4 / .^. ^^^^ •^te^. ^ In the Eigb CoLsrt ©£MaBhys PrSdesh jsbaipur. • {^'^ Cr i&lns I a©pea1 N0 ^f ^?bf ' 19 9 5. ^ %-K^ fys^ jarli%^ A^geilan^ gs- Dsvsr s/©v'ishrsm '®davaged 8b©ut35 yrs< accused w resideot of vill^ge IfttSRgaon undpr Pollce sts tion Pamga rh dl strlct B3.I8SPLU' M.P, , ver^i^. . • ' - 3 BQS^oiident $- State of Madhja Pra'desho A®©al.under sec-fcion 37l»-(2) Criminal Proce<3ure Code^. —'^ ;^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 961 of 1995 APPELLANT RESPONDENT VERSUS Devar S/o Vishram Yadav State of Madhya Pradesh Shri Ashok Swarnkar counsel for the appellant. Shri Neeraj Mehta PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (21.06.2010) This appeal is directed against the judgment and order dated 5.7.1995 passed by Spedal Judge, Bilaspur in Special Case No. 196/1991 convicting the accused/appellant for the offences punishable under Sections 3 (1) (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short "the Act") and Sections 354 and 451 IPC and sentencing him to undergo rigorous imprisonment for six months on each count. 2. Case of the prosecution in brief is that on 26.9.1991 FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) aged about 50 years alleging that on 25.9.1991 in between 10 and 11 p.m. when she was all alone in her house, the accused/appellant had made an entry thereto and asked her for sexual favour and when she refused for the same, he had caught her hand with an intention to outrage her modesty. 3. So as to hold the accused/appellant guilty, prosecution has examined 05 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he deniedthe charge levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Heard counset for the parties and perused the material available on record including the judgment impugned. z- 6. Counsel for the appellant submits thateven if the entire case of the prosecution is taken as it is, the offence under Section 3 (1) (xi) of the Act is not made out against the accused/appellant as there is nolegally admissible evidence on record to show that the prosecutrix belongs to scheduled caste or scheduled tribe category. He submits that in such cases production of caste certificate to show that the prosecutrix belongs to scheduled caste or scheduled tribe community, is a sine qua non but here in the case in hand the prosecution has failed to do so. He submits that even the offence under sections 451 and 354 IPC is not made out against the accused/appellant as the statements of the witnesses appear to be untrustworthy. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the findings being based on due appreciation of the evidence on record do not warrant any interference with the same. He submits that even in the absence of documentary evidence regarding caste of the prosecutrix, accused/appellant can be convicted under Section 3 (1) (xi) ofthe Act. 8. Prosecutrix (PW-1) has stated in her evidence that on the date of incident she was all alone in her house and in between 8 and 9 p.m. accused/appellant had come there and asked her for sexual favour. She has stated that by caste she is "Suryavanshi" and that accused/appellant had caught hold of her hand. From the statement of this witness it appears that she remained inconsistent in making the same. In paragraph 14 of her statement, even the Court has observed that she speaks irrelevant and avoids to give answer correctly (^rrsft ar^ ^f^: ^^T t ^ ^t sy-T ^T urara ^ ^' sii-ii<t»i4l ^^fr t), Thjs wjtness has denied the disclosure of incident having been made by her to Parasram, Hetram and Hiralal whereas Hiralal (PW-2) has stated in his evidence that the entire incident was narrated to him by the prosecutrix. According to the prosecutrix she was on inimical terms with the accused/appellant and therefore possibility of false implication ofthe accused/appellant in the case cannot be ruled out. 9. Admittedly, the prosecution has not produced any certificate which is a sine qua non in the cases of like nature, to show that the prosecutrix was a member of scheduled caste or scheduled tribe community and therefore "T""^,. -3- the provisions of Section 3 (1) (xi) of the Act are not attracted. Moreover, the statement of the prosecutrix being replete of inconsistencies is not fit for implicit reliance as the trial Court itself has observed in paragraph 14 of the evidence of the prosecutrix that she speaks irrelevant and avoids to give answer correctly. In such a situation, this Courtjs of the considered view that the conviction of the appellant under Section 3 (1) (xi) of the Act has no legs to stand and it is therefore crumbled down. The prosecution has not even succeeded in establishing the case against the appellant under Sections 354 and 451 IPC by bringingforward any reliable material on record. In this view of the matter, even the conviction under sections 354 and 451 IPC does not get approbation and hencestruck down. 10. In the result, the appeal is allowed. Impugned judgment dated 5.7.1995 is hereby set aside. Appellant is acquitted of the charges levelled against him. As he is already on bail, bail bonds furnished by him stand discharged. Sd/- Pritinker Diwaker Judge ^