RAM KISHAN DHIMAR Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) In the case in hand initially the report was made by the prosecutrix (PW-1) to the effect that on 04.10.2003 in the night hours when her father had gone to participate in some ritual being observed on the occasion of Durga festival and at that time she was in the house with her younger sister, who at the relevant time had fallen asleep. The allegation made by the prosecutrix in the FIR so lodged Ex.P-8 is that in the absence of her father the accused/appellant came to her house and in-spite of resistance being made, he committed forcible sexual intercourse with her. It is alleged that after returning home, her father PW-2 caught the two in compromising position and then written report Ex.P-1 was made on the basis of which FIR (Ex.P-8) came to be registered for the offences under Section 363, 366 and 376 IPC and Section 3 (1) (xii) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short the "?Special Act "?). After investigation challan was filed under the same sections followed by framing of charge accordingly.

(2.) Learned Court below vide its judgment dated 28.06.2004 passed in Special Case No.07/2004 acquitted the accused/appellant under Sections 363, 366 and 376 IPC but convicted him under Section 3 (1) (xii) of the Special Act and sentenced to undergo RI for 262 days and pay fine of Rs.500, plus default stipulation. Hence this appeal.

(3.) Learned counsel for the accused/appellant submits that the material available on record including the statement of the prosecutrix is lucid to the effect that the prosecutrix was a consenting party to the act of the accused/appellant, and for that reason only learned Court below has acquitted the accused of the charges under Sections 363, 366 and 376 IPC. He submits that ofcourse the accused/appellant may have known the caste of the prosecutrix yet none of the witnesses has stated that he physically exploited her only for her belonging to the Scheduled Caste category. He further submits that since the conviction under the Special Act arose out of the incident under Sections 363, 366 and 376 for which the accused/appellant had got the clean chit, being based on the same set of evidence he should have been given the same treatment under the Special Act too. According to the counsel for the accused/appellant, there was a pre-existing affair between the accused and the prosecutrix and had her father not caught both red handed in compromising position probably the report would not have been lodged and the affair must have lasted long between the two unreported.