HIGH COURT OF MADHYA PRADESH : JABALPUR Criminal Appeal No. 2342/1998 Malludas Versus State of Madhya Pradesh _______________________________________________ For the Appellant : Shri Sanjay Patel, Advocate. For the Resp./State : Ms. Savita Chourasiya, P.L. _______________________________________________ Present: Hon'ble Mr. Justice S.C. Sinho _______________________________________________ J U D G M E N T ( 17/11/2011) Appellant has filed this appeal being aggrieved by the judgment and conviction passed by Special Judge, Mandla in special case no. 71/98 vide impugned judgment dated 31/08/98 whereby being convicted u/s 354 of IPC, he has been sentenced to undergo RI for 3 months and u/s 323 of IPC fine amount of Rs. 500/- in default to suffer RI for 3 months is imposed on appellant. Further, being convicted u/s 3 (1) (xi) of the SC/ST (Prevention of Atrocities) Act he has been sentenced to undergo RI for 6 months with fine of Rs. 500/- in default to suffer further RI for 3 months. All the sentences were directed to run concurrently. 2. The case in brief is that complainant PW-2 Nanas Bai, a member of Baiga community on 1/03/98 lodged FIR Ex.P-2 in P.S. Mougaon to the effect that on 28/02/98 when she was alone in the house appellant came to her house, caught her and thrown on the barandah and tired to outrage her modesty. She started crying immediately her husband Sonu who was working nearby the filed came there on which appellant ran away from the spot. After due investigation, charge sheet was filed. 3. Shri Sanjay Patel, learned counsel for appellant has submitted that prosecution has not filed any caste certificate of the complainant Nanas Bai as well as of appellant hence it cannot be said prosecutrix was a member of scheduled tribes community. In this regard, complainant Nanas Bai has very specifically stated in para 1 of cross examination that she belongs to Baiga community and the aforesaid fact is corroborated by PW-4 Maya Das as well as admitted by appellant in answer to the question no.2 of accused statement u/s 313 of Cr.P.C. The said fact is not challenged by the accused in cross examination. Aforesaid argument is not tenable. 4. Complainant PW-2 Nanas Bai resident of village Jhurg has stated on oath that on 28/02/98 at about 17.00 hours when she was alone in the house appellant who is also resident of village Jhurg entered in her house and inquired about her husband, when prosecutrix intimated him that she is alone in house appellant thrown her on the ground and caught her hands and pressed her breast. She made hue and cry. Her husband PW-3 Sonu came there and seen this appellant ran away. PW-4 Maya is a hearsay witness. The incident took place at about 17.00 hours and as per FIR, the police station is about 13 kms from the spot therefore, on next day 1/03/98 named FIR Ex.P-2 was lodged by the complainant. Complainant Nanas Bai was sent for medical examination. PW-1 Dr. R.K. Sharma has examined her and found abrasion and other injuries as per Ex.P-1. There is no reason that why a married lady will falsely implicate the appellant. 5. Shri Sanjay Patel, learned counsel for appellant has placed reliance on Jasrat Singh and another Vs. State of Madhya Pradesh, 2005 (4) MPHT and Rajendra Kumar Shukla Vs. State of M.P., 2011 (3) MPHT 41. These cases were related to section u/s 3 (1) (x) of the SC/ST (Prevention of Atrocities) Act where it is held that simply calling a person by his caste chamra is not an offence u/s 3 (1) (x) of the SC/ST (Prevention of Atrocities) Act whereas the present case is related to section 3 (1) (xi) of the SC/ST (Prevention of Atrocities) Act. Shri Sanjay Patel has further placed reliance on Nandan @ Raghunandan Vs. State of M.P. MPLJ 1996 13, Mangal Singh and Ors Vs. State of M.P. ILR 2009 MP 2671, Ravindra Kumar Ramshankar Mishra Vs. State of Madhya Pradesh 1995 MPLJ 645. All these cases are related to section 3 (1) (x) of the SC/ST (Prevention of Atrocities) Act. 6. The defence of false implication is also not trustworthy because prosecutrix is a married lady having 2 children and no married lady on the cost of her prestige will falsely implicate a person without any reason. Shri Patel has further submitted that there is no evidence that appellant has tried to outrage the modesty of prosecutrix because she was a member of scheduled tribes community. The Apex Court in the case of Vidyadharan Vs. State of Kerala (2004) 1 SCC 215 has pointed out the distinction between the offences punishable under section 354 of IPC and section 3 (1) (xi) of the SC/ST (Prevention of Atrocities) Act in the following terms: “Section 3 (1) (xi) of the Act deals with assault or use of force to any woman belonging to a scheduled caste or scheduled tribe with the intent to dishonour or outrage her modesty is an aggravated form of the offence under section 354 of IPC. The only difference between section 3 (1) (xi) and section 354 is essentially the caste or the tribe to which the victim belongs. If she belongs to a scheduled caste or scheduled tribe, section 3 (1) (xi) applies. The other difference is that in section 3 (1) (xi) dishonour of such victim is also made an offence.” 7. It is not a case where appellant was a stranger to the prosecutrix. On the contrary prosecutrix and appellant were well known to each other and residing in the same village. Further appellant entered in her house and inquired about her husband thereafter, he tried to outrage her modesty therefore, appellant was very well known that prosecutrix was belonging to scheduled tribes community. 8. Shri Patel has placed reliance on the judgment Shankar Lal Vs. State of M.P., 2004 (3) Crimes 686 which is related to section 3 (1) (x) of the SC/ST (Prevention of Atrocities) Act. In these case prosecutrix has not stated that she is a member of scheduled caste or scheduled tribes community whereas in the present case prosecutrix has specifically stated that she is a member of Baiga scheduled tribes community. Moreover, applicant has admitted this fact in reply of question no.2 in his accused statement u/s 313 of Cr.P.C. 9 The court below has rightly convicted the appellant u/s 354, 323 of IPC and under section 3 (1) (xi) of the SC/ST (Prevention of Atrocities) Act. Sentence is also not required any modification. 10. Resultantly, appeal is dismissed. (S.C. Sinho) Judge nn