1 Cr.A. No.70/2005 HIGH COURT OF MADHYA PRADESH : JABALPUR BEFORE : TARUN KUMAR KAUSHAL, J. CRIMINAL APPEAL NO. 70 OF 2005 APPELLANT: Rajesh Kushwaha, aged about 19 years, S/o Butuwa Kushwaha, R/o village Kakraha, P.S. Devendra Nagar, District- Panna (M.P.) Versus RESPONDENT: State of Madhya Pradesh ****************************************************************** For Appellant : Shri Anand Nayak, Advocate. For Respondent : Shri Vinod Fouzdar, Panel Lawyer ****************************************************************** Date of hearing: 13/12/2011 Date of judgment: /12/2011 J U D G M E N T /12/2011 This appeal has been preferrred against the judgment dated 31/12/2004 passed by the Special Judge (Attrocities) Panna in Special Case No.7/2004 convicting the appellant under section 354 of IPC and under section 3(1)(11) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short SC/ST Act) and sentenced to 6 months R.I and fine of Rs.500/- on each count. 2. Facts of the case in short are that on 17/01/2004 at aboutr 4.00 pm prosecutrix, aged 20 years (PW-4) while sitting in her field appellant came, undressed her and committed rape on her. FIR Ex.P-3 was lodged by prosecutrix at police station-AJAK, Panna. A case at crime no. 2/2004 under section 376 IPC and under section 3(1)(12) SC/ST Act was registered against the appellant. Prosecutrix was sent for her medical examination. Appellant was arrested and was sent for his medical examination. 2 Cr.A. No.70/2005 3. Completing investigation, charge sheet under section 376 IPC and under section 3(1)(12) of SC/ST Act was submitted in the trial court. Trial court framed charge under section 376 IPC and under section 3(1)(12), 3(1)(5) of SC/ST Act. Appellant abjured guilt. 4. To substantiate the case of the prosecution statements of Ratiya, mother of prosecutrix (PW-1), Baisakiya, father of prosecutrix (PW-2), Savitri Suhane, SDOP (PW-3), Prosecutrix, aged 20 years (PW-4), Samaniya Bai, sister of prosecutrix (PW-5), Ram Prakash (PW-6), Sangram Singh, Inspector (PW-7), Ram Bhuwan Patel, Constable (PW-8), and Dr. Pushpa Diwedi (PW-9) were recorded. 5. Defence of the appellant was that of false implication. To substantiate the defence statement of Gopal (DW-1) was recorded. 6. Appreciating the aforesaid evidence, trial court acquitted the appellant of the charge under section 376 IPC and under section 3(1) (12), 3(2)(5) of SC/ST Act. However convicted him under section 354 IPC and under section 3(1)(11) SC/ST Act and sentenced him as above. 7. This appeal has been preferred on the grounds that appreciation of evidence is not proper. There is no evidence on record to show that the incident has been committed by the appellant fully knowing that the prosecutrix belong to SC/ST rather there is sufficient evidence to show that to be a case of consent. 8. On the other hand learned Panel Lawyer supported the findings of conviction and sentence both. Admittedly prosecution did not choose to file any appeal against the acquittal recorded by the trial court. 9. Prosecutrix (PW-4) did not say anything in her statement to show that appellant committed offence because she belongs to SC/ST category. 10. In para 8 of her cross examination she had categorically denied the suggestion that this report has been lodged by her to create problems to the person of 'Kachhi' caste. In para 7 of her statement, she denied the suggestion that her father forcibly cultivated the land of appellant. 11. On careful perusal of the evidence of prosecutrix and all other witnesses there appears nothing on record to show that act of 3 Cr.A. No.70/2005 outraging modesty by the appellant has been committed because prosecutrix (PW-4) belongs to scheduled caste or scheduled tribe. There appears no evidence as regards dishonour of the prosecutrix by the act of appellant on the basis of difference in the caste. 12. In view of the of the aforesaid facts ingredients of section 3(1) (11) SC/ST Act are not available on record, thereby conviction of the appellant under section 3(1)(11) SC/ST Act is not sustainable. Hence, no case under section 3(1)(11) SC/ST Act is made out. Appellant is acquitted under section 3(1)(11) SC/ST Act. 13. It is submitted by the learned counsel for the appellant has suffered custody of more than 2 months (63 days) to his credit. 14. In view of the aforesaid facts and cicircumstances of the case for conviction of appellant under section 354 IPC, undergone jail sentence of 2 months seems to be just, proper and sufficient and will meet the ends of justice. There appears no justification in sending appellant back in jail after about 8 years of the incident. 15. In view of the totality of facts and circumstances of the case, for offence under section 354 IPC, fine amount is required to be enhanced from Rs.500/- to Rs.1500/-. Conviction of appellant under section 354 IPC is confirmed. He is sentenced to 2 months undergone custody period and with fine of Rs.1500/-, in default, appellant shall undergo 1 month R.I. 16. Appellant is directed to remain present before the trial court on or before 31st January, 2012 for deposit of balance fine amount, or to undergo default sentence, as the case may be. Appeal is partly allowed as indicated above. Certified copy as per rules. (Tarun Kumar Kaushal) Judge tarun 4 Cr.A. No.70/2005