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2012 DIGILAW 288 (CHH)

Asharaf Khan v. State of M. P.

2012-10-31

PRITINKER DIWAKER

body2012
ORDER Present appeal arises out of judgment and order dated 21-3-1997 passed by the Special Judge, Raipur in Special Criminal Case No. 421/1996 convicting the accused /appellant under Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act (in short the Act) and sentencing him to undergo rigorous imprisonment for six months and to pay fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for three months. 2. Brief facts of the case are that on 19-9-1996, at 11.50 p.m. FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) a minor girl aged about 15 years alleging that an hour before thereto i.e. at about 10.00 p.m. when she was returning along with her grandmother Fultori Bai, after watching television, on the way accused/appellant came from behind and pressed her breast and when she protested, people who were accompanying her abused him whereupon he ran away from the spot. Based on this FIR offence under Section 354, IPC and S. 3(1)(xi) of the Act was registered against the accused/appellant. After investigation, challan was filed on 2-11-1996 against the accused/appellant. 3. In order to establish the guilt of the accused /appellant, prosecution has examined 5 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr. P. C. in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart two defence witnesses have also been examined. 4. After hearing counsel for the parties, the trial Court has convicted and sentenced them as mentioned above. Hence this appeal. 5. Contention of Shri Kochar, counsel for the appellant is that the prosecution has not filed or proved any document in relation to the caste of the complainant and filing and proving of caste certificate or any such document is sine qua non for bringing home the offence under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act therefore the appellant cannot be convicted for the offence under the said Act. He further submits that taking the entire case of prosecution as it is, at best, the accused/appellant can be convicted under Section 354, IPC and as under the Section 354, IPC, jail sentence is not mandatory he be set free after imposing fine amount. It has been further argued that the appellant can be granted the benefit of probation of offenders Act. It has been further argued that the appellant can be granted the benefit of probation of offenders Act. 6. On the other hand counsel for the State supported the impugned judgment, however, he admits that prosecution has not filed any document showing the caste of the complainant. 7. Heard counsel for the parties and perused the material available on record. Prosecutrix (PW-1) aged about 14 years, in his statement has stated that she belongs to Satnami caste and is illiterate. She has stated that she was residing with her grand- mother Fultori Bai and she does not know the accused/appellant. According to her, on the date of incident she had gone to watch video in the house of Sarpanch and when she was returning along with her grand mother, accused/appellant came from behind and pressed her breast on which she raised cries and then the children who were also accompanying her abused the accused/appellant. Thereafter Rameshar came running and the appellant fled away from the spot. She has stated that she came to the village and after narrating the elders about the incident, she lodged the report in police station. In cross- examination she remained very firm and nothing could be elicited from her. Rameshar (PW-2) while supporting the statement of the prosecutrix has stated that when he along with other villagers was returning from the house of Sarpanch he saw the accused/appellant pressing the breast of prosecutrix and prosecutrix and her grandmother were lying on the ground. He has stated that earlier also accused/appellant had teased one Patel girl who was prosecuting her studies and therefore the decision was taken not to tolerate the act of the accused/appellant. Smt. Fultori Bai (PW-3) grandmother of the prosecutrix has also supported the statement of the prosecutrix and has categorically stated that she saw the accused/appellant pressing the breast of the prosecutrix. Sunhar (PW-4) & Shyam Das (PW-5) villagers have stated that on the date of incident brother of the prosecutrix called them and when they reached his house, he was informed by the prosecutrix and Fultori Bai about the act of the accused/appellant. Dau Singh (DW-1) has stated that on the date of incident when he was returning after watching video due to interruption of power supply all the villagers returned to their houses. Dau Singh (DW-1) has stated that on the date of incident when he was returning after watching video due to interruption of power supply all the villagers returned to their houses. He has stated that statement of the prosecutrix that accused/appellant caught hold of her arm is not correct and that the accused/appellant is a boy of good character. Ajju Khan (DW-2) had also made similar statement as made by Dau Singh (DW-1). 8. Minute examination of the evidence makes it clear that on the date of incident, accused/appellant pressed the breast of prosecutrix. Statement of the prosecutrix has been duly supported by Rameshar (PW-2) and Fultori Bai (PW-2) grandmother of the prosecutrix and therefore there is no reason for this Court to disbelieve the prosecution case. 9. The next point for consideration of this Court is whether the appellant is liable to be convicted under Section 3(1)(xi) of the special Act or not. Prosecution has not filed and proved any document in relation to the caste of the prosecutrix. Filing and proving of any such document is sine qua non for convicting any person in relation to the offence pertaining to the provision of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act. It is a settled legal position that the production of relevant document regarding the caste of the complainant is necessary to establish the offence under the provisions of Prevention of Atrocities Act. In the case in hand no such document has been filed and proved by the prosecution and the accused/appellant has also not admitted the caste of the prosecutrix. It is thus very clear that the conviction of the appellant under Section 3(1) (xi) of the Act is not in accordance with law therefore the same is set aside. 10. Thus, considering all the facts and circumstances of the case, accused/appellant is acquitted under Section 3(1) (xi) of the Act. However, looking to the facts and circumstances of the case, the accused/appellant is convicted under Section 354, IPC. So far as the sentence part is concerned, the incident had taken place about 16 years back, at the relevant time, accused/appellant was a young boy aged about 20 years, jail sentence is not mandatory, and considering the totality of the case, this Court is of the view that the accused/appellant can be sentenced with rigorous imprisonment for seven days from that of six months. Order accordingly. Order accordingly. Appellant is reported to be on bail. His bail bonds stand cancelled. He be sent to jail forthwith to undergo the remaining part of the modified sentence. Appeal thus partly succeeds. Order accordingly.