CRA/2136/2005 of RINKU @ MAHENDRA SHARMA Vs THE STATE OF MADHYA PRADESH on 29 December 2023

J U D G E M E N T

This appeal is directed against the judgment and order dated 26/9/2005

passed by Special Judge, Mandla in Special Case No. 102/2004, whereby, theappellant has been convicted for the offence under Sections 354, 456 of theIPC and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989 (for short "the Act") and sentenced toundergo R.I. for 6 months, R.I. for 6 months and R.I. for 6 months and fine ofRs. 500/- respectively with default stipulation.

2. The incident relating to house trespass and molestation was reported to thePolice Station Shahpur, Distt. Dindori, where F.I.R. (Ex.P/1) was registered on Crime No.82/2004 under Sections 457, 354 of the IPC and 3(1)(xi) of the Act. After completion of investigation, charge sheet was filed. Learned trial Courtvide impugned judgment, convicted and sentenced the appellant as mentionedherein above.

3. Learned counsel for the appellant challenging the finding of conviction andsentence submits that learned trial Court has ignored serious anomalies,contradictions and omissions present in the testimony of prosecution witnesses.Caste certificate in this case was neither issued by the authorised officer norproperly proved. Hence, prays for acquittal. In the alternative limb of prayer hesubmits that during trial appellant has remained in custody from 1/9/2004 to10/9/2004 and from 11/9/2005 to 26/9/2005 i.e. 24 days. Incident occurred long18 years back. He has no criminal antecedents, therefore, taking lenient view jailsentence may be reduced to the period already undergone.

4. Learned counsel for the State supports the impugned judgment and praysfor 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. For the offence u/s 3(1)(xi) of the Act, it is essential to prove thatprosecutrix belongs to scheduled tribe or scheduled caste community. For this,caste certificate is an important document. From perusal of the record andstatement of Smt. Narbadiya Bai (PW/7), Sarpanch Village Nariya has deposedthat prosecutrix belongs to scheduled tribe community. She has signed thecaste certificate which was prepared by the Secretary. It is not in dispute thatcaste certificate can be issued by Sub Divisional Officer at present. Earlier also,officer not below the rank of Tahsildar was entitled for issuing the certificate. Thus, the present prosecution failed to prove the caste of the prosecutrix by relevant document.

7. In Chalaniya Dheemar versus State of Madhya Pradesh, ILR 2012

MP 189and Pillu Alias Pyarelal versus State of Madhya Pradesh, ILR2012 MP 1309, it has been specifically held by coordinate Bench of this Courtthat 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 of fact 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 and 456 of theIPC is found to be clear, cogent and consistent. The same is free from anymaterial infirmity and anomaly. The testimony of prosecutrix (PW/2) standsduly corroborated 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 19 years back.The appellant faced trial and appeal during this long period of time. No criminalantecedents are attributed to the appellant, therefore, the period of jail sentencedeserves to be reduced to the period already undergone by imposing the fineamount.

11. Accordingly, this appeal is partly allowed. The conviction for each ofthe offence under Sections 354 and 456 of the IPC, fine of Rs.3000/- is imposed on the appellant. The appellant will have to deposit the amount of finewithin a period of two months from the date of judgment passed by this Court,before the concerned trial Court failing which the appellant will have to undergoR.I. for the two months. Since the conviction under Section 3(1)(xi) of the Acthas been set aside, therefore, the fine amount, if any, deposited by the appellantfor this offence, will be refunded back to him by learned trial Court. Theappellant is on bail. 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