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Suresh Kumar vs State on 21 January, 2020

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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(2 of 6) [CRLA-570/1994]

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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(3 of 6) [CRLA-570/1994]

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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(4 of 6) [CRLA-570/1994]

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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(5 of 6) [CRLA-570/1994]

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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(6 of 6) [CRLA-570/1994]

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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