wwgqw 5im§§Fe 1* In THE HIGH COURT OF MADBYA PRADESH AT JAEALPUR. GR APyEAL No . a 7 “OF f99k. Chhotelal/son of Madama Yadav, aged about 26 years, res1dent of Vikas factory near Sulabh Complex, Chhawani Gaon’, P3 Chhawani Bhilai District Burg; MP 1 ‘ w . . APPELLANT (IN JAIL) » ‘ \ \ V3; m STATE» OF h .P. . . RESPOEDENT CRIVIEAL APPEAL UNDER $EGTIOE 37h(2) OF TEE; CBIMIWAL PROCEDIEE CODE, ‘ SQWVICTIGN‘ $ENTENCE' / U/s 3(1)(x1) ef the $cheduled ‘ ..B.I.for 3 yeaxs and flue of as woo/3m » default SJ for 1% months . Castes and the Scheduled itclmas (Preventlon af Atrocltles) Act ; 1939. M v ?K w ‘ww 73’. H: , b. m HIGH COURT OF CHHATTISGARH AT EILASPUR SB : HON’BLE MR. JUSTICE PRITINKER DIWAKER cmmvo. 367/ 1994 APPELLANTs Chhotslal VCI‘SIIS RESPONDENT State of M.P. M ‘ Shri Deepak Jain, counsel for the appellant. 1 Shri Neeraj Mehta, P.L. for the State. APPEAL U[8'374(2) OF THE CRIMINAL PROCEDURE CODE JUDGMENT {01.04.2011, The present apyaai arises out of the judgment 80 order damd 31.3.1994 passed by the Syecial Judge, Durg in Special Case No. 44/ 1991 convicting the accused] appellant for the offence punishablg undsr Section 3 (i)(xi) of the Scheduled Caste & Scheduled Tribe (Prevention of the Atrocities) Act (in short ‘the Act’} and sentencing him to undergo rigorous imprisonment for three years and fine of Rs. 1000 in default of payment of tine to further undergo SI for one 63 halfmonth. 2. Facts of the case in brief axe that on 30. 11. 1%91 at about 11.30 a.m, FIR Ex.P/2 was lodged by the prosecuhix fP‘WnS) a married lady aged about 28 years alleging that when she was returning h‘om the kitchen garden of one Durga Yadav, aocusedjappellant who was the tenant them stopped her and after pressing her breast asked her for sexual favour and when she refused he slapped her. It is further alleged that when he was trying to take her inside the house, she V‘; shouted and upon heaxiii§ the same, Durga Bai (P.W.-2) and aunt of accusedlappellant reached there and in their presence, he again slapped her and thereafter when her husband came h‘om the workplace she narrated the incident to him and then the report was lodged. Based on this FIR’od'ence under Section 354 of the IPC and Section 3(1)(x'l) of the SC/ST (Prevention of Atrocities) Act was registered against the accused/appellant. After investigation chailan Was med on 16. 12,91. 3. So as to prove the guilt of the accu$edlappenmm the prsecution has examined 6 wimesses. Statement of the austd/appellant was also mcorded under Seciion 3 of the (RG. in which he denied the harges levelled agat him and paded his innocence and false implication in t case. o éc 31 E c ins le he p 4 ‘* After hearing counsel for th paies, e m'al Court has cnvicted the accud/ appell under Section 354 IPC and 3 (1)i) of the Act and sentence them as mntioned above. Hence this anneal. . ‘ e et th o se ant (x d e a 5 Contention of Sh Jain, ous for the appellant is that even if the entire case oiiprosecution is taken as it is, oEence under Sectio 3 )(xi) of the Special Act is not made out becaus there is no evidence on rerd to show that the accusedppellant coted he odence with an intention that the prosecutn‘x belongs to scheduled caste. He further submits that no caste certihcate has been produced by the prosecution and in absence of caste certincate the accused] appellant cannot be convicted under Section 3 (1)(xi) of the Act. ' 6. On the other hand, suppom'ng the impugeed judgment t has ‘- been argued by Shri Meht, State counsel that the production of caste certincate is not necessary because the accused] appella has not disputed the aste of the prosecutrix an in fac in his 313 Cr.P.C. statement he has admitted the cast of the prosecutn'x. He fairly submits that either in the FIR nor in her case diary statement or in the cort; the prosecunix has deposed that her breast was piessed by the accused/appe just because she belongs 'to scheduled caste. State counsel further submits that even if the appellant is acquitted under Secton 3( 1)(xi) of the Act, on the basis of evidence available on record, he is liable to be convicted under \Section 354 of the IPC. E . n cnel n (1 e co [a mmit t n i S a nt c d t e n u llant i 7. Prosecutrix (P.W.-5) in her court statement has stated that by caste she is mahar and is residing in village Chhawni.“ $he has further stated that on the date of incident at about 9.00 a.m. when she was returning from the kitchen gaiden of Durga Yadav, on the way, accused/ appellant who was standing near his house pressed her breast, caught hold of her hand and asked heij to go along with him and when she resisted he slapped her upon which she shouted and then aunt of accused/appellant and Durga Bai came there and 1n their presence he agam’slapped her She has stated that when her husband returned hum his workplace she narrated the entire ‘ a madam to mm and then thc FIR (Exp/2 ) was lodged. in cross-examination, the prosecutrix has reiterated her entire version and has ‘not deviated in any manner from her examinatiom m—chief Durga Ba1 (P W 2) has stated that on the date of mc1dent after hearing the commotion she reached on the spot where the prosecutrix had informed that the accused] appellant caught hold of her hand and she Was Weeping. Dr. R.D.Sharma (P.W.-l) had medically examined the prosecutrix has not found any mJury on the person of the Iirosecutrix. Chainam (P.W.—3) husband of the prosecunix has stated that on the date of incident, the prosecutrix had narrated the entire incident to him and thereafter the report came to be lodged. T.R.Kanwar (PAM—4) is the investigating officer has supported the prosecution case. P.K.Shuk1a (P.W,-6) has done the part of investigation. 8. Minute examination of the evidence of the witnesses makes it r clear that on the date of incident, accused/appellant pressed the breast of thepmsecutrix and caught hold of her hand but there is absolutely no evidence‘on record to show that the act was done by the accused] appellant just because she belongs to scheduled caste or scheduled tribe. In the facts and circumstances of the case, when neither the prosecutrix nor any other witness has stated that the accused/appellant committed the od'ence just because the prosecutrix belongs to schedule caste or scheduled tribe, it is difficult for this Court to maintain the conviction of the appenant under the provisions of the special Act. g 9. Considering the facts and circumstances of tho case and the legal posiu'on,‘ convicu‘on of the accused/appellant under Section 3(1)(xi) of SC/ST (Pmvention of Atrocities) Act is set aside. However, this Court is of the considered View that instead of o§ence under Section 3 (1)(xi) of the Special Act, offence under Section 354 of the IPC is clearly made out against the accused] appellant. Thus, he is coHvicted under Section 354 of the IPC. 10. As regards sentence palt, it has been argued by counsel for the appellant that the incident had taken place in the year 1991 i.e. about 2O yeaxs back, at the t‘ e of commission of the oh‘ence the appellant was aged about 26 years and now he'must be a middle aged person aged about 46 years, must be having family responsibility, has already remained in jail for about 12 days, no useful puxpose would be served in again sending him to jail and therefore his sentence be reduced to the period already undergone by him. He has further argued that even othetwise the jail sentence is not mandatory for the offence under Section 354 of the IPC. This submission of the counsel for the appellant in respect of the sentence is not seriously opposed by the State counsel. ll. Accordingly, in the facts and circumstancés of the case, the appellant is sentenced for the period which he has already remained in jail. However instead of any further jail sentence, hue of Rs.2000 is imposed upon the appellant and he is directed to deposit the said hue amount before the trial Court Within a period of one year from the date of receipt of copy of this order. If the said amount is not deposited byr the appellant Within the stipulated period, he shall ' further undergo the jail sentence of two months. Regisu'y is directed to send copy of this order to the appellant on the address given in the cause title of the appeal. Counsel for the appellant will also send copy of this order to the appellant on his given address. *4 Sd/- ‘3 Pritinker Diwaker Judge 6" ta