W HIGH COURT OF CHHATTISGARH BILASPUR Sinqle Bench: Hon’ble Shri Sunil Kumar Sinha J. Criminal Agpeal No. 1716 of 1995 Narbada alias Lallu Vs. State of MP. (Now State of Chhattisgarh) JUDGMENT Post for Judgment: [3 /07/2011 AW VSd/- r Sunil Kuma Sinha Judge @ HIGH COURT OF CHHATTISGARH, BILASPUR Sinqle Bench: Hon’ble Shri Sunil Kumar‘Sinha, J. Criminal Imm No. 1716 of 1995 Narbada alias Lallu son of Shri Ganga Prasad Aheer, aged about 25 years, resident of village Koalbirra, P.S. Marwahi, District Bilaspur, M.P. (Now Chhattisgarh) APPELL’ANT Versus State of M.P. (Now State of Chhattisgarh) Through P.S. Marwahi, District Bilaspur RESPONDENT (Criminal Appeal uls 374 (2) of The Code of Criminal Procedure, 1973) Appearance: Mr. V.C. Ottaiwar & Mr. Akhtar Hussain, Advocates of the appeliant. Mr. RR. Sinha, Panei Lawyerforthe State. JUDGMENT (19.07.2011) (1) This appeal is directed against the judgment gated 13‘“ of November, 1995 passed in Special Criminal Case No. 8/93 by the Special Judge (Atrocities), Bilaspur. By the impugned judgment, the appellant‘has been convicted in the following mannera with a further direction to run the sentences concurrently:- 2 2i Conviction Sentence Criminal Appeal N0. 1716 of 1995 u/s 3 (1) (xi)'of SC & ST R.l. for 1 year & fine of kRs.500/-, in defauit R.i (Prevention of Atrocities) Act, 1989 (hereinafter for 3 months referred to as the ‘Speciai Act’) u/s 354 IPC R.l. for 6 months R.l. for 6 months & fine of Rs.200/—, in defauit R.I. for 2 months u/s 451 IPC (2) The facts, briefly stated, are as under:- On 29.4.92 at about 8.00 p.m., the prosecutrix (PW-1) was all alone in her house. Her husband- Chunnilai (PW-2) had gone out to answer the call of nature. The-allegations are that the appellant entered into to the house of the prosecutrix and tried to outrage her modesty by dragging her towards badi of her house. When the prosecutrix made hue and cry, her husband — Chunnilal (PW—2) came there and some altercation took place between the appellant and Chunnilal. The matter was report by a written report dated 1.5.92 (Ex.—P/1) and the First‘Information Repoft (F.l.R. — Ex.-P/2) was registered. The prosecutrix was a member of Gond Community, thereby belonging to Scheduled Tribe, therefore, the charge-sheet u/s 3 (1) (xi) of the Special Act and Sections 354 & 456 IPC was filed, however, the Special Judge, convicted & sentenced the appellant as aforementioned. (3) Mr. V.C. Ottalwar, learned counsel appearing on bealf of the h appellant, argued that in the facts and circumstances of the case an offence u/s 3 (1) (xi) of the Special Act would not be made out. He also argued that the punishments imposed under other offences are too harsh. at (4) On the other hand, Mr. R.R. Sinha, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and suppOrted the judgment passed by the Special Court. l 3 @ Criminal Appeal N0. 1716 of 1995 (5) i have heard learned counsel for the parties at length and have also perused the records of the special case. (6) The findings of the Speciai Court are based on the testimonies of the prosecutrix (PW—1) and her husband- Chunniial (PW-2). l have eXamined their testimonies. It comes in the evidence of prosecutrix (PW- 1) that the appellant was frequently visiting their house as he was well known to their family. On the date of incident, the prosecutrix was all alone, the appellant entered into her house and he tried to outrage the r, modesty of the prosecutrix. These witnesses have been cross-examined by the defence at length, but the defence has not be able to elicit any such circumstance, on which, either their testimonies may be discarded or it may be said that they are falsely implicating the appellant in present case. Therefore, the findings relating to conviction of appellant u/ss 451 & 354 IPC are well founded and there is no ground to interfere. (7) Section 3 (1) (xi) of the Special Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty, shall be punished in accordance with the said Act. The above provision and the other provisions of the Special Act would show that'they have been made to prevent the commission of offences of atrocities against the members of Scheduled Caste and Scheduled Tribe and to award adequate punishments for different offences of atrocities. Atrocity has been defined in Clause (a) of sub—section (1) of Section 2 of the Special Act which means an offence punishable under section 3. After going through all ""' r ,@' Criminal Appeal No‘ 1716 of 1995 these provisions of the Act, it is clear that the provisions of Section 3 (1) (xi) could be made applicable independently or along with other penal provisions of the Special Act or the IPC or any other enactment, only in cases where the assault is made or force is used to the woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty for the reason that she belongs to that particular community. There may be the cases in which the offences punishable under IPC may have been committed by the accused, but he may not be knowing that the victim is a member of Scheduled Caste or Scheduled Tribe and the victim happens to be the member of such community by chance. ln the present case, there is no evidence to show that the appellant used the force to dishonour or outrage the modesty of the prosecutrix only because she belongs to a particular caste or community. Neither the contents of the F.l.R. (Ex.-P/2) nor the evidence of prosecutrix (PW-1) or her husband (PW—2) show that the appellant used criminal force against the prosecutrix only because she was a member of Scheduled Tribe community. i am of the view that in the above facts and circumstances, the prosecution utterly failed to prove the ingredients of the offence punishable u/s 3 (1) (xi) of the Special Act and the conviction of the appellant u/s 3 (1) (xi) deserves to be set-aside. (8) Considering the next argument, it appears from the records that the a appellant has already undergone for 2 months, 4 days and he is on bail since December, 1995. The incident took place on 29.4.92. Except the above period, the appellant was throughout on bail during the trial also. Therefore, considering the entire facts and circumstances of the case, l @ Criminal Appeal No. 1716 of 1995 deem it appropriate to reduce the jail sentences imposed against the appeHant u/ss 354 & 451 IPC to the period already undergone. (9) For the foregoing reasons, the appeal is partly allowed. ‘The conviction and sentences awarded to the appeilant u/s 3 (1) (xi) of the Special Act are set~aside. The conviction of the appellant u/ss 354 & 451 IPC are maintained. However, the jail sentences awarded under these Sections are reduced to the period already undergone which comes about 2 months, 4 days. The fine sentences under these Sections are maintained. The default sentences (the sentences to be undergone if the fine amount is not paid) would be 2 months R.l. in each count. The direction to run the sentences concurrently is also maintained. One month time is granted to deposit the fine amount, if already not deposited. / i i ‘ sci/.1 Sunil. Kumar Sinha Judge vatti