CRA/2461/2006 of NITTU @ NETRAM KURMI Vs THE STATE OF MADHYA PRADESH 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 06.12.2006passed by Special Judge (Atrocities) in Special Trial No.44/2006, whereby thelearned trial Judge has convicted the appellant for commission of offence underSection 354 of IPC and 3(1)(xi) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989 (hereinafter referred to as Act, 1989) andunder Section 3(1)(x) of the Act, 1989, sentenced him to undergo rigorous imprisonment for six months and fine of Rs.500/- and rigorous imprisonmentfor six months and fine of Rs.500/- respectively.

2. The case of prosecution in brief is that the incident occurred on27.01.2006 at around 06.30 p.m. in the evening. One puppy of dog had enteredthe house of prosecutrix and she was trying to chase away the said puppy andcame out of her house. The accused is stated to have caught hold of her handand stated that he would visit her in the night. The prosecutrix raised alarm, thenthe appellant called her with caste slur and pulled her in his arms. Theprosecutrix got herself freed and then neighbourhood persons came.

3. The present appellant was charge-sheeted for commission of offenceunder Section under Section 354 of IPC and 3(1)(x) and 3(1)(xi) of theScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989(hereinafter referred to as Act, 1989). Charges were framed against theappellant/accused. Accused/appellant denied the charges and claimed to betried.

4. As per the evidence and the material adduced on behalf of theprosecution, the Trial Court found the offence to be proved for offences asmentioned in para-1 above.

5. This Court has gone through the entire evidence adduced on behalf ofthe prosecution. The prosecution has examined PW-1 complainant. This Courthas carefully gone through the evidence of the material witnesses and eye-witnesses. The incident has been duly proved. Though PW-3 Munni Bai andPW-2 Ratan have not supported the prosecution version but looking tostatement of PW-1 complainant, the incident is duly proved.

6. After having perused the evidence adduced by the prosecution, it isfound that the findings recorded by the Trial Court upholding the guilt of the accused-appellant are impeccable and the prosecution has succeeded in provingthe case against the accused-appellant. There is nothing in cross examination ofthe witnesses that may demolish the prosecution case. Thus, there is nothing inthe said findings of the trial court that can be said to be erroneous or perverse,warranting interference by this Court in Appellate jurisdiction.

7. Thus, the conviction of the appellant as ordered by the trial court ishereby upheld under Section 354 IPC.

8. However, it seems that the prosecution has failed to prove the castestatus of the complainant conclusively. Alongwith challan one Caste Certificateissued on plain paper without bearing any date or number has been filed. ThisCertificate is said to be issued by Sarpanch of Gram Panchayat who is notcompetent authority to issue Caste Certificate. Even, the Sarpanch was notproduced in witness box to prove this caste certificate. It is settled law thatcaste status of complainant has to be proved by the prosecution beyond doubtand in conclusive manner. Even admission of the accused under Section 3(1)(iii) of the Act, 1989 does not relieve the prosecution from its obligation.

9. Kindly see the judgment in the case of Chalaniya Dheemar Vs. State ofM.P. [I.L.R. 2012 M.P. 189] and Bharat Singh Vs. State of M.P. [2006 (4)MPLJ 171]. Thus, the Appellant is acquitted of offence under 3(1)(x) and 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act, 1989.

10. However, there are certain mitigating circumstances that deserve to betaken in consideration so far as the sentence part is concerned. Theappellant/accused is first offender and the incident took place in the year 2006and accused/appellant has faced trial and this appeal is pending since 2006, the accused/appellant has been under trial or appearing before the Court ascondition to suspension of sentence since long. Nothing has come on recordregarding misuse of conditions of bail/suspension of sentence during the longperiod since the prosecution, trial and appeal are pending. Thus, this Courtdeems it fit to reduce the sentence of the appellant to the period alreadyundergone by him (two days) and to enhance the fine amount from Rs.500/- toRs.7,500/-.

11. Consequently, this appeal is partly allowed. The impugned convictionis maintained. However, the appellant/accused is sentenced to undergoimprisonment for the period he has already undergone (two days), subject todepositing the further fine amount of Rs.7,500/- within a period of three monthsfrom today.

12. However, it is clarified that if fine amount as quantified by this Courtis not deposited within a period of three months from today, then the originalsentence would come into operation and appellant shall be taken into custodyor he would surrender himself to serve the entire jail sentence of one year asawarded by the learned trial Court with default stipulations.

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

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

15. Registry is directed to immediately send back the trial Court record alongwith copy of this judgment to the trial Court concerned for informationand necessary compliance.

16. With the aforesaid modification, this appeal is partly allowed anddisposed of.

(VIVEK JAIN)JUDGE