1 HIGH COURT OF JUDICATURE AT JABALPUR (M.P.) SINGLE BENCH Criminal Appeal No. 559/2008 Bhole Maharaj @ Bhole Mishra Vs. State of Madhya Pradesh Shri M.R. Patel, learned counsel for the appellant. Ku. Kamlesh Tamrakar, learned PL for the State. Date of hearing: 25/01/2011 Date of Judgment: 26/04/2011 J U D G M E N T Appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, being aggrieved by the judgment dated 28/2/2008 passed in Special Case No. 74/2007 by Special Judge, Atrocity, Panna, whereby the appellant has been convicted under Section 3(1)(xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as 'the Act') and sentenced to undergo rigorous imprisonment for 6 months and fine of Rs. 2,000/-, with default stipulations. 2. Prosecution case in short was that on 8.10.2007 at about 7 O'clock in the evening complainant Phoolabai (PW2) went to the flour mill of the appellant to fetch flour. It is alleged that when complainant entered into the room to took her flour, 2 appellant caught hold of her and told her that he wants to intercourse with her. On this, complainant abused the appellant and told him that she informed her husband about the misdeed. The appellant told her that she is free to say this fact to anyone he did not care for it. Complainant narrated the story to her husband, Chhanulal (PW3). Thereafter her husband went to the house of Sarpanch but he was not at home. On the next day when Sarpanch came, she and her husband narrated the story to him and then lodged a report on 9/10/2007 at 9.15 at Police Station, Simariya. 3. After usual investigation, the appellant was charge sheeted before the Chief Judicial Magistrate, Panna, who committed the case for trial to the Special Judge, Atrocity. Learned Special Judge framed the charges against the appellant under Section 354 of IPC and Section 3(1)(xi) of the Act. Appellant abjured the guilt and pleaded false implication and further pleaded that he only asked the money for grinding the said flour. He examined Ramesh Lodhi (DW1) and Chhabirani (DW2) as his defence witnesses in his favour. 4. On appraisal of evidence on record, trial Court convicted and sentenced the appellant as mentioned hereinabove. Hence this appeal. 5. Learned counsel for the appellant submitted that the trial Court committed illegality in 3 not appreciating the evidence on record in its proper perspective. He further submitted that statement of Phoolabai (PW2) has not corroborated by the medical evidence, therefore he prays for setting aside the impugned judgment and conviction and sentence recorded against the appellant by the trial Court and further prays for acquittal of the appellant. 6. On the other hand, learned counsel for the State has supported and justified the impugned judgment and finding of the Trial Court. 7. I have perused the impugned judgment, evidence and other material on record. 8. Complainant Phoolabai (PW2) deposed that at 7 O'clock in the evening when she went to flour mill of appellant to fetch the flour, the appellant was standing at the door of his flour mill. She further deposed that when she entered into the room to take her flour, appellant followed her and caught hold of her as well as told her that he wants to intercourse with her. She further deposed that it is shameful on the part of the appellant. She further deposed that the appellant told her that she is free to narrate the fact to anyone, then she narrated the incident to her husband. According to her, her husband went to Sarpanch but he was not available on the very day then next day her husband met with Sarpanch and then went for lodging the report alongwith Sarpanch and lodged the report Ex.P/3. 4 9. Her version was supported by her husband Chhanulal (PW3) and Sarpanch Ramlagan (PW6). 10. Chhanulal (PW3) admitted that he had money transaction with the appellant and still Rs.700/- is unpaid but he denied the suggestion that he has been falsely implicated to the appellant to avoid the payment of Rs.700/-. 11. Though defence witnesses Ramesh Lodhi (DW1) and Chhabirani (DW2) have stated that there was a dispute between the appellant and Chhanulal, when Chhanulal came to take his flour but this fact was not put to the prosecutrix Phoolabai and her husband Chhanulal. In this way defence witnesses have narrated different story then the prosecution story. In these circumstances, defence has not appeared to be probable and consistent and rightly disbelieved by the trial Court. It is also not believable that a husband will stake reputation of his wife for avoiding the payment of only Rs. 700/-, to the appellant. 12. Learned counsel for the appellant submitted that mere caught hold by accused to the prosecutrix does not amount to an offence under Section 354 of IPC. He placed reliance on 2008 (1) MPWN 27, Ramratan Vs. State of M.P.. The fact of this case is different then the case relied on by the counsel for the appellant. In that case parties were tensed relationship with each other as well as 5 according to the prosecution story there was two eye witnesses who have not supported the version of prosecution but in this case the incident was took place in the evening and according to the prosecution story itself there was no eye witness. In this case prosecutrix not only deposed that appellant caught hold of her but she further deposed that appellant told her for intercourse. This fact is amount to use a criminal force with intention to outrage her modesty. The version of the prosecutrix is consistently supported by her husband Chhanulal (PW3) and same is supported by FIR Ex.P/3 and Ex.P/4. 13. On perusal of the statement of prosecutrix Phoolabai (PW2) and Chhanulal (PW3), husband of the prosecutrix, I do not find anything in regard to their caste. Sarpanch Ramlagan (PW6) only stated that he had issued the caste certificate Ex.P/6. On perusal of Ex.P/6, it reveals that Phoolabai is Kumhar and belonging to Harijan caste, I am of the view that the trial Court committed illegality in believing the mere this certificate because prosecution is duty bound to prove each and every ingredient of offence and particularly the caste to which prosecutrix / complainant belongs and same comes under the list of Scheduled Caste. Word 'Harijan' is not a caste, as mentioned hereinabove, prosecutrix and her husband had not deposed regarding their caste. In these circumstances prosecutrix is belonging to the Scheduled Caste is not proved on record. 6 14. In the result, appeal is partly allowed and his conviction and sentence recorded under Section 3(1)(xi) is hereby set aside and appellant is acquitted to the aforesaid charge. But at the same time trial Court rightly found proved the basic offence under Section 354 of IPC. Same is hereby affirmed and looking to the facts and circumstances of the case, ends of justice would be met, if appellant be convicted for jail sentence already undergone two days and fine amount be enhanced from Rs. 2,000/- to Rs. 10,000/-. Thus the sentence is altered to aforementioned extent. Rs. 5,000/- be paid to the prosecutrix as compensation under Section 357 of Code of Criminal Procedure. 15. Appellant is on bail. His bail bond and surety bond stand cancelled. Appellant is directed to deposit enhanced fine amount within two months. 16. Record of the trial Court be sent back alongwith copy of this judgment immediately for compliance and necessary action. (G.S. SOLANKI) JUDGE ravi