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2012 DIGILAW 310 (MP)

Bagdiram v. State of M. P.

2012-03-16

S.R.WAGHMARE

body2012
JUDGMENT 1. This appeal under Section 374 of the Cr.P.C. has been filed by the appellant Bagdiram being aggrieved by judgment dated 17.05.2007 passed by Special Judge, Ratlam in Special Case No.22/06 convicting the accused for offence under Section 3(1) (XI) of the SC/ST Act and sentenced to undergo RI for one year with fine of Rs.1000/-; in default of payment of fine the appellant was to undergo an additional sentence of 3 months S.I. 2. Brief facts of the prosecution case are that on 22.2.2006 at 10 AM in the morning Prembai aged 12 years (P.W.2) was returning home after delivering food to her father Govaji (P.W.3) in the field of Kamalsingh Anjna; when on the way near the field of one Bherulal near the mango tree accused Bagdiram stopped her and catching hold of her, fell her to the ground. He tried to ravish her and hearing the shouts for help Bagdiram threatened and ran away. She returned to her father, narrated the incident to Muna Khan, Kishan Anjna and thereafter Prembai along with her father went to the Police Station to report the matter. However, there was nobody at the Police Station and hence the FIR was lodged only on the next day i.e.23.02.2006 vide Ex.P/3; the FIR was scribed by Ramsingh Meda (P.W.6) the Station Incharge. Bipul Kumar Pandey S.D.O.P. (P.W.7) visited the spot and prepared the spot map. The statements of witnesses of Goba, Prembai, Shantibai, Munna Khan and Kishanlal recorded and the caste certificate of Prembai was also seized and on completion of investigation the accused was arrested and duly committed to the trial. 3. He abjured his guilt and stated that he was falsely implicated in the matter. The Trial Court, however, on considering the evidence convicted and sentenced the accused as herein above indicated, being aggrieved the appellant has filed the appeal. 4. Counsel for the appellant has vehemently urged the fact that the conviction is contrary to the provisions of law. The Court has failed to appreciate that the prosecutrix Prembai did not belong to the banchhda community and the offence was not committed because she belongs to the Scheduled Caste. The defence has been properly taken. 4. Counsel for the appellant has vehemently urged the fact that the conviction is contrary to the provisions of law. The Court has failed to appreciate that the prosecutrix Prembai did not belong to the banchhda community and the offence was not committed because she belongs to the Scheduled Caste. The defence has been properly taken. The caste certificate is not in accordance with the provisions of law and the certificate has to be provided by S.D.M.; whereas the caste certificate which has been given by the Sarpanch is not in accordance with the provisions of law. Moreover Counsel urged that the Trial Court examined as many as 7 witnesses and their testimony is full of material omissions and contradictions which has not been considered by the trial Court. Even the prosecutrix is not reliable, her testimony is full of omissions and there was nobody on the field at the spot of the incident according to the testimony of Prembai the prosecutrix herself and in this light offence under Section 3(1)(XI) of the SC/ST Act is not made out. Moreover, Counsel stated that to constitute an offence it is necessary that whoever is not a member of a Scheduled Caste intentionally insults or intimidates with intent to humiliate another person who is a member of a Scheduled Caste or a Scheduled Tribes in any place within public view; merely calling a person by caste without mens-rea or intention to insult and humiliate cannot constitute the offence under Section 3(1)(x) of the SC/ST Act. Counsel relied on Jasrath Singh and another vs. State of M.P., 2005(4) MPLJ 363 and Counsel prayed that in the instant case the ratio applied in full force. Moreover, Counsel stated that the benefit must accrue to the accused and urged that the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside. In the alternate he has placed reliance on Dabloo alias Shahjad Vs. State of M.P. [2007(1) M.P.L.J. 250] Counsel stated that at the most offence would fall under Section 354 of the IPC and could not be made out under Section 3(1)(XI) of the SC/ST Act. The offence may be converted and proper relief be granted to the appellant since the appellant had already undergone 16 days in custody and the incident was of the year 2006. The offence may be converted and proper relief be granted to the appellant since the appellant had already undergone 16 days in custody and the incident was of the year 2006. The appellant was only 30 years of age at that time and Counsel urged that the custodial sentence may be reduced to the period already undergone. 5. Per contra, Counsel for the respondent/State submitted that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed. 6. Considering the above submissions and on perusal of the record, I find that there is not sufficient evidence on record to sustain the conviction under Section 3(I)(XI) of the SC/ST Act and it is, therefore, set aside. However, considering the fact that the prosecutrix was able to shout for help and has reported the matter to her father and the others immediately, therefore, offence under Section 354 of the IPC is made out against the appellant and placing reliance on Dabloo alias Shahjad (supra), I find that the appeal needs to be partly allowed. I find from the record that the appellant has not been charged for offence under Section 354 of the IPC, however, the learned Judge of the trial Court has discussed the matter in impugned para-18 of the judgment. He has however erred in holding that merely because the prosecutrix belong to the scheduled caste the offence under Section 354 of the IPC would be automatically converted to one under Section 3(I)(XI) of the SC/ST Act. I find that such a reasoning is incorrect especially in the light of the discussion above. However, since Section 354 of the IPC is a lesser offence than one under Section 3(I)(XI) of the SC/ST Act as held by the Apex Court then there is no need to frame the charges under Section 354 of the IPC. I find that such a reasoning is incorrect especially in the light of the discussion above. However, since Section 354 of the IPC is a lesser offence than one under Section 3(I)(XI) of the SC/ST Act as held by the Apex Court then there is no need to frame the charges under Section 354 of the IPC. It is thus directed that although the ingredients of offence under Section 3(I)(XI) of the SC/ST Act are not proved by the prosecution, however the very fact that it was able to establish that the prosecutrix was being molested the offence would fall under Section 354 of the IPC and on the basis of the above discussion it is directed that the appellant is guilty for offence under Section 354 of the IPC and also considering the alternate prayer being reasonable under the circumstances the custodial sentence is directed to be reduced to the period already undergone. However, the fine amount is enhanced to Rs.5,000/- which shall be paid to the prosecutrix within a period of two months from the date of this judgment. On failure to pay the fine within the stipulated period and the appellant shall undergo the remaining sentence as directed by the lower Court. 7. With the aforesaid modification the appeal is partly allowed to the extent herein above indicated. Appellant is on bail. His bail bond and surety bond are hereby discharged. 8. A copy of this judgment be sent to the concerned lower Court for compliance.