Bail Slip The appellant/Accused namely Dhanapal son of Arjunan was directed to the released in bail, in and order is this court dated 30.1.2002 and made in Crl.M.P.No.648/02 in Crl.Appeal 74/2002 on the file of this court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.10.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN CRIMINAL APPEAL No.74 of 2002 and Crl.M.P.No.648 of 2002 Dhanapal ..Appellant/Accused -vs- State through Inspector of Police Emerald Police Station Crime No.51 of 1999 Nilgiris District ..Respondent /Complainant This appeal is filed under Section 374(2) of Cr.P.C. against the Judgment made in S.C.No.29 of 2001 dated 5.12.2001 on the file of the District and Sessions Judge, Udhagamandalam,Nilgiris District. For appellant : Mr.M.G.Sankaran,Advocate For respondent : Mr.J.C.Durairaj, Government Advocate(Crl) JUDGMENT This appeal has been directed against the Judgment in S.C.No.29 of 2001 on the file of District and Sessions Judge,Uthagamandalam, Nilgiris District. 2) The accused who was charged under Section 417 of IPC and under Section 3(1)(xii) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989(hereinafter referred to as "SC and ST Act"). The learned trial Judge, after taking cognizance of the offence had framed charge under Sections 417 IPC and 3(1)(xii) of SC and ST Act ,when questioned, the accused pleaded not guilty. https://hcservices.ecourts.gov.in/hcservices/ 3) On the side of the Prosecution , P.Ws 1 to 15 were examined. Exs P1 to P14 were exhibited. Through Investigation Officer, Exs D1 and D2 were marked. There was no oral evidence let in on the side of the accused and no material object was also marked. 4) P.W.1 is the victim girl Punniyavathi who had preferred Ex P1 complaint against the accused on the ground that on the pretext of marrying her, the accused had shared her bed on several occasions and finally refused to marry her even in the panchayat convened by P.W.5 and P.W.6 panchayatadars. 4a) P.W2 and P.W.4 would state about seeing the accused along with P.W.1 on several occasions prior to the date of panchayat . P.W.4 in her evidence would go to the extent of saying that she saw on 3.4.1999 at about 5.30p.m., both the accused and P.W.1 lying in obscene posture at a place called Teakadu situate behind Attari Tea Factory. 4b) P.W7 is the doctor who had examined and issued Ex P2 certifying that the accused is potent. P.W.8 is also a doctor who had examined the semen taken from the accused and issued Ex P3 certificate. P.W.9 is the then Tahsildar who had issued community certificate Ex P5 to the accused stating that he belongs to backward community by name Muthuraja Community. 4c) P.W.12 is the then Tahsildar who had issued Ex P12 community certificate in favour of the victim girl P.W.1 stating that she belongs to Schedule Castes. P.W.13 is a doctor who had examined the victim girl Punniyavathi and issued Ex P13 medical certificate stating that the victim girl was subjected to sexual intercourse. P.W.14 is the Investigating Officer who had investigated the case. P.W.15 is the successor of P.W.14 who had continued the investigation and filed the charge sheet against the accused. 5) After going through the evidence both oral and documentary, the learned trial Judge had held that the charge levelled against the accused under Section 417 of IPC and under Section 3(1)(xii) of SC and ST Act have been proved beyond any reasonable doubt had convicted and sentenced the accused to undergo six months rigorous imprisonment under Section 417 IPC and convicted and sentenced the accused under Section 3(1)(xii) of SC and ST Act and sentenced to undergo six months rigorous imprisonment and slapped with a fine of Rs.500/- with default sentence which necessitated the accused to prefer this appeal. 6) Heard Mr.M.G.Sankaran, the learned counsel appearing for the appellant and Mr.J.C.Durai Raj, the learned Government Advocate (Crl.side) and considered their respective submissions. https://hcservices.ecourts.gov.in/hcservices/ 7)The learned counsel appearing for the appellant would contend that the charge under Section 3(1)(xii) of SC and ST Act will not be attracted in this case because the prosecution has failed to prove that the accused belongs to backward community(Muthu Raja Community) by adducing proper evidence. To prove that the accused belonged to Muthu Raja Community(backward community) on the side of the prosecution, P.W.9, Tahsildar who issued Ex P5 community certificate in favour of the accused was examined. But on a perusal of Ex P5 will go to show that it is not the usual community certificate issued by the Revenue Department. It is only a certificate in a piece of paper addressed to the Deputy Superintendent of Police, Anti-Dowry Cell, In charge of Ooty Rural Sub Division, The Nilgiris under reference o.Rc.B2N 6709/99 dated 7.7.1999. Section 3(1)(xii) of SC and ST Act runs as follows: " Being in a position to dominate the will of a woman belonging to a Scheduled Caste or Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed". Unless, the prosecution proves beyond any reasonable doubt that the accused belongs to a community other than Scheduled caste and Scheduled Tribe, an offence under Section 3(1)(xii) of SC and ST Act will not be attracted. So under such circumstances, the findings of the learned trial Judge on the basis of Ex P5 that the accused belongs to Backward community and that an offence under Section 3(1) (xii) of SC and ST Act 1989 is attracted against the accused is liable to be set aside and the same is hereby set aside. 8) The other charge under which the accused has been charged is under Section 417 of IPC. Section 417 IPC is a punishment section for cheating which has been defined under Section 415 IPC as follows: "Who ever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if she were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to "cheat" Explanation: A dishonest concealment of facts is a deception within the meaning of this Section." According to the prosecution, the accused on the pretext of marrying of P.W.1 had sexual intercourse with her with her consent on very https://hcservices.ecourts.gov.in/hcservices/ many occasions before panchayat in which the accused had refused to marry P.W.1. The learned counsel appearing for the appellant/accused pointing out the evidence of P.W.14 Investigating Officer would state that even before preferring Ex P1 complaint , the victim girl/P.W.1 had preferred three or four complaints. But on those complaints, no first information report was registered and that even according to P.W.1, the occurrence took place on 3.4.1999 but the complaint Ex P1 was preferred only on 4.5.1999. 9) But in Ex P1 complaint itself, the victim girl/P.W.1 had stated that on 3.4.1999 while she was returning from her working place ie., tea garden at about 6.30p.m., her cousin brother Kumar kicked her questioning why she is having illicit connection with the said Dhanapal. For that she had replied that on the pretext of marrying her only, the accused had sexual intercourse with her not only on 3.4.1999 but also on previous occasions. Immediately her cousin brother along with her grand father Antony, her uncle Shanmugavel along with villagers viz., Kattaraman, Ramalingam, Mukkiah went to Dhanapal and enquired about the occurrence and there was also panchayat took place in this regard. The panchayatadars have been examined as P.W.5 and P.W.6 on the side of the prosecution. P.W.6 , the grand father of P.W.1 who depose to the effect that in the panchayat, the accused had denied the charge but said that his brother alone had committed an offence. P.W.5 has also corroborated the evidence of P.W.6 to the effect that the accused had denied the charge levelled against him by P.W.1. Only thereafter P.W.1 had preferred Ex P1 complaint on 4.5.1999. So the explanation given for the delay in preferring the complaint is acceptable and cannot be said as an inordinate delay. While the accused was questioned under Section 313 Cr.P.C. regarding incriminating circumstances, for the question whether the accused wants to say anything about the case, he has stated that it is a false case and he was inside for three months. There is no motive suggested against P.W.1 on the side of the accused for preferring a false complaint against the accused . The evidence of P.W.1 coupled with the evidence of P.W.4 an eye witness to the occurrence ie., the accused having sexual intercourse with P.W.1 and also coupled with the evidence of doctor P.W.13 who had issued Ex P13 certificate showing that the victim P.W.1 was subjected to intercourse will go to show that the offence under Section 417 IPC has been proved beyond any reasonable doubt as held by the learned trial Judge does not warrant any interference in this appeal. 10)In fine, the appeal is partly allowed and the conviction and sentence against the accused under Section 3(1)(xii) of SC and ST Act alone is set aside and the Judgment of the trial Court in S.C.No.29 of 2001 on the file of District and Sessions Judge, Uthagamandalam,The Nilgiris is confirmed in respect of the conviction and sentence under Section 417 IPC. The learned Government Advocate https://hcservices.ecourts.gov.in/hcservices/ (Crl Side) at this juncture would state that the accused has already served the sentence. Consequently, connected Crl.M.P.No.648 of 2002 is closed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar To 1. The District and Sessions Judge, Udhagamandalam, The Nilgiris 2. The Judicial Magistrate, Uthagamandalam 3.-do- through the Chief Judicial Magistrate, Nilgiris 4. The Public Prosecutor, High Court, Madras 5.The Inspector of Police, Emerald Police Station, Nilgiris District. Crl.A.No.74 of 2002 RSM(CO) BK(6/11/2008) https://hcservices.ecourts.gov.in/hcservices/