HIGH COURT OF MADHYA PRADESH : JABALPUR Criminal Appeal No. 239/1996 Baja alias Bajasingh, aged 25 years, son of Bhagaji, Resident of Gram Dhand, P.S. Ashta, Distt. Sehore …Appellant vs. State of M.P. through SHO, P.S. Ashta, Distt. Sehore ...Respondent ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Shri R.K. Samaiya and Shri I.K. Dwivedi, Advocates for the appellant. Shri Amit Kumar Sharma, P.L. for the respondent-State. ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- JUDGMENT (18/11/11) This appeal has been preferred against the judgment dated 16/1/96 passed by Sessions Judge [designated as Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989] (for short ‘the Act’), Sehore in Special Case No.135/93, whereby the appellant was convicted under Section 3(1)(xi) of the Act and sentenced to undergo R.I. for 6 months and to pay a fine of Rs.200/- and in default, to suffer S.I. for 1 month. 2. Prosecution story, in short, may be narrated thus - (i) On 21/8/93, the prosecutrix (PW1), a resident of Village Bandariya Haat and member of a Scheduled Caste, had gone to graze her bullocks in the Jungle of Badli. At about 4 p.m., the appellant, a native of Village Dhand, whose lands were contiguously situated, came from behind and after catching hold of her neck, fell her down near Khakra (Palasa) tree. She started shouting but the appellant not only pressed her mouth but also gave slaps while giving threat to kill. Hearing the commotion, Ganpat (PW4), who was grazing cattle at a short distance, came to the spot and the appellant then fled away. (ii) Upon the FIR (Ex.P-1) lodged by the prosecutrix, a case under Sections 354 of the IPC and 3(1)(xi) of the Act was registered at Police Station Ashta. The prosecutrix was sent to CHC, Ashta where Dr. Suresh Shrimal (PW7) examined her. After due investigation, charge-sheet for the offences under Sections 323 & 354 of the IPC and 3(1)(xi) of the Act was submitted before the Special Court. 3. On being charged with the offence punishable under Section 3(1)(xi) only, the appellant pleaded false implication due to prevailing animosity. In the cross-examination of the prosecutrix (PW1), her husband Puran (PW2) and Ganpat (PW4), it was suggested that relations between the prosecutrix and the appellant were strained for the following causes - (i) Despite being objected to, the prosecutrix used to drive her cattle to a nearby rivulet through his field. (ii) The prosecutrix was inclined to encroach upon a piece of Government Land, possessed by Mitha Bai, sister of the appellant. However, no evidence was led in defence. 4. Legality and propriety of the conviction have been challenged on the under-mentioned grounds - (a) There was no cogent evidence to establish that the appellant had used force to outrage modesty of the prosecutrix. (b) No evidence was adduced by the prosecution to prove that the prosecutrix belongs to a Scheduled Caste. :: 2 :: Cri. Appeal No.239/1996 (c) No offence under Section 3(1)(xi) would be made out as the act in question was not committed on the ground that the prosecutrix was a member of Scheduled Caste. To buttress the contentions (b) and (c) [above], learned counsel for the appellant has cited decision of a co-ordinate Bench of this Court in Shankarlal v. State of M.P. (2005 (1) MPLJ 449). In response, learned Panel Lawyer has submitted that the appellant has been rightly convicted in the face of trustworthy incriminating evidence on record. 5. The prosecutrix (PW1) substantially reiterated the contents of the FIR (Ex.P-1) recorded by Sub-Inspector Om Prakash Singh (PW3) at her instance. As per her statement, at the time when she was grazing cattle, the appellant caught hold of her neck from behind; caused her to fall down; gagged her and also slapped her. She further deposed that the appellant had fled away only after arrival of Ganpat (PW4). Her evidence drew support from the statement of Ganpat to the effect that while grazing cattle in a nearby field, he had seen the prosecutrix hurling abuses at the appellant. 6. Dr. Suresh Shrimal (PW7) proved existence of two abrasions on lower lip of the prosecutrix. Though the medical expert admitted that the injuries could be sustained due to fall or on account of friction against a tree yet, there was nothing on record to support such a probability. The acts of holding her neck in throwing the prosecutrix on the ground and pressing her mouth were clearly suggestive of sex. In Shankarlal’s case (supra) also, on facts suggesting that after catching hold of her hand, he had tried to drag the prosecutrix towards a nearby temple, he was held guilty of the offence under Section 354 of the IPC. :: 3 :: Cri. Appeal No.239/1996 7. The defence of false implication due to animosity was refuted categorically by the prosecutrix (PW1). Ganpat (PW4) also denied the suggestion that at an earlier occasion, the appellant had complained about damage to his crop by the cattle belonging to the prosecutrix. Further, no suggestion was put to Karan Singh (PW5), the Village Chowkidar, and Virendra Thakur (PW6), the Investigating Officer, in their cross-examination regarding the plea of defence and, as pointed out already, no supportive evidence was adduced. The plea also deserved rejection as no married lady would put her character at stake by making a false charge of indecent assault simply because there existed bitterness of feelings between her and the appellant. 8. Thus, ground (a) [ibid] is not tenable on facts as on one hand, there was overwhelming evidence on record to prove that the appellant had outraged modesty of the prosecutrix and on the other, probability of the defence was also not established. 9. Reverting to the grounds (b) and (c) [above], it may be mentioned that learned counsel for the appellant has placed implicit reliance on the following observations made in Shankarlal’s case - “6. In the testimony of prosecutrix (PW1), it is said that she is Chamar by caste and the appellant has admitted this fact. She has not said that she is a member of SC or ST or whether her caste is included in the list of SC caste. Her husband (PW2) has deposed that he is “Suryavanshi Chamar” by caste. The prosecution has not led any evidence to the effect that “Suryavanshi Chamar” is the caste which has been included in the list of SC or ST. In the absence of any such evidence, this fact cannot be taken for granted that prosecutrix belongs to the SC or ST community. As being one of the essential ingredients, this fact was required to be proved beyond any reasonable doubt by the prosecution. 7. Assuming that it is established that the prosecutrix belongs to SC or ST, still it is difficult to hold that the offence under Section 3(1)(xi) of the Act is established. There is no :: 4 :: Cri. Appeal No.239/1996 evidence to show that the appellant used criminal force to the prosecutrix to outrage her modesty only because she belonged to a particular caste or community. There is no such circumstance to suggest that her modesty was intended or tried to be outraged, simply because she belonged to a particular community. It is thus clear that the ingredient of section 3(1)(xi) of the Act is not proved and conviction of the appellant under section 3(1)(xi) of the Act deserves to be set aside” 10. The Constitution (Scheduled Castes) Order must be read as it is. It is not even permissible to say that a caste, sub-caste, part or group of any caste or community is synonymous to the one mentioned in the Order if they are not so specifically mentioned in it. The aforesaid observations are to be understood in the context of Shankarlal’s case wherein the prosecutrix claimed to be a member of Suryavanshi chamar caste. Hence, the decision in Shankarlal’s case cannot be treated as an authority for the proposition that non- production of caste certificate issued by the Competent Authority would always be fatal to the prosecution. 11. The assertion made by the prosecutrix (PW1) that she belongs to Balai caste was not subjected to challenge in her cross- examination. Moreover, it was candidly admitted by the appellant in his examination, under Section 313 of the Code of Criminal Procedure. In such a situation, judicial notice could be taken of the fact that Balai caste has been included in the list of Scheduled Castes in the State of M.P. In other words, no further proof in the form of caste certificate/notification or otherwise to show that the prosecutrix is a member of Scheduled Caste was required. 12. This apart, the Supreme Court in Vidyadharan v. State of Kerala (2004) 1 SCC 215) has pointed out the distinction between the offences punishable under Section 354 of the IPC and Section 3(1)(xi) of the Act in the following terms - :: 5 :: Cri. Appeal No.239/1996 “Section 3(1)(xi) of the Act deals with assaults or use of force to any woman belonging to a scheduled caste or scheduled tribe with the intent to dishonour or outrage her modesty is an aggravated form of the offence under Section 354 IPC. The only difference between section 3(1)(xi) and section 354 is essentially the caste or the tribe to which the victim belongs. If she belongs to a scheduled caste or scheduled tribe, section 3(1)(xi) applies. The other difference is that in section 3(1)(xi) dishonour of such victim is also made an offence.” However, neither the offence under Section 354 nor the one under Section 509 of the IPC is punishable with imprisonment for a term of 10 years. As such, the ingredient that it is committed on the ground that the victim belongs to a Scheduled Caste or a Scheduled Tribe, which is sine quo non for applying the provision of Section 3(2)(v) of the Act, is not attracted (See. Dinesh v. State of Rajasthan (2006) 3 SCC 771) 13. It is true that there may be cases where the accused, being a stranger, may not be aware of the fact that the complainant belongs to a Scheduled Caste or a Scheduled Tribe but if he knows and has reason to believe that the victim of the offence is a member of such a caste or tribe, the offence would squarely fall under Section 3(1)(xi) of the Act and it would not be necessary to establish further that the offence was committed on the ground that she belongs to such a Caste or Tribe. 14. For these reasons, none of the grounds (b) and (c) [above] has any merit or substance. 15. To sum up, the conviction deserves to be affirmed as well merited. The minimum prescribed sentence for the offence also does not call for any interference. 16. In the result, the appeal stands dismissed. The impugned conviction and consequent sentences are hereby affirmed. :: 6 :: Cri. Appeal No.239/1996 Appeal dismissed. (R.C.MISHRA) JUDGE 18/11/11 :: 7 :: Cri. Appeal No.239/1996