e.?. vl --^ l- IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR CHHATTISGARH "~~5 <> (-/. Criminal Appeal NO. .'.7..2001 Appellan'fc/Accused Respondent ; Udai Singh Son of Siudba Ram age<? about 60 yrs. occupation Agriculfu- rist resident of village Narawands Marigudapara P.S. Bhanpuri Dis-fct. Bastar, Ch'hattisgarh. Vs. ; S-tate of CSiha-fctisgarh through P.S. Bhanpuri Distt. Bas-fcar Chhattisgarh .rVt^.' ^o ^••'•^•' ^< ^.*' •; >s.°'s^"' -s?^^~ ^ ^^ '\° ^: ^.,&''., ^^ •i;.- ^y •^' ^.- ^^"^ y ^- '^o CriminalAppealu/s 374(2) of Criminal Procedure Code. Sentence Awarded 1 yrs. rigorous imprisonment with fine of Rs. 500/- u/s 354 Of I.P.C. & 1 yrs. rigorous imprisonment wi-th fine of Rs. 1000.00 u/s 3(l)(ii) of the sehed-aled castes and the Scheduled Tribes (Prevention of Atrocities) Act 198^. Being aggrieved by the jadgment ±n Session case Ho. 229/2000 State vs. Udai Singh passed by the learned special & Adl. Session Judge Jagadalpur Distt. Bastar, on 29.3.2001 the appellan-t/acc-ased file this appeal on the following facts & groands• FACTS OF THE CASE & PROSECUTION STORY ^•x ^ (^ APPELLANT HIGM COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 354 of 2001 Udai Singh VERSUS RESPONDENT State of Chattisgarh Shri Subhash Yadav counsel for the appellant. Shri Pravin Das Dy. GA for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THECODE OF CRIMINAL PROCEDURE. JUDGN1ENT (23.02.2011) This appeal is directed against the judgment and order dated 29.3.2001 passed by Special Judge Jagdalpur (Bastar) in Special Case No. 229/2000 convicting the accused/appellant under Section 354 IPC and 3 (1) (xi) of the Scheduled Caste and Scheduled Tribe (prevention of atrocities) Act (for short the "Act") and sentencing him to undergo rigorous imprisonment for one year with fine of Rs. 500 u/s 354 IPC and rigorous imprisonment for one year with fine of Rs. 1000 u/s 3 (1 ) (xi) of the Act, plus default stipulations. 2. Case of the prosecution in brief is that on 11.7.1999 FIR Ex. P-1 was lodged by prosecutrix (PW-1) - a married lady aged about 22 years at the relevant time alleging that on that day at about 7 p.m. when she had gone to see the snake crept in the house of her uncle-in-law and while returning therefrom accused/appellant who was coming from the opposite direction met her on the way, pressed her breast and pulled her by hand with an intention to outrage her modesty as a result ofwhich she fell down and on hearing her cries for help number of persons reached there and intervened in the matter. Based on this FIR, offence was registered against the accused/appellant under sections 354 IPC and 3 (1) (xi) of the Act. After investigation, challan was filed by the police on 26.7.1999. 3. So as to hold the accused/appellant guilty, prosecution has examined 06 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 ofthe Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart one Munna alias Jodhan (DW-1) has also been examined by the defence in support Qf its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant herein as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/appellant submits that there is absolutely no evidence available on record to show that the accused/appellant had caught hold of the hand of the prosecutrix to outrage her modesty just because she hailed from scheduled tribe community. He submits that even the prosecutrix has not stated in her court statement that the act alleged against the accused/appellant was done by him with an intention to outrage her modesty. He submits that the prosecutrix has given three different versions in the FIR, her case diary statement and the statement made before the court. In FIR she has alleged that first the accused/appellant had pressed her breast and then caught hold of her hand; in case diary statement she has stated that after abusing in the name of her caste he said that she was barren and as her husband was not able to make physical relations properly she did not have the issue whereas in her court statement she did not stick to the statements made in the FIR and the case diary statement. He thus submits that at the most the appellant could be convicted under Section 354 IPC and not under the special Act. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that as in the present case a poor lady belonging to scheduled tribe community has been subjected to outrageous act of the accused/appellant, conviction recorded by the Court below is fullyjustified. -v—v-t •3. 8. Prosecutrix (PW-1) has stated in her court statement thatshe belongs to Bhatra caste which comes within the scheduled tribe category. According to this witness, on the date of incident after coming to know about the snake having crept in the house of her uncle-in-law she had gone there and while she was returning at about 7 p.m., accused/appellant met heron the way in a drunken condition, caught hold of her and felled her down. Thereafter, on hearing the cries raised by her, Kanwat Singh, Lakhi and Munna came there and rescued her. Sripati Ram (PW-2) has stated that the prosecutrix who belongs to Bhatra caste happened to be his daughter-in-law. According to him, on the date of incident on hearing the cries of the prosecutrix when he reached the spot, he saw the accused/appellant holding her hand. According to him, the accused/appellant had slapped her also in his presence on which he caught hold of him and gave two-three slaps to him also. Ram Prasad (PW-3) - the husband of the prosecutrix has stated that after killing the snake in the house of one Kanwal Singh when he got back home, prosecutrix informed him about the incident. Lakhi Ram (PW- 4) has also stated the same thing as Kanwal Singh (PW-4), G.R. Chourasia (PW-5) is the Naib Tehsildar who had issued the caste certificate Ex. P-2 in favour of the prosecutrix. Sub Inspector - K.K. Mishra (PW-6) is the investigating officer who has supported the case ofthe prosecution. 9. Having thus discussed factual aspect of the case in the light of the evidence of the witnesses this Court reaches the conclusion that the prosecution has not succeeded to establish the fact that the entire act atleged against the accused/appellant has been done with an intention to assault or dishonour or outragethe modesty of the prosecutrix justfor the-reason thatshe was a member ofscheduled tribe category. Even otherwise, merely the prosecutrix belonging to scheduled tribe community does not attract the provisions of Section 3 (1)'(xi) ofthe Act unless the evidence is available otherwise. In this view of the matter, conviction of the accused/appellant under this special provision is not sustainable in the eye oflaw and the sameis accordingly sef aside. However, in view of the evidence collected by E^ -^- the prosecution findings of the Court below convicting the accused/appellant under Section 354 IPC are hereby maintained. 10. As regards sentence, record shows that the incident had taken place in the year 1999 and that appellant by now is aged about 70 years and suffering from several ailments and that being so this Court is of the opinion that no useful purpose would be served in again sending him to jail. Accordingly, the sentence imposed on him is reduced to the period already undergone by him. However, the fine imposed on him by the Court below is enhanced to Rs. 4000 which would be payable to the prosecutrix and that this order would start operating only when the said amount is deposited by him in the Court below. 11. Appeal thus partly allowed. Sd/- Pritinker Diwaker Judge nt