Suresh Nai vs The State Of M.P. on 31 August, 2017

HIGH COURT OF MADHYA PRADESH AT JABALPUR
Cr.A. No. 2196 OF 1998
Suresh Nai
Vs.
The State of M.P.
*****
None appears for the appellant.
Mr. G.S. Thakur, learned G.A. for respondent/State.
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Present: Hon’ble Shri Justice Sushil Kumar Palo —-
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JUDGMENT

(31.08.2017)

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 under Section 374 (2)
of the Cr.P.C, challenging the judgment dated
07.08.1998, passed by the Special Judge under the SC/ST
(POA) Act, 1989 ( for brevity “the Act, 1989”),
Panna in Special Case No. 70/97, wherein the appellant-
Suresh Nai has been sentenced under Section 3 (1) (11)
of the “Act, 1989,” and sentenced to six months
rigorous imprisonment with fine of Rs.500/- and in
default of fine three months rigorous imprisonment.
6 It is not disputed that the prosecutrix belonged to
“Ahirwar” caste which is a Scheduled Caste,
whereas the appellant/accused does not belong to
Scheduled Caste or Scheduled Tribe community. The
prosecutrix (PW 3) and the appellant are residents of
village Gohalatpurva. The accused/appellant lodged a
report against the father of the prosecutrix and other
persons for assaulting him. In this regard, criminal case
has been registered against Buttua, Chuttan, Nilkanth
before the learned J.M.F.C, Ajaygarh. Criminal Case No.
122/96 for offence under Sections 342, 323/34 of I.P.C is
pending. The appellant- Suresh Nai was present in the
police station when the father of the prosecutrix
Prabhudayal (PW 5) came to lodge report.
7 As per the prosecution story, the prosecutrix is aged
about 15 years, is the daughter of Prabhudayal (PW 5),
who was herding her cattle in the field. That field was
taken on “Batai” (contract) by Jagannath (PW 4).
When the prosecutrix was going to gather the cattle from
the nearby jungle, the accused/appellant outraged her
modesty. She was threatened by the accused/appellant
not to shout and insisted for committing sexual assault.
When the prosecutrix shouted, Jagannath (PW 4), the
Bataidar, rushed to the spot. The accused/appellant
leaving the prosecutrix ran towards the jungle. The
prosecutrix returned to her home. She narrated the
incident to her father Prabhudayal (PW 5). She went to
the Police Station, Ajaygarh on 11.09.1996 and lodged
report Ex. P/2. Wherein Police Station, Ajaygarh
registered the offence under Section 354 read with
Section 506 of I.P.C and Section 3 (1) (11) of the “Act,
1989.” Shri J.P. Dwivedi, Assistant Sub- Inspector (PW

2) was the scriber of the report. Shri Hemant Tiwari (PW

6), the Station House Officer conducted the
investigation, prepared the map Ex. P/3, recorded the
statements of witnesses. Caste certificate issued by
Tehsildar, Ajaygarh is Ex. P/4. The appellant/accused has
been arrested and charge sheet has been filed on
07.11.1996. Learned Special Court under the “Act,
1989” framed charges for offence under Section 3 (1)
(11) of the “Act, 1989.” The accused/appellant
abjured guilt.

8 Vijay Bahadur Patwari (PW 1) has prepared the spot
map Ex. P/1, at the instance of Halkai Kondar and Ram
Kishan Chaukidar. According to him at Serial No. 3 in the
map is the place where the accused/appellant had
outraged the modesty of the prosecutrix.
9 This map was prepared not at the instance of the
prosecutrix nor at the instance of Jagannath (PW 4) but
at the instance of Halkai Kondar and Ram Kishan
Chaukidar, who were not present at the time of incident.
That being so, the validity of the spot map has become
very suspicious. Shri J.P. Dwivedi, Assistant Sub-
Inspector (PW 2), Police Station Ajaygarh, lodged the
report Ex. P/2 at the instance of the prosecutrix at 11.30
am on 11.09.1996.

10 It is contended that the appellant has been kept in a
closed room and was severely beaten by the prosecutrix,
(PW 3), her father Prabhudayal (PW 5) and others. He
had gone to lodge the report at Police Station, Ajaygarh.
Just to avoid this the father of the prosecutrix
Prabhudayal (PW 5) lodged the false report against the
accused/appellant.

11 Learned trial Court after adducing the evidence has
convicted the appellant for offence under Section 3 (1)
(11) of the “Act, 1989,” and sentenced as mentioned
above.

12 The appellant assailed the judgment and conviction on
the ground that learned trial Judge erred grievously in
convicting the appellant whereas the appellant has not
committed any offence. On 08.09.1996, at about 3 pm,
the incident took place and F.I.R (Ex. P/2) was lodged by
the prosecutrix (PW 3) on 11.09.1996 at about 11 am. It
is contended that no explanation has been given by the
prosecution about the delay in lodging the report. It is
contended that the appellant has been falsely implicated.
Jagannath (PW 4) is an interested witness for he has
taken the land of Pabhudayal (PW 5) the father of the
prosecutrix on rent. There are numerous contradictions
and omissions in the testimony of the prosecution
witnesses. Therefore, the defence version is probable and
deserves to be accepted.

13 Per contra, learned G.A for the respondent/State
vehemently opposed the contentions and referring the
pieces of evidence adduced by the prosecution submitted
that the learned trial Court has marshaled the evidence
and rightly convicted the appellant. The judgment
impugned do not call for any interference.
14 Perused the record and the judgment impugned.
15 Prabhudayal (PW 5) is the father of the prosecutrix.
He is not an eye witness. The incident allegedly narrated
to him after he returned in the night.

16 Prosecutrix (PW 3) has stated that on 08.09.1996, at
about 3 – 4 pm, she was at the field when the incident
took place. The accused/appellant suddenly came from
behind and outraged her modesty. The prosecutrix also
said that the accused wanted to commit sexual
intercourse with her. When she shouted, Jagannath (PW

4), the Bataidar, who was working nearby came to the
spot seeing the accused/appellant fled from the spot. By
threatening her of her life. Subsequently, she went to her
home. After her father returned to the home, she
informed her father about the incident. On the following
day, she went to Police Station, Ajaygarh to lodge the
report Ex. P/2. The spot map Ex. P/3 was prepared.
17 According to her, the incident took place on
08.09.1996. She lodged the report on the following day.
The report has been lodged by J.P. Dwivedi, Assistant
Sub- Inspector (PW 2) on 11.09.1996 which is Ex. P/2.
The prosecution has failed to explain the delay in lodging
the report. The prosecutrix (PW 3) and her father
Prabhudayal (PW 5) submit that they lodged the report
on the following day. They do not offer any explanation
about the lodging of report on 11.09.1996. Whereas,
according to them, they lodged the report on 09.09.1996.
18 It is worth mentioning here that Jagannath (PW 4)
admits that he was returning from the river when he
heard the shout of the prosecutrix. When he reached the
spot, the accused was sitting over her and the
prosecutrix was lying on the ground. On his arrival, the
accused/appellant fled from the spot. He has stated that
why the accused was sitting over the prosecutrix, cannot
explain. Why the accused/appellant was threatening to
kill the prosecutrix, he does not know.
19 In his cross-examination, he admits that in the night
at about 8 pm, Suresh was being interrogated by Dau
Saheb. Dau Saheb was also known as Chhute Raja. He
also admits that he is the Bataidar of Prabhudayal (PW

5), who was the Sarpanch of the village for five years.
According to Prabhudayal (PW 5) they lodged the report
on the following day at about 11 am. It would not be
appropriate to hold that the Sarpanch does not know the
importance of lodging report.

20 Shri Hemant Tiwari (PW 6), the Sub-Inspector, Police
Station, Ajaygarh has admitted that on the report of
accused Suresh, Crime No. 122/96 for offence under
Sections 342, 323 read with Section 34 of I.P.C has been
lodged against Prabhudayal (PW 5) and others. Accused
Suresh was sent for medical examination. The present
report was lodged by the prosecutrix at Crime No.
123/1996. Prabhudayal (PW 5) has admitted that on the
report of accused Suresh, crime was registered against
him, Buttua, Chuttan and Nilkanth at Police Station,
Ajaygarh. After investigation criminal case has been filed
before the J.M.F.C, Ajaygarh. This indicates that after
lodging the report of accused Suresh, the prosecutrix
(PW 3), the daughter of Prabhudayal (PW 5) has lodged
the report. The possibility of lodging the report as a
counter blast cannot be ruled out.

21 There was no independent witnesses in the present
case. Jagannath (PW 4) is after incident witness. He
being the “Bataidar” of Prabhudayal (PW 5) can be
termed as interested witnesses.

22 The sole evidence of the prosecutrix (PW 3) must be
analyzed in the above premises. The statement of the
prosecutrix needs corroboration on the above premises
because the report of prosecutrix has been lodged after
the report lodged by the accused/appellant. The
prosecutrix’s statement does not inspire confidence.
According to her, when the accused/appellant outraged
her modesty, on her shout, Jagannath (PW 4) came
immediately. As per Jagannath, he was at about 10 to 12
ft. distant from the place of incident. But Jagannath (PW

4) says that he do not know why the appellant has
behaved in such a manner. Neither the prosecutrix
informed her anything in this regard.
23 Though there is no rule of law that testimony of the
victim cannot be acted without corroboration in material
particulars but her testimony has to be appreciated on
the principle of probabilities just as the testimony of any
other witness. But a high degree of probability has to be
shown to exist in view of the subject matter being a
criminal charge. In the present case, it is difficult to land
assurance to her testimony specially on the above
background. There is no medical evidence to support the
prosecution case.

24 No doubt, the caste certificate issued by the Tehsildar
has been filed by the prosecution which is Ex. P/4 but the
prosecution failed to explain the delay in report specially
after the report lodged by the appellant against the
father of the prosecutrix.

25 Besides all this, the investigation has been done by
the Sub-Inspector of Police Station, Ajaygarh whereas in
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Rules, 1995, Rule. 7, it is provided that
investigation should be conducted by officer not below
the rank of Dy.S.P. In this regard reference can be made
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.”

26 In the above premises giving benefit of doubt to the
appellant, this appeal is allowed. The appellant is
acquitted from the 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

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