HIGH COURT OF CHHATTI-SGARH AT BILASPUR SINGLE BENCH: Hon’ble Shri P. DIWAKAR. J criminal Appeal Na. 101 811 997 APPELLANT Ganeshram son of Malikram Patel, aged 27 years, resident c>f viiiage Bargadi, Police Statian Chhapa, District Biiaspur (MP) State of Madhya Pradesh. thre’ugh Station House emcer, Chhapa, District Bilaspur (MP) Vs. Respondent Prosecution (Criminal Apnea! under Section 374(2) of the Cr.P.C.) Present: Shri Saurabh Sharma, counsel for the appellant. Shri Praveen Das, Govt. Advocate for the State. oRALJUDGMEMT (13.04201 1) This appeal is directed against the judgment of conviction and order of sentence dated 25.4.1997, passed by Additional Sessions Judge and Special Judge, Bilaspur in Special Case No.66/96, whereby, the accused/ appellant has been convicted under Sections 3(1)(xi) of Scheduled Caste l3” and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter ,. l: f referred to as ‘the Act, 1989) and under Section 456 of lndian Penal Code and sentenced to undergo R.l. for six months, to pay fine of Rs.200/- & in default thereof, to further undergo R.l. for one month, and to undergo R.l. for six months, pay a tine of Rs.200!—, and in default thereof to undergo R.l. for one month respectively. 2. Case of the prosecution, in brief, is that on 14.94.1992 at about 9.15 a.m., first information report was lodged by Kiliram (PW-2), alleging therein that on 12.04.1992, at about 10.00 p.m., when his wife!prosecutrix (PW-1) L\) was alone in the house, the accused/appenant foreibly entered into his house by opening the door and caught hold of hands of his wife. However, the prosecutrix managed to free herself from the clutches of the accused/appellant and rushed to the house of her neighbour Janki Bai (PW-3) and narrated the incident to her. On the basis of this, offence under Section 456 of the IPC was registered against the accused/appetlant. After investigation, Challan was filed on 18.4.1992 under Sections 456 and 354 of the IPC read with Section 3(1)(xi) of the Act, 1989. 3. !n order to establish guilt of the accused/appellant, the prosecution examined as many as five witnesses, whereas one defence witness namely Chedilal Choubey was examined by the accused/appellant. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C., in which he denied the charges leveled against him and pleaded innocence and faise implication in the case. 4. After hearing the parties, the trial Court convicted and sentenced the accused/appellant as aforesaid. 5. Heard !earned counsel for the parties, perused the material available on record, including the judgment under challenge. 6. Learned counsel for the appeilant submits that even if the entire prosecution story is taken as it is, offence under Section'3(1 )(xi) of the Act, 1989 is not made out against the appellant as there is no evidence on record to show that the accused/appeliant caught hold of the hands of the prosecutrix and he has been charged with this offence just because she beiongs to Scheduled Tribe community. He further submits that there is no evidence on record to the effect that the appellant had prior knowledge that the prosecutrix belongs to Scheduied Tribe. @ In respect of offence under Section 456 of the IPC, learned counsel for the accused/appellant has not argued the appeal 0n merits and submits that he woutd confine his argument to the sentence part only. According to him, the appellant has remained in jail for three days, the incident took place about 19 years back and he has already suffered a lot in prosecuting the case. At the time of commission of offence, the appellant was a young man, aged about 27 years, whereas, at present, he is a middle aged person of 46 years, having family responsibility and no useful purpose would be served in sending back the appellant to jail and therefore, his sentence may be reduced to the period already undergone by him. 7. Referring to the impugned judgment, Shri Pravin Das, learned Govt. ‘Advocate wouid argue that conviction of the appellant is strictly in accordance with law and there is no infirmity in the same. He further submits that looking to the act of the appellant, particularly with a woman of Scheduied Tribe community, no leniency should be shown to him and his conviction and sentence deserve to be maintained. 8. in the case in hand, the main witnesses of the prosecution are prosecutrix (PW-1), her husband Kiliram (PW-2), neighbour Janki Bai (PW-3). None of these witnesses have stated that the accused/appellant forcibly entered the house of the prosecutrix with an intention to outrage her modesb, ,iust because she belonged to Scheduled Tribe. In absence of such evidence, this Court finds it difficult to uphold the conviction of the accused/appellant under Section 3(1)(xi) of the Act, 1989. .However, the prosecutrix has categorically stated that after forciblyentering the house, the appellant/accused caught hold of her hand and gagged her mouth. She freed herself from the clutches of the accused/appeliant and rushed to the house of her neighbour Janki Bai. This statement of the prosecutrix is aiso supported by the evidence of Janki Bai. 9. Under the facts and circumstances 0f the case, the offence under Section 354 of IPC is apparentty made out against the appeilant and accordingiy he is convicted under the said section. As the appeiiant is not chaiienging his conviction under Section 456 of IPC, the same is maintained. 10. As regards the sentence, iooking to the facts and circumstances of the case, particulariy the fact that the incident had taken place 1.9 years back, at the reievant time, the accused was a young man of 27 years and now he must be aged about 46 years, he has family responsibiiities, he remained in jaii for three days and it wouid be harsh to send him back to jaii at this stage. Accordingiy, the iaii sentence imposed on him is reduced to the period aiready undergone by him. However, in iieu thereof, the appeiiant is directed to pay a fine of Rs.1‘0,000/- in addition to the tine amount awarded by the triai Court which would be paid to the prosecutrix within a period of six monthsfrom today. If the fine amount as directed is not deposited in the trial Court within the stipulated period, the appeliant shat! under go imprisonment for a period of four months. 11. Appeal thus partiy succeeds. Binl r a v._i_,