J_ IN THE HIGH GOURT ©F JTJEICATUFS AT JABALPUR Criminal Appeal No. -) ^> /9 6 j CF0000060680 APPELIANT Sbyamlal, .S/o Dheerdas '^.aday, aged 2.2 years, ^ R/o Village sorainy.'- Thana Arjuni,/-** District; Ralpur ^' RESPGNDE;NT -^A^i^^ W;:RSUS State of Ma<3hya':Pradesh through S.O. Arjiini, Dlstrict; Raii;iur ; \ ORIMINAI. APPEAL UNBER SSG.: 374'er.P.C. ». / ^^.^^?;R^i (Hon. Mr. Justice Pritinker Diwaker) Crimjnal Appeai No. 980 of 1996 VERSUS Shyamiai State of Madhya Pradesh Shri Sunii Sahu, counset for the a Shri Ashish Gupta, P.L. for the State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CGDE OF CRININAL PROCEDURE. J U DGMENT (28.02.2011) The present appeal arises out of the judgment and order dated 16.05.1996 passed bY.special Judge, Raipur in Special Criminal Case No. 184 of 1996 convicting the accused./appetlant under Section.s 3 (1) (xi) of Scheduied Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short 'the Act'^ and 354 of IPC andsentencing him to undergo rigorous imprisonment for six months and pay fine of Rs. 300, in default of payment of fine to further undergo simple imprisonment for three months. 2. Brief facts of the case are that on 07.06.1991, FIR Ex.P- 1 was iodged by the prosecutrix (PW-l) alleging that on 26.05,1991 her husband was-not at home and when she went ./ Eo throvv w9.ste water of her house, the accused/appeltant came there and embraced her from behind. She has further stated that when she raised cries, the appeliant ran away however he was seen by Budhia (PW-2) and Dukhia (PW-3) whife .he was runnmg away. Based on this report, offence under Sectlon 354 of IPC was registered againsf the apDellanf. After .completion of investigation.. challan was flted ,ori-12.06.l99t for the offence uhder Sections 354 ofIPC and --•ac. -'^ft -?' v:^^ -%~ 3 (1) (xi) of the Scheduted (Prevention ofAtrocities) Act. Castes and Scheduled Tribes 3. So as to hotd the accused/appellant guilty, prosecution has examined 04 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Crimmal Procedure in which he denied the charge levelled against him and pleaded his Innocence and false impSication in the case, 4. After hearing the parties the trial Court has convicted and sentenced the accused/appeilant for the offence under Sections 354 of IPC and 3 (1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 5. Contention of Shri Sahu, learned counsel for the appellant is that present is a case of false implication because on 27.05.1991 the accused/appellant had todged a report against the husband of the prosecutrix and subsequentiy her husbandwas arrested. He submits that present report has been lodged by the prosecutrix against the appellant at the behest of her husband as a counterblast just to put pressure upon the appellant and in view of this,. possibiljty of faise implication is apparent. Me further submits that the offence under Section 3 (1) (xi) of the Act is not attracted because there is no doeumentan/evidence on record to show the fact thal the'-prosecutrix belongs to Scheduled Caste or Scheduted Tribe community. He submits that the prosecutrix has not stated that she was embraced intentionally by the appeliant Just because she belongs to Scheduled Tribe, 6, On the oth®rhand support:ing the impugned judgment !t has been argued by Sftri Gupta, leaned counsel for the Stated that the impugned judgment is strictty in accordance with law and there is no jnfirmity in the same. 7. Prosecutrix (PW-l) 1n her Courtstatement has stated that she belongs to Gond.community and knows-the appellant as he is of her village. On the date of incident at about 8-9 p.m. when her husband was not.at home and she went to throw waste water, the accused/appeltant who was hiding in her Court yard cauoht hoid of her arm from behind and when she raisecj her cries, the appellant was trying to insert her sari in her mouth but by seeing Dukhia (PW-2) and Budhia (pw-3) he ran away from the spot. At night after arrlval of her husband she narrated the entire inddent to him and then the report was lodged. In cross-examlnation she has admitted the fact that against her husband the appellant had lodged a report for assaultinQ him for which her husband was arrested and he was released from jail after about two months. This fact was informed by her to the police and if the same has not been recorded in her case diary statement she cannot tell the reason. (PW-2) has stated that upon hearing cries raised by the prosecutrix when she went there, saw the appellant inserting cloth in prosecutrix's mouth and on seeing her the appetlant ran away from the spot. She has atso adrriitted that sh©is grand-mother of the proseeutrix and the appeSlant'.hiAd lodged areport against the husband of the prosecutrix; She has further stated that when the prosecutrix shouted as "Chor, Chor"; she went there and after seeing her appellant fled away. Budhia (PW-3) has merely stated that after hearing cries caised by the prosecutrix when she went to her, she §aw the appeflant running away. Suresh (PW-4), hushand of the prosecutrix has stated that on the date of tricident at about ll o.m. when he came to the house, the -4- prosecutrix had narrated the entire inddent to him. On the second day he asked the appetlant as to why he had done the same but the appeilant denied the commlssion of any offence and there was some scuffle between him and the appellant. No Police Officer in relation to investigation has been examined. 8. Minute examination of.the evidence as adduced by the prosecution makes it clear that prior to the incident there was dispute between the husband of the prosecutrix and the appellant for which a report was lodged by the appellant against her husbandand subsequently he was arrested. This fact has been admitted by the prosecutrix (PW-1), her husband Suresh (PW-4) and Dukhia (PW-2) and therefore possibility of false implicatlon cannot be ruled out. Apart from that, there are material contradictions in the statements of the prosecutrix (PW-1), Dukhi^(PW-2) and Budhia (PW-3). Further; nowhere the prosecutrix has stated that she beiongs to Scheduled Tribe nor there is any documentary evidence available on record in this respect. She has also not stated that the entire act was cione by the appellant as she belongs to Scheduled Tribe. Considering the evidence available on record, it will not be safe for this Court to maintain convictlon of the accused/appellant under Sections 3 (l) (xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrodties) A(A and 354 of IPC. -. / 9. As a-result, the appeal is atlowed and the judgment impugned is set aside.-Appellant is acquitted of the charges tevelled agalnst him. He is already on bail. His bait bonds standdischarged. ^ &-' Pritinker Diwaker Jadge