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Madhya Pradesh High Court · body

2013 DIGILAW 320 (MP)

Rafeek v. State of M. P.

2013-03-08

M.A.Siddiqui

body2013
ORDER 1. This is an appeal preferred by appellant Rafeek feeling aggrieved by the judgment dated 5th September, 1997, delivered by the then Special Judge, Waraseoni in Special Criminal Case No. 39/95 in which appellant has been convicted for alleged offence punishable under section 3(1)(xi) of SC and ST (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Act”) and sentenced to RI for six months and fine of Rs. 50/-, in default of payment of fine appellant to further undergo SI for three months. 2. In brief the prosecution case is that appellant, all of a sudden, appeared at the house of complainant (PW 1), caught hold of her hands, dragged her to a nearby place, embraced her and touched her breasts and outraged her modesty on the ground that she belonged to Kharole caste which is a scheduled caste, and being a member of upper caste, outraged her modesty with co-accused Ikram. Matter was reported, police took the cognizance, arrested the appellant, and filed charge sheet. Vide aforesaid judgment dated 5.9.1997, though co-accused and appellant were acquitted of the offence punishable under section 3(1)(xi) of the Act, but appellant Rafeek was convicted and sentenced as aforesaid on the ground of outraging the modesty of a girl of scheduled caste. 3. Learned counsel for appellant has raised limited submissions. He submitted that except complainant (PW 1), nobody was present when the incident occurred and the matter was reported by PW 1 to other persons. He submitted that there is no caste certificate from which it can be said that complainant belongs to a particular caste. 4. Learned PL appearing for State submitted that in his examination under section 313 CrPC, appellant has admitted the case of complainant so he cannot challenge the caste of complainant. 5. Learned counsel for appellant next submitted that even relying on the statement of complainant (PW 1), it appears that incident was not committed on the ground of caste. It was be on the ground of womanhood that complainant has been assaulted and not on the ground of caste. He submitted that from perusal of statement of complainant (PW 1) it is very much clear that nowhere complainant has stated the she was sexually assaulted on the ground of caste. 6. It was be on the ground of womanhood that complainant has been assaulted and not on the ground of caste. He submitted that from perusal of statement of complainant (PW 1) it is very much clear that nowhere complainant has stated the she was sexually assaulted on the ground of caste. 6. Learned PL appeaing for State next contended that complainant (PW 1) has not come forward with the story of caste, but as per evidence of Yashoda Bai (PW 2), Hemraj (PW 3), Yuvraj (PW 4) and G.R. Chandravanshi (PW 5), the incident took place due to caste of complainant. 7. Counsel for appellant submitted that statement of complainant herself is not there that the incident occurred due to her caste, so the statements of other witnesses which are of secondary character, in the absence of primary evidence, are not admissible. 8. Learned PL appearing for the State further submitted that as far as the incident of sexual assault is concerned, evidence of complainant (PW 1) is cogent and is supported by other witnesses and prompt report was lodged with G.R. Chandravanshi (PW 5). 9. In alternative, learned counsel appearing for appellant submitted that at the most a case under section 354 IPC may be there. He submitted that appellant was a young boy of 24 years of age at the time of incident, he is facing trial since 1995 and he remained in custody during trial from 5.9.1997 to 24.10.1997 for a period of about one and half months. Counsel submitted that appellant has already deposited the fine amount of Rs. 50/-. He is suffering mental agony and financial loss for the last 17 years. He submitted that appellant may be acquitted of the offence punishable under section 3(1)(xi) of the Act and may be convicted and sentenced under section 354 IPC for the period already undergone by him. 10. Learned PL appearing for State submitted that in case appellant is convicted and sentenced under section 354 IPC, then heavy fine may be imposed on him. 11. After hearing both the parties, I find myself in agreement with the submissions raised by the appellant’s counsel that no case under section 3(1)(xi) of the Act is made out against appellant Rafeek. Learned PL appearing for State submitted that in case appellant is convicted and sentenced under section 354 IPC, then heavy fine may be imposed on him. 11. After hearing both the parties, I find myself in agreement with the submissions raised by the appellant’s counsel that no case under section 3(1)(xi) of the Act is made out against appellant Rafeek. Therefore, appellant is acquitted of the offence punishable under section 3 (1) (xi) of the Act, instead he is convicted under section 354 of IPC for assaulting or using criminal force to woman with intent to outrage her modesty, and sentenced for the period already undergone by him with a further fine of Rs. 2,500/- (Rs. Two Thousand Five Hundred Only) which shall be deposited by the appellant within a period of three months from today before the concerned trial Court. Appellant is on bail. In case appellant deposits the fine amount of Rs. 2,500/- within the aforesaid period, his bail bonds/personal bonds shall remain discharged and he need not surrender. If appellant does not deposit the fine amount of Rs. 2,500/- within the aforesaid period, then he is required to further undergo simple imprisonment for three months. In case the fine amount of Rs. 2,500/- is deposited by appellant Rafeek, it shall be paid to the parents of the complainant, or to either of them. 12. Resultantly, the appeal is allowed in part to the aforesaid extent.