SANTOSH KUMAR Vs. STATE OF M P

JUDGEMENT

(1.) The appellant/accused has directed this appeal under Section 374(2) of Cr.P.C. being aggrieved by the judgment dated 26.7.1996 passed by Special Judge, Balaghat constituted under S.C.S.T. A (in short "the Act"), in Special Criminal Case No. 91/95, convicted him under Section 3(1)(xi) of the Act for RI six months with fine of Rs. 1,000/-. The facts giving rise to this appeal in short are that on 3.7.1995 at about 7.00 p.m. victim Kalabai Basnik lodged the FIR at P. S. Kirnapur contending that today at about 4.00 p.m. when she was carrying out the agricultural activities on the boundary of her field at the same time her neighbor agriculturist namely Santosh accompanied with his brother Harish came there and by abusing her with filthy language asked that her husband could not be traced out for his murder, hence they will outrage her modesty and in continuation of it with intention to commit the same the appellant accompanied his brother Harish have assaulted on her and by using criminal force and tried to snatch her sari to outrage her modesty, on which after shouting she ran away from such place some neighbor agriculturist also came there and saw the incident. Thereafter the appellant and his brother have fled away from the place of incident. On reaching home she apprised her husband about the incident and thereafter went to police station and lodged the aforesaid FIR, on which a crime for the offence of Section 294, 506B, 354/ 34 of IPC and Section 3(1)(xi) of the Act was registered against the appellant and his brother co-accused Harish. The accursed were arrested and on completion of the investigation they were charge sheeted for their prosecution under the above mentioned offence. On evaluation of the same the charge of section 3(1)(xi) of the Act was framed against them, they abjured the guilt, on which the trial was held. After recording the evidence on appreciation of the same by acquitting the co-accused Harish the appellant was convicted and sentenced under the aforesaid section with the above mentioned punishment. Being dissatisfied with such conviction and sentence the appellant has come to this Court.

(2.) Appellant's counsel Shri R. S. Patel, after taking me through the record of the trial Court as well as the exhibited documents assailed the impugned conviction and sentence of Section 3(1) (xi) of the Act on the ground that on taking into consideration the prosecution evidence available in the record as accepted in it's entirety the prosecution has failed to prove the caste of victim Smt. Kalabai, whether it was covered under the Act. In continuation he said that unless the caste of the victim is proved by admissible and reliable evidence the person like appellant could not be held guilty for such offence of the Act. In this regard he also argued that there are certain rules and regulations to make inquiry and issue the certificate of caste to the concerning person, who is covered under the Act. Even at the time of the incident there was some provision and procedure under which the Revenue Officers were authorized by the State Government for issuing such caste certificate but it is apparent on record that neither such certificate was obtained and placed on record nor proved by any of the documentary evidence. In the lack of such evidence regarding the caste of the victim, the impugned conviction of the appellant is not sustainable. He further said that on the basis of the language of the charge framed by the trial Court on re-appreciation of evidence if the Court comes to the conclusion that offence of Section 354 of IPC is made out against the appellant, then in that circumstance keeping in view the long pendency of the present matter in which the appellant has suffered the mental agony of it for years together along with the judicial custody of 4 days during trial between 26.7.1995 to 7.8.1992 and did not possess any criminal antecedents and in such premises being first offender by adopting the lenient view he be extending the benefit of Probation of Offenders Act and in case if such benefit is not extended then under such Section or Section 354 of IPC he be punished with the jail sentence for which he has already undergone by imposing the amount of fine under the discretion of the Court and prayed to allow this appeal accordingly.

(3.) On the other hand learned P.L. Shri Rakesh Kesharwani by justifying the impugned conviction and sentence of the appellant under the aforesaid section said that the same being based on proper appreciation of available evidence and specially the testimony of victim Kalabai (P.W.1), in which she categorically stated that her community is community is covered under the Act, do not require any interference at this stage. He further said that mere on account of non-production of caste certificate of the victim the appellant could not be acquitted from the alleged charge of the Act. According to him justice should not be defeated mere on the formal technicalities. He also said that on evaluation of the evidence and other available circumstances of the case it is apparent that victim is belonging to the caste which is covered under the Act. In alternate he said that in the lack of any admissible and reliable evidence regarding caste of the victim if the appellant is acquitted from the alleged charge then in that circumstances by virtue of Section 222 of Cr.P.C. taking into consideration the language stated in the charge framed by the trial Court in the light of available evidence the appellant be held guilty and punished under Section 354 of IPC and prayed to adjudicate this appeal accordingly.