prosecution has failed to prove
the allegations made against the respondent for offence under
Section 323 of IPC and under Section 3 (1) (xi) of Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act.

It is well established principle of law that when two
views are possible and if the Trial Court has taken a view
favouring the accused then the same cannot be interfered with
unless and until the findings are perverse and contrary to
record. This Court by re-appreciating the evidence do not find
any perversity in the judgment passed by the Trial Court.
Accordingly, the judgment dated 16.12.2010 is hereby
affirmed.

This appeal fails and is hereby dismissed.

(G.S. AHLUWALIA)
(alok) Judge

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