AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 131 of 2002

Panchuram, aged about 25 years, son of Shri Gokul Nishad
(Kenwat), Agricultural Labour, R/o Village Bhothali, Police
Station Tahsil – Dongargarh, District Rajnandgaon, CG

—- Appellant

Versus

State of Chhattisgarh —- Respondent

For Appellant. – Shri PKC Tiwari Sr. counsel with Shri
Ashutosh Trivedi, Advocate.

For Respondent. – Shri Anil Pillai, Dy. AG

Hon’ble Shri Justice Pritinker Diwaker

Judgment on Board

17/01/2018

This appeal is directed against the judgment and order dated

09.01.2002 passed by Special Judge (Atrocities), Rajnandgaon in

Special Case No. 22/2001 convicting the accused/appellant under

Sections 294, 323 and 354 IPC as well as sections 3 (1) (x) and 3

(1) (xi) of the Scheduled Caste Scheduled Tribe (Prevention of

Atrocities) Act (for short the “Special Act”) and sentencing him to

undergo RI for on month each u/s 294 and 323, RI for six months

u/s 354 IPC and RI for six months with fine of Rs. 1000/- under the

special Act, plus default stipulations.

2. As per the case of prosecution, on 03.10.1998 FIR (Ex.P-1)

was lodged by prosecutrix (PW-2) aged about 23 years alleging

that on that day at about 2 PM near a banyan tree the

accused/appellant was abusing one Nandu Agrawal and when she
asked as to why he was un-necessary hurling abuses, he started

abusing her filthily and called her “Mahrin – Chamrin”. He is also

alleged to have beaten her with hands and fists and also thrown

her on the ground saying that he would outrage her modesty as

she was un-necessarily interfering in the matter. On account of

beating the prosecutrix is stated to have suffered injuries on her

right hand and back. FIR further says that when Kaushaliya Bai

(PW-6) intervened in the matter, accused/appellant threw her also

on the ground. Prosecutrix has further alleged that had the people

not come for her safety, accused/appellant might have outraged

her modesty. Based on this FIR, offence under Sections 294, 323,

354 IPC and 3 (1) (x) and 3 (1) (xi) of the Special Act was

registered against the accused/appellant. After completion of

investigation, charge sheet was filed by the police followed by

framing of charge by the Court below for the offences mentioned in

FIR (Ex. P-1).

3. So as to hold the accused/appellant guilty, prosecution has

examined 07 witnesses in support of its case. Statement of the

accused/appellant was also recorded under Section 313 of the

Code of Criminal Procedure in which he denied the charge levelled

against him and pleaded his innocence and false implication in the

case. Two witnesses have also been examined by the defence in

support of its case.

4. After hearing the parties, the trial Court has convicted and

sentenced the accused/appellant as mentioned above in paragraph

No.1 of this judgment.

5. Counsel for the accused/appellant submits as under:

(i) That the accused/appellant has been falsely implicated in the

case and no such incident as alleged has ever taken place.

(ii) That the independent witnesses have not supported the case

of the prosecution.

(iii) That after consuming liquor when the accused/appellant was

riding his bicycle, all of a sudden he fell on the prosecutrix and that

he never caught hold of her blouse as alleged.

(iv) That no offence under Section 323 IPC is made out as the

prosecution has failed to prove any injury on the prosecutrix.

Likewise, the ingredients of the offence under Section 354 IPC are

also not attracted to the case in hand.

(v) That in relation to the offences punishable under the Special

Act it is argued that as the prosecution has failed to file and prove

the caste certificate of the prosecutrix which is a sine qua non to

hold one guilty under the Special Act, his conviction thereunder is

not sustainable in the eye of law.

(vi) That the prosecution has not even put any question to the

accused/appellant at the time of recording of his statement under

Section 313 of the Code of Criminal procedure regarding the caste

of the prosecutrix.

(vii) That in case the Court comes to the conclusion that apart

from Special Act the accused/appellant is to be convicted under

some sections of IPC, his sentence may be reduced to the period

already undergone which comes to two days keeping in view the

fact that the incident took place in the year 1998 i.e. 20 years
back and also by imposing some reasonable fine looking to his

poor financial condition.

6. On the other hand, counsel for the respondent/State supports

the judgment impugned and submits that the findings recorded by

the Court below convicting the accused/appellant as shown above,

are strictly in accordance with law and there is no infirmity in the

same. He however admits that caste of the prosecutrix has not

been proved by the prosecution by filing documents to that effect

or by putting relevant question to the accused/appellant at the

time of recording his statement under Section 313 of the Code of

Criminal Procedure as to her caste.

7. Heard counsel for the parties and perused the evidence on

record.

8. Prosecutrix (PW-2) has stated that on the date of incident

at about 2 PM when the accused/appellant was beating one

Panchu, she did not say anything to him directly but just made an

utterance as to why he was beating. On this, the accused came to

her and slapped by calling her Mahrin – Chamrin. According to this

witness, accused/appellant tore off her blouse and threatened of

outraging her modesty. Apart from Kaushaliya Bai (PW-6) who

rescued her, 4-5 other persons were also there whereas her

husband reached after a while. According to this witness, when PW-

6 tried to intervene, accused/appellant beat her also. On being

confronted with the FIR, number of contradictions and omissions

come to the fore in the FIR and her court statement. In the FIR she

has stated that on seeing the accused abusing Nandu she asked
him as to why he was doing like that, whereas in the Court

statement she has stated that the accused was beating Nandu and

she was just talking to someone else and not to him as to how he

was beating. In the Court statement she has stated that when the

accused was quarreling with Nandu, he (accused) was under the

influence of liquor and had come to beat her after alighting form

the bicycle of one Manthir, whereas just after that, she has stated

that on account of being inebriated the accused/appellant had

fallen down from the bicycle of Mathir. Thus looking to the

variations at different stages in the version of the prosecutrix, she

does not appear to be a reliable witness. Bholarm (PW-1) – the

husband of the prosecutrix has stated that at the time of incident

he was sleeping in his house and that first he was informed of the

same by PW-6 and then by his wife as well. He is stated to have

seen the blouse of his wife torn and the bangles broken. According

to him, on being contacted when the accused/appellant did not

show any remorse to his act, the report was lodged. Nand Kishore

(PW-3) – the witness with whom the accused/appellant was

quarreling near the banyan tree, has stated that while being

beaten by the accused, PW-2 stood by him and for that she was

also beaten by the accused and her sari was uplifted also. Meghu

alias Meghnath Sahu (PW-4) and Sukwaro Bai (PW-5) have not

supported the case of the prosecution and have been declared

hostile. Kaushaliya Bai (PW-6) has stated that when the prosecutrix

tried to intervene in the quarrel between the accused/appellant

and Nandu, he (accused) beat her. Thereafter, when this witness

tried to save the prosecutrix, accused/appellant beat her also. She
however has not stated that the accused/appellant abused the

prosecutrix in the name of caste. Kishanlal (PW-7) has stated that

when he reached the spot, accused/appellant was seen holding the

hair of the prosecutrix and abusing her filthily.

9. This Court has scrutinized the entire material available on

record including the evidence of the witnesses. Prosecution has

not been able to prove that the accused/appellant did anything to

the prosecutrix with an intention to humiliate her knowing her to

be a member of scheduled tribe community. It has further not been

able to prove the caste of the prosecutrix by filing the requisite

certificate to the effect that she belongs to scheduled caste or

scheduled tribe community, which is a sine qua non to hold one

guilty under the provisions of Special Act. More importantly, not

even a single question has been put to the accused/appellant while

recording his statement recorded u/s 313 of the Code of Criminal

Procedure about the caste of the prosecutrix. That apart, there

appears to be no personal feud between the accused and the

prosecutrix and the so-called incident took place when the

prosecutrix intervened in the already going-on verbal attack

between the accused and one Nandu. Thus taking into account all

these lacunae on the part of the prosecution, the question of

accused intentionally insulting, intimidating, humiliating or

outraging the modesty of the prosecutrix knowing her to be a

member belonging to scheduled caste or scheduled tribe

community does not arise. Thus having viewed the matter in legal

and factual perspective, this Court is of the opinion that the basic

ingredients of the special Act have not been established by the
prosecution. Obviously, the Court below went wrong in holding the

accused/appellant guilty under the Special Act and being so finding

to that effect is liable to be set aside.

10. As far as conviction of the accused/appellant under Section

323 IPC is concerned, since the prosecution has utterly failed to

prove by filing the medical report that the accused/appellant

voluntarily caused any hurt to the prosecutrix, it is not

maintainable in the eye of law and liable to be set aside. However,

as regards conviction u/s 294 and 354, looking to the evidence to

the effect that the accused/appellant hurled abuses and also used

criminal force on the prosecutrix to some extent amounting to

outrage of her modesty, the Court appears to be justified in holding

him guilty under these two sections and being so it deserves

affirmation.

11. In sum and substance, conviction of the accused under

Sections 3 (1) (x) and 3 (1) (xi) of the Special Act and 323 IPC is

set-aside and he is acquitted of these charges. However, the

conviction under Sections 294 and 354 IPC is hereby maintained.

12. As regards sentence, the record shows that the

accused/appellant has already remained in jail for two days, that

the incident being of 1998 is quite old, that by now the

accused/appellant must be in his middle age and therefore keeping

in mind the peculiar facts and circumstances involved in the case,

this Court is of the considered opinion that no useful purpose would

be served in again sending him to jail and the ends of justice would

be met if the sentence imposed on him is reduced to the period
already undergone by imposing some fine amount on the accused

payable to the prosecutrix as compensation as provided under

Section 357 of the Code of Criminal Procedure. Sentence is

accordingly reduced to the period already undergone directing the

accused to deposit Rs. 5,000/- in the Court below within a period of

six months payable to the prosecutrix as compensation. Failure in

doing so would make the accused remain in jail for two more

months.

13. Appeal is thus allowed in part.

Sd/-

(Pritinker Diwaker)
Judge
Jyotishi