Dabloo alias Shahjad vs State of M.P.

A.P. Shrivastava, J.

This appeal is directed against the judgment of the Court of Special Judge, Guna dated 16-6-2000 in Special Case No. 1/2000 whereby the Appellant has been convicted u/s 354, Indian Penal Code and u/s 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo R.I. for six months on each count and fine of Rs. 100/- under the later section.

According to the prosecution, the incident took place on 10-1-2000 at about 12 in the noon in village Mudra, the prosecutrix Sitabai (PW 1) was in her house and the Appellant came for spates and when she was giving spates he molested the prosecutrix knowing it well that she belongs to Scheduled Caste and also uttered words "Chamar" with an intention to degenerate her status. The trial Court framed the charges on both count as stated in para 1 and after trial found him guilty and convicted accordingly.

It is submitted on behalf of the Appellant that the prosecution has utterly failed to prove its case that the Appellant has been falsely implicated due to enmity of Panchayat Election. Lastly it is also submitted that the first information report is delayed.

The story narrated in the F.I.R. is that the Appellant came to the house of the prosecutrix and pressed her breasts. When Appellant was running from there Gangabai (PW 2), Vinjubai (PW 3) and Bharosa (PW 4) have seen the occurrence. Prosecutrix informed to them about the incident.

Sitabai (PW 1) in her statement corroborated the story written in the F.I.R. According to this witness, the Appellant, molested her by pressing her breasts and caught hold of her. After hearing the cry Gangabai (PW 2) and other witnesses came there. In cross-examination in para No. 6 she admitted that her husband contested the Panchayat Election and was defeated but she has no knowledge that the Appellant supported the rival contestant in the election.

Both Gangabai (PW 2) and Vinjubai (PW 3) corroborated the version of the prosecutrix regarding the act of molestation by the Appellant. Bharosa (PW 4) also supported the version of the prosecutrix. Tulsiram (PW 5), who is husband of the prosecutrix, also supported the version of his wife. According to him, when he came to house, the prosecutrix narrated the incident and informed that the Appellant molested her. Mohd. Ali (PW 7) however, not supported the prosecution and declared hostile. But, in cross-examination admitted that the Appellant is his brother. So, it appears that this witness is not desirous of telling the truth before the Court. The evidence of B.S. Tomar (PW 9) is of formal nature.

Now, I come to the question of delayed F.I.R. The first information report (Exp. 4) was lodged by the prosecutrix on 5-2-2000 at 17.30 hours at police station Shadora. The date of incident is 10-1-2000 at 12 noon. The explanation for delay is given in the report which shows that after the incident the matter was subsided and advised her not to lodge report. When Appellant again showed indecent behaviour then report was lodged. This fact is corroborated by the testimony of PW 1.

Considering the circumstances and explanation given by the prosecutrix, the delay is not fatal to the prosecution case. In Malkhan Singh and etc. Vs. State of Madhya Pradesh, it was held that delay alone will not adversely affect the credibility of the prosecution case, it could be explained subsequently. Moreover, in this case the version of the prosecution got support from the other witnesses who reached to the place of occurrence immediately after the incident. In the circumstances of the case, it cannot be said that the F.I.R. is delayed or fatal to the prosecution. From the evidence adduced by the prosecution it is clear that on the date of incident the Appellant has molested the prosecutrix to outrage her modesty. The essence of women''s modesty lies in her status, culpable intention of the accused is the course of the matter.

Now, the next important question involved is that whether the Appellant can be convicted both u/s 354, Indian Penal Code and u/s 3(1)(xi) of S.C.S.T. Act. In this case the trial Court has convicted the Appellant on both count. Before examining this point it will be useful to reproduce the relevant provisions below:

Section 354, Indian Penal Code:

Assault or criminal force to woman with intent to outrage her modesty whoever assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to fine:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term which may be less than five years but which shall not be less than two years.

Section 3(1)(xi) of S.C.S.T. Act:

Section 3(1):- Whoever, not being a member of a Scheduled Caste or Scheduled Tribe,-

Section 3(1)(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;

From the perusal of above sections, it is clear that Section 3(1)(xi) of the Act is of aggravated offence u/s 354, Indian Penal Code. The Apex Court in the case of Vidyadharan Vs. State of Kerala, laid down the following proposition:

Section 3(1)(xi) of the Act deals with assault or use of force in any women belonging to Scheduled Castes and Scheduled Tribes with an intention to dishonour or degenerate her modesty is an aggregated form of the offence u/s 354, Indian Penal Code. The only difference between Section 3(1)(xi) is essentially the caste or tribe to which the victims belongs. If she belongs to Scheduled Caste or Scheduled Tribe, Section 3(1)(xi) applies. The other difference is that u/s 3(1)(xi) dishonour of such victim is also made the offence. So, a person inorder to punish at a time both u/s 354 and 3(1)(xi), Indian Penal Code or the S.C.S.T. Act for the same offence.

Now, the question for consideration is that in the present case whether the offence u/s 354, Indian Penal Code or 3(1)(xi) of the S.C.S.T. Act is made out. In the first information report Exp. 4 as well as in the statement of the prosecutrix it is nowhere mentioned that the act was committed by the accused against the prosecutrix because she belongs to a particular community. It is the duty of the prosecution to prove the ingredients of the offence u/s 3(1)(xi) of the S.C.S.T. Act. In this case there is no evidence to show that the Appellant used criminal force against the prosecutrix to degenerate her modesty only because she belongs to a particular caste or community, whereby there was no such circumstances to suggest that her modesty was intended or tried to degenerate simply because she belongs to a particular community. Thus, the ingredients u/s 3(1)(xi) of the Act was not proved by the prosecution. But, from the evidence of prosecutrix and other witnesses as discussed above, it is clear that ample evidence was produced against the Appellant to hold him guilty u/s 354, Indian Penal Code, although on the date of incident the Appellant caught hold the prosecutrix and molested her by pressing her breasts with the knowledge that he will by doing such act is the intention or to outrage the modesty of the prosecutrix.

Therefore, in view of the above discussion, the conviction and sentence as awarded by the trial Court u/s 354, Indian Penal Code is maintained but conviction u/s 3(1)(xi) of the S.C.S.T. Act is set aside. With such modification, the appeal is disposed of accordingly. Bail bond of the Appellant is discharged.