. ...7. k .‘§ '5 iv. IN THE HIGH COURT'OF MADHYA PRADESH AT Criminal {kppeal No. \\ L1 /96. JABALPUR. M Annlicant- Shyamlal 5A6 Jilegam Loharfléged 32yéérs, R/o Kanseehi; P.S. Gariyaba‘gd, Distt- Raagtir. -Versus— / spate of M113. through PoliceStationChoora Dist‘c —~ Raiplm’; {>0 Rasy‘onéeant- 3X g...— ICRIMLNAL APPEAL UNDER SECrlON 3?4(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973. r 9" t . HIGH COURT OF CHHATTISGARH AT BILASPUR Hon’ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 1167/1 996 APPELLANT Shyamlal Versus RESPONDENT State of Madhya Pradesh Shri Ravi Bhagat counsel for the appellant. Smt Smita Ghai PL for the State CRIMINAL APPEAL UNDER SECTION 374 (1! OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (29.04.201 1) This appeal is directed against the judgment and order dated 0&071996 passed by Speciai Judge, Raipur in Speciai Case No. 284/1996 convicting the accused/appeiiant for the offence punishabie under Section 3 (1) (XI) of the Scheduied Caste and Scheduied Tribe (Prevention of Atrocities) Act (for short the “Act”) and sentencing him to undergo rigorous imprisonment for one year and pay fine of Rs. 700/-, in default of payment of fine to further undergo simple imprisonment for three months. 2. Facts of the case in brief are that on 16.1 .1996 at about 11.45 p.m. FIR Ex. P-1 was lodged by the prosecutrix (PW—1) — a married lady aged about 45 years alleging that on that day at about 8.30 p.m. when she was sieeping in her house and that her husband had not returned from his workplace, accused/appeiiant came there, sat on her bed and pulled out her sari with an intention to outrage her modesty. It is alleged that due to her sari being putied out by the accused/appellant she had become naked. Thereafter, allegedly she came out of her house in the naked condition and started shouting for help on hearing which her neighbours namely Sukhram (PW-2) and Krishna Bai (PW—3) came there and she covered herself with the Lungi given to her by Sukhram (PW-2) and then lthe report was lodged. Based on this FIR, the offence under Section 354 IPC was registered against the accused/appellant and after completion of investigation challan was filed by the police on 22.3.1996 for the offences \ @ ~32~ under sections 354 and 456 IPC and 3 (1) (XI) of the Act. The Court below however framed the charge against the appellant only under Section 3 (1) (Xl) of the Act. 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 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4., After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that there is no documentary evidence available on record to show the caste of the prosecutrix and that caste of the prosecutrix has been disputed by the appellant; He further submits that even otherwise, before marriage the prosecutrix was Lohar by caste and merely that she married a person belonging to Gond community, her social status would not change and she remains Lohar by caste. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that conviction of the appellant is strictly in accordance with law. However, she does not dispute that there is no documentary evidence to show the caste of the prosecutrix. She submits that even if the provisions of Section 3 (1) (Xl) of the Act are not attracted to the case in hand, the appellant would very much be convicted under Section 354 IPC. 7. ’ Prosecutrix (PW-1) has stated in her evidence that by caste she is Loharin but the caste of her husband Jailal is Gond. She has stated that the appellant is Lohar by caste. Describing the incident it is alleged by the prosecutrix that on the date of incident, the appellant had come to her house, started talking to her with bad intention on which she told him that he being the son of her sister was .like her son also. She has further stated that the accused/appellant had asked her for sexual favour and @ “1g“ when she refused for that, he pulled out her clothes as a result of which she had become naked. Thereafter,'giving a jolt to him, she came out of her house and started shouting for help on hearing which her neighbours Shukhram (PW-2) and Krishna Bai (PW-3) came there to whom she narrated the entire incident. Then, according to this witness, Sukhram and others made her wear the clothes and asked the accused/appellant as to why he had done like that. Statement of this witness is duly supported by Sukhram (PW-2) and Krishna Bai (PW-3) who have stated that upon hearing the cries of the prosecutrix, they reached the spot and seeing her in a’naked condition, clothes were given to her and at that time the accused/appellant was also standing there. Fagnu Ram (PW-4) has also supported the case of the prosecution and stated that upon hearing the cries of the prosecutrix, he came out of his house, saw the prosecutrix in a naked condition and the Lungi was given to her by Sukhram (PW-2) and Krishna Bai (PW-3) to cover herself. Ramu (PW—5) is the witness to the seizure of articles made under Ex. P-2. This witness has stated that by caste the appellant is Lohar and earlier the prosecutrix was Loharin by caste but subsequently she married one Gond. S.L. Dhoulpuria (PW-6) is the investigating officer who has fully supported the case of the prosecution. 8. Minute examination of the, evidence on record makes it clear that the accused/appellant had entered the house of the prosecutrix and outraged her modesty. Statement of the prosecutrix is duly supported by other witnesses as well. To convict the accused under this special provision the prosecution is required to produce‘the relevant documents showing the caste of the prosecutrix which is sine qua non for doing so. Admittedly, in this case no document has been filed by the prosecution to establish the caste of the prosecutrix that too when her caste has been disputed by the accused/appellant. Furthermore, as per the case of the prosecution prior to marriage the prosecutrix was Lohar by caste which comes In the category of OBC and merely her marrying a Gond her see/a] status would not change and her caste would remain unchanged The record also does not spell out even a Single Instance on the baSIs of which it‘can be saidthat the appellant did the act alleged against him with _q_ g9 an intention to insult or humiliate the prosecutrix just because she belonged to the scheduled caste community. aid factual position, this Court is ofthe 9. Thus in View of the afores considered opinion that the conviction of the accused/appellant under this special provision is not sustainable in the eye of law. However, as the appeilant had entered the hous modesty, of course he is liable to 10. ConseqUently, the appeal is partly allowed Conviction of the the appellant is convicted under Section 354 IPC. Considering the fact that the incident had taken place in the year and twenty days, this Court is of the considered opinion that no useful the interest of justice if he is sentenced to the period already undergone by him subject to enhancement of the amount of fine. 12. Keeping all these things in mind, the appellant is sentenced to the period already undergone by him. However, the fine amount imposed by the Court below is enhanced to Rs. 3,700 out of which Rs. 3000 would be payable to the prosecutrix. Let the enhanced sum be deposited in the Court below within a period of six months failing which the appellant shall priminker Diwakel’j. Judge ' of the Act is hereby set aside. However, appeiiant under Section 3 (1) (XI) 11. already remained in jail for four months 1‘996 and that the appellant has e of the prosecutrix and outraged her be convicted under Section 354 IPC. purpose would be served in again sending him to jail and it would be in be ‘ liable to remain in jail for a period of one month. / t salt. " '