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Bhaskar Prasad vs State Of Uttaranchal 7 on 7 November, 2019

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL APPEAL No.179 of 2004

Bhaskar Prasad …………… Appellant

Versus

State of Uttaranchal 7 ………… Respondent

Dated: November 7, 2019

Mr. Lokendra Dobhal, learned Counsel for the appellant.
Mr. A.K. Sah, learned D.A.G. assisted by Mr. S. Panwar, B.H. for the State

Hon’ble R.C. Khulbe, J.

This appeal, preferred by the appellant u/s
374 of Code of Criminal Procedure, 1973 (hereinafter to
be referred as SectionCr.P.C.), is directed against the judgment
and order dated 02.06.2004 passed by learned Special
Judge, Uttarkashi in Sessions Trial No.13 of 2003,
whereby the Court below has convicted the appellant
under Section 452 of the Indian Penal Code, 1860
(hereinafter to be referred as SectionI.P.C.) and sentenced him to
undergo one year’s R.I. with fine of Rs.1,000/-; u/s 354
SectionIPC to undergo one year’s R.I. and u/s 3(xi) of the SC/SectionST
Act, to undergo one year’s R.I. with fine of Rs.1,000/-,
along with default stipulation. All the sentences were
directed to run concurrently.

2. Facts, in nutshell, are that PW2 Smt. Chandra
Devi submitted an application on 09.08.2002 to the
Patwari Halka, Sainj, Tehsil Bhatwari, District
Uttarkashi, with the averments that she went to Gangotri
Temple along with the people of her village. She left her
daughter Smt. Babli at the house. On 7.8.2002 at about
9.30 PM, appellant entered her house with mal-intention
2

where the daughter of informant was alone. Appellant,
with the intention to outrage the modesty of daughter of
informant, torn her clothes, fell her down on the floor
and tried to make her naked. When the victim screamed,
the neighbours rushed to the spot and then the accused
run away.

3. On the basis of above information, Chick FIR
(Ex.Ka-5) was lodged on 13.8.2002 at the concerned
revenue post. After investigation, the charge-sheet was
submitted by the C.O. Uttarkashi against the appellant
u/s 354, 452, 504 and 506 SectionIPC r/w Section 3(11) of
SC/SectionST Act.

4. Learned Special Judge, Uttarakashi
accordingly, framed the Charge against the appellant.
The charge was read over and explained to the appellant
who pleaded not guilty and claimed to be tried.

5. To prove its case, the prosecution examined
PW1 Smt. Babli @ Babita (against whom the offence was
committed), PW2 Smt. Chandra (informant), PW3 Suresh
(eyewitness), PW4 Hira Ballabh (who submitted charge-
sheet against the accused) and PW5 Vidyanand Semwal
(who lodged the FIR on the basis of information given by
PW2).

6. After completion of prosecution evidence, the
statement of the appellant was recorded u/s 313 of
SectionCr.P.C. in which he denied all the evidence led by the
prosecution.

7. After appreciating the evidence on record and
hearing learned counsel for the parties, the Trial Court,
vide the judgment, under challenge, has convicted and
3

sentenced the appellant, as afore-stated. Feeling
aggrieved, the present appeal has been filed.

8. Heard learned Counsel for the parties and
perused the entire evidence available on the record.

9. As far as Section 3(1)(xi) of the SC/SectionST Act is
concerned, it is argued by learned Counsel for the
appellant that there is no evidence against the appellant
under the said section because the victim does not
belong to scheduled caste community, and the accused
had no knowledge about the caste of victim.

10. Section 3(1)(xi) of SC/SectionST Act is reproduced
hereunder: –

“Whoever, not being a member of a Scheduled Caste
or a Scheduled Tribe,–

(i) …………..

(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; shall be
punishable with imprisonment for a term which shall
not be less than six months but which may extend to
five years and with fine.”

11. In this regard, the Hon’ble Apex Court in the
case of ‘SectionRamdas others v. State of Maharashtra’
reported in (2007) 1 SCC (Cri) 546 has held that mere
fact that the victim happened to be a girl belonging to a
scheduled caste does not attract the provisions of the
SC/SectionST Act. Paragraph 11 of the aforesaid judgment is
quoted hereinbelow: –

“At the outset we may observe that there is no
evidence whatsoever to prove the commission of
offence under Section 3(2)(v) of the Scheduled Caste
and SectionScheduled Tribes (Prevention of Atrocities) Act,
1989. The mere fact that the victim happened to be
a girl belonging to a scheduled caste does not
attract the provisions of the Act. Apart from the fact
4

that the prosecutrix belongs to the Pardhi
community, there is no other evidence on record to
prove any offence under the said enactment. The
High Court has also not noticed any evidence to
support the charge under the Scheduled Caste
and SectionScheduled Tribes (Prevention of Atrocities) Act,
1989 and was perhaps persuaded to affirm the
conviction on the basis that the prsecutrix belongs
to a scheduled caste community. The conviction of
the appellants under Section 3(2)(v) of the
Scheduled Caste and SectionScheduled Tribes (Prevention
of Atrocities) Act, 1989 must, therefore, be set
aside.”

12. In the present matter, in the FIR, though it is
stated that the informant belongs to SC community but
in this regard, a specific question viz. question no.9 was
put to the accused u/s 313 SectionCr.P.C. but he denied the
same.

13. If any fact is denied by the accused, then it
was the duty of the prosecution to prove the same
beyond any reasonable doubt. It was the duty of the
prosecution to prove that the informant and the victim
belonged to the SC community while the appellant
belonged to the higher caste. In the present case, no
such evidence was led by the prosecution to prove the
aforesaid facts and thus, the conviction of the appellant,
as recorded by the Court, u/s 3(1)(xi) of the SC/SectionST Act is
liable to be set aside. Accordingly, the appellant is
acquitted for the offence u/s 3(1)(xi) of the SC/SectionST Act.

14. Now, as far as Sections 452 and Section354 IPC are
concerned, learned Counsel appearing for the appellant
fairly submits that the conviction of the appellant, as
recorded by the Court below under the aforesaid Sections
is perfectly justified as per the evidence recorded before
the trial court and he also does not want to lay any
5

challenge on the same; he only confined his prayer to the
extent that the appellant may be extended the benefit of
being the first-offender and may be released on probation
by giving him the benefit of the SectionProbation of Offenders
Act, 1958.

15. Learned State Counsel appearing for the State,
admits that he has not received any report about the
criminal antecedents of the appellant, and admitted that
appellant is the first-time offender.

16. In this regard, the Hon’ble Apex Court in the
case of “Commandant, 20th Battalion, ITB Police Vs.
Sanjay Binjola” reported in 2001 SCC (Cri.) 2, 897, in
paragraph no.7, has held as under:

“7. SectionProbation of Offenders Act has been enacted in
view of the increasing emphasis on the reformation
and rehabilitation of the offenders as a useful and
self-reliant members of society without subjecting
them to deleterious effect of jail life. SectionThe Act
empowers the Court to release on probation, in all
suitable cases, an offender found guilty of having
committed an offence not punishable with death or
imprisonment for life or for the description mentioned
in Sections 3 and Section4 of the said Act.”

17. Section 4 of the Probation of Offenders Act,
1958 read as under:

“4. Power of court to release certain offenders on
probation of good conduct

1. When any person is found guilty of having
committed an offence not punishable with death or
imprisonment for life and the court by which the
person is found guilty is of opinion that, having regard
to the circumstances of the case including the nature
of the offence and the character of the offender, it is
expedient to release him on probation of good conduct,
then, notwithstanding anything contained in any other
6

law for the time being in force, the court may, instead
of sentencing him at once to any punishment direct
that he be released on his entering into a bond, with
or without sureties, to appear and receive sentence
when called upon during such period, not exceeding
three years, as the court may direct, and in the
meantime to keep the peace and be of good behaviour:

“Provided that the court shall not direct such release of
an offender unless it is satisfied that the offender or
his surety, if 5 any, has a fixed place of abode or
regular occupation in the place over which the court
exercises jurisdiction or in which the offender is likely
to live during the period for which he enters into the
bond.

2. Before making any order under sub-section (1), the
court shall take into consideration the report, if any, of
the probation officer concerned in relation to the case.

3. When an order under sub-section (1) is made, the
court may, if it is of opinion that in the interests of the
offender and of the public it is expedient so to do, in
addition pass a supervision order directing that the
offender shall remain under the supervision of a
probation officer named in the order during such
period, not being less than one year, as may be
specified therein, and may in such supervision order,
impose such conditions as it deems necessary for the
due supervision of the offender.

4. The Court making a supervision order under sub-
section (3) shall require the offender, before he is
released, to enter into a bond, with or without
sureties, to observe the conditions specified in such
order and such additional conditions with respect to
residence, abstention from intoxicants or any other
matter as the court may, having regard to the
particular circumstances, consider fit to impose for
preventing a repetition of the same offence or a
commission of other offences by the offender. 5. The
court making a supervision order under sub-section (3)
shall explain to the offender the terms and conditions
of the order and shall forthwith furnish one copy of the
supervision order to each of the offenders, the
sureties, if any, and the probation officer concerned.”

7

18. Section 4 of the Act would demonstrate that if
a person is found guilty of having committed an offence
not punishable with death or imprisonment for life, in
that event, considering the nature of the offence and the
character of the offender, the Court, instead of
sentencing him at once to any punishment, may release
such person on probation of good conduct, on his
entering into a bond, with or without sureties, for a
period not exceeding three years. Before releasing the
offender, on probation, the Court must satisfy itself that
offender or his surety, if any, has a fixed place of abode
or regular occupation in the place over which the Court
exercises jurisdiction or in which the offender is likely to
live during the period for which he enters into the bond.
The Court before passing the order of release on
probation may also call report of the Probation Officer.
The Court while releasing on probation may also direct
that accused shall remain under the supervision of
Probation Officer for a period not less than one year.

19. A careful reading of Section 4 of the Act would
reveal that if the offence is punishable for a period more
than 2 years, but not punishable with death or
imprisonment for life, admonition of sentence shall not
be required and if person, released on probation, is found
involved in any offence during the period of probation or
otherwise, is found behaving in violation of condition of
bond, he shall be directed to serve out the sentence
awarded by the court. In other words, while on probation,
such person should not involve himself in subsequent
offence or must honour the condition of his bond /
8

surety bond and if he breaches the same, he has to serve
out the sentence awarded by the Court.

20. In the present case the appellant is the first-
time offender; the incident seems to have taken place 17
years ago; he is the sole bread earner in his family and at
the time of occurrence, he was a student.

21. Therefore, considering the provisions of the
SectionProbation of Offenders Act, 1958, in the opinion of the
Court, the appellant should be released on probation in
order to reform himself.

22. The present appeal, thus, stands disposed of.
The conviction part of the appellant u/s 452 and 354 SectionIPC
is left intact. However, as far the sentence part is
concerned, it is directed that the appellant shall be
released on probation for a period of eighteen months on
furnishing a personal bond to the satisfaction of the
concerned Trial Court. The Judge concerned shall be at
liberty to impose such conditions while executing the
bond which he feels fit in accordance with law. It goes
without saying that if accused/appellant fails to observe
good conduct and behaviour during probation, or is
found violating any condition, to be imposed, the Court
concerned shall be at liberty to cancel the bond after
calling the accused-appellant and to proceed in the
matter in accordance with law. The appellant shall
appear before the Trial Court on 18.11.2019 for
compliance.

23. Let a copy of this judgment be sent forthwith
to the learned Trial Court for information/ compliance.

(R.C. Khulbe, J.)
Rdang

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