Madhya Pradesh High Court
CRA/2363/2005 of CHHOTU ALIAS OMPRAKASH Vs THE STATE OF MADHYA PRADESH on 29 December 2023
COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI
IN THE HIGH COURT OF MADHYA PRADESHAT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAFON THE 29[th] OF DECEMBER, 2023CRIMINAL APPEAL No. 2363 of 2005
BETWEEN:-
CHHOTU ALIAS OMPRAKASH S/O PACHKODI LODHI,AGED ABOUT 43 YEARS, MATA MOHALLA,CHOURAI,P.S.CHOURAI, DISTT.CHHINDWARA (MADHYAPRADESH)
(BY SHRI MANOJ SINGH-ADVOCATE)
.....APPELLANT
AND
THE STATE OF MADHYA PRADESH THROUGHP.S.CHOURAI,DISTT.CHHINDWARA (MADHYAPRADESH)
(BY SHRI PRASANNAJEET CHATERJEE-PANEL LAWYER )
.....RESPONDENTS
This appeal coming on for hearing. this day, the court passed the following:
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JUDGMENT
By the present appeal filed under Section 374(2) of the Code of CriminalProcedure, the appellant has challenged the judgment of conviction and order ofsentence passed by learned Special Judge, Chhidwara in Special CaseNo.18/2003 on 27.10.2005 whereby the appellant has been convicted underSection 3(1)(XI) of the SC/ST (Prevention of Atrocities Act) 1989 andsentenced to undergo six months R.I. and fine of Rs.500/- and in default, tofurther undergo one month S.I.
2. The learned counsel for the appellant has submitted that the prosecution failed to prove the case beyond reasonable doubt. During the trial,the appellant remained in custody since 15.11.2002 to 22.11.2002. He prayedfor acquittal of the appellant.
3. Per contra, the learned counsel appearing for the respondent/Statesupported the judgment and submitted that the prosecution has duly proved theincident and the learned sessions Court has rightly convicted the appellantsunder Section under Section 3(1)(XI) of the SC/ST (Prevention of AtrocitiesAct) 1989.
4. After considering the arguments of both the parties and after perusal ofrecord, it appears that victim lodged a report against the appellant at P.S.-Chourai, District-Chhindwara on 18.10.2002 registered as Crime No.306/2002under Section 354 of the IPC and under Section 3(1)(XI) of the SC/ST(Prevention of Atrocities Act) 198. After investigation, the charge-sheet wasfiled. The prosecution examined six witnesses. PW1-victim narrated theincident. PW2-Teerath Prasad Sharma and PW3-Bababai supported thestatement of the victim. PW4-P.K.Bose and PW5- N.D. Rathor explainedregarding investigation and PW6- N.G.Gupta proved the provisional CasteCertificate issued to victim by him being the Tahsildar.
5. Learned Special Judge after considering the evidence available onrecord convicted the appellant under Section 3(1)(XI) of the SC/ST (Preventionof Atrocities Act) 1989 and sentenced as stated herein above. However, lookingto the caste certificate which was a provisional Caste Certificated issued for aperiod of six months only and looking to the fact that the incident was nothappened due to the caste of the victim and there is no evidence on record toprove that the appellant was aware of before commission of offence that victimbelongs to Schedule Caste, the offence under Section 3(1)(XI) of SC/ST Act not proved. However, it is duly proved that the appellant has committed offencepunishable under Section 354 of the IPC and by using the criminal force with anintent to outrage the modesty of victim, he committed the offence, therefore, theappellant is acquitted under Section 3(1)(XI) of the SC/ST (Prevention ofAtrocities Act) 1989, however convicted in lesser offence under Section 354 ofthe IPC. The charge was framed under Section 354 of the IPC and trial wasconducted under Section 354 of the IPC also, therefore, in case of acquittalunder Section 3(1)(XI) of the SC/ST (Prevention of Atrocities Act) 1989, it ispermissible to convict the appellant under Section 354 of the IPC as the learnedSpecial Judge also found the offence proved under Section 354 of the IPC butdid not convict separately as the appellant was convicted under Section 3(1)(XI) of the SC/ST (Prevention of Atrocities Act) 1989. Consequently, theappellant is hereby convicted under Section 354 of the IPC.
5. However, looking to the facts that the incident took place in the year2002, the prosecution has not brought any past criminal antecedents of theappellant on record, there was no minimum sentence prescribed under Section354 of the Indian Penal Code at the time of commission of offence and heremained in custody from 15.11.2002 to 22.11.2002, I deem it proper to reducethe jail sentence of the appellant to the extent of the period which he has alreadyundergone and accordingly, the jail sentence is reduced. However, fine isenhanced from Rs.500/- to Rs.5000/-. The appellant shall deposit the enhancedamount within a period of two months from today. The appellant is on bail, hispersonal bond and bail bond be discharged. Accordingly, the appeal is partlyallowed.
5. Record of the trial Court be sent back along with copy of the judgment.
P/-
(VINAY SARAF)JUDGE