^^' -i?i7t;.-iA.''t,n;-.--^^'^'^'.i-^'u'"^-u^'^'(-''ux'v^.5 ^,!Sin9te:IBench<Crimina||yi IN THE HIGH COORT GP JUDICATHRE AT JABALPOR. Ma.IHYAPRADESH •'' .-<•'"• m •'s •fi 'CRI'MINAI.. APPEAL N0.3>^^ /199'?, ' ^ . ) . ... ' _| CRIMINftL. APPEAI. U/SECTION 374:(2) oF CRIMINAL PROCEDORE.-CODE')! |g Appellant: . . •,. \ -/_!'^ ..•,'y'..; ^:. ... Aagesbwar s/o eendl<l Verma*'' aged aboat 25 ye^ts, Resi.!3ent •» Maswadih, Police .Statip.n-K'aarOra, District. Raipur (H.j< >. .^^7 ^esp^indenfc: t.*.taa*('''—« -Versus- ' y ' . State pf Madhya Pradesh ^' ; Through Polj.ee Statbn-Kharora. Bistriet, Raipur <H.P.4. • !F....,.—"..ftAwf . . - „ ,. t^7 .CRIMINAL APPEAL BNDER SECTIONf37Sl2). OP \^^ -—~~": - CRIMINAL PROCBDURE CODE.1973* !-' ii < / ..l.::^:\ li.ss^) &. "T' yf ^. -^f^'. ^ i^ HIGH COURT QFCHHATTISGARH AT BILASPOR (Hpn. Mr. Justice Prltlnker Dlwaker) Crimlnal Appeal No. 394/1997 CRIMINAL APPEAL UNDER SECTION 374 f2t OF CRtMINAL PROCiEDORE^ODE. 1973 Present: Shri Sunit Sahu, counset for the appellant. Smt Smitha Ghai, PL for fte respondent/State. JUDGMENT (15.06.2011) This appeal is directed against the jud^nent and order dated 5/02/1997 passed by Special Judge, Raipur in Speeial Criminal Case No. 79/1996 convieting the accused/appellant for the offence punishable under Section 354 of EPC and Section 3 (1) (xi) ofthe Seheduled Caste & Scheduled Tribe (Prevention of Atroeities) Act (for short 'the Act') and sentencing him to undei^o rigorous imprison^ient fbr one year and pay fine of Rs. 500/-, in default of payment offine to fiirther undergo SI for six months. 2. Case of the prosecution in brief is that on 10/07/1992 FIR (Ex.P-1) was lodged by the proseculrix (PW-4) aged about 24 years alleging in it that on 7/07/1992 the accused/appellant had called her for some agricultural work and when during the lunch hour, she had Aopellant ">' Aageshwar VERSUS Respondent State of Madhya Pradesh ^ gone back to her house, the aceused/appellant also reaehed Ihere, caught hold ofher arms, pressed her breast and threw her on the field. Based on this FIR, offettte under Section 354 aad Section 3 (1) (xi) of the Act was registered against the accused/appellant. 3. After investigation the challan was filed on 30/07/1992 under the above mentioned offences, So as to hold the aecused/appellant guilty, proseculion has examiaed as many as 7 witnesses in support of his case. Statement ofthe accused/appellant was alsoreeorded under Seetion 313 of the CPC in which he denied Ae charges levelled against him and pleaded his innocenee and fals» implication in the case. 4. After hearing the parties the Trial Court has convicted and sentenced the accused/appellant for the offences as mentioned above. 5. Heard leamed counsel for the parties and pemsed tiie material available on reeord including thejudgment impugned. 6. Counsel for the appdlant submits that there is inordinate delay of3 days in lodging the FIR and the said delay has not been explained by the prosecutrix as required under the law. He farther submits that there is ho document on record to establish the caste ofthe prosecufrix as Seheduled Tribe and in absenee of any relevant doeument, the aeeused/appeUant caniiot be convicted under tiie provisions of Speeial Act. He farther argues tiiat there is absolutely no evidence on record to show that tiie alleged act was done by the accused/appellant simpty because the prosecutrix belongs to Scheduled Tribe. He submits that the appellant has been falsely implicated because he had given some money to the prosecutrix and when demanded back the same, the prosecutrix had made false allegations'against him. Lastly it has been argued that even if the appellant is eonvicted under Section 354 of IPC, as the jail sentenee is not mandatory only by imposing reasonable fine amount, he be set free because the iiwident took place about 19 years back and it will be too harsh for the appellant to go backtojail. 7. On Ihe other hand, counsel for the respondenl/State supports Ihe judgment impugned and submits that conviction of the aecused/appellant is strictly in aecordance with law. She further fairly admits that there is no documentary evidence on record to establish the caste ofthe prosecutrix. 8. I have heard leamed counsel for the parties, perused the material on record including thejudgment impugned. 9. Prosecutrix (PW-4) in her evidence has stated that she knew the accused/qp^llant who was residing in the same viliage and on Ihe date ofincident at about 10 a.m. the accused/appellant had calied her for some work and when she came back to her house for lunch, aceused/appellant also came to her house, caught hold her hand and arm, pressed her breast and vsiien she raised her cries, her mouth was gagged by him. She has farther stated that thereafter accused/appellant ,\. ;. i'! ;'.' ^- ^^ff l.u,. ..-if"' ^ left her house and on tiie second day when her husband came, she narrated tiie entire incident to him and then the matter was also infonned to the elder-members of the village and thereafter report (Ex.P-1) was lodged. Statement of the proseeutrix has been duly supported by Govardhan (PW-1); Shanker (PW-2), Chinta (PW-3) and Nathuram (PW-5). Minketan Hota (PW-6) has recorded the FIR whereas Surajbhan Singh Rana (PW-7) had conducted fhe mvestigation. 10. Admittedly, there is no document on record to show the caste of the prosecutrix as Scheduled Tribe and her easte has been disputed by the accused/appellant. Filing of documentary evidence is a sme qua non for banging home the offencewithin the provision ofthe Special Act especially when the caste has been disputed by the appellant and in absence of any cogent evidence in this respect, the accused/appellant cannot be convicted under Section 3 (1) (xi) ofthe provisions ofthe Special Act specially when he has not admitted easte ofthe prosecutrix. Further, there is no evidence on reeord to show that the alleged aet was done by the accused/appetlant simply because tUe prosecutrix belongs to Scheduled Tribe. Even in her statement the prQse<?utrix has not made any sueh allegation. In the facts and circumstances of the .case, accused/appellant cannot be convicted uader Section 3 (jt) (xi) ofthe Act. Accordingly he is acquitted for the said'offence. However, the evidence clearly makesput a ease against (^ the accused/appellant under Section 354 ofIPC and aceordingly he is convicted under Section 354 ofIPC. 11. I find no merit in the argument of Shri Sahu, that there is inordinate delay in lodging the FIR. The prosecutrix has catBgorically 't' deposed that on the second day of the incident when her husband came back to his house, the incident was infomied to him and thereafter the incident was also informed to the villagers and then tfae report was lodged. 12. The only point which requires eonsideratioa is what would be appropriate sentence for the accused/appellant under Section 354 of IPC, the jail sentence is not mandatoiy for the offenee under Section 354 ofIPC, the incident took place about 19 years back and now the appellant must be middle aged person and therefore considering all the faets and eircumstences ofthe case, it would be appropriate to impose sentence of fine alone. The accused/appellant is direeted to pay fine ofRs.lO,0(%)/-and out ofwhich Rs.8000/- shall be disbursed by the Trial Court to the prosecutrix. The accused/appetlant is obUged to deposit the said amount within six months from the date ofreceipt of the <»py of this order and if he fails to deposit the ss&d amount withmthe stipulated period, he shall undergo Ifaejail sentence offcfur months. Sd/- 13. In the resul( the appeal is partfy aUowed. Pritinker Diwaker Judge a(^