CRA/1850/2001 of SALAMOO ALIAS SALAMDDIN Vs THE STATE OF M.P. on 29 December 2023

JUDGMENT

This Criminal Appeal under Section 374(2) of the Code of CriminalProcedure, 1973 has been preferred by the appellant/accused against theimpugned judgment of conviction and order of sentence dated 19.10.2001passed by Special Judge (SC/ST) Hoshangabad in Session Trial No.265/2000whereby the learned trial Judge has convicted appellant for commission ofoffence under Section 323 of IPC and sentenced with fine of Rs.100/- withdefault stipulation and under Section 3(1)(xi) of Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced him toundergo R.I. for six months and fine of Rs.100/- with default stipulation.

2. The case of prosecution in brief is that on 20.05.2000 at about 1:30 in theafternoon, when the prosecutrix was sleeping in a hut of her daughter, at thattime, the appellant is stated to have approached there and closed the door of thehut. He caught hold hands of the prosecutrix and started pressing herinappropriately. When the prosecutrix called out, the persons fromneighbourhood came there, then the appellant fled away. The trial court hasacquitted the appellant for the offence under Section 454 of the Indian PenalCode, but convicted him under Section 3(1)(xi) of Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 323of the Indian Penal Code.

3. Looking to the evidence on record and the statements of the prosecutrix(PW/1), Samotibai (PW/2) and Kishan (PW/3) and other witnesses, this court issatisfied that the prosecution has been able to prove the guilt of the appellantbeyond reasonable doubt. There is nothing in the cross-examination, which maydemolish the case of the prosecution. Though Joharbai (PW/8) has notproperly supported the version of the prosecution, but looking to the totality ofthe evidence on record, the findings of the trial court seems to be well reasonedand unimpeachable.

4. However, the trial court has convicted the appellant under Section 3(1)(xi)of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989. No caste certificate has been exhibited by the prosecution before the trialcourt. Only plain statement of the prosecutrix made orally before the trial courtthat she is a member of Gond community, has been believed by the trial court.It is settled in law that for the offences under the Atrocities Act, the prosecutionis under obligation to conclusively prove the caste status of the complainant. Inthe present case, the prosecution has failed to prove the caste status of the complainant. Thus, the conviction of the appellant under section 3(1)(xi) ofScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989cannot be sustained in view of the judgments passed in the case of ChalaniyaDheemar vs. State of Madhya Pradesh reported in 2012 ILR MP 189 andin the case of Bharat Singh vs. State of M.P. reported in 2006(4) MPLJ171 and it is held that caste status of prosecutrix is not proved beyond doubt.Hence, the appellant is acquitted from the offence under Section 3(1)(xi) ofScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989but his conviction is converted to Section 354 of the Indian Penal Code whichcorresponds to Section 3(1)(xi) of Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989.

5. However, there are certain mitigating circumstances that deserve to be takenin consideration so far as the sentence part is concerned. The instant case is ofthe year 2000 and the appellant has suffered investigation, trial and appellatestage since last about 23 years. He has already undergone jail sentence of 05days during trial. The long pendency of trial and appeal in the present case ismitigating circumstance to commute the sentence that he has already undergone.The appellant has remained on bail during trial and during pendency of thepresent appeal. There is nothing on record to suggest that he has misused theterms of bail.

6. Considering the aforesaid mitigating circumstances, this Court deems it fit toreduce the sentence of the appellant to the period already undergone by him(five days) and to enhance the fine amount from 100/- to Rs.5,000/-.

7. Accordingly, this appeal is partly allowed. The appellant/accused issentenced under Section 354 of the Indian Penal Code to undergo imprisonment for the period he has already undergone (five days), subject todepositing the further fine amount of Rs.5,000/- within a period of three monthsfrom today.

8. However, it is clarified that if fine amount as quantified by this Court is not deposited within a period of three months from today, then the original sentencewould come into operation and appellant shall be taken into custody or hewould surrender himself to serve the entire jail sentence of six months asawarded by the learned trial Court with default stipulation.

9. Learned trial Court is directed to ensure the aforesaid compliance.

10. The bail bonds of the appellant/accused, if any, are discharged.

11. Registry is directed to immediately send back the trial Court record alongwith copy of this judgment to the trial Court concerned for information andnecessary compliance.

12. With the aforesaid modification, this appeal is partly allowed and disposed off.

sj

(VIVEK JAIN)JUDGE