Nabia vs State Of Rajasthan

The instant appeal has been preferred by the appellant Nabia under Section 374(2) Cr.P.C. assailing the judgment dated 09.11.1994 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases and Sessions Judge, Balotra in Sessions Case No.35/93 whereby the appellant herein was convicted and sentenced as below:-

Offence

Sentences

Fine

Fine Default sentences

Section 3(1)(xi) of the SC/ST Act

6 Months' R.I.

Rs.200/-

1 Month's S.I.

The appeal can be decided on a very short consideration. The conviction of the appellant has been recorded by the trial court holding that he caught hold of the hand and waist of Mst. Naju who was a girl belonging to the Scheduled Caste and as such, the appellant was responsible for the offence under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the SC/ST Act'). It may be stated here that in the written report (Ex.P/1) which was lodged on 21.05.1993 i.e, after seven days of the incident, there is no allegation that the accused caught hold of the hand of the girl. All that is alleged in the report, is that the accused tried to catch the girl and made an attempt to force himself upon her but could not succeed. From the statement of Naju (PW.5), the victim, it is clear that she claimed to have gone towards the government tank for fetching water. She reached the river when Nabia came there, caught hold of her wrist and her waist. She shouted on which, the accused ran away. No such allegation was set out that the accused tried to outrage the modesty of the girl or that he committed the offending act only for the reason that the girl was a member of the scheduled caste. Thus, ex-facie, considered in light of the ratio of Hon'ble the Supreme Court decision in the case of Masumsha Hasanasha Musalman vs. State of Maharashtra reported in AIR 2000 SC 1876., conviction of the appellant as recorded by the trial court for offence under Section 3 (1)(xi) of the SC/ST Act cannot be sustained.

However, it is noticed that charge had also been framed against the appellant for the offence under Section 354 IPC but the trial court chose not to convict him separately for this offence because the conviction of the appellant was recorded for the corresponding offence under Section 3(1)(xi) of the SC/ST Act. This Court would have been persuaded to remand the matter back to the trial court for considering the case of the accused for the charge under Section 354 IPC afresh but keeping in view the fact that the incident took place way back in the year 1993, it would not be expedient in the interest of justice to do so, moreso when there are apparent omissions and contradictions, more particularly in the highly delayed written report (Ex.P/1) and the prosecution case regarding the exact manner in which the appellant caught hold of the victim and the lack of significant material to satisfy that he did so with the intention of outraging her modesty.

Thus the appeal deserves to be and is hereby allowed. The impugned judgment dated 09.11.1994 is set aside. The accused appellant is acquitted of the charge under Section 3 (1) (xi) of the SC/ST Act. The accused appellant is on bail. He need not surrender. His bail bonds are discharged.

Record be returned to the trial court forthwith.