DHANAPAL Vs. STATE

JUDGEMENT

(1.) THIS appeal has been directed against the Judgment in S.C.No.29 of 2001 on the file of District and Sessions Judge,Uthagamandalam, Nilgiris District.

(2.) THE accused who was charged under Section 417 of IPC and under Section 3(1)(xii) of THE Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act 1989(hereinafter referred to as "SC and ST Act"). THE learned trial Judge, after taking cognizance of the offence had framed charge under Sections 417 IPC and 3(1)(xii) of SC and ST Act ,when questioned, the accused pleaded not guilty. On the side of the Prosecution, P.Ws 1 to 15 were examined. Exs P1 to P14 were exhibited. Through Investigation Officer, Exs D1 and D2 were marked. THEre was no oral evidence let in on the side of the accused and no material object was also marked.

(3.) THE learned counsel appearing for the appellant would contend that the charge under Section 3(1)(xii) of SC and ST Act will not be attracted in this case because the prosecution has failed to prove that the accused belongs to backward community(Muthu Raja Community) by adducing proper evidence. To prove that the accused belonged to Muthu Raja Community(backward community) on the side of the prosecution, P.W.9, Tahsildar who issued Ex P5 community certificate in favour of the accused was examined. But on a perusal of Ex P5 will go to show that it is not the usual community certificate issued by the Revenue Department. It is only a certificate in a piece of paper addressed to the Deputy Superintendent of Police, Anti-Dowry Cell, In charge of Ooty Rural Sub Division, THE Nilgiris under reference o.Rc.B2N 6709/99 dated 7.7.1999. Section 3(1)(xii) of SC and ST Act runs as follows:" Being in a position to dominate the will of a woman belonging to a Scheduled Caste or Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed". Unless, the prosecution proves beyond any reasonable doubt that the accused belongs to a community other than Scheduled caste and Scheduled Tribe, an offence under Section 3(1)(xii) of SC and ST Act will not be attracted. So under such circumstances, the findings of the learned trial Judge on the basis of Ex P5 that the accused belongs to Backward community and that an offence under Section 3(1)(xii) of SC and ST Act 1989 is attracted against the accused is liable to be set aside and the same is hereby set aside. THE other charge under which the accused has been charged is under Section 417 of IPC. Section 417 IPC is a punishment section for cheating which has been defined under Section 415 IPC as follows:"Who ever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if she were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to "cheat" Explanation: A dishonest concealment of facts is a deception within the meaning of this Section." According to the prosecution, the accused on the pretext of marrying of P.W.1 had sexual intercourse with her with her consent on very many occasions before panchayat in which the accused had refused to marry P.W.1. THE learned counsel appearing for the appellant/accused pointing out the evidence of P.W.14 Investigating Officer would state that even before preferring Ex P1 complaint, the victim girl/P.W.1 had preferred three or four complaints. But on those complaints, no first information report was registered and that even according to P.W.1, the occurrence took place on 3.4.1999 but the complaint Ex P1 was preferred only on 4.5.1999.