Kallu @ Donger Singh v. The State of Madhya Pradesh

Shri Kunal Dubey, Advocate. : For Respondent : Shri R.S. Shukla, Panel Laywer. ****************************************************************** J U D G M E N T 27/06/2012 This appeal has been preferred against the judgment dated

15.4.1996 passed by Special Judge(SC/ST), Khandwa in Special Case No.32/1991 convicting the appellant under Section 3(1)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SC/ST Act') and sentenced to six months R.I.

2. Facts of the case, in short, are that on 16.9.1995 prosecutrix aged 15 years (PW/1) alongwith her sister-in- law(Nanad) Nanibai (PW/2) went to flour mill of the appellant for grinding of wheat. Appellant caught her hand and outraged her modesty. PW/1 pushed the appellant and managed to run away from the flour mill. She reached at the camp where she lived alongwith her husband and other family members and narrated the incident. 2 Cr. Appeal. No.747/1996

3. On 18.6.1995, PW/1 lodged FIR Ex. P/1 at Police Station, Dhangaon, District Khandwa. A case at Crime No.56/93 under Section 354 IPC has been registered against the appellant. During the investigation, prosecutrix was found to be a member of Scheduled Tribe and the appellant was found to be a member of non-scheduled tribe. After completing the investigation, police Dhangaon submitted a charge-sheet against the appellant under Section 354 IPC and 3(1)(xi) of the SC/ST Act.

4. Trial court framed charge under Section 3(1)(xi) of the SC/ ST Act against the appellant. Appellant abjured the guilt. Defence of the appellant before the trial court was that of false implication.

5. To substantiate the case of the prosecution, statements of prosecutrix (PW/1), Nanibai (PW/2), Munnibai (PW/3), Sakubai (PW/4), M.P. Tiwati, the then ASI (PW/5) and Dinesh Joshi, Station House Officer (PW/6) were recorded. In respect of defence, appellant produced Motiram (DW/1) as his defence witness. After appreciating the aforesaid evidence, trial court convicted and sentenced him as above.

6. Challenging the aforesaid conviction and sentence, this appeal has been preferred on the grounds that appreciation of evidence is not proper. Prosecution has failed to prove the caste of the complainant and the appellant by positive reliable evidence. Conviction has been based on insufficient unreliable evidence. Conviction is bad in law and sentence is harsh. On the other hand, learned Panel Lawyer supported the findings of conviction and sentence both and submitted that only minimum sentence has been passed.

7. Complainant (PW/1) has stated that she is "Barela" by 3 Cr. Appeal. No.747/1996 caste and appellant is "Rajput". Except this version, none of the witnesses said anything about the caste of the appellant and the complainant. No caste certificate has been produced and proved in this case. Prosecutrix (PW/1) has stated that she alongwith her family members had come in the village for labour work only 8-10 days prior to the incident. Dinesh Joshi (PW/6) has recorded the FIR Ex. P/1. It is pertinent to note that Ex. P/1 FIR is registered for the offence punishable under Section 354 IPC only. There is no mention of offence under Section 3(1)(xi) of the SC/ST Act. There is no mention about the caste of parties in the report itself. On perusal of Ex. P/1, it is also pertinent to note that this report has been lodged after two days of the incident. Cause of delay has been mentioned that out of fear she became unsettled (Ghabrajane se), she reached late at the police station.

8. In view of the aforesaid, it is clear that FIR was lodged after two days of the incident. Cause of delay is not very specific and reliable rather it is vague. Prosecutrix (PW/1) was new in the village and there is no evidence that appellant knew her previously. There is no mention of the caste in the FIR Ex. P/1. No case under Section 3(1)(xi) of the SC/ST Act was registered in the FIR. Caste certificate has not been obtained during investigation. Caste certificate has not been produced in the trial court to prove the caste of the prosecutrix and the appellant as well.

9. It is true that trial court did not frame charge under Section 354 IPC against the appellant, but to bring home the charge under 3(1)(xi) of the SC/ST Act, proof of caste by specific evidence is a necessary. Particularly, in view of this case, as the parties are not known to each other earlier and the report has been lodged with the delay of two days without any specific 4 Cr. Appeal. No.747/1996 cause. In facts and circumstances of the present case, proof of caste was a necessary requirement.

10. It is also submitted by learned counsel for the appellant that in this case investigation has been conducted by ASI who is not a gazetted officer of police of the rank of DSP which is mandatory in SC/ST Act. Learned counsel for the appellant has placed reliance on the decision of this Court in the case of Bharatsingh vs. State of M.P. reported in 2006(4) M.P.L.J. 171 and submitted that for want of conduction of investigation by Gazetted officer, serious prejudice has been caused to the appellant and conviction has rendered unsustainable.

11. In view of the fact that initially police has registered the case under Section 354 IPC only, charge-sheet has been filed under Section 354 IPC and 3(1)(xi) of the SC/ST Act both and the charge has been framed only under Section 3(1)(xi) of the SC/ST Act; aforesaid both requirements are necessary to be completed by the prosecution.

12. For want of compliance of aforesaid requirements, in my considered opinion, conviction and sentence under Section 3(1) (xi) of the SC/ST Act deserves to be set aside and is hereby set aside. Appellant is acquitted. Appeal is allowed. YS/ (Tarun Kumar Kaushal) Judge