when she was going to the handpump for fetching water at about
6.00 AM, appellant Bodhanram came there and caught hold of
her hands and dragged her towards his house. When she was
trying to get herself free, at that time her husband came there
and warned him to leave the hands of his wife then the accused/
appellant assaulted him with a stick and fled away from the spot.
The prosecutrix in her deposition has stated that she knows the
accused very well and the accused belongs to Gond caste but
afterwards she stated that the accused belongs to Lohar caste. It
is pertinent to mention this fact here that the prosecutrix in her
entire deposition before the Court has no where stated that the
Accused/Appellant had committed the offence only because she
belongs to Scheduled Tribe category. She has stated in para 15
of her deposition that there has been a compromise with the
Accused/Appellant and she does not want any action to be taken
against the Accused/Appellant. 11. Dashrath (PW-2) husband of the prosecutrix has also stated that
he belongs to Gond community. He had seen the Appellant
catching hold of the hand of the prosecturix and dragging her.
When he objected to do so the accused/ appellant assaulted him
with a stick. He deposed in his deposition, in para 15 of his
deposition has clearly stated that the quarrel took place between
them was not because of the reason that they belonged to
Scheduled Tribe but it was an ordinary quarrel. He has further
stated that when the prosecturix tried to intervene in the quarrel
between him and the Appellant/Accused, the Appellant/Accused
did not caught hold the hand of prosecutrix with any malafide
intention but only said that being a woman, why she was
intervening in a fight between two males.
12. Jhingobai (PW-3) has stated in her statement that the accused/
appellant caught hold the hands of the prosecutrix and dragged
her. However, Tulsai (PW-7) and Shiv prasad (PW-8) have not
supported the case of the prosecution.
14. The prosecution did not produce any caste certificate of the
complainant/prosecutrix. The prosecution has also not proved
that the appellant was aware of the fact that the complainant
belongs to scheduled tribe community. The evidence of the
complainant is full of contradictions and not supported by
independent witnesses.
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1295 of 1998
Dated: 07 .10.2016
Bodhi Ram
V
State of Madhya Pradesh
(Delivered on 7th October, 2016)
Citation: 2017 CRLJ 143 Chhatis
1. Challenge in this appeal is to the judgment of conviction and
order of sentence dated 19.05.1998 passed by the Special
Judge under the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (for short 'the Act, 1989'),
Ambikapur District Sarguja in Special Criminal case No. 34 of 1997
whereby learned Special Judge after holding the appellant guilty
for commission of offence punishable under Sections 3 (1) (xi) of
the Act, 1989, sentenced him to undergo rigorous imprisonment
for 1 year and fine of Rs. 1,000/-. In default of payment of fine,
the Appellant was required to undergo simple imprisonment for 3
months. 2. Conviction is impugned on the ground that without there being
an iota of evidence the learned trial Court has convicted and
sentenced the appellant as aforementioned and thereby
committed an illegality.
3. Case of the prosecution, in brief, is that the Prosecutrix
Khilmatbai (PW-1) is Gond by caste and belongs to Scheduled
Tribe Community. She was living with her husband. On
23.03.1997, at about 6.00 am, when the prosecutrix was going to
fetch water from handpump, at that time, the accused/appellant
came there, caught her hands and dragged her towards his
house with an intention to outrage her modesty. When she was
trying to get herself free from the Accused/Appellant, her
husband came there. Thereafter, the appellant assaulted him
with a stick and flew away from the spot. The entire incident was
seen by Tulsai (PW/7), Dular Sai and Jhingo Bai (PW/3). The
prosecutrix reported about the incident at Police Station vide
Ex.P-3 against the appellant where a crime under Sections 354
and 323 of the IPC and Section 3(1)(xi) of the Act, 1989 was
registered.
4. After completion of the investigation, charge sheet was filed
against the appellant in the Court of Special Judge under the
Act, 1989, who conducted the trial and convicted and sentenced
the appellant as mentioned above.
5. Mr. Rishi Mahobia, learned counsel for the appellant submits
that the appellant has been falsely implicated in the crime inquestion due to previous enmity with the husband of the
prosecutrix. He further submits that there is no evidence on
record to show that the Prosecutrix-Khilmatbai (PW-1) belongs to
Scheduled Tribe community. There is absolutely no evidence on
record to show that the alleged act was done by the appellant
simply because the Prosecutrix-Khilmatbai (PW-1) belongs to
Scheduled Tribe community. He further submits that during the
pendency of the criminal case, the complainant and her husband
moved an application for compounding the case against the
appellant on which learned trial Judge had passed an order for
compounding the case against the appellant had passed an
order for compounding the offence u/s 323 and 354 IPC but had
not permitted to compound the case under section 3(1)(xi) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act. He further argued that the appellant has been
falsely implicated in the case, therefore, the appellant deserves
to be acquitted.
6. Ms. Shobha Kashyap, Dy. Govt. Advocate for the
State/respondent, supporting the impugned judgment submitted
that the conviction and sentence awarded by learned Special
Judge does not warrant any interference by this Court.
7. I have heard learned counsel for the parties at length and have
also perused the record of special criminal case No. 34/1997.
8. The charge sheet was filed against the appellant under Section
3 (i) (xi) of the Act, 1989. Learned Special Judge convicted theappellant under Section 3 (i) (xi) of Act, 1989 and sentenced as
aforementioned.
9. To hold the appellant guilty, the prosecution examined
Khilmatbai (PW-1), Dashrath (PW-2), Jhingobai (PW-3), SDOP
Telasfar Ekka (PW-4), DSP H.N. Shukla, (PW-5), Head
constable-Jigma Ram Bhagat (PW-6), Tulsai (PW-7). Shiv
Prasad (PW-8). The appellant did not examine any witness in his
defence.
10. Prosecutrix-Khilmatbai (PW-1) deposed in her statement that
when she was going to the handpump for fetching water at about
6.00 AM, appellant Bodhanram came there and caught hold of
her hands and dragged her towards his house. When she was
trying to get herself free, at that time her husband came there
and warned him to leave the hands of his wife then the accused/
appellant assaulted him with a stick and fled away from the spot.
The prosecutrix in her deposition has stated that she knows the
accused very well and the accused belongs to Gond caste but
afterwards she stated that the accused belongs to Lohar caste. It
is pertinent to mention this fact here that the prosecutrix in her
entire deposition before the Court has no where stated that the
Accused/Appellant had committed the offence only because she
belongs to Scheduled Tribe category. She has stated in para 15
of her deposition that there has been a compromise with the
Accused/Appellant and she does not want any action to be taken
against the Accused/Appellant. 11. Dashrath (PW-2) husband of the prosecutrix has also stated that
he belongs to Gond community. He had seen the Appellant
catching hold of the hand of the prosecturix and dragging her.
When he objected to do so the accused/ appellant assaulted him
with a stick. He deposed in his deposition, in para 15 of his
deposition has clearly stated that the quarrel took place between
them was not because of the reason that they belonged to
Scheduled Tribe but it was an ordinary quarrel. He has further
stated that when the prosecturix tried to intervene in the quarrel
between him and the Appellant/Accused, the Appellant/Accused
did not caught hold the hand of prosecutrix with any malafide
intention but only said that being a woman, why she was
intervening in a fight between two males.
12. Jhingobai (PW-3) has stated in her statement that the accused/
appellant caught hold the hands of the prosecutrix and dragged
her. However, Tulsai (PW-7) and Shiv prasad (PW-8) have not
supported the case of the prosecution.
14. The prosecution did not produce any caste certificate of the
complainant/prosecutrix. The prosecution has also not proved
that the appellant was aware of the fact that the complainant
belongs to scheduled tribe community. The evidence of the
complainant is full of contradictions and not supported by
independent witnesses.
15. In the instant case, there is no evidence on record to show that
the alleged act was done by the appellant only for the reasonthat the prosecutrix Khilmatbai (PW-1) belongs to Scheduled
Tribe Community. Even in her statement, the prosecutrix
Khilmatbai (PW-1) has not made any such allegations against
the appellant.
16. In view of the above facts and circumstances, the appellant
cannot be convicted and sentenced for an offence punishable
under Section 3(1)(xi) of the Act, 1989.
14. So far conviction under Section 3(1)(xi) of the Act, 1989 is
concerned, the prosecution has utterly failed to prove
commission of any offence under Sections 3(1)(xi) of the Act,
1989. Therefore, the appellant is entitled to be acquitted for the
offence punishable under Section 3(1)(xi) of the Act, 1989.
15. Accordingly, the present criminal appeal is allowed. The
impugned judgment dated 19.05.1998 is hereby set aside and
the appellant is acquitted of the charges levelled against him
under section 3 (1) (xi) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989. The
appellant is on bail. His bail bonds are not discharged at this
stage and shall remain operative for a period of six months from
today in terms of Section 437-A of Cr.P.C
Sd/-
(Anil Kumar Shukla)
Judge
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