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Nabia vs State on 22 January, 2020

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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(2 of 3) [CRLA-581/1994]

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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(3 of 3) [CRLA-581/1994]

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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