IMPORTANT POINT
Attempt to outrage modesty and hurt – Evidence of a hostile witness would not be totally rejected if spoken in favour of either prosecution or accused – It would rather have to be subjected to closer scrutiny and that portion of evidence which is consistent with case of prosecution or defence may be accepted.

JUDGMENT :

Dipankar Datta, J.

1. This appeal, by special leave, is at the instance of the two appellants, Dadu @ Ankush (A-1) and Ankit (A-2). It is directed against the judgment and order dated 18th January, 2024 of a learned Judge of the High Court of Madhya Pradesh at Jabalpur of dismissal of an appeal¹[Crl. Appeal No. 7239 of 2019] under Section 374(2), Code of Criminal Procedure, 1973 preferred by the appellants.

2. Appellants stood trial in a case²[Special Case No. 200010 of 2016] registered on the basis of a complaint lodged by the respondent no. 2³[victim] before the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989⁴[SC/ST Act]. The Special Court convicted A-1 under Section 323, Indian Penal Code, 1860⁵[IPC] 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.

3. Appellants carried the conviction and sentence in appeal before the High Court which, by the aforementioned judgment and order, dismissed the appeal.

4. In the written complaint lodged by the victim giving rise to the First Information Report⁶[FIR], it was alleged as follows:

“I live in Sawargaon, Amba Ward, Padhurna. I study in class 11. My family consists of my mother, father, dadi and younger brother Pawan. On 04/10/2015 my mother, father and dadi had gone for hawking to Ambada market and around 10:30 at night my brother was in the Ganesh Utsav organized nearby our house. I was at home. Dadu Pendse of my locality came along with his friend Ankit Kevte and enquired from the gate of the house, if any one is there, I came out on which Dadu Pendse asked isn’t there any one in the house, to which I replied that my father has gone to the market. On listening to his Ankit Kevta caught hold of my dupatta, I pulled back my dupatta and asked him to leave it, on which he caught hold of my neck with bad intention. I shouted and tried to run away due to which he scratched my neck. My brother Pawan came to save me upon listening my voice, on which both of them gave him beating and abused him. Ankit Kevte belongs to Teli cast and despite knowing that I belong to Schedule Cast (sic, Caste), he teased me, beaten and abused my brother. I have come to lodge the report along with my brother Pawan. I have lodged the report. Action be taken.”

5. Paragraph 2 of the impugned judgment and order records the prosecution’s case. We consider it appropriate to reproduce the same hereunder:

“2. The facts necessary for disposal of present appeal, in short, are that on 04.10.2015, the prosecutrix lodged a report that she was in her house and her brother had gone to attend a program of Ganesh Ji. At that time, the appellants came there and inquired as to whether there is anybody in the house or not. When the prosecutrix informed that her father has gone to the market, then the appellant No.2 caught hold of her chunni and with evil intention caught hold of her neck. When she tried to run away, the appellant No.2 scratched her neck. When her brother came running to save her, then he too was also assaulted and he was abused filthily. The police lodged the FIR, arrested the appellants, recorded the statements of the witnesses and after completing the investigation filed the charge-sheet for offence under Sections 354, 294, 323, 34 of IPC and under Section 3 (1) 11 of SC/ST (Prevention of Atrocities) Act.”

6. In her examination-in-chief, the victim (as PW-1) deposed as follows:

“3. The accused Dadu present in the court, came to my house and asked if there was anyone in the house or not, to wh