:j"r7- ,"f; 1: '$• .^g^ftiSteil IM^2EB, HIOH GOBRT OF JODICATUgE OF M.P. ftT__JABAI.PtoR». Griia.i.na.l. AppeaJ. Ho. \^ S /97. ^A%Bg@X)SH'F;. •^SiSs.SKS,^. Batagulaai Bargafa s/o» Ghaslram By cast Bargafo age 21 years ,, R/o. Vlll- a-u-ttdKalo PS-"' Aablkapur ©Istt-SarguJa.MP, -Versus- ^"^Ti^^"IWSBK^ [i 'Kfm^':.'': iSSS39SKW ^WKPS 'Tae Stafee of M'.P. throagfa ,>.- PS- Amb.lkapi.tr Bistt- sarglaj'a, l^'^^Si'^^)]^! .-lae'SitSiass g^llglg&iaS^'.aSPEM.'^/S. 374(2) QF IfiE' C©DE OF .CEJIHXSM. PSOeEDVRE- 1973 : ^.Sf ;'1'.^;'~^' l^ii HIGH COURT OF CHHATTISGARH. BILASPUR SINGLE BENCH : HON'BLE SHRI PRASHANT KUMAR MISHRA. J. Cr.A.No.105of97 APPELLANT Ramgulam Bargah. Versus RESPONDENT The State of M.P.(now Chhattisgarh) Shri Shakti Raj Sinha, counsel for the appeltant. Shri Prsdsso £inc!h.Psnsl Lawysr for ths Stsit®. ORALORDER (14/07/2011) Heard. (2) This appeal is directed against the judgment of conviction and order of sentence dated 13/12/1996 passed in Special Crimina! Case No. 179 of 1995 whereby learned Special Judge, Ambikapur after holding the appellant guilty under Section 456 of t.P.C. & Section (3)(1)(xi) ofthe Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 sentenced him to undergo Rl for 3 years and to undergo Rl for 5 years respectively. (3) Case of the prosecution is that on 16/09/1995 at about 12.00 a.m the accused entered the house of prosecufrix Somari Bai when her husband was away for witnessing Karma. Her mother-in-law was sleeping in adjoining room and the main door of the house was not closed from inside. When the appellant entered the house and kept his one in hand on her mouth and with the other hand had caught hold the chest of the prosecutrix and at this time her mother-in-law entered the room with a candle in her hand and witnessed the incident and thereafter alarm was raised and on the next date Panchayat meeting was calted. Hcwever, F.1.R. was subsequently todged on the ^ /- ^ ^18/09/1995. 2. (4) Prosecution has examined PW/1 Somari Bai, PW/2 Soni Bai (Mother- in-Law), PW/3 H.N. Singh, A.S.I. and PW/4 M.S. Chouhan, A.S.I. (5) The trial Court has Tound that the appellant is guilty of offence punishable under Section 456 of I.P.C. as also under Section (3)(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989. (6) Learned counsel for the appellant would argue that the prosecuUon has failed to prove the ingredients of the offence under the relevant provisions for which the appellant has been charged and that in any case, from the evidence available on record, it is established that the proseeutrix was a consenting party, therefore, it was the duty ofthe prosecution to prove that the appellant's entry into the house was illegal and without any consent. He would submit that once it is Tound that the prosecutrix was a consenting party, the necessary ingredients of the offence under Section 456 of I.P.C. would be missing. (7) Learned State counsel has supported the judgment and the finding recorded by the trial Court and has prayed for dismissal of the appeal. (8) In the first information report (Ex.P/1) it was stated by the prosecutrix that when she tried to raise the alarm the appellant closed her mouth and he put off the candle and at the same time the mother-in-law entered in the room and seeing the appellant inside the room, both of them i.e. the prosecutrix and the mother-in-law raised alarm. In her deposition she stated that the appellant entered the house at about 12 in the night and when he touched her body she woke up and the appellant put his hand on her mouth and started outraging her modesty. She says that she had gone tosleep after putting ofF the candle. She further says that when the appellant was in feadiisA-._„_.-. ^fa ^' -3- .-/-' the process of catohing hold of her, her mother-in-law enterecl and on seeing her appellant tried to flee and she caught hold of the appellant. On the contrary in the F.I.R. it was stated that her mother-in-law caught hold of the appellant. (9) In this state of evidence on record, it is to be seen that the F.I.R. was not lodged on the very next day and instead a Panchayat meeting was convened, however when the appellant did not attend the Panchayat meeting the report was lodged on the next day. From this conduct it would appear that the prosecutrix tried to pateh up the matter in the Panchayat meeting and thereafter report was lodged. (10) In the matter of Stete Vs. Sidney Rotfrigues reported in f953 NU 475 it has been held by Hemeon J. thus in paragraph 7 & 9 of the report :- "7. This dkl not, however, perse connote that Rodrigues had entered the house with intent to intimidate, insult or annoy Hoogwerf; and in Emperor v. Chhotelal reported in I.L.R. 40 All. 221 a DMsion Bench held that if an accused succeeds in showing that his presence in the housewas in consequence of an invitation from or by the connivance of a female living in it with whom he was carrying on an intrigue and that he desired that his presence there should not be known to the person in possession, he cannot be convicted of house trespass. The learned Judges also pointed out, however, that if it were shcwn that the person in possession of the house had expressly prohibited the accused from coming to the house, an intent to annoy could be legitimately inferred. 9. In Abdul Majid v. Emperor reported in A.I.R. 1938 Lah. 534 a Full Bench recorded the view that it must depend on the facts of each case as to whether an intent to annoy the person in possession of the property entered upon can, in the circumstances, be reasonably inferred and that where an \ accused enters at night the complainant's house with intent to have intercourse with the unmarried daughter of the complainant by invitation, the accused cannot be said to have the primary or even the subsidiary or secondary intent to annoy the person in possession from whom he had taken all possible precautions to keep his entry secret. The mere fact that he knew or ought to have known that, if discovered, his presence in the house might cause annoyance to the owner or other inmates of the house is by itsetf not sufficient to bring his case within section 441 ofthe Indian Penal Code." (11) Under Section 456 of I.P.C. it is provided whoever commits lurking house-trespass by night, or house-breaking by night, shall be punished wift imprisonment of either descripfion for a term which may extend to three years, and shall also be tiabte to fine. (12) House-trespass is defined under Section 442 of I.P.C. and lurldng house-trespass has been defined under Section 453 of I.P.C. When house- trespass is committed after sun set and before sun rise, it is defined as lurking house trespass by night. From the deflnition of criminal trespass, house-trespass and lurking house-trespass it would appear that one of the essential ingredients in the definition of house trespass or house breaking is the intention to commit an offence. In the present case, the allegation of the prosecutrix is not that of committing lurking house trespass simplicitor with an intention to commit an offence but the allegation is that after committing house trespass in the night the appellant outraged modesty ofthe prosecufrix meaning thereby that he committed an offence after committing lurking house trespass by night. Thus, the act of lurking house trespass by night which in itself an offence and the offence of outraging the modesty of the prosecutrix is closely interconnected as according to the prosecution the 7 ? ^ ^ ^ \ a -^ - 5- appellant entered the house only for the purpose of outraging the modesty of the prosecutrix. (13) In the above view of the fact and the provisions of law it is to be examined as to whether in a given case if the prosecutrix appears to be a consenting party, whether the accused can be held guilty of committing lurking house trespass by night. (14) In the matter of Stete Vs. Sldney Rodrigues (supra) it was found that theaccused inthe said case having been invited bythegiritovisithishouse, the charge under Section 456 of I.P.C. cannot be sustained. When the ratio is considered in the facts of the present case, it is found from the evidence that the prosecutrK did not raise alarm of her own nor made any efFort to remove the appellant from her proximity by any other reaction. It is her mother-in-law who came to visit the room at the time of incident and thereafter alarm was raised. In view of this it cannot be ruled out that the prosecutrix had consented to the act which is alteged to be an offence under Section (3)(1)(xi) ofthe Scheduted Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 or underSection 354 of I.P.C. (15) Wrth respect to conviction under Section (3)(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 1989 it is to be seen that it is the duty of the prosecution to prove that the prosecutrix beiongs to the member of Scheduled Caste category. The prosecution has fiied and proved Ex.P/5 stating it to be a caste certificate. Ex.P/5 is a certificate issued by the Sarpanch of the Gram Panchayat anct has not been issued by the authority empowered in law to issue a caste certificate. Even the Sarpanch who has issued the certificate has not been examined in this ^ case and thus the said certificate has not been proved in accordance with 7 ^ ^- ^ c^-. 6 law. It is one of the basic requirement of law for sustaining the conviction under Section (3)(1)(xi) of th®Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ttiat the prosecution should prove that the lady belongs to Scheduled caste category. However, in view of the evjdence in this regard, this Court finds that conviction under Section (3)(1)(xi) is not sustainabte, because the caste certificate has been issued by the Sarpanch and the same has not been proved. (16) In view of the above, the appellanfs conwction under Section 456 of I.P.C. as well as under Section (3)(1)(xi) of the Scheduted Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989 is set-aside. (17) The appeal is aflowed. (18) The bait bond granted to the appellant is discharged. The appellant is on bail, therefore he need not surrender. pras Sdl- .. hantKumar Mishra judge 7 > ^ ^ M a )t-