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