CRIMINAL APPEAL 19/1998 on 26 April 1999

JUDGMENT

This appeal is directed aged the judgment and order dated 26.04.1999

passed by Special Judge SC/ST (Prevention of Atrocities) Act, Mandla, inSpecial Case No. 19/1998 whereby, the appellant has been convicted for theoffence under Section 354 of IPC and has been sentenced to undergo RI for 3months and Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act, 1989 (forshort "Act") and has been sentenced to undergo R.I. for 6 months and fine ofRs. 500/- with default stipulation.

2. The incident relating to molestation of the prosecutrix was reported to thePolice Station Maharajpur, District Mandla where FIR (Ex.P/2) was registered on Crime No. 199/97 under Sections 354 of IPC and Section 3(1)(x) of SC/ST(Prevention of Atrocities) Act. After completion of investigation, charge sheetwas filed. Learned trial Court vide impugned judgment, convicted andsentenced the appellant as mentioned herein above.

3. Learned counsel for the appellant challenging the finding of conviction andsentence submits that no caste certificate has been produced to prove the casteof prosecutrix Shyamkali (PW-1) by the prosecution. There are seriousanomalies, contradictions and omissions present in the testimony ofprosecution witnesses and prays for acquittal. In the alternative limb of prayerhe submits that the incident took place in the year 1997 i.e. near about 26 yearsback. No criminal antecedents are attributed to the appellant, therefore, takinglenient view jail sentence may be suitably reduced to the period alreadyundergone.

4. Learned counsel for the State supports the impugned judgment and praysfor dismissal of this appeal stating that it is devoid of merits.for dismissal of this appeal stating that it is devoid of merits.

5. Heard the learned counsel for the parties at length and perused the record.

6. From perusal of the statement of the prosecutrix Shyamkali (PW-1), it isapparent that even though she has mentioned her belonging to Pradhan castebut nothing is on record to prove that Pradhan belongs to scheduled caste orscheduled tribe. No caste certificate has been brought on record.

7. In Chalaniya Dheemar versus State of Madhya Pradesh, ILR 2012MP 189 and Pillu Alias Pyarelal versus State of Madhya Pradesh, ILR2012 MP 1309, it has been specifically held by coordinate Bench of this Courtthat if caste of victim is not proved by cogent and reliable document issued bythe competent authority, then mere oral deposition of witness would not be sufficient to prove the caste certificate.

8. In such circumstances, when the caste of the prosecutrix is not provedwhich is mandatory for proving offences under the Act, which vitiates theconviction recorded under Section 3(1)(xi) of the Act and therefore, it is setaside and appellant is acquitted of the above charges.

9. The evidence adduced in support of the allegation with regard to offenceu/s. 354 of IPC is found to be clear, cogent and consistent. The same is freefrom any material infirmity and anomaly. The testimony of prosecutrixShyamkali (PW-1) stands duly corroborated with the FIR (Ex. P/2) therefore,finding of conviction cannot be interfered and is hereby affirmed.

10. As regards the sentence, the prayer made on behalf of the appellantappears to be reasonable. Incident took place for more than 26 years back.Appellant faced trial and appeal during the long period of time. No criminalantecedents are attributed to the appellant, therefore, the period of jail sentenceis set aside by enhancing the fine amount for the offence under Section 354 ofthe IPC.

11. Accordingly, this appeal is partly allowed. The fine of Rs.2000/- isimposed for the offence under Section 354 of the IPC. The appellant will haveto deposit this amount of fine within a period of two months from the date ofjudgment passed by this Court, before the concerned trial Court failing whichthe appellant will have to undergo R.I. for one month. Since he has beenacquitted for the offence under Section 3(1)(xi) of the Act, therefore, the fineamount, if any, deposited by the appellant for this offence, will be refundedback to him by learned trial Court. The appellant is on bail. His bail bond andpersonal bond stand discharged.

12. Let record of the learned trial Court along with the copy of the judgment of this Court forthwith be sent back for compliance and necessary action.

13. C.C. as per rules.

Digitally signed by L.R.LALIT SINGH RANA Date: 2023.12.29 16:29:06 +05'30'

(BINOD KUMAR DWIVEDI)JUDGE