Appeal against the conviction to the High Court
2. Appellants stood trial in a case registered on the basis of a complaint lodged by the respondent no. 23 before the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Special Court convicted A-1 under Section 323, Indian Penal Code, 1860 and sentenced him to rigorous imprisonment for 3 months together with fine of Rs.1000/- with default term. A-2 was convicted under Sections 354 and 323, IPC as well as Section 3(1)(xi) of the SC/ST Act. For the offences under Section 354, and Section 3(1)(xi) of the SC/ST Act, A-2 was sentenced to a year’s rigorous imprisonment each together with fine of Rs.1000/-. For the offence under Section 323, IPC, he was sentenced to rigorous imprisonment for 3 months and fine of Rs.1000/-. The sentences were directed to run concurrently.
Appeal dismissed
3. Appellants carried the conviction and sentence in appeal before the High Court which, by the aforementioned judgment and order, dismissed the appeal.
Analysis
7. From the written complaint giving rise to the FIR as well as the victim’s deposition in court, it is clear that qua the victim, A-1 did not touch the victim. His role is confined to enquiring from the victim as to whether anyone was in her house or not. Insofar as A-2 being called on phone by A-1 is concerned, the version in the written complaint is at variance. Allegedly, A-2 had accompanied A-1. Qua her brother (PW-2), the victim deposed that both the appellants beat him and he received injuries on his head, hand and chest. Blood also oozed from his head and chest. Significantly, the victim did not depose in court that A-2, knowing that she and her brother belonged to Scheduled Caste, teased her and beat and abused him.
9. The evidence of PW-2 reveals that he was at the Ganesh temple when he got information about a fight happening in his house and, as such, he ran home to find A-1 and A-2 teasing the victim (her sister). From whom PW-2 obtained information is not disclosed. Though not being present at the relevant time, he deposed that A-2 had pulled the dupatta of the victim and scratched her back with nails. Upon intervening, the appellants beat him with a wood (kept near the stove) resulting in PW-2 suffering bleeding injury on his nose and mouth. It is also in his evidence that many people from the locality had come and had seen the incident.
12. Having considered the evidence led by the prosecution, there appears to be a discrepancy as to whether A-2 accompanied A-1 when A-1 came to the house of the victim and enquired about the availability of her family members.
13. While the FIR version is that the A-2 had accompanied A-1, in court, she deposed that A1 had called A2 on phone whereafter he arrived. This discrepancy, however, may not be too material for the purpose of a decision on this appeal because of other more glaring discrepances which we propose to highlight now.
Witness did not name any person from the locality who had seen the incident and not a single witness from the locality was examined who had seen the incident
14. However, what has struck us is the deposition of PW-2 that many people from the locality had come and seen the incident. Not only did PW-2 not name any person from the locality who had seen the incident, not a single witness from the locality was examined who had seen the incident. No post-occurrence witness, having heard of the incident, was also examined.
Hard and blunt object as weapon not recovered and exhibited
15. That apart, the evidence of PW-5 does suggest that the injuries which were suffered by both the victim and PW-2 could have been possible if someone falls or gets dragged on the ground. It is also noteworthy that the injuries found on the person of both the victim and PW-2 were simple injuries which, according to PW-5, seem to have been caused by a hard and blunt object. PW-2 had referred to a wood by which he was struck by the appellants but such wood was not recovered and exhibited.
PW-2 has not been truthful
18. At this stage, it is also apposite to highlight that as per PW-2, many people from the locality had come and seen the incident, hence, it would appear strange that none from the locality was produced in the court as a prosecution witness. While it is within the realm of possibility, the fact that no member of the public rushed to rescue the victim when she was being teased by the appellants is also a circumstance to find the testimony of PW-2 unbelievable. We have, therefore, come to the ineluctable conclusion that PW-2 has not been truthful.
19. It is also important to note the deposition of PW-4. Though related to the victim and PW-2, he deposed that the pandal of Ganesh Puja was overcrowded and peoples’ feet were touching each other due to which PW-2 felt that A-1 and A-2 had stepped on PW-2’s feet. This resulted in a scuffle breaking out between A-1 and A-2 on the one hand and PW-2 on the other. Though PW-4 was declared hostile after he made the above statement, he was subjected to cross-examination by the Public Prosecutor. Notably, it is in his evidence that it was wrong to suggest that PW-2 was assaulted by A-1 and A-2. The High Court did not refer to the evidence of PW-4 simply on the ground that he had turned hostile, in ignorance of the law relating to appreciation of the evidence of a witness who has been declared hostile. A profitable reference may be made to the decision of this Court in State of U.P. v. Ramesh Prasad Misra wherein it was held that it is settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of either the prosecution or the accused. It would rather have to be subjected to closer scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. The mere rejection of the evidence of PW4 in the manner aforesaid is contrary to the law laid down by this Court.
Defence has succeeded
21. In our view, the defence has been successful in placing a probable and believable account of a scuffle having broken out between PW-2 and the appellants at the Ganesh Puja pandal, which might have prompted PW-2 to set up a false story of commission of offence on the victim. Such scuffle could have resulted in PW-2 falling on the ground and suffering injuries which were ultimately found on his person by PW-5.
Conclusion
22. Insofar as the victim is concerned, as noted above, she has not attributed any offensive act to A-1. Her version of A-2 pulling her dupatta and the appellants beating PW-2 also do not inspire confidence, in view of the aforesaid discussions. What remains is the scratch on the back of her neck. We do not see reason to hold, in view of the evidence of PW-5 and our above findings, that A-2 ought to be held guilty of an offence under Section 323, IPC.
23. The conviction and sentence of the appellants being indefensible, stand set aside. They are set free and discharged from their bail bonds.
Judgment cited
State of U.P. v. Ramesh Prasad Misra, reported at (1996) 10 SCC 360.
- Indian Penal Code, 1860 (IPC)
- Section 323: Punishment for voluntarily causing hurt (A-1 convicted, A-2 considered).
- Section 354: Assault or criminal force to woman with intent to outrage her modesty (A-2 convicted).
- Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act)
- Section 3(1)(xi): Assault or use of criminal force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to outrage her modesty, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe (A-2 convicted).
- Code of Criminal Procedure, 1973 (Cr.P.C.)
- Section 374(2): Deals with appeals to the High Court from convictions by a Sessions Judge (the original appeal to the High Court was filed under this section).
Party
Dadu @ Ankush & Anr. vs. State of Madhya Pradesh & Anr, the case number is Criminal Appeal No. 5301 of 2025 [arising out of SLP (Criminal) No. 10759/2024)], the citation is 2025 INSC 1395 - December 08, 2025 Hon’ble Mr. Justice Dipankar Datta, J. and Hon’ble Mr. Justice Augustine George Masih.
