HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 570/1994
Suresh Kumar son of Shri Raja Ram, by caste Bishnoi, resident
of 2 R.K.M., Tehsil Ghadsana, District Sri Ganganagar.
—-Appellant
Versus
The State of Rajasthan.
—-Respondent
For Appellant(s) : Mr. R.D.S. Kharlia.
For Respondent(s) : Mr. Mukesh Trivedi, PP.
HON’BLE MR. JUSTICE SANDEEP MEHTA
JUDGMENT
21/01/2020
1. The appellant Suresh Kumar has been convicted and
sentenced as below vide judgment dated 19.11.1994 passed by
the learned Special Judge, Scheduled Caste/Scheduled Tribes
(Prevention of Atrocities) Act Cases, Sri Ganganagar in Criminal
Case No.92/1994:
Offences Sentences Fine Fine Default
sentences
Section 354 IPC read Six Months’ Rs.1,000/- 1 Month’s S.I.
with Section 3(1)(xi) R.I.
of the SC/ST Act
2. Being aggrieved of his conviction and sentences, the
appellant has preferred this appeal under Section 374(2) Cr.P.C.
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3. Learned counsel Shri Kharlia, vehemently and fervently
urges that even if the entire set up by the prosecution case is
accepted, ex-facie, the conviction of the appellant for the offence
under Section 3(1)(xi) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to
as ‘the SC/ST Act’) cannot be sustained because there is no
allegation of an of the prosecution witnesses that the accused
committed the offence under Section 354 of the Indian Penal Code
with the intention that he was doing so with a person belonging to
the scheduled caste category. He thus urges that the conviction of
the appellant as recorded by the trial court is liable to be set aside
to this extent as being grossly illegal. Regarding the charge under
Section 354 IPC, the contention of Shri Kharlia was that the
allegation levelled against the appellant that he outraged the
modesty of the first informant Smt. Hardeep Kaur (PW-2), is
trumped up and fabricated. As per Shri Kharlia, as a matter of
fact, the members of the complainant party assaulted the accused
who lodged a first information report against them at an earlier
point of time and the present case was instituted against the
accused purely as a counterblast. Shri Kharlia further submitted
that as per the statement of Hardeep Kaur (PW-2), the accused
dragged her by the hand and as a result thereof, her bangles were
broken and she received injuries on her hands. But this allegation
is not corroborated because the lady was not even subjected to
medical examination. He thus urges that the appeal should be
allowed and the appellant be acquitted of the charges levelled
against him.
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In arguendo, his submission is that, even if the conviction of
the appellant under Section 354 IPC is to be sustained, then too,
the accused appellant, who does not have any criminal
antecedents, deserves to be given benefit of probation because
the incident took place way back in the year 1992.
4. Per contra, learned Public Prosecutor, vehemently and
fervently opposes the submissions advanced by Shri Kharlia and
urges that the FIR of the incident dated 02.09.1992 was lodged
promptly on same day. Regarding the criminal case lodged by the
appellant, the contention of learned Public Prosecutor was that no
documents pertaining to the said case were brought on record in
defence evidence and thus, the accused cannot claim any
advantage on the strength thereof. He further submitted that the
victim had no reason for falsely implicating the appellant in this
case and thus, her evidence cannot be discarded only on the
ground that the accused had lodged a report of assault, etc. prior
in point of time against the husband of the victim. He further
submits that the broken bangles of the complainant were
recovered by the I.O. during investigation when site inspection
was carried out and thus, the allegation of the complainant that
the accused outraged her modesty, is duly corroborated. On these
grounds, learned Public Prosecutor sought dismissal of the appeal.
5. I have given my thoughtful consideration to the submissions
advanced at Bar, have minutely and threadbare perused the
impugned judgment and have re-appreciated the evidence
available on record.
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6. The prosecution case is primarily founded on the evidence of
Smt. Hardeep Kaur (PW-2). On a careful re-appraisal of her
testimony, it is clear that in her entire statement, she has not
alleged that the accused caught hold of her hand or that he
outraged her modesty for the specific reason that she belonged to
the scheduled caste community. Therefore, conviction of the
appellant for the offence under Section 3(1)(xi) of the SC/ST Act
cannot be sustained keeping in view the ratio of Hon’ble the
Supreme Court decision in the case of Masumsha Hasanasha
Musalman vs. State of Maharashtra reported in AIR 2000 SC
1876.
Regarding the charge under Section 354 IPC, it may be
mentioned here that the highest case as set up by the
complainant in her evidence is that the accused caught hold of her
hand and dragged her towards the wheat crop with the intention
of outraging her modesty. During this grappling, her bangles
broke. In cross-examination, the lady admitted that when the
accused caught hold of her right hand, her bangles broke and she
got hurt thereby. However, she was not subjected to medical
examination. She further admitted that the accused had lodged a
criminal case on the very same day regarding he having been
assaulted by her husband Roshan Lal (PW-3) and her brother-in-
law Gurcharan (PW-4). The evidence of the other prosecution
witnesses is inconsequential in nature because, they admittedly
arrived at the spot well after the incident with the lady was over.
On a perusal of the statement of the I.O. Abhimanyu Singh (PW-
1), it is clear that the seizure of the broken bangles was effected
as late as I.O. on 15.09.1992 i.e. after more than 13 days of the
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incident. Thus, this seizure is absolutely unbelievable and
unworthy of credence. The I.O. also admitted that the dhani of the
complainant is at a distance of 300 yards from the place of the
incident. The complainant Smt. Hardeep Kaur, her husband
Roshan Lal (PW-3) and her brother-in-law Gurcharan (PW-4)
admitted in their cross-examination that the accused had lodged a
criminal case against them. It is true that the FIR of the case
lodged at the instance of the accused was not proved at the trial
but, a site inspection plan pertaining to the said FIR (255/1992)
prepared on 02.09.1992 was proved as Ex.D/2 which in itself
shows that investigation of the FIR lodged by the accused for the
offences under Sections 341, 323 and 34 of the IPC was initiated
before the FIR of the complainant party came to be registered.
Manifestly thus, the accused has a justification in his claim that
the FIR lodged against him was by way of a counterblast. The
highest allegation of the prosecutrix as against the accused is that
he caught hold of her hand and tried to drag her. Considering in
light of the fact that the accused also registered a case of criminal
assault and causing simple hurt against the members of the
complainant party, the possibility of this grappling having taken
place in the course of this mutual fight, cannot be ruled out.
7. In this background, I am of the opinion that the conviction of
the appellant for the for the offence under Section 354 i.e.
outraging the modesty of the complainant Smt. Hardeep Kaur
(PW-2) cannot be sustained and he deserves to be acquitted by
giving him the benefit of doubt.
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8. Accordingly, the appeal deserves to be and is hereby
allowed. The impugned judgment dated 19.11.1994 passed by the
learned Special Judge, Scheduled Caste/Scheduled Tribes
(Prevention of Atrocities) Act Cases, Sri Ganganagar in Criminal
Case No.92/1994 is set aside. The accused appellant Suresh
Kumar is acquitted of the charges. He is on bail. He need not
surrender. His bail bonds stand discharged.
9. However, keeping in view the provisions of Section 437-A
Cr.P.C., the appellant shall furnish a personal bond in the sum of
Rs.40,000/- and a surety bond in the like amount before the
learned Trial Court, which shall be effective for a period of six
months to the effect that in the event of filing of a Special Leave
Petition against the present judgment on receipt of notice thereof,
he shall appear before the Supreme Court.
10. Record be returned to the trial court forthwith.
(SANDEEP MEHTA),J
13-Tikam/-
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