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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 31-7-2019
Pronounced on 1-8-2019
Criminal Appeal No. 289/2004
(Arising out of judgment of conviction and order of sentence dated 17-
2-2004 passed by Special Judge constituted under Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities, Act 1989 (hereinafter
called as ‘SCST Act), Bastar at Jagdalpur in ST No. 110/2003 )
…………
Atul B. Mistri S/o. B.T. Mistri age 33 years, occupation Contractor
Resident Nayapara, Jagdalpur, Distt. Bastar (CG)
Appellant
versus
State of Chhattisgarh through Station House Officer, PS Korrer, Distt.
Bastar (CG)
Respondent
For appellant : Mr. Y.C. Sharma, Adv.
For respondent/State : Mr. Vinod Tekam, PL.
Hon’ble Shri Sharad Kumar Gupta, Judge
C.A.V. JUDGMENT
1. In this criminal appeal the challenge is levied to the judgment of
conviction and order of sentence dated 17-2-2004 passed by Special
Judge constituted under Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities, Act 1989 (hereinafter called as ‘SCST Act),
Bastar at Jagdalpur in ST No. 110/2003 whereby and whereunder he
convicted and sentenced the appellant as under :-
Offence u/S. RI for Fine Rs. In default of payment
of fine
354, SectionIPC 1 and ½ 1,000/- RI for 4 months
years
3(1)(xi), SCST 2 years 1,500/- RI for 6 months
ActBoth the jail sentences have been directed to run concurrently.
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2. In brief the prosecution story is that at the time of alleged incident
prosecutrix who was 18 years old resident of village Budeli. She is a
member of scheduled tribe. On 5-7-2002 she, her girlfriends Ku.
Dashmat, Ku. Dayaro Bai and other labours had gone to do the work at
the construction site of new culvert. At about 1.30 am mansion Lalsu
and Balram told her that she prepare tea for appellant who was the
contractor. She went in camp quarter along with Ku. Dashmat. When
she served tea to the appellant, he caught hold her hand and pressed
her breast. He also threatened her to kill. Her girlfriends Ku. Dashmat
had intervened and separated her from him. Due to shame she
narrated the incident to her father, mother and uncle on 6-7-2002. On 7-
7-2002, about 19.30 hour she lodged an FIR against him in police
station Korar. After completion of the investigation, a charge sheet was
filed against him for the offences punishable under Sections 354, Section506-
B, SectionIPC and Section 3(1)(x), (xi) of the SCST Act. Trial Court framed
charges against him for the offences publishable under Sections 354,
Section506-II, SectionIPC and Section 3(1)(xi) of the SCST Act. To bring home the
charges the prosecution examined 5 witnesses in all. He examined 2
witnesses on his defence. After completion of trial, trial Court convicted
and sentenced him as aforesaid. However, trial Court acquitted him of
the offence punishable under Section 506-II of the IPC.
3. Being aggrieved, appellant preferred this Criminal Appeal.
4. Counsel for the appellant argued that Trial Court has not
appreciated the evidence in proper perspective. Thus, the conviction
and sentences of the appellant are bad in eyes of law. Hence, appellant
may be acquitted of the aforesaid charges.
5. Counsel for the State argued that the conviction and sentences of
the appellant are based on clinching evidence. The conviction and
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sentences of the appellant do not call for any interference by this Court.
6. P.W. 1 prosecutrix says in para 3 of her statement given on oath
that when she served tea to appellant, he caught hold her hand
and pressed her breast.
7. P.W. 2 Ku. Dasmat says in para 2 of her statement given on oath
that when she entered inside after hearing the shouts of P.W. 1
Prosecutrix, she saw that appellant had caught hold hand of
prosecutrix.
8. P.W. 3 Ku. Dayaro Bai says in para 2 of her statement given on
oath that P.W. 1 Prosecutrix had told her that appellant had
caught hold her hand.
9. D.W. 1 Lalsuram and D.W. 2 Balram Mandavi say in para 2 of
their statements given on oath that P.W. 1 Prosecutrix had
served tea to appellant and them. After closing the work of the
site all the people had gone away. Due to some dispute appellant
had engaged the labours from other villages thus, labours of
village Budeli had given threatening that they will falsely implicate
him.
10. There is no such evidence on record on strength of which
it can be said that aforesaid statements of P.W.1 prosecutrix,
P.W.2 Ku. Dasmat, P.W.3 Ku. Dayaro Bai are not simple, not
natural, not normal.
11. As per the alleged FIR Ex.P-1 appellant had caught hold the
hand of the prosecutrix and pressed her breast.
12. There is no such evidence on record on strength of which it
can be said that Ex.P-1 is fabricated and lodged after thought to
falsely the appellant.
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13. Looking to the above mentioned facts and circumstances of
the case this Court finds that aforesaid statements of P.W.1
prosecutrix, P.W. 2 Ku. Dasmat, P.W.3 Ku. Dayaro Bai are simple,
natural, normal. Thus, this Court believes on them and
disbelieves aforesaid statements of D.W.1 Lalsu Ram, D.W.2
Balram Mandavi in the reference that appellant had not
committed any offence.
14. In Bhalchand Tiwari @ Bhola v State of Chhattisgarh
{2016 (3) CGLJ Vol. 363} it has been held that the appellant is
acquitted of the charge under Section 3(1)(XII) of the Special Act
because it is not proved that the appellant had dominated the will
of the Prosecutrix and used his position to exploit her sexually
simply because she belonged to the Scheduled Tribe Category.
15. In the judgment of the Division Bench of this Court in
Bhikhar and Others v. State of Chhattisgarh passed in Cr.A.
No. 328 of 2003 decided on 14.06.2016 it was observed that so
far as the conviction of the appellants under Section 3(2)(V) of
the Act is concerned, in the present case, there is no evidence at
all to the effect that appellants had committed the offence on the
ground that the deceased belonged to Scheduled Caste
Category. In the absence of such ingredients merely because the
deceased happens to be a member of Scheduled Caste
Category, automatically the offence under Section 3(2)(V) of the
Act is not made out against the appellants.
16. The Division Bench of this Court in its decision dated 14-
12-2017 passed in Cr.A. No. 304/2007 in the matter of SectionDevchand
Patel and Others v. State of Chhattisgarh observed that so far
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as conviction under Section 3(2)(V) of the Act, 1989 is
concerned, since it has already been held that the appellants
have not committed any offence as against the deceased, the
question of their conviction under this Section does not arise.
Even otherwise this is not a case of the prosecution that as the
deceased belonged to a particular caste, he was subjected to
beat, rather it has been established from the evidence that it was
the deceased who being at fault was beaten by the villagers,
which unfortunately resulted in his death. Therefore, the accused
are acquitted of this charge also.
17. The Hon’ble Supreme Court in SectionDinesh @ Buddha v. State
of Rajasthan {2006 (3) SCC771} in para-15 has held as under:
” 15. Sine qua non for application of Section 3(2)(v) is that an
offence must have been committed against a person on the
ground that such person is a member of Scheduled Castes
and Scheduled Tribes. In the instant case no evidence has
been led to establish this requirement. It is not case of the
prosecution that the rape was committed on the victim
since she was a member of Scheduled Caste. In the
absence of evidence to that effect, Section 3(2)(v) has no
application. Had Section 3(2)(v) of the Atrocities Act been
applicable then by operation of law, the sentence would
have been imprisonment for life and fine.”
18.From the aforesaid judicial precedents laid down by this Court in
the matter of Bhalchand Tiwari @ Bhola, Bhikhar and Others,
and Devchand Patel and Others and by the Hon’ble Supreme
Court in the matter of Dinesh @ Buddha (supra), this Court
finds that to attract the provisions of SCST Act it is not sufficient
that prosecutrix was either member of scheduled caste or
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scheduled tribe. The essential element for applicability of SCST
Act is that accused had committed offence only this ground that
she was either member of scheduled caste or scheduled tribe. In
the case in hand, there is no such evidence on record on the
strength of which it can be said that the appellant had committed
said offence allegedly merely on the ground that the prosecutrix
was a member of the Scheduled Tribe.
19. After appreciation of the evidence this Court finds that the
prosecution has succeeded to prove beyond reasonable doubt
the charge punishable under Section 354 of the IPC, but failed to
prove beyond reasonable doubt the charge punishable under
section 3(1)(xi) of the SCST Act, 1989 against the appellant.
Thus, this Court affirms the conviction of the appellant under
Section 354 of the IPC and sets aside the conviction and
sentence of the appellant punishable under section 3(1)(xi) of
the SCST Act.
20. Appellant is acquitted from the charge punishable under
Section 3(1)(xi) of the SCST Act extending him benefit of doubt.
The fine amount as awarded by the trial Court for said offence, if
already deposited by the appellant, the same be refunded to him
after the expiration of prescribed period of the further legal
remedy available to the parties.
21. So far as sentence is concerned for the offence punishable
under Section 354 IPC, the appellant remained in jail since
29.08.2002 to 03.09.2002. Near about 17 years have passed
from the date of incident. At the time of incident, he was aged
about 33 years, now he is about 50 years old. Now he is in
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mainstream of society. Sending him to jail would disturb him as
well as his family members’ life. At the time of the incident, no
minimum jail sentence was provided for the offence punishable
under Section 354 of IPC. Hence, no useful purpose would be
served if he is sent to jail after 17 years of the incident. Looking to
these circumstances and observation made by Hon’ble Supreme
Court in the matter of Manjappa -v- State of Karnataka [(2007)
6 SCC 231] this Court is of the opinion that cause of justice would
be sub-served, if RI for one and half year for the offence
punishable under Section 354, SectionIPC is reduced to the sentence
for the period already undergone by him and fine amount be
suitably enhanced.
22. Consequently, the appeal is partly allowed. The sentence
of the appellant under Section 354, SectionIPC for one and half year is
reduced to the period already undergone by him and fine amount
of Rs. 1000/- is enhanced to Rs. 25,000/- (Rupees twenty five
thousands only), in default of payment of fine, to further undergo
additional RI for four months.
23. The appellant is granted two months’ time from the date of
this order for depositing the fine amount. The fine amount
deposited earlier by the appellant shall be adjusted in the fine
amount of Rs. 25,000/-.
24. After the prescribed period of legal remedy available to the
parties, Rs. 20,000/- (Rupees twenty thousands only) out of the
fine amount of Rs. 25,000/-, if deposited, be given to the
prosecutrix as compensation.
25. Accordingly, the appeal is partly allowed.
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26. The appellant is reported to be on bail. His bail bonds
stands cancelled subject to the provisions of Section 437-A,
Cr.P.C.
Sd/-
(Sharad Kumar Gupta)
Judge
Pathak
