Madhya Pradesh High Court
CRA/1820/2003 of NANDU BABA Vs THE STATE OF M.P. on 29 December 2023
COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE
1
IN THE HIGH COURT OF MADHYA PRADESHAT JABALPURBEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDION THE 29[th] OF DECEMBER, 2023CRIMINAL APPEAL No. 1820 of 2003
BETWEEN:-
NANDU BABA @ NANDKISHORE, SON OF DHANIRAMKOSTHA, AGED ABOUT 39 YEARS, OCCUPATIONRETAILER OF CLOTH, R/O KOSTHA MAUHALLA,SHAHEED UDAY CHAND WARD, P.S. TAHSIL & DISTT.MANDLA (MADHYA PRADESH)
(BY SHRI NITESH KUMAR DIWAN - ADVOCATE)
.....APPELLANT
AND
THE STATE OF M.P. (MADHYA PRADESH)
(BY MS. SHAKTI TRIPATHI - PANEL LAWYER)
.....RESPONDENT/STATE
This appeal coming on for hearing this day, th e court passed thefollowing:
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J U D G E M E N T
This appeal is directed against the judgment and order dated 30/10/2003passed by Special Judge (under the SC/ST Act), Mandla in Special Case No.102/2004, whereby, the appellant has been convicted for the offence underSection 354 of the IPC and Section 3(1)(xi) of the Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "the Act") andsentenced to undergo R.I. for 6 months and fine of Rs.1000/- and R.I. for 6months and fine of Rs. 1000/- respectively with default stipulation.
2. The incident relating to offence of house trespass and molestation wasreported to the Police Station Mandla, Distt. Mandla, where F.I.R. (Ex.P/1) was registered on Crime No.510/2002 under Sections 452 and 354 of the IPC and3(1)(xi) of the Act. After completion of investigation, charge sheet was filed.Learned trial Court vide impugned judgment, convicted and sentenced theappellant as mentioned herein above.
3. Learned counsel for the appellant challenging the finding of conviction andsentence submits that the caste certificate issued by the authorised officer hasnot been produced by the prosecution in the case. In absence of proof of casteof the certification conviction under Section 3(1)(xi) of the Act is bad in lawand appellant deserves acquittal from the above charges. He further submits thatlearned trial Court has ignored serious anomalies, contradictions and omissionspresent in the testimony of prosecution witnesses, therefore, prays for acquittalfrom other charges also. In the alternative limb of prayer he submits that duringtrial appellant has remained in custody for one day. Incident took place in teyear 2002 near about 21 years back. He has no criminal antecedents, therefore,taking lenient view jail sentence may be 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 the perusal of the record it is apparent that caste certificate (Ex.P/3)produced in this case is issued by Sarpanch, who was at no time authorised toissue this certificate. Caste certificate has not been proved by the Sarpanch.
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 Court that if caste of victim is not proved by cogent and reliable document issued bythe competent authority, then mere oral deposition of witness would not besufficient to prove the caste certificate.
8. In such circumstances, when the caste of the prosecutrix has not beenproved it cannot be said that the offence under Section 3(1)(xi) of the Act hasbeen proved by the prosecution. Thus, learned trial committed serious error offact and law in recording the conviction of appellant under Section 3(1)(xi) ofthe Act which is hereby set aside. The appellant is acquitted of the abovecharges.
9. The evidence adduced in support of the offence u/s. 354 of the IPC isfound to be clear, cogent and consistent. The same is free from any materialinfirmity and anomaly. The testimony of prosecutrix (PW/2) stands dulycorroborated with first information report (Ex.P/1) lodged by her, 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. The incident took place more than 21 years back.The appellant faced trial and appeal during this long period of time. Theappellant has remained in custody for 1 day i.e. from 10/11/2002 to11/11/2002. No criminal antecedents are attributed to the appellant, therefore,the period of jail sentence deserves to be reduced to the period alreadyundergone by enhancing the fine amount for the offence under Section 354 ofthe IPC.
11. Accordingly, this appeal is partly allowed. The fine amount is enhancedfrom Rs.1000/- to Rs.3000/- for the offence under Section 354 of the IPC. Theappellant will have to deposit the enhanced amount of fine within a period oftwo months from the date of judgment passed by this Court, before the concerned trial Court failing which the appellant will have to undergo R.I. forone month. Since he has been acquitted for the offence under Section 3(1)(xi)of the Act, therefore, the fine amount, if any, deposited by the appellant for thisoffence, will be refunded back to him by learned trial Court. The appellant is onbail. His bail bond and personal bond stand discharged.
12. Let record of the learned trial Court along with the copy of the judgmentof this Court forthwith be sent back for compliance and necessary action.
13. C.C. as per rules.
m/-
(BINOD KUMAR DWIVEDI)JUDGE