Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1400 (MP)

Rakesh v. State of M. P.

2008-12-03

N.K.MODY

body2008
ORDER 1. Being aggrieved by the judgment dated 18.10.1996 passed by Special Judge, West Nimar Mandleshwar in Special Case No. 119/94, whereby appellant was convicted for an offence punishable under section 3 (1) (XI) of SC and ST (Prevention of Atrocities) Act, 1989 for a period of six months RI with fine of Rs. 500/-, present appeal has been filed. 2. In short case of the prosecution was that Sajanbai w/o Shyamlal is a member of Scheduled Tribe while the appellant is Brahmin by caste. It was alleged that complainant Sajanbai living with her husband in a quarter situated within the periphery of P.S. Chenpur. It was alleged that husband of the complainant Shyamlal was watchman in the Dak bungalow. On 27.11.1994 at about 7:00 p.m. when Shyamlal, husband of the complainant, went to supply the food to the Supervisor of MPEB at that time complainant Sajanbai was standing outside her house. At that time appellant Rakesh Tripathi came there and pushed her by saying that she has to remain with him as his wife. Upon this complainant Sajanbai told that appellant will be beaten by sleepers. Further case of the prosecution was that upon shouting Shyamlal, who was returning after supplying the food came there. It was further alleged that appellant was saying to the complainant that she is Bhil by community and can keep number of husbands. It was alleged that since the appellant saw Shyamlal, therefore, he ran away. The complaint was lodged by the complainant on the next day i.e. on 28.11.1994 as the police station was at a distance of 8 kms. and there was no facility of transportation. Upon the complaint filed by the complainant, case was registered against the appellant under section 354 read with section 3 (I) (XI) of SC and ST (Prevention of Atrocities) Act. After investigation charge sheet was filed against the appellant under section 3 (1) (XI) of SC and ST (Prevention of Atrocities) Act. After recording of the evidence learned Court below found that appellant has committed offence punishable under section 3 (1) (XI) of SC and ST (Prevention of Atrocities) Act and convicted as stated above, against which present appeal has been filed. 3. Shri Ashish Gupta, learned counsel for appellant, submits that impugned judgment passed by the learned Court below is illegal and deserves to be set aside. 3. Shri Ashish Gupta, learned counsel for appellant, submits that impugned judgment passed by the learned Court below is illegal and deserves to be set aside. It is further submitted that trial Court committed error in not considering the fact that the words "Bhiladon Ka Kya Rai" were put into the mouth of appellant with a view to spell out a case under SC and ST (Prevention of Atrocities) Act. Learned counsel further submits that the learned Court below committed error in not considering the fact that the conviction is based on mere pronouncement of certain words. It is submitted that not only there should be a positive evidence about specific words used but there should also not be any inconsistency regarding those words amongst the witnesses examined to prove them. It is submitted that in the instant case the evidence of prosecution witnesses regarding the words used by appellant are not only inconsistent but contrary to each other. It is submitted that conviction is bad in law. Learned counsel further submits that no case has been made out against the appellant that the complainant was intimidated or insulted because of her being a member of Scheduled Tribe. On the strength of this it is submitted that judgment passed by the Court below be set-aside and appeal be allowed. 4. Shri Raghuveer Singh, Dy. Government Advocate for the State argues in support of the judgment passed by the Court below and submits that impugned order is based on evidence, which requires no interference. 5. From perusal of the record, it appears that to prove the offence prosecution has examined Sajanbai (PW 1), Shyamlal (PW 2) husband of the complainant, Mayaram (PW 3) and Haresingh (PW 4). In the matter of Dabloo @ Shahjad v. State of M.P., reported in 2007 (1) MPLJ 250, where the appellant was prosecuted for an offence punishable under section 354 IPC and 3 (1) (XI) of SC and ST (Prevention of Atrocities) Act and it was found that act was not committed by the appellant against prosecutrix only because she belonged to a particular community, this Court held that appellant cannot be convicted under section 3 (1) (XI) of SC and ST (Prevention of Atrocities) Act. Section 3 (1) (XI) reads as under: "3. Section 3 (1) (XI) reads as under: "3. Punishment for offences of atrocities: (1) whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -- (XI) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty, shall be punishable with imprisonment for a term which shall not be less than six months but which may extent to five years and with fine." 6. There is nothing on record to show that the act of the appellant to outrage the modesty of complainant Sajanbai was only because she belongs to a particular community. From perusal of the record, it appears that the appellant was charge sheeted under section 3 (1) (XI) of SC and ST (Prevention of Atrocities) Act. Since the appellant was convicted for an offence under section 3 (1) (XI) of SC, ST (Prevention of Atrocities) Act, therefore, no order has been passed by the learned Court below in regard to alternate offence under section 354 IPC. 7. Even if it is assumed that there is no evidence on record to show that the offence of outraging the modesty of the lady was committed by the appellant with an intent that she belonged to a particular caste then too, there is evidence on record to show that appellant has committed an offence of outraging the modesty of the complainant Sajanbai. In view of this the appeal is allowed in part and the conviction of the appellant under section 3 (1) (XI) of SC and ST (Prevention of Atrocities) Act is converted in section 354 IPC. Since the appellant was in jail with effect from 28.11.1994 to 30.11.1994 and was again in jail with effect from 18.10.1996 to 19.11.1996, therefore, in the opinion of this Court, the jail sentence awarded to the appellant is reduced to the period already undergone, subject to depositing further sum of Rs. 5,000/-, within a period of two months, which shall be payable to complainant Sajanbai, in default the appellant shall suffer jail sentence awarded by the learned Court below. 8. In the result the appeal is partly allowed. The findings of conviction of appellant under section 3 (1) (XI) of SC and ST (Prevention of Atrocities) Act is set-aside and the appellant is convicted under section 354 IPC. 8. In the result the appeal is partly allowed. The findings of conviction of appellant under section 3 (1) (XI) of SC and ST (Prevention of Atrocities) Act is set-aside and the appellant is convicted under section 354 IPC. So far as sentence is concerned, the jail sentence awarded to the appellant is reduced to the period already undergone subject to depositing further fine of Rs. 5,000/-, within a period of two months, which shall be payable to complainant Dhapubai, in default the appellant shall suffer jail sentence awarded by the learned Court below. In case of arrest on account of default upon depositing the aforesaid amount, appellant be released forthwith, if not required in any other case. With the aforesaid observations appeal stands disposed of.