Ramchandra Soni vs State

A.K. Shrivastava, J.—Feeling aggrieved by the judgment of conviction and order dated 22.11.1997 passed by learned Special Judge constituted under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (in short the Act) in Special Case No. 16/1997 and thereby convicting the appellant u/s 3(1)(xi) and sentencing him to suffer 6 months RI and fine of Rs. 500/- with a further stipulation to suffer one month RI. If the fine amount is not deposited, the appellant has taken shelter of this Court by preferring this appeal u/s 374(2) of the Code of Criminal Procedure, 1973. No exhaustive statement of facts are required to be narrated for the purpose of the disposal of this appeal. Suffice it to say that by demonstrating herself to be the member of Balai caste a report was lodged by prosecutrix that appellant outraged her modesty by pressing her breast. Eventually, a report was lodged in the concerning Police Station.

On lodging of the FIR the criminal law was triggered and set in motion. The Investigating Agency arrested the accused/appellant and proceeded further with the investigation. After the investigation was over,a charge sheet was submitted in the Special Court and a u/s 3(1)(xi) of the Act was framed against the appellant which he abjured and prayed for the trial. Eventually, the prosecution examined its witnesses and also proved some documents.

The defence of accused/appellant is of false implication and in support of his defence he examined one Sanjay as (DW-1).

The learned Special Judge on the basis of evidence placed on record came to hold that the charge u/s 3(1)(xi) of the Act has been proved against the appellant and hence passed the sentence which I have mentioned hereinabove.

In this manner, this appeal has been filed by the accused assailing the judgment of conviction and order of sentence.

The contention of Shri Mitesh Jain, learned Counsel for the appellant is that in the present case appellant was not known to the prosecutrix earlier to the incident and if that would be the position, how she named the appellant in the FIR. Thus it raises heavy doubt about the implication of the appellant in the crime. Learned Counsel further submits that even otherwise the offence is not proved and, therefore, by allowing this appeal the impugned judgment be set-aside and the appellant be acquitted from the aforesaid charge.

On the other hand, Shri Parmar, learned Public Prosecutor argued in support of the impugned judgment.

Having heard learned Counsel for the parties I am of the view that this appeal deserves to be allowed.

I do not find any merit in the contention of learned Counsel for the appellant that appellant was not known to the prosecutrix earlier to the incident and, therefore, naming him in the FIR would amount to concoction. Not even a single question was put in cross-examination to the prosecutrix in this regard. Thus, if the appellant is named in the FIR it would be deemed that he was well known to the prosecutrix earlier. However, on scanning the testimony of the prosecutrix this Court finds that after committing the vile act of outraging the modesty by pressing the breast of the prosecutrix, the appellant ran away and came after 15 minutes again to that place where the prosecutrix was sleeping at the Railway Platform along with her other family members. According to me if the hue and cry on the Railway Platform was there because the modesty of the prosecutrix was outraged by the appellant and further if he had ran away, why he will come back again to the place where the prosecutrix was present. Thus, it raises a heavy doubt about the implication of the appellant in the said crime.

Apart from this, one important fact which cannot be marginalised and blinked away is that in the present case the ingredients of Section 3(1)(xi) of the Act has not at all been proved by the prosecution. If the words of Section 3(1) (xi) is considered in its true perspective, it would reveal that a negative burden has been cast upon the prosecution to prove that the accused is not a member of either Scheduled Caste or Scheduled Tribe community. Not only this, in order to convict an accused u/s 3(1)(xi) of the Act it was also imperative on the part of the prosecution to prove that the prosecutrix is also not the member of either Scheduled Caste or Scheduled Tribe community. By testing the aforesaid principle of law on the touch stone and anvil of the present factual scenario and by paying heed to the testimony of the prosecutrix and the surrounding circumstances and other evidence, it is luminously clear like a noon day that no where it has been proved by the prosecution that the appellant is not a member of either Scheduled Caste or Scheduled Tribe community. True, the prosecutrix has stated in her testimony that she belongs to Balai caste but there is nothing on record in order to demonstrate that the members of Balai caste are the members of either Scheduled Caste or Scheduled tribe community. The prosecutrix has also not stated in her testimony that she is the member of Scheduled Caste or Scheduled Tribe community. There is no certificate or any other evidence on record so as to prove that the members of Balai community are either the members of Scheduled Caste or Scheduled Tribe community. According to me before convicting an accused u/s 3(1)(xi) of the Act, the aforesaid ingredients are requirement to be proved mandatory and since it is totally lacking from the present case, I have no option except to set-aside the impugned judgment of conviction and order of sentence. Resultantly, this appeal succeeds and is, hereby, allowed. The impugned judgment of conviction and order of sentence is, hereby, set-aside and the appellant is acquitted from the charge u/s 3(1)(xi) of the Act. He is on bail. His bail bond shall stand discharged. The amount of fine if deposited, be refunded to him.