HIGH GOURT OF CHHATTISGARH. BILASPUR APPELLANT: RESPONDENT: Criminal ADDeal No.816 of 2007 Ram Kishun Bargaha, S/o Somar Sai, aged about35 years, R/o Village Rukhpur, P.S. Gandhi Nagar, Distt. Sarguja (C.G.) Versus State of Chhattisgarh, Through District Magistrate, Sarguja (C.G.) {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. Vivek Kumar Pandey, counsel for the appellant. Mr. Sudhir Bajpai, Deputy Govt. Advocate for the State/ respondent. Sinale Bench: Honrble Mr. T.P. Sharma, 3 ORAL JUDGMENT (3-8-2009) 1. This appeal is directedagainst the judgment of conviction & order of sentencedated 13-8-2007 passed by the Special Judge (Atrocities), Ambikapur, in Special Sessions Trial No.42/2004, whereby & whereunder learned Special Judge after holding theappellant guilty for commissionof offence under Sections 452 of the I.P.C. &3 (1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act'), sentenced him to undergo R.I. for 6 months & pay fine of Rs.200/-, in default of payment of fine to further undergo R.I. for one month, on each count, and directed that both the sentences shall run separately. 2. Judgment of conviction & order of sentences are challenged on the ground that without any evidence, the Court below has convicted & sentenced the appellant and even without any prima facie evidence that the offence hasbeen committed on the ground of caste of the complainant, the Court below has sentenced theappellant under Section 3 (1) (xi) ofthe Act, and thereby committed illegality. 3. Case of the prosecution, in brief, is that on 9-4-2004at about 10 a.m. the prosecutrix (PW-1) was working in her brother's house at village Rukhpur, Distt. Sarguja where the appellant came, entered (^. into the house and dragged her. Theaccused caught hold of her hands and tried to commit sexual intercourse on which she cried for help whereupon Ram Prasad & others came and the accused fled away from the spot. The prosecutrix narrated the incident to her brother & others andlodged written report vide Ex.P-1 on 10-4-2004 and on the basis of written report Ex.P-1, F.I.R. was lodged vide Ex.P-2. Spot map was prepared videEx.P-3. Aftercompletion of investigation, charge sheet was filed before the Special Judge. 4.1n order to prove the guilt of the accused, the prosecution has examjned as many as three witnessesand statement of the accused was recorded under Section313 of the Cr.P.C. in which he denied the drcumstances appearing against him and pleaded innocence & false implicatjon. 5. I have heard learned counsel for the parties and perused the impugned judgment as also the record of the trial Court. 6. Learned counsel for the appellant argued that the evidence of the prosecutrix has not been supported by independent witness Ram Prasad or any other witness and only evidence of the prosecutrix is nof safe to rely upon for convicting & sentencing the appellant. Learned counsel further submits that the prosecutrix has not deposed anything to show that the offence has been committed by the appellant on the basis of caste of the prosecutrix therefore, convjctjon & sentence under Section 3 (1) (xi) of the Act are not sustainable underthe law. 7. On the other hand, learned counsel appearing on behalf of the State/ respondent supported the judgment and submitted that the appellant himself has admitted his presence in the house of the prosecutrix. Evidence of the prosecutrix inspires confidence and suffjcient for warrant of conviction. 8. In order to appreciate the contentions of the parties, I have examined the evidence adduced on behalf of the parties. 9. The prosecutrix (PW-1) has deposed that at the time of incident while she was working in her brother's house the accused entered into the house, caught hold of her hands and tried todrag her, and told that he will commit rape on her whereupon she cried for help and after hearing her cries, neighbour Ram Prasad came, on which w the accused fled away. She narrated the incident to her brother & sister-in-law and lodged written report vide Ex.P-lon the basis of which F.I.R. Ex.P-2 was registered and spot map was prepared vide Ex.P-3. lO.Evidence of the prosecutrix has not been corroborated by Ram Prasad (PW-2)and the prosecution has declared him hostile. Defence has cross-examined the prosecutrixand suggested the presence of the accused in the house of the prosecutrix at the time of incident and has also suggested that the accused was called by the prosecutrix to maintain love affairs but the same was refused by the accused by saying that both belong to differentcastes therefore, love affair between them would not be possible on which the prosecutrix was annoyed and lodged false report against the accused. However, this suggestion has not been admitted by the prosecutrix. ll.By gjving the above suggestion, the appellant himself has admitted his presence in the house of the prosecutrix on the fatefulday. The prosecutrix has specifically deposed that the appellant entered into her house andcaught hold of her hands & tried to commit sexual intercourse with her, however, he has not committed sexual jntercourse. Herevidence is supported by the F.I.R. Ex.P-2 and the written report Ex. P-1. l2.The accused hasalso admitted his presence in the house of the prosecutrix on the fateful day, but in absence of any evidenceof invitation and attempt for love affair, it is difficult to hold that the prosecutrix has invited the accused to maintain loveaffair. Evidence of the prosecutrix is duly corroborated by the written report Ex.P-1 which is sufficient for drawing inference that the appellant has entered into the house of the prosecutrix and caught hold of her hands which is use of criminal force upon the woman with intent to outrage her modesty and the same is punishable under Sections 452 & 354 of the I.P.C. Written report & evidence of the prosecutrix reveal that theoffence has been committed on the ground that the prosecutrix is a woman but not on the ground that she is a member of Schedule Tribe, therefore, conviction & sentences imposed upon the appellant under Section 3 (1) (xi)of the Act are not sustainable in the present case. Soma l3.The appellant was in custody for eight days during trial and he is in custody since 15-4-2009 i.e. he is in custody for 3 months26 days. l4.Forthe foregoing reasons, the appeal is partly allowed. Conviction of the appeltant. under Section 452 of the I.P.C. is maintained. However, his conViction under Section 3 (1) (xi) of the Act is set aside and instead thereof he is convicted under Section 354 of the I.P.C. which is a minor offence included in the offence under Section 3 (t) (xi) of the Act. Taking into consideration the age of the appellant and the fashion in which the offence was committed, the period already undergoneby the appellant i.e. 3 months 26 days would be sufficient sentence for offence under Sections 452 & 354 of the I.P.C. Consequently, the appellant is sentenced to undergo R.I. for 3 months 26 days i.e. the period already undergone by him, under Sections 452 & 354 of the I.P.C. Sentence shall run concurrently, asof result, the appellant shall be set at liberty at once/ if not required in any other case. Sd/- T.P. Sharma Judge 1 tf.-"