Firoz Ansari v. The State Of C.G.

c^) -1AFR HIGH COURT OF CHHATTISGARH. BILASPUR CRA No. 2756 of 1999 1.

Firoz Ansari S/o Lal Mohammad Ansari, aged about 22 years, Caste Musalman, PS -Ambikapur, Distt. - Surguja, M.P. -- Appellant

Versus

1. The State of M.P. through PS AJK, Ambikapur Distt. - Surguja, M.P. -- Respondent For Appellant - Mr. Nishi Kant Sinha, Advocate. For Respondent - Ms. Shobha Kashyap, Deputy Govt. Advocate. Hon'ble Shri Justice Chandra Bhushan Baipai Judament on Board 31-01-2017 1.

Challenge in this appeal is to the judgment of conviction and order of sentence dated 24-09-1999 passed bythe Special Judge under the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989 (in short 'the Act, 1989'), Surguja at Ambikapur in Special Criminal Case No. 34/99 whereby and whereunder the learned Special Judge under the Act, 1989 after holding the appellant guilty for using force to prosecurix (PW-1) (name not mentioned) belonging to Scheduled Tribes category with intention to dishonour or to outrage her modesty, convicted him under Section 3(1)(xi) ofthe Act, 1989 and sentenced the appellant to undergo rigorous imprisonment for one year with a direction that the period of detention during the trial be set off under Section 428 ofthe Code of Criminal Procedure, 1973 (in short 'the Code'). 2.

Conviction is impugned on the ground that without there being any iota of evidence the Court below convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3.

As per the case of the prosecution, on 17-02-1999 at about 4.30 p.m.

the prosecutrix (PW-1) was returning for her home, near Mudapara sugarcane

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I? 'tl".'1K^ '•%ffi^% .,,^,^ -2field the accused/appellant came and hold her neck with his hands and asked her to follow. When she made shout one Jannat Ansari came to rescue. With this, the accused/appellant fled from the spot. On the same day, the prosecutrix gave written complaint to the SHO of Police STation ^MTcf? Ambikapur. The concerned police investigated the matter and registered the crime No.26/99 under Section 354 of the Indian Penal Code, 1860 (in short 'the IPC') and Section 3(1)(xi) of the Act, 1989 againstthe accused/appellant vide FIR, Ex.- P/5. Spot map was also prepared. The statements of the witnesses under '^ Section 161 ofthe Code were recorded. The accused/appellantwas arrested on 04-03-1999. The caste certificate was also collected. 4.

After completion of the investigation, charge sheet was filed before the Special Judge, Ambikapur for trial. The Sp^^^ Judge framed the charges under Section 3(1)(xi) oftheAct, 1989.

5.

In order to prove guilt pf the accused/appellant, the prosecution examined 5 witnesses. The statemeht of the accused/appellant was recorded under Section 313 of the Code wherein he denied the circumstances appearing against him, pieaded innocence and false implication in crime in question. 6.

After affording opportunity of hearing to the parties, the learned Special Judge convicted and sentenced the appellant as aforementioned. 7.

I have heard learned counsel for the parties and perused the judgment impugned and record ofthe Court below.

8.

Learned counsel for the appellant would submit that Ex.-P/1 is first information to police regarding alleged crime and in the said written report it is not mentioned by the prosecutrix that as she belongs to Scheduled Tribes category, the accused/appellant intentionally used force with purpose to outrage her modesty. The fact that the prosecutrix belongs to Scheduled Tribes category only surfaced at the time of her statement under Section 161 of the Code. It goes to show that the said fact is improvement viz-a-viz to written complaint Ex.-

-3P/1. With this, as the prosecutrix improved her version, she may not be believed as her statement is full of suspicion. It is further submitted that also on the examination of said prosecutrix (PW-1) before the Court during trial she had not mentioned this fact as on account of her caste she was intentionally subjected for use of criminal force to outrage her modesty. With this, as the prosecution failed to prove its case under Section 3(1)(xi) of the Act, 1989 and also as Jannat Ansari (PW-3) turned hostile, not supported the story ofthe prosecution who allegedly reached to the spot after hearing the call of the prosecutrix, this ll^ also goes to^ that the prosecution's story is doubtful. Hence, as the prosecution failed to prove the ingredients without any reasonable or probable doubt, the accused/appellant may be given benefit of doubt and he may acquitted from the charge.

9.

Per contra, learned counsel for the respondent/State duly supported the judgment of conviction and sentehce passed by the trial Court and would submit that for the incident nothing could be elicited during cross-examination so as to discredit the fact for use of force wifh intent to outrage the modesty of the prosecutrix and as the prosecutrix belongs to Scheduled Tribes category, the trial Court rightly convicted and sentenced the appellant. Hence, the appeal may be dismissed on both counts.

10.

In order to appreciate the arguments advanced on behalf of the parties, l have perused the evidence adduced by the prosecution during the trial. 11.

On minute examination, it appears that as Jannat Ansari (PW-3) has become hostile and not supported the prosecution's story, the statement of the prosecutrix (PW-1) has to be examined minutely. The prosecutrix (PW-1) duly supported theallegations as made in Ex.-P/1. The written complaint was given to police without any delay and on perusal of the entire statement, in the considered view of this Court, the prosecution had proved this fact that on 1702-1.999 the accused/appellant used force on the prosecutrix with intent to

cy/l -6continue for a further period of 6 months as required under Section 437-A of the Code.

17.

Appeal allowed in part.

-__,_ Sd/- C.B. Bajpai Judge Aadil ' ~^ i