Madhya Pradesh observed in the matter of Babulal Patel vs Act and for this, reliance has been placed upon

learned Special Sessions Court (Under Scheduled Castes and Scheduled Tribes Prevention of Atrocities) Act, 1989 (C.G.) in Special Sessions Trial No. 78/2007 whereby the appellant has been convicted under Section 3 (1-11) of the SC/ST (Prevention of Atrocities), Act 1989 and sentenced to undergo RI for six months and to pay fine of Rs. 200/- in default of payment of fine to further undergo RI for one month.

2. The prosecution case, in brief, is that the prosecutrix is of Gond caste and belongs to a Scheduled Tribe caste. The accused is Rajwar caste and does not belong to Scheduled Caste/Tribe. On 06.08.2007, at about 7:00 a.m., prosecutrix was returning from answering the natural call in Village- Sonagara [Sarastal], at the same time, the accused was hiding behind a tree and caught hold of arm of the prosecutrix. When prosecutrix instantaneously shouted, the accused left her and ran away. Thereafter, prosecutrix immediately informed her mother about the incident and her mother informed the Panchs of the village that the accused had tried to outrage the modesty of her daughter (prosecutrix). Later on, the matter was reported to the concerned police station. After completion of usual investigation, charge-sheet was filed before the Chief Judicial Magistrate, Surajpur and from there, the matter was committed to the trial Court for trial. Learned trial Court framed the charges under Section 3 (1-11) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act and in alternate 3 under Section 354 of IPC against the appellant, to which appellant abjured his guild and claimed to be tried.

3. In order to prove its case, the prosecution examined as many as 5 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. wherein he denied all the incriminating circumstances appearing against him and pleaded innocence and false implication in the case. However, he did not adduce any evidence in his defence.

4. Learned trial Court after appreciating oral and documentary evidence available on record, convicted the appellant and sentenced him as mentioned in para 1 of this judgment. Hence, this appeal.

5. Learned counsel for the appellant submits that he is not challenging the conviction part of the impugned judgment, however, he is confined his arguments to the sentence part thereof only. He further submits that the incident took place in the year 2007, this appeal is pending since 2008, at the time of incident the appellant was aged about 21 years and as of now he is aged about 38 years; appellant has already remained in jail for about 8 days. Therefore, considering the above facts, his undergone period may be considered to be sufficient sentence for the alleged offence.

6. Per contra, learned State counsel submits that the finding arrived at by the trial court is based on proper appreciation of evidence and, therefore, is not liable to be interfered with. 4

7. Heard counsel for the parties and perused the material placed on record.

8. It is clear from record of learned trial Court that the learned trial Court framed charges under Section 3 (1-11) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act and in alternate under Section 354 of IPC against the appellant. Prosecution has examined 5 witnesses to prove its case against the appellant, however, the appellant did not adduce any evidence in his defence. Learned trial Court after providing affordable opportunity of hearing to the parties and after appreciating oral and documentary evidence on record, convicted and sentenced the appellant under Section 3 (1-11) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act.

9. Prosecutrix (P.W.-1) stated that she belongs to Gond caste and to substantiate the same, caste certificate has been filed vide Ex.P/6 in this regard. However, it is apparent from the record the said caste certificate (Ex.P/6) of complainant/prosecutrix is a temporary/ provisional caste certificate which was issued by Tahsildar District- Surguja and was only valid for six months.

10. Upon perusal of the said caste certificate, it is apparent that the caste certificate was issued on 09.08.2007 whereas in FIR (Ex.P/4) the date of incident was mentioned as 06.08.2007. 5 hence, it is proved that the the said caste certificate was obtained after the date of incident.

11. While dealing with the issue where the case certificate was issued after the occurrence of incident, the High Court of Madhya Pradesh observed in the matter of Babulal Patel Vs. The state of M. P. order dated 15.05.2024, passed in Criminal Appeal No. 648 of 2004, held in paras 6,7 & 8 as under:- “6. The learned trial court has convicted the accused for the offence of Section 3(1)(x) of the Act and for this, reliance has been placed upon the provisional caste certificate of complainant, marked as Ex.P-2. It was issued by Tahsildar on

18.12.2002 and contents thereof reveal that it was issued temporarily while the incident of the present case occurred on 8.12.2002, therefore, it is clear that this provisional caste certificate was obtained from Tahsildar after the date of incident.

7. The circular issued by General Administration Department of Madhya Pradesh Government dated 30.6.2001 with No.F.7-32/2000/s very relevant here because it came into existence prior to the issuance of provisional certificate of Ex. P-2 in this case. This circular makes it clear that the practice of issuing provisional caste certificate is being stopped henceforth and only 6 in exceptional circumstances, the provisional caste certificate would be issued. Those exceptional circumstances have also been discussed in the circular itself and they are: (1) for seeking admission in an education institute. (2) for applying for a Government job. (3) for appearing in an interview. (4) for applying in a Government scheme. Under only these four exceptional conditions and that too when the caste certificate is required immediately, the provisional caste certificate was supposed to be issued; for it an application is duly supported with the affidavit and the reason of urgency was to be made. The circular further clarifies that the validity period of this caste certificate would be maximum six months and all such cases in which provisional caste certificate is issued shall be enquired into within the prescribed timeframe and if the applicant is not found to be entitled to the certificate, his provisional caste certificate would be cancelled. 7

8. The above discussed circular was in enforcement when the provisional caste certificate of complainant, marked as Ex.P-2, was issued by Tahsildar. This caste certificate was issued to prove the caste of complainant in a criminal case. Obviously, the purpose of issuing this provisional caste certificate was not covered under the circular of 30.6.2001. Thus, the learned trial court was in error in relying upon the caste certificate of Ex.P-2 which was issued in flagrant violation of the existing circular of Madhya Pradesh Government dated 30.6.2001. In the light of this observation, it is held that the caste of complainant was not duly proved in the case by any credible document.”

12. In the light of above judgment, in the instant case, it is clear that this certificate was obtained by the prosecution only for this case and it is also clear that certificate (Ex.P/6) is a temporary certificate and it is valid only for 6 months and no permanent caste certificate was produced by the prosecution. Therefore, in absence of any valid document, prosecution has failed to prove this fact that the prosecutrix belonged to Gond Tribe. Therefore, the offence under Section 3 (1-11) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act is not made out against the appellant. Hence, the conviction of the appellant under 8 Section 3 (1-11) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act is set aside.

13. Complainant/prosecutrix (PW-1) stated that on the date of incident i.e., on 06.08.2007 at about 7:00 am, when she was returning from answering the natural call, the appellant tried to outrage her modesty. Upon raising alarm, the accused fled away from there. Thereafter, she narrated the whole incident to her mother and matter was reported to the concerned police station and FIR (Ex.P/1) was lodged against the appellant. She further stated that she belongs to Gond Caste. In her cross-examination, prosecutrix/complainant (P.W.-1) remained firm.

14. Karamchand (P.W.-2) who is brother of the prosecutrix stated that on the date of incident, he went outside to call a doctor and when he returned from there, then his mother told about the incident to him. Thereafter, the matter was reported to the police station.

15. Upon perusal of the record, it is evident that the statement of prosecutrix (P.W.-1) is well corroborated by statement of Karamchand (P.W.-2) is brother complainant/prosecutrix. In her cross-examination, prosecutrix/complainant (P.W.-1) remained firm.

16. In light of above discussion, this Court finds that the finding of learned trial Court in convicting the appellant for the offence punishable under Section 3 (1-11) of the Scheduled Castes 9 and Scheduled Tribes (Prevention of Atrocities), Act are not sustainable. Therefore, the appellant is acquitted of the charge under Section 3 (1-11) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act.

17. So far as the conviction under Section 354 of IPC is concerned, the learned trial Court recorded a finding that the complainant/prosecutrix (P.W.-1) remained firm on her statement at the time of filing the report and while recording her statement before the trial Court. Her statement is not only corroborated by FIR (Ex.P/4) and evidence of Karamchand (P.W.-2) but also corroborated by statement of Investigating Officer in the case. Therefore, the findings recorded by the learned Court are based on proper appreciation of oral and documentary evidence. Thus, the learned trial Court rightly held the appellant guilty of offence punishable under Section 354 of IPC. As such, the conviction of the appellant under Section 354 of IPC is hereby affirmed.

18. As regards sentence under Section 354 of IPC, keeping in view the facts that the incident took place in the year 2007; this appeal is pending since 2008, at that time, the appellant was 21 years of age and as of now he is near about 38 years; appellant has remained in jail for about 8 days. In these circumstances, this Court is of the opinion that the ends of justice would be served if he is sentenced to the period already undergone by him. 10

19. In the result, the appeal is allowed in part. Appellant is acquitted of the charge under Section Section 3 (1-11) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. While maintaining conviction of the appellant under Section 354 of IPC, the sentence imposed thereunder by the trial Court is hereby reduced to the period already undergone by him.

20. The appellant is reported to be on bail. Keeping in view the provisions of Section 437-A of Cr.P.C. (481 of the B.N.S.S.), the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

21. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE Ruchi RUCHI YADAV Digitally signed