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Nagendra Kumar Keshari vs State Of Chhattisgarh 47 … on 29 November, 2019

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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.335 of 2005

Nagendra Kumar Keshari, aged 25 years, S/o. Gulab
Chand Keshari, R/o. Village Balangi PS Chandani, Distt.
Sarguja (CG)
—- Appellant
Versus
The State of Chhattisgarh through Police Station S.T S.C.
Ambikapur, Sarguja (CG)
—- Respondent
—————————————————————————————-

For the appellant : Shri Bishnu Muni, Advocate
For the Respondent/State: Shri Aman Kesharwani, Panel Lawyer

—————————————————————————————-

Hon’ble Shri Justice Ram Prasanna Sharma

Judgment on Board
29.11.2019

1. The appeal is preferred against judgment dated 06.4.2005

passed by Special Judge, Sarguja (Ambikapur) (CG) in Special

Session Trial No.140/2000 wherein the said Court convicted the

appellant for the commission of offence under Section 354 of the

Indian Penal Code read with Section 3(1)(xi) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989

(for short ‘the Act 1989’) and sentenced him to undergo rigorous

imprisonment for six months and to pay fine of Rs.1000/- with

default stipulation.

2. In the present case prosecutrix is PW-6. To substantiate

the charges, the prosecution has examined as many as six

witnesses. No one proved the caste certificate of the prosecutrix.

The appellant has been charge sheeted for the offence under
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Section 3(i)(xi) of the Act, 1989 on the basis that the prosecutrix is

a member of Scheduled Tribe. As per SectionArticle 342 of the

Constitution of India, definition of Scheduled Tribes is given as

under:

“342. Scheduled Tribes.- (1) The President
may with respect to any State or Union Territory,
and where it is a State, after consultation with the
Governor thereof, by public notification, specify the
tribes or tribal communities or parts of or groups
within tribes or tribal communities which shall for
the purposes of this Constitution be deemed to be
Scheduled Tribes in relation to that State or Union
territory, as the case may be.

(2) Parliament may by law include in or
exclude from the list of Scheduled Tribes specified
in a notification issued under clause (1) any tribe
or tribal community or part of or group within any
tribe or tribal community, but save as aforesaid a
notification issued under the said clause shall not
be varied by any subsequent notification.”

3. In the present case, no officer was examined before the trial

Court to establish that as per the Public Notification the

prosecutrix included in any of the caste which is included in such

notification to be Scheduled Tribe. Again there is no evidence

that the offence is committed on the basis of the caste. As per the

version of the prosecutrix, the appellant tried to outrage her

modesty and that is because she is of opposite sex.

4. From the entire record neither it is established that the

prosecutrix is a member of Scheduled Tribe nor it is established

that any act was committed on the basis of the caste. For
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commission of offence under Section 3(i)(xi) of the Act, 1989, it

has to be established that the prosecutrix is a member of the

Scheduled Tribe or Scheduled Caste. For proving this fact, no

one was examined and therefore, charge under this Act is not

established. Therefore, The appellant is acquitted of the said

charges. Accordingly, his conviction and sentence for the said

offence is hereby set aside.

5. From the evidence of the prosecutrix, it is established that

the appellant caught hold the hands of the prosecutrix and tried to

remove her garments and tried to press her body parts. This

evidence is not rebutted in cross-examination and it is further

supported by FIR (Ex-P/11) in which name of the appellant is

mentioned as culprit and his act of outraging the modesty is also

mentioned. From the entire evidence, it is established that the

appellant outraged the modesty of the prosecutrix. The trial Court

after evaluating the entire evidence, recorded finding of conviction

against said offnece and this Court has no reason to record a

contrary view. Accordingly, conviction of the appellant under

Section 354 IPC is hereby affirmed.

6. In the present case date of incident is 17.02.1998. On the

said date jail sentence was not compulsory for offence under

Section 354 IPC. The appellant has served jail term from

21.9.1998 to 17.10.1998 which comes out to 26 days. He was

also fined to pay Rs.1000/-. Considering the facts and

circumstances of the case, this court is of the opinion that ends of

justice would be met if the appellant is sentenced to the jail term
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of period already undergone by him. Accordingly, his sentence is

reduced to the period already undergone by him. However, fine

sentence imposed by the trial Court shall remain intact.

7. With this modification, the appeal is allowed in part.

Sd/-

(Ram Prasanna Sharma)
JUDGE
Bini

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