CRIMINAL APPEAL 1632 of 2001 on 1 March 2024

JUDGMENT

The present appeal has been filed against the judgment of convictiondated 05.09.2001, whereby the present appellant has been convicted foroffences under Sections 354 and 448 of the I.P.C. and Section 3(1)(xi) of theScheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,1989 and sentenced to undergo R.I. for six months with fine Rs.2500/-, R.I. forthree months and R.I. for six months with fine Rs.2500/- respectively, withdefault stipulations.

2. The prosecution story in brief is that incident occurred on 29.10.1998at 6 pm in the evening. The accused - present appellant approached the house of complainant and scolded her two daughters playing outside their home sothat the daughters ran away. Thereafter, he started unappropriately fondling thecomplainant and at that movement some neibour came and called out thehusband of the complainant and upon this the accused ran away.

3. Initially, the appellant was tried under Sections 294, 506-B, 354 and454 of the I.P.C. and under Section 3(1)(xi) of the Scheduled Castes and theScheduled Tribes (Prevention of Atrocities) Act, 1989, but after trial he hasbeen convicted under Sections 354 and 448 of the I.P.C. and under Section3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act, 1989.

4. Upon perusal of deposition of prosecutrix (PW/2), Ramlal (PW/1) andother witnesses finding of the trial Court seems to be well reasoned andimpeccable and I am unable to disturb the findings in appeal.

5. However, the Court has convicted the appellant under Section 3(1)(xi)of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)Act, 1989, whereas no certificate of caste status has filed before the Courtbelow. Only the prosecutrix stated in her Court statements that she is memberof SC/ST community. The Court has believed said statement only on theground that it was not contested by the appellant. However, it is settled in lawthat caste status of the complainant under Atrocities Act has to be provedconclusively. Kindly see : Chalaniya Dheemar vs. State of M.P. [I.L.R.2012 M.P. 189] and Bharat Singh vs. State of M.P. 2006 (4) M.P.L.J.171.

6. In the present case, the prosecution has failed to prove the caste statusof the complainant, hence, the appellant is acquitted for the offence under Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Preventionof Atrocities) Act, 1989. His conviction under Sections 354 and 448 of theI.P.C. is upheld.

7. The sentence needs to be modified looking to the mitigatingcircumstances of the case. The appellant was 37 years of age at the time ofincident and today he must be almost 62 years of age. The appellant was on bailduring investigation and trial and he is on suspension of sentence during thependency of present appeal. There is nothing on record to suggest that he hasmisused the terms of bail during all these years. He has been facing investigationand trial and is also contesting the present appeal since last about 22 years.

8 . Appellant has not remained in jail during trial. However, from therecord of the trial Court, it appears that presently the appellant must be around65 years of age. Accordingly, the sentence is reduced to one day imprisonmentand fine amount enhanced to Rs.7500/-. The appellant shall surrender before thetrial Court and undergo one day imprisonment till rising of the Court.

9. Let the fine amount be paid within three months from today failingwhich sentence originally awarded by the trial Court would come into force andthe appellant will be taken into custody to serve out the remaining jail sentence.

10. Let record of the trial court be sent along with copy of this order forinformation and necessary action. Bail bonds of the appellant be discharged.

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(VIVEK JAIN)JUDGE