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Nandlal Yadav vs State Of Chhattisgarh 7 … on 19 September, 2018



CRA No. 267 of 2010

Nandlal Yadav, S/o Samar Sai, aged about 22 years, R/o Ghumani-
Dand (Dwaripara), Thana- Bango.
Present R/o – Katghora, District- Korba (C.G.)
—- Appellant
State of Chhattisgarh, through District Magistrate, Korba, District-
Korba (C.G.)
—- Respondent

For Appellant : Mrs. Indira Tripathi, Advocate.
For State/respondent : Mr. Ramakant Pandey, PL.


Hon’ble Shri Justice Ram Prasanna Sharma
Judgment On Board

1. This appeal is preferred under Section 374(2) of the Code of

Criminal Procedure, 1973 against judgment dated 17.03.2010

passed by Special Sessions Judge (Atrocities) under

Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989, Korba (C.G.) in Special Session Trial No.

11/2007, wherein the said court convicted the appellant for

commission of offence under Section 354 of IPC and

sentenced to R.I. for 6 months and under Section 3(1)(xi) of

Schedule Caste and Schedule Tribe (Prevention of Atrocities)

Act, 1989 (for short “the Act, 1989”) and sentenced to R.I. for

6 months and fine of Rs. 500/- with further default stipulations.

2. In the present case, prosecutrix – Sukhmaniya Bai is resident

of village- Ghumani Dand and on the date of incident i.e. on

08.12.2006 at about 1.00 p.m., she was flying paddy and her

son was sleeping at house. At this juncture, the appellant

came there and caught hold hand of prosecutrix and also

caught her breast. The prosecutrix raised alarm, thereafter her

son Mukesh reached there and appellant ran away. It is

further case of the proscutrix that she is Gond by caste which

comes within Scheduled Tribe. The matter was reported and

investigated and after completion of trial, the trial court

convicted and sentenced the appellant as mentioned above.

3. Learned counsel for the appellant submits that the offence is

not committed on the basis of caste and therefore, offence

under Section 3(1)(xi) is not made out. Statement of

Sukhmaniya Bai – prosecutrix (PW-5) are also not reliable in

light of evidence of Rohit Kumar (PW-3), other witnesses are

also not reliable witnesses, therefore, finding of the trial court

is not sustainable.

4. On the other hand, learned State counsel submits that the

finding of the trial court is based on proper marshaling of

evidence and the same is not liable to be interfered with.

5. Prosecutrix – Sukhamaniya Bai (PW-5) deposed that she was

at house at about 1.00 p.m. Her son Mukesh was sleeping in

the house and her husband Pratap Singh was working in

kitchen garden. At the same time, the appellant entered into

her house and caught hold her breast and when she cried, her

husband reached to the house and appellant flee away. She

further deposed that the matter was reported to police as per

Ex. P/7. Version of this witness is supported by version of

Pratap Singh (PW-4) who is husband of the prosecutrix. As

per version of Budhwar Singh (PW-1), Pratap Singh was

beating his wife. He reached in the house of Pratap Singh and

intervene into the matter and asked Pratap Singh not to

assault the prosecutrix.

6. Dr. G.S. Jatra (PW-2) examined the prosecutrix on 11.12.2006

at 10.30 a.m. and noticed following injuries.

(i) Contusion 3×2 cm. over right lower eyelid.

(ii) Contusion 3×2 cm. over right forehead.

(iii) Contusion 2×2 cm. over left forehead.

7. As per version of medical expert, injuries found in the body of

prosecutrix were simple in nature. Sukhmaniya Bai and

Pratap Singh were subjected to searching cross-examination,

but nothing could be elicited in favour of defence. Now, point

for consideration is whether the appellant can be convicted

under Section 3(1)(xi) of the Act, 1989. Though, from evidence

of James Kindo, Tahsildar (PW-6) and the prosecutrix, it is

established that the prosecutrix is Gond by caste within

Schedule Tribe, but further point is whether, the offence is

committed on the basis of caste. Looking to the entire

evidence, it appears that the offence is committed on the

basis of sex not on the basis of caste.

8. It is not the case that the appellant tried to outrage modesty of

the prosecutrix because she is member of Schedule Tribe. As

per law laid down by this Court in the matter of Udai Singh

Vs. State of Chhattisgarh reported in 2011 (3) CGLJ 455, it

is held that when outraging modesty of a woman is not done

as she is member of Schedule Tribe, offence under Section

3(1)(xi) of the Act, 1989 is not established.

9. Though, offence under Section 3(1)(xi) of the Act, 1989 is not

established, but the fact remains as to what offence the

appellant has committed. Looking to the entire evidence, it is

established that the appellant intended to outrage modesty of

the prosecutrix that is why he caught hold her and caught her

breast, which shows his advancement towards outraging

modesty for which he used force intentionally without consent

of the prosecutrix. In order to committing offence which

caused injuries to the prosecutrix in that way, the appellant

used criminal force to outrage modesty of the prosecutrix. Act

of the appellant falls within mischief of Section 354 of IPC for

which the trial court convicted the appellant and this Court has

no reason to substitute contrary finding as to what is recorded

by the trial court. Accordingly, finding of the trial court

regarding commission of offence by the appellant under

Section 354 of IPC and his conviction is hereby affirmed.

10. In the present case, date of offence is 08.12.2006 and at that

point of time, corporal punishment for offence under Section

354 of IPC was not compulsory. Punishment for the said

section is amended on 13th February, 2013 while, the offence

was committed prior to that date.


11. The appellant has suffered jail sentence of 25 days during

trial. Looking to the legal aspect of the matter, jail sentence

awarded to the appellant is reduced to the period already

undergone by him for the offence punishable under Section

354 of IPC. The fine amount shall remain intact. The appellant

is acquitted the charges under Section 3(1)(xi) of the Act,

1989 while his conviction and sentence under Section 354 of

IPC is modified as mentioned above.

12. With these modifications, the appeal is partly allowed.


(Ram Prasanna Sharma)


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