.,^&.J^-A<-^'1/-'^ .'^^^^•.•SSfSit&'^v'^ J^~^^^A.''\^'-^.-'^'-^~>J^/^-?l^.'^^'T-JtT^,^^.. .•^•L. _.'. .-,'. ..• .;^'.',-'-.' \ ' •: ' • '. ./ •^UiW'y^^y^.^rtn^^^^ •^•x^veif''. ; r •n^-Mme^ IN •SE IBB3H CGBBtff OE- SSSBSXSaasSB KC SfWit.VS^-^ C^-T^' , ^- Grinlaai ftppeal NO. -7^ /97 ^^—-^ yA^? tss- sahdeo s/o xshwar Sas Yadu, aged 18 Yaara. / -. ^ •'fcesident of Vlllage Blladl i?.s< pliaga oisfcfc. Raipur wetsas /', "' 'CF0000061311 "~ '. ' •':-s!na!^ ^idgte DK,,.,; ^ ,...l"ll'ay J Respcaadents- s^ate o£ N.?. tttroiagb speGl.al pellee Sta-tion ^ .. • • RalEBT, Si.sfcrl.et Bai^'ar. /' CRttfftiM,. APfBM. .XWEBK. SEGTICK _374_Ga.?,tC.. -. / 111*;6'"'~1 \ l'1''- HI6H COURT OF CHHA.TTISe.4RH .4T 8ILASPUR Sinsle Bench ; Ho"'b!e .r. Justice Priti'nker Diwaker Sahdso, s/o Ishwar Das YadL i^ ^^ iK^^xa*w €N of Madhy" ssn (now Shri Atu!Pandey,counsel for the ^(ppellant. Shri Vaibhcv .A. ©oyer-dhari,RL for ths Stats/respondent. CRIM.WAt AWEAt UNDER SECTION 374 OF THE COOE OF JUD6EMENT Thisappeo.! is directed against the impuaned judgment and order dated 28.3.1997 passed by S.peciai Judge, Raipur in Specia! Criminai Case .245/1996 cohvicting the accused/appellfflit for the offence punishabie under Section 3(l)(xi) of the Scheduied Castes A Scheduled Tribe (Prevention of Atrocities) Act (for short "the Act") and sentencing him to undergo rigQrous imprisonment for six months and pay fine of Rs. 500/-, iri default of payment of fine to further undergo simple imprisonment for three months. 2. Facts of the ca.se. in "brief are tho.t on 11.7.1993 whsn the prosecutrix (PW-1), aged Qbout 33 years aiong with her daughter tangla Bai had gone to Jungte for plucking the ieayes, / (iccused/appeilan^ reached there and had asked her for sexud fdvour'.-On refueal, she was assaulted by the accused/appeilGnt by means of ciub, as a result of which she sustGined injuries on her hsi: and hand., Matter was repovted by the prosecutrix (PW-1) on 12,7.1993 to the police dq8 bosed on the said information, entry was .rnade-in. the Rojnar"cha Sanha vide Ex. P-2 and, thereafter on 12.7.1993 itself. F.I.R; (E.x. P-3) was registered against ^ss&^ sassl t,^^ of accused/Gppellarit under Sections 354 and 323 of the Indian Code and Section 3(l)(xl5 of the Act. .After completion investjgation, cfia/hri was fited by the po!ice o" 3.8.1993 for the said offences. 3. So as to ho!d the c.ccused/o.ppeiiant guiity, prosecution has examined as many as 7 witnesses in support of its co.se. Statement of the accused/appeliant was aleo recfffded under Section 313 of the Code of Criminal Procedure in which he denied the charges levetied against him and pleoded his innocence a"d fatse implication in the cc.se. Apcrt frorr; this, witness namely Beniram (DW-1) h.as also been examined by the defence in support of its case. 4. After hea.ri.ng the parties though the accused/oppejjant has been convicted for the offences under Section 354 IPC and 3(15(xi) of the Act, th.e sentence'has been awarded only under Section 3(l)(xi) of the Act as mentioned above. Hence this appeai. Heard counsei for the porties ai-id perused the mo+eriai avai!oble on record in.ciuding. the iudgment impugned. 6. Gounsel for th.e QDoeilant submits that even if the entirt prosecution case is token as it is, offence undsr Section 3(l)(xi) of the Act is not made out o.aainst the appeliant because there is no locumentary evidence on record to show the caste of the prosecutrix i.e. '.Safnami'w^'ch is s/ne gua non for bringin9 home the offence ./ jjnder th.e pr^visions of ths Speciai Ac^espsciaily.when the caste of the prosecufrix has been djsputed by the o.ccused/appeilan.t. He furt'her subm'ts that the prosecutr'ix has mwhe.re stated that the accused/appe!!arif committed the offence Just because she belonged to Schedujed Caste cat.egory. He subm'ts th.at at best the'offence uri'der Section 354 IPC is'made out against the accused/appellant but ,;\ .\ o.s the incident had taken place in the year 1993, instead of sending him to jail, some fine amount rr-ay bs imposed upon him because jai! sentence is not 'nandatory fo" the offence unde" Section 354 of the Indian Penal Code. 7. On the other hand, supporting the impugned judgment it has been argued by the State counsej +hat the impugned judgment is in accordaice "/ith low and there is no infiri^ity in the same. Prosecutrix (PVv-1) has s+ated in her evidence that she beiongs to Safnamicas^e and she knew the o.ccused/Qppeiiant. She has stated that on the date of incident when she ojong with her daughter Bangla Bai (PW-4) had gone to iungle for piucking ths ieaves, the accused/appeiiant, who was grazing the c'rl't'e, ccme from the other side and caught ho!d of hsr hand and had. asked fo;'' sexual favour. She hos further stoted that when she h.as refused the said demand, she was assaui+ed by the accused/appeiiant by means of ciub on her head, as a result of which she started bleedinQ. She hos further .stated that upo" hear'ing her snout, her daughter', who was alss plucking the ieaves nearby her, came there ond after seeing her, accused/appeliant f!ed o.way from the spot. She h.as further stated that after reaching home, she narrated the entire incident to her husbond ond thsn her husband took her to the house of the accysed/appeiicint where they informed the entire incident to mother of the occused/apjs'ei iant and, +hereaf+er, th.e report was lodge.d. In >• / . . - .crQss-examincrton, she has further stated that the accused/appeilant hori asked hef'tor sexuai fayour a"d then aiso co!!ed her Chamariri. !n cross-examination, the presecutrix appears to be very firm and the prosecution has fatied.^p ellcit anything from her. Keju Satnami (PW-2)—husbcsnd of the pr-osecutrix while support'ng the c"se. of the prosecution has stated that on the date of |B: dUa&S:! ! 3a eaiaaats i incident prosecutrix ca.me bacK to home weeping and the biood was oozing from her head and, thereo.fter, the prosecutrix narrated the entire incident +o him cmd'then the report was lodaed. Mansingh (PVt/-3) h.as stated in his eviden.ee that on the date of incide.nt when he wa.s -standing near tea shop, he saw the prosecutrix weeping and th.en she informed him that the accused/o.ppeiiant ho.d uttered bo.d words to her. ">' Smt. Bangia 8oi (PW-4) - doughter of the prosecutrlx has stated in her evidsnce that on the date of incident she and her ho.d gone to Jwgle and aftsr hearing cries of the prosecutrix, when she rsached th.ere, she saw the injury on the head of the prosecutrix and aftec seeing her accused/appeilant fle.d away from the spot and theri the prosecutrix had norrated the entire incident to her- Mohoi &as (PW-5) has not stated anythirsg against the accussd/appeiiant. &r. (Smt.) Nisho. AAukherjee (PVt./-6) is the witness who had medicaiiy exarnined the prosecutrix and given her report Ex.P-1 has "oticed the following injuries on her body;- "(i) Lacerated wound on the frontal region in saggitai piane in the size of 2 cm.x 1/2 cm., no active bieedinq was found. (ii) Abrasion orrleft forearrn 2 cm x i cm." Head Constable AA.anthan Singh Thakur (PW-7) is th.e witness who had recorded the F.I.R. (Ex.P-2). ./ Prosecution has not filed any document showing the caste of the prosecutrix, fiiing and proving of such document is sine quanone for bringing home the offence under the provisions of the Special Act egpeciatly when the caste of th.e prosecutrix is disputed by the o.ccused/o.ppe!!ant. ,'• "s> In the c'ase in hand, no such -document has been filed by the prc-secution regording caste of the pro-secutrix and her caste has been disputed by-the appeliant. In the facts & cirGumstances of th.e cass, the accused/appe!!ant cannot be conyicted under Sectio" •» 3(l)(xi) of the Act and, therefore, conviction of the accused/appeilant unasr Sec+ion.3(l) (xi^ of the Act is set aside and he is acquitted of the said charqe. The fine amount shal! be refunded, If deposited by the accused/appeiiant. 10, From the evidence as adduced by the prosecution, in particular, that of prosecutrix, th.e offence under Section 354 of IPC is o.ppa.rsn+ly ma.de out against the appeilant and accordingiy he is convicted un.de" Section 354 of IPC. So far as the sentence pwt is concerned, the imposition of jail sentence is not mandatory under Section 354 of IPC, the fact that the incident took piace about 18 years back, at the retevant point of time, the appel!ant was young boy of 18 years, it wi!l be too harsh to send him back to iaii. Considering the overai! situation and the fair statement made by the counset for the appeliant, ths appellant is sentenced to imposition of fine of Rs.5,000/-. He is directed to deposit thi.s fine amount within six months from the date of receipt of copy of this order before the •t/'i.al Court. This entire amount of R.s.5,000/- would ^ / &e poyable to the pro-secutrix (PW-1) by the trial Court. If the appellant faiis •i'o'de.posjt the fine amount within stipu!ated period, he sha!l underqo the jai! sentsnce-of three months. Accordingly, the appeal is partjy ailowed. Sd/- Pritinker Diwaker Judge n'l