HIGH COURT OF CHHATTISGARH, BILASPUR
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.)
State of Chhattisgarh, through District Magistrate, Korba, District-
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)