Examination of witnesses in the absence of the accused violated the right of the accused for cross-examination, leading to the setting aside of the conviction and acquittal of the appellant.

JUDGMENT :

This Criminal Appeal under Section 374(2) of Cr.P.C. has been filed against judgment and sentence dated 20.08.2019 passed by Additional Sessions Judge/Special Judge (Scheduled Castes and Scheduled Tribes, (Prevention of Atrocities) Act), Betul in Special Case No.20014/2014 by which appellant has been convicted for the following offences:

2. It is not out of place to mention here that co-accused Sunil@Lefty and Sandeep are still absconding.

3. According to the prosecution case, prosecutrix (P.W.-2) lodged an FIR in Police Station Sarni on the allegations that on 04.12.2013 at about 2 p.m. she and Sukarlal had gone for walk on a hill behind Rakhad Mohalla, Sarni. At that time, appellant came there and had scuffle with her. He started abusing her filthily and also assaulted her by lathi and belt. When Sukarlal tried to intervene in the matter, he too was assaulted by him, as a result, he sustained injuries on his legs and back. Accordingly, Crime No.575/13 was registered against the appellant and absconding accused persons for offence under Sections 354, 294, 323, 506, 34 of IPC and Section 3(1)(11) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The injured persons were got medically examined. A Lathi was seized from the possession of appellant. The police after completing the investigation filed the charge sheet against the appellant and co-accused persons for offence under Sections 354A, 294, 323, 324, 506, 34 of IPC and under Section 3(1)(11) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

4. The Trial Court by order dated 27.07.2017 framed the charges under Sections 294, 323 of IPC or in alternative under Sections 323/34, 354, 506 (Part-II) of IPC and under Sections 3(1)(10) and 3(1)(11) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act against appellant and co-accused Sunil@Lefty and under Sections 294, 323 or in alternative 323/34, 354, 506 of IPC against co-accused Sandeep.

5. The accused persons abjured their guilt and pleaded not guilty.

6. The prosecution in order to prove its case examined Phoolwati (P.W.-1), prosecutrix (P.W.-2), Sukarlal (P.W.-3), Dr. V.N. Jharwade (P.W.-4), Achhelal Dhurve (P.W.-5), L.N. Yadav (P.W.-6), Shri Sundarlal (P.W.-7) and P.S. Mandloi (P.W.-8).

7. The appellant did not examine any witness in his defence.

8. Trial Court by impugned judgment dated 20.08.2019 convicted the appellant for offence under Sections 323 of IPC (two counts) and under Section 354 of IPC and awarded jail sentence as already mentioned above.

9. It is not out of place to mention here that after the evidence of prosecution witnesses was recorded, co-accused Sunil@Lefty and Sandeep were declared absconding.

10. Heard learned counsel for State and perused the record.

11. Phoolwati (P.W.-1) is a hearsay witness who is sister of Sukarlal. She had stated that in the year 2013 Sukarlal and prosecutrix came to her house and thereafter, they went for a walk towards Rakhaddam. After coming back they informed that Lefty, Sandeep and Santosh (appellant) had teased the prosecutrix. This witness was also stated that she had seen the injuries sustained by prosecutrix and Sukarlal.

12. Prosecutrix (P.W.-2) had stated that incident took place on 04.12.2013. She had gone for walk with Sukarlal on a hill situated towards the side of Rakhadmohalla. All the three accused persons came there and started teasing her. When she raised an alarm, then they started abusing her. When Sukarlal came to save her, he too was assaulted, as a result, this witness sustained injuries on her knees and thighs. It was further alleged that accused persons while fleeing away had also extended a threat that in case if report is lodged, then they would be killed.