HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 581/1994
Nabia S/o Shri Bachchhu Khan, by caste Muslim, aged 20 years,
R/o Mapuri, Aarakshi Kendra Gadara Road, District Barmer.
—-Appellant
Versus
State of Rajasthan
—-Respondent
For Appellant(s) : None present.
For Respondent(s) : Mr. Mukesh Trivedi, PP
HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment
22/01/2020
1. 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 6 Months’ R.I. Rs.200/- 1 Month’s S.I.
SC/ST Act
2. The appeal can be decided on a very short consideration. The
conviction of the appellant has been recorded by the trial court
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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.
3. 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
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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.
4. 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.
5. Record be returned to the trial court forthwith.
(SANDEEP MEHTA),J
16-Sudhir Asopa/-
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