Rajju @ Rajendra vs The State Of M.P. on 18 August, 2017

HIGH COURT OF MADHYA PRADESH AT JABALPUR
Cr.A. No. 2188 OF 1998
Rajju @ Rajednra
Vs.
The State of M.P.
*****
Shri Sankalp Kochar, learned counsel for the appellant.
Shri Pramod Pandey, learned G.A for the respondent/State.
—————————————————————————-Present:
Hon’ble Shri Justice Sushil Kumar Palo ———————-
—————————————————–
JUDGMENT

(18 .08.2017)

This appeal has been preferred under Section 374 (2) of
Cr.P.C being aggrieved by the judgment dated 14.09.1998
passed by Special Judge under SC/ST (Prevention of
Atrocities) Act, 1989 (for short “Act, 1989”).
The appellant has been convicted for offence under Section 3
(1) (11) of SC/ST (Prevention of Atrocities) Act, 1989, and
sentenced to rigorous imprisonment for six months with fine
of Rs.100/- and in default of fine simple imprisonment for
fifteen days.

2 The prosecution case in brief is that on 07.09.1996 at
village Neemtola, the minor prosecutrix lodged a report at
Police Station Lanji that her parents had gone out for their
work. She was alone with her younger sister namely Ramuna
Bai at home. Ramuna Bai had gone to fetch water from the
tape. The prosecutrix was sweeping the house. The
appellant/accused Rajju @ Rajendra who is a neighbour of the
prosecutrix lurkingly entered into the house of the
prosecutrix, caught her and tried to take her into the room.
She was made to lay on the ground. He tried to pull out her
inner garments. The prosecutrix kicked him. Even though the
appellant/accused tried to caught hold of her and assault her
sexually. When she tried to stand up, the appellant/accused
again made her laid and she started shouting. The appellant
in this struggle tried to commit rape with her. When she
shouted, the accused opened the door and ran away. She also
tried to hit him by the tin box. Lalita Bai (PW 2), Ashok Kalar
(PW 4) saw the accused running away from the house. The
prosecutrix then informed the villagers about the incident.
When her mother Meera Bai (PW 3) came to the house, she
narrated the incident to her. On her report Crime No.
173/1996 was lodged. After due investigation, charge sheet
has been filed. Learned trial Court framed charges under
Section 3 (1) (11) of the “Act 1989.” The
accused abjured guilt and pleaded false implication.
3 Learned trial Court after adducing evidence held the
appellant convicted for offence and sentenced as mentioned
above.

4 The appellant has challenged the judgment of conviction
and sentence on the ground that the prosecution has failed to
prove the ingredients of offence under Section 3 (1) (11) of
the “Act, 1989.” The prosecutrix belongs to the
community of Scheduled Caste, has not been proved. The
prosecution witnesses are full of omissions, contradictions
and improvements. No implicit can be placed on such kind of
testimony to base conviction. The F.I.R has been lodged after
lapse of two hours. The learned trial Court appreciated the
evidence by shifting the burden on the accused and did not
consider the lapses in the cross-examination.
5 The learned trial Court has not appreciated the evidence
properly and in its proper perspective. Therefore, the
conclusion is erroneous causing great miscarriage of justice
to the appellant. The witnesses, the prosecutrix (PW 1), Lalita
Bai (PW 2), Meera Bai (PW 3), Ashok (PW 4) are interested
witnesses. Their testimony cannot be based for conviction.
6 Learned G.A for the respondent/State vehemently opposed
the contentions and submits that the trial Court has analyzed
the evidence correctly. There is no scope for any
interference.

7 Perused the evidence and the judgment impugned. The
prosecutrix (PW/1) aged about sixteen years has stated that
she was alone at her house. Her younger sister had to gone
out to fetch water. Her parents had gone to the field. She was
sweeping the house. Suddenly, her neighbour (accused)
entered into her house. The prosecutrix had stated that she
belongs to “Mana” caste. But no caste
certificate has been filed, issued by the competent Authority.
Witnesses Meera Bai (PW 3), Ashok Kalar (PW 4), Lalita Bai
(PW 2) are the neighbours who searched after the incident.
Lalita Bai (PW 2) has admitted that she has seen the accused
running away from the house of he prosecutrix. Ashok Kalar
(PW 4) has also stated that he saw the accused running away
from the house of the prosecutrix. These witnesses admit that
there was dispute between the father of the accused and the
father of Ashok Kalar (PW 4) and the father-in-law of Lalita
Bai (PW 2). Their evidence, therefore, cannot be relied
without any suspicion.

8 Meera Bai (PW 3) is one of the neighbours of the
prosecutrix. She has stated that when she heard the cries,
she came to the scene of crime. The prosecutrix narrated her
that the accused tried to ravish her. She is a hearsay
witnesses.

9 Paratram (PW 6), Patwari, prepared panchnama Ex. P/4 and
Ex. P/6 spot map at the instance of the prosecutrix (PW 1).
Dr. R.K. Gohiya (PW 5) examined the appellant/accused and
found him to be capable of performing sexual intercourse. He
found smegma on the private part of the accused. His report
is Ex. P/5.

10 Dr. (Smt.) R. Gohiya (PW 7) is the medical officer
examined the prosecutrix on 07.09.1996. She has given the
opinion that no definite finding can be given with regard to
the recent sexual intercourse. Her report is Ex. P/7. However,
she has observed that the hymen of the prosecutrix was old,
torn at three, six and nine position. She has given the opinion
on the query report Ex. P/8, that the redness found on the
private part could be due to a hard object or may be due to
forcible penetration.

11 It would be appropriate to note that the prosecutrix
submitted that the accused did not commit sexual intercourse
but he was trying to do so. During this struggle, she hit the
accused by means of a tin box and during this altercation, the
accused could not commit the offence of rape.
12 The investigation has been done by Town Inspector, Lanji
Salim Khan (PW 8). He lodged the report Ex. P/1. The
prosecutrix was sent for medical examination. Accused was
arrested by him and was sent for medical examination. Spot
map Ex. P/3 was prepared by him. The seizure memo Ex. P/9
was prepared by which the articles received from hospital
has been seized from Constable, Suraj Lal. A towel has been
seized from prosecutrix (PW 1), alleged to be the towel of
accused, which was left in the house of the prosecutrix. By
seizure memo Ex. P/2, the semen slide of Rajju @ Rajendra
has been seized on production from Suraj Lal. It would be
appropriate to mention here that the towel which has been
seized from the prosecutrix has not been identified There is
nothing on record to establish that the towel seized belong to
the accused/appellant.

13 Awadhesh Goswami, C.S.P (PW 9) has been examined and
he stated that the report Ex. P/1 has been scribed by Salim
Khan the then Town Inspector. He has recorded the
statements of the witnesses under Section 161 Cr.P.C and
after investigation charge sheet has been forwarded by him.
The report received from the Forensic Science Laboratory is
Ex. P/12. Ex. P/12 shows that Article A- the skirt and Article
C- semen slide prepared from the accused/appellant has been
confirmed but Article B- vaginal slide prepared from the
prosecutrix do not confirm presence of semen. The sample of
Article A is not sufficient for chemical examination for serum
test. Therefore, it cannot be linked with the semen of the
accused/appellant. It would be appropriate to mention here
that Awadhesh Goswami (PW 9) C.S.P is not below the rank
of Dy.S.P. However, the Dy.S.P had not conducted the
investigation as a whole. Almost all the investigations have
been done by the Town Inspector Salim Khan (PW 8). Only
the statements of the witnesses have been recorded and the
charge sheet has been forwarded by the C.S.P (PW 9).
14 The intention of the legislature is that in the cases of such
nature under the “Act, 1989,” the Investigation
Officer should conduct the investigation who is not below the
rank of Dy.S.P in the above circumstances. 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.”

15 It would be appropriate to note that in a similar case
reported as Shyam Lal Vs. State of M.P. (Now State of
Chhattisgarh), 2011 (3) Crimes 257 (Chhatt.), wherein
the Chhattisgarh High Court has observed that:-

“ Scheduled Caste and Scheduled

Tribe (Prevention of Atrocities) Act-
Section 3 (1) (xi) – Appellant
entered inside house of prosecutrix, a
married woman and pulled her sari and
she became naked- Prosecutrix
belonged to scheduled caste- Appeal
against conviction- No document was
filed to establish the caste of
prosecutrix- Prior to her marriage she
belonged to caste which came in
category of OBC- By marriage her
caste would not change- No evidence if
accused in committing offence of
outraging modesty of prosecutrix
intended to commit that offence
because prosecutrix belonged to
scheduled caste- Conviction under SC
and ST Act could not be sustained-
Appellant however was liable to be
convicted under Section 354 IPC-

Sentence awarded for period which he
had remained in jail with fine.”

16 The Chhattisgarh High Court allowed the appeal partly
setting aside the conviction under Section 3 (i) (xi) of the
“Act, 1989.”
17 In the present case, the offence under Section 354 of I.P.C
has been proved. Therefore, it would be appropriate to
convict the appellant for offence under Section 354 of I.P.C.
Otherwise also the incident allegedly took place on
07.09.1996. The learned trial Court pronounced the judgment
on 14.09.1998. Almost 21 years have been elapsed in
between. At this stage, after 21 years of the date of the
incident it would not be appropriate to amend the charge and
remit the case back to the trial Court for a de novo trial. Even
though a Court can alter charge with the available material
but if prejudice is caused to the accused by altering the
charge then it is not permissible for the Court to amend the
charge.

18 In the case of Anant Prakash Sinha Alias Anant Sinha
Vs. State of Haryana And Another, (2016) 6 SCC 105,
the Hon’ble Apex Court has held that it is obligatory on the
part of the Court to see that no prejudice is caused to the
accused. The accused must always be made aware of the case
against him so as to enable him to understand defence that
he can lead. The prosecutrix was habitual of sexual
intercourse and this fact was established beyond doubt by the
report submitted by the medical officer. However, her
ravishment by the accused has not been proved. The
prosecutrix (PW 1) has said that the accused attempted to
commit sexual intercourse. Though there is no rule that on
the sole evidence of the prosecutrix, conviction cannot be
based. The evidence of prosecutrix should be reliable and
inspire confidence, then only conviction can be based on the
sole testimony of the prosecutrix.

19 The statement of the prosecutrix is not corroborated by
cogent evidence. The chances of false accusation cannot be
ruled out. Therefore, giving the benefit of doubt to the
accused/appellant this appeal is allowed. The appellant is
acquitted for from he charges of offence under Section 3 (1)
(11) of SC/ST (POA) Act, 1989. Appellant is on bail. His bail
bonds are discharged.

(SUSHIL KUMAR PALO)
JUDGE
awinash

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