Ram Dulare vs The State Of M.P. on 10 July, 2017

HIGH COURT OF MADHYA PRADESH AT JABALPUR
Cr.A. No. 1491 OF 1997
Ram Dulare
Vs.
The State of M.P.
*****
None appears for the appellant.
Mrs. Sharda Dubey, learned P.L for respondent/State.
—————————————————————————-Present:
Hon’ble Shri Justice Sushil Kumar Palo ———————-
—————————————————–
JUDGMENT

(10.07.2017)

Law clearly expects the appellate Court to dispose of the
appeal on merits, not merely by perusing the reasoning of the
trial Court in the judgment but by cross-checking the
reasoning of the evidence on record. It is the duty of the
appellant and his lawyer to remain present on the appointed
day, time and place, when the appeal is posted for hearing.
This is the requirement of the Code of Criminal Procedure on
a plain reading of sections 385-386 of Cr.P.C.
2 The law does not enjoin that the Court shall adjourn the
case if both the appellant and his lawyer are absent. In the
case of Bani Singh and Others Vs. State of U.P., AIR
1996 SC 2439, the Apex Court while dealing with Section
386 of Cr.P.C held that when appellant and his lawyer are
absent on appointed for hearing, the Court is not bound to
adjourn the case, but should dispose of appeal on merits. The
dismissal of appeal simpliciter for non-prosecution is not
contemplated.

3 In a similar case of K.S. Panduranga Vs. State of
Karnataka, 2013 Cr.L.J 1665 the Apex Court has held that
it cannot be said that the Court cannot decide a criminal
appeal in the absence of the counsel for the accused, even if
the counsel does not appear deliberately or shows negligence
in appearing.

4 This criminal appeal is pending since 1997, but none
appeared on behalf of the appellant. Therefore, in view of
aforesaid enunciation of law, the appeal is being decided.
5 This criminal appeal is pending since 1997. This criminal
appeal has been preferred under Section 374 (2) of Cr.P.C
assailing the judgment dated 15.07.1997, passed by Special
Judge, under SC/ST (Prevention of Atrocity) Act, 1989, (for
brevity, “Act, 1989),” Balaghat, wherein the
appellant has been convicted for offence under Sections 3 (i)

(xi) of the Act, 1989 and sentenced to one year rigorous
imprisonment with fine of Rs.1,000/- and in lieu of fine simple
imprisonment for three months.

6 As per the prosecution story on 16.08.1995 at about 8 am,
the complainant- Madhuri had gone to her field to attend the
call of nature. The accused/appellant tried to outrage her
modesty. The appellant knowing that the complainant
belongs to ST category, committed the said crime. On her
lodging report Ex. P/1, after half an hour, crime has been
registered by Police Station Baihar. After investigation,
charge sheet was filed for offence under under Sections 3 (i)

(xi) of the Act, 1989 read with Section 354 of I.P.C. However,
charges have been framed for offence under Section 3 (i) (xi)
of “the Act, 1989” only. The appellant abjured
guilt and claimed that he is innocent and falsely implicated.
7 Learned trial Court, after recording the evidence, convicted
the appellant and sentenced as mentioned above. The
appellant has assailed the judgment impugned on the ground
that as there is no charge under Section 354 of I.P.C,
therefore, the question of committing offence under Section 3

(i) (xi) of “the Act, 1989,” does not arise.
8 It is further contended that the Court has overlooked the
omissions and contradictions in the evidence of the
complainant and the complainant’s evidence is not
corroborated by other witnesses specially by the
Investigation Officer- Shri S.R. Marskole (PW 5). Therefore,
the finding given by the learned trial Court is not sustainable.
9 Learned P.L for the respondent/State, at the other hand,
refuted all the pleas advanced by the appellant and submits
that the learned trial Court has considered the evidence
available on record which calls for no interference.
10 Perused the record and the judgment in question. The
prosecutrix (PW 1) alleges that the appellant came to her,
when she was attending the call of nature. He caught her
from behind and he molestated her. He tried to fell her on the
ground. When she kicked him, he fell down at a distance. The
prosecutrix gathering her clothes ran to her house. She
narrated the incident to her sister-in-law-Anju (PW 2) and her
mother. Her neighbour- Chandraprabha (PW 3) was also
present when she narrated the incident to her mother and
sister-in-law. According to her, after half an hour, she went to
Police Station Baihar and lodged the report Ex. P/1.
11 Anju (PW 2) and Chandraprabha (PW 3) have corroborated
the evidence of prosecutrix (PW 1). According to the
complainant and Anju (PW 2) the clothes of complainant were
stained with mud for she had fallen on the field.
12 This fact is not found supported from the statement of Shri
S.R. Marskole (PW 5) who lodged the report Ex. P/1.
13 It would be appropriate to mention here that complainant
informed her sister-in-law- Anju (PW 2) that she was going to
attend the call of nature near the “nalah.” But
according to the complainant, she was attending the call of
nature at the field and not near the “nalah.” The
complainant admits that Anju (PW 2) is her sister-in-law and
Chandraprabha (PW 3) is her distant cousin and neighbour.
Kuwar Lal (PW 4) is her own brother. Kuwar Lal (PW 4),
Chandraprabha (PW 3) and Anju (PW 2) were the persons to
whom the prosecutrix informed about the incident. Therefore,
they were after incident witnesses. Report has been written
by Shri S.R. Marskole (PW 5), T.I of Police Station Baihar. He
has also recorded the police statement under Section 161
Cr.P.C of the prosecutrix (PW 1) , Chandraprabha (PW 3). He
prepared the spot map Ex. P/2 and arrested the appellant
preparing arrest memo Ex. P/3. There has been discrepancies
in the statements of the prosecutrix and her report Ex. P/1.
14 The prosecution has not produced any caste certificate
which would prove that the prosecutrix is a member of
Scheduled Castes/ Scheduled Tribes. The investigation was
conducted by Shri S.R. Marskole, T.I, Police Station Baihar. It
seems that the mandatory provision of investigation by police
officer not below the rank of Dy.S.P has not been followed in
this case.

15 In this regard, it would be appropriate to refer to the
decision in the case of Bharat Singh vs. State of M.P.,
2006 (4) MPLJ 171 wherein it has been held that
“the prosecution failed to establish by adducing cogent
and reliable evidence that the complainant belonged to
Scheduled Caste or Scheduled Tribe community, inasmuch as
in court statement he deposed that he belonged to ‘Balai’
caste but nowhere he has stated his caste falls within the
category of Scheduled Castes or Scheduled Tribe. Mere
admission by complainant that he belonged to ‘Balai’
community is not sufficient to establish that he belonged to
Scheduled Caste community. No caste certificate from the
Competent Authority is filed. It has also been held that
investigation was done by Station House Officer contrary to
Rule 7 of SC ST (Prevention of Atrocities) Rules, 1995 and,
therefore, conviction and sentence are unsustainable. It has
also been held that provision enshrined under Rule 7 is
mandatory and, therefore, only those Deputy Superintendent
of Police who are specifically appointed by the State
Government or the Director General of Police or the
Superintendent of Police or the Competent Authority for the
purposes of investigating the case, under the 1989 Act can
investigate the offence. Investigation done by inferior officer
of the police other than the Superintendent of Police duly
appointed, as per the provision of Rule 7 of 1995 Rules,
would cause prejudice to the accused because the
investigating officer had not obtained the certificate from the
Competent Authority to establish that complainant belongs to
Scheduled Caste or Scheduled Tribe community.”
16 In the light of the above, there are discrepancy in the
statements of the prosecutrix, the mandatory provision of
Rule 7 of 1995 Rules has not been followed and no caste
certificate has been produced. Therefore, it would not be
proper to sustain the impugned judgement. Hence, this
appeal is allowed.

17 Conviction and sentence as aforesaid are hereby set aside.
The appellant is on bail and he is acquitted of the charges. He
is on bail. His bail bond are discharged.

(SUSHIL KUMAR PALO)
JUDGE

awinash

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