Harinarayan vs The State Of M.P. on 17 August, 2017

HIGH COURT OF MADHYA PRADESH AT JABALPUR
Cr.A. No. 2193 OF 1998
Harinarayan @ Munna
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

(17.08.2017)

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 1998, but none
appeared on behalf of the appellant. Therefore, in view of
aforesaid enunciation of law, the appeal is being decided.
5 This appeal has been preferred by the appellant-
Harinarayan under Section 374 (2) of Cr.P.C, challenging
the judgment, conviction and sentence dated 31.08.1998,
passed by Special Judge, Raisen under the SC/ST
(Prevention of Corruption) Act, 1989 (for brevity the
“Act, 1989”) Raisen, in Special Case No. 330/1996,
whereby the appellant has been convicted for offence
under Section 3 (i) (xi) of the “Act, 1989” and
sentenced to six months simple imprisonment with a fine
of Rs.200/- and in lieu of fine fifteen days additional
simple imprisonment.

6 The prosecution case in brief is that on 24.02.1996, the
prosecutrix (PW 1) a member of Scheduled Caste, had
gone to collect medicine. On her way back she missed
the bus, therefore, was walking down to her village. On
the way suddenly someone caught her hand. She was
surprised and when she saw it was the accused-
Harinarayan. The accused fell her on the ground because
of which she sustained injuries. Her bangles were
broken. She pushed him away and shouted. Hearing her
shout Ramcharan Choudhary and his grand son came to
the scene of crime. The accused while leaving the place
of incident, threatened her to see her calling
“Khangaran” ( her caste name). He said if she
lodges any report, she would not be spared. The
prosecutrix went to the village Hathora and informed the
Sarpanch Hakam Singh (PW 3) and Chaukidar about the
incident. When her brother Lakhu (PW 2) came, she also
informed the same to him. She went to Chauki Jethari
(PW 4) and then to Police Station Jaithari to lodge the
report (Ex. P/1). The Station House Officer Pankaj Dixit
(PW 6) lodged the F.I.R Ex. P/7 after receiving the copy
of report. The prosecutrix was sent for medical
examination. Spot map Ex. P/2 was prepared at the
instance of the prosecutrix Lakhu (PW 2) and Hakam
Singh (PW 3). Accused was arrested by arrest memo Ex.
P/6. The caste certificate (Ex. P/5) issued by Sarpanch of
the village Hathora. After due investigation, charge sheet
has been filed. Learned trial Court framed charge under
Section 3 (i) (xi) of the “Act, 1989” and under
Section 323 of I.P.C.

7 The accused abjured guilt and pleaded innocence. The
learned trial Court after adducing evidence held the
appellant guilty for offence under Section 3 (i) (xi) of the
“Act, 1989” and acquitted the appellant for offence
under Section 323 of I.P.C and sentenced as mentioned
above.

8 The impugned judgment has been assailed by the
appellant on the ground that the appellant has been
falsely implicated by the prosecutrix (PW 1). The F.I.R
was lodged belatedly. The incident allegedly took place
on 24.02.1996 and the F.I.R has been lodged on
27.02.1996. The prosecution failed to explain the delay in
lodging the report. Testimony of prosecutrix (PW 1) is
not corroborated by any other witness. The injuries have
not been corroborated by any medical evidence. No
independent witnesses have supported the prosecutrix
due to political enmity. The appellant has been falsely
implicated. No material witness has been examined
except the prosecutrix (PW 1) whose statement is
untrustworthy.

9 Learned P.L for the respondent/State at the other hand
has opposed the contentions raised by the appellant and
submitted that the prosecutrix had no reason to implicate
the appellant falsely. Corroboration of the prosecutrix
statement is not necessary. The prosecution has
established the case. There is not any reasonable doubt
in the prosecution story, therefore, interference is not
warranted.

10 The prosecution has examined the prosecutrix (PW 1),
her brother Lakhu (PW 2), Sarpanch Hakam Singh (PW

3), chaukidar, apart from the police witnesses, Shri M.L.
Gathia (PW 5) the Sub Inspector, Police Chowki Jethari
and Pankaj Dixit (PW 6) the Office-In charge, Police
Station Deori.

11 Mansha Ram (PW 4) has not supported the
prosecution case.

12 Lakhu (PW 2) and Hakam Singh (PW 3) are witnesses
who have not seen the incident. It is stated that the
prosecutrix (PW 1) narrated the incident to the Sarpanch
Hakam Singh (PW 3) and Lakhu, her brother (PW 2) after
she reached the village.

13 The prosecutrix (PW 1) has narrated the prosecution
story in the following manner:- She was coming back to
her village Deori from village Silwani via village Hathora.
After she crossed the village Hathora, the
accused/appellant followed her. After a distance she was
caught by the accused. She also says that the accused
fell her on the ground and assaulted her. She was
molestated by the accused. She sustained injuries in this
altercation. Her bangles were broken. Some bangles
caused injury on her wrist. She sustained injuries on her
legs. She went to lodge report on the following day.
14 It is observed in her report and statement under
Section 161 Cr.P.C that she named two persons, arrived
on her shout, at the scene of crime, but in her testimony
before the Court, she has not spoken a word about these
persons. Neither the prosecution examined Ramcharan
Choudhary and his grand son, who allegedly came at the
scene of crime on her shout.

15 The injuries have not been proved by any medical
evidence. Lakhu (PW 2) is a witness, who is the brother
of the prosecutrix. The prosecutrix informed the incident
to him when he arrived at the village. Hakam Singh (PW

3) the Sarpanch of village Hathora also was informed by
the prosecutrix, though these witnesses say that the
prosecutrix was being molestated by the appellant-
Harinarayan, but their statements do not have much
evidenciary value because they are not eye witnesses.
They are hearsay witnesses. Besides, the prosecutrix (PW

1) admitted that in her village there are two parties. The
accused belong to the other party. Her husband- Chaman
belonged to the other party. She also agrees that both
the parties have enmity to each other. In this
background, the statement of Lakhu Singh (PW 2),
Hakam Singh (PW 3) who are not eye witnesses, cannot
be relied upon. The statement of the prosecutrix (PW 1)
has to be scrutinized minutely.

16 The test as to whether corroboration is necessary lies
in the naturalness of the story deposed by the
prosecutrix. If there be any doubt as regards its
genuineness, there is need of caution and, therefore,
corroboration. Though there is no rule of law that the
testimony of the prosecutrix cannot be believed without
corroboration on any material particulars, but her
statement should be of sterling quality.
17 If we examine the statement of prosecutrix (PW 1), it
would be seen that:-

(i) The eye witnesses Ramcharan Choudhary and his
grand son were not examined, who could be supporting
her allegations.

(ii) Medical evidence do not corroborate the prosecutrix’s
evidence where as the incident occurred at 10 a.m on
24.02.1996.

(iii) She lodged the report on 27.02.1996 at about 09.30
am. The explanation given by the prosecutrix show that
she had gone to Chauki Jethari of Police Station Deori for
lodging the report but because the Officer-in-charge was
not present, she could not lodge report. Therefore, went
to the police station on the following day to lodge the
report. But this explanation does not hold much water as
the report has been lodged on the 3rd day of the
incident.

18 The enmity between the two parties in the village
exist, has been admitted by her. The accused-
Harinarayan belonged to one party and her husband of
the prosecutrix Chaman, belong to another party.
19 For the reasons mentioned above the statement of the
prosecutrix does not seem to be of sterling quality.
20 The prosecution has not filed any “caste
certificate” issued by the competent Authority. The
investigation has been done by the S.H.O of Police
Station Deori. In this regard it would be appropriate to
refer the case of Bharat Singh Vs. State of M.P., 2006
(4) M.P.L.J, 171 wherein a Co-ordinate Bench of this
Court has held as under:-

“ (a) Scheduled Castes and
Scheduled Tribes (Prevention
of Atrocities) Act (33 of 1989).
Section 3 (1) (x), Scheduled
Castes and Scheduled Tribes
(Prevention of Atrocities)
Rules. 1995, Rule 7 and Penal
Code, Section 294-

Accused persons- appellants
allegedly threw stones and hurled
abuse at complainants in the name
of their caste, namely, Balai-

chamar-Prosecution failed to
establish by adducing cogent and
reliable evidence that the
complainant belonged to the
Scheduled Caste or Scheduled
Tribe community- In the Court
statement he deposed that he
belonged of BALAI caste but
nowhere he has stated that his
caste falls within the category of
Scheduled Caste or Scheduled
Tribe- Though the appellants
admitted that the complainant
belong to Balai community but
that itself is not sufficient to
establish that the complainant
belonged to the Scheduled Caste
community- Caste certificate from
competent authority not filed-

Investigation was done by SHO
contrary to Rule 7- Conviction and
sentence of appellants is
therefore, not sustainable, 1999
(3) 582.”

(b) Scheduled Castes and
Scheduled Tribes (Prevention
of Atrocities) Rules, 1995,
Rule. 7-

Provision is mandatory- Only those
Deputy Superintendent of Police,
specially appointed by the State
Government or the Director of
Police or the Superintendent of
Police or the competent authority
for the purposes of investigation
the case, under the Act can
investigate the offence under the
Act- Investigation against
appellants done by inferior officer
of the police, than the
Superintendent of Police duly
appointed as per the provisions
under Rule 7 has caused prejudice
to the appellants because the
Investigating Officer did not obtain
the certificate from the competent
authority to establish that the
complainant belongs to the
Scheduled Caste or Scheduled
Tribe Community.”
21 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 caste
certificate issued by the competent Authority has not
been produced. Therefore, it would not be proper to
sustain the impugned judgment. Hence, this appeal is
allowed.

22 Conviction and sentence as aforesaid is hereby set
aside. He is acquitted of the charges. He is on bail. His
bail bond is discharged.

(SUSHIL KUMAR PALO)
JUDGE

awinash

Leave a Comment

Your email address will not be published. Required fields are marked *