Ashok K. Chintawar vs State Of Maharashtra
2006 Latest Caselaw 39 Bom

JUDGMENT

R.C. Chavan, J.

1. Being aggrieved by this conviction for the offence punishable under Section 3(i)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short "Atrocities Act") and sentence of simple imprisonment for six months and to pay fine of Rs. Five Hundred, or in default, simple imprisonment of one month, imposed upon him, the accused in Special Case No. 4 of 1994 before the learned Special Judge, Gadchiroli, has preferred this appeal.

2. The facts, which led to the prosecution of the appellant, are as under:

The appellant is a businessman doing petty business at Etapalli. The complainant Rupa daughter of Suku Punjari, claiming to be a tribal, reported to the police on 2nd May, 1992 that the accused obstructed her on public way at about 4.00 p.m. by catching hold of her bicycle, manhandled her and snatched her bicycle towards a loan which Rupa had allegedly taken from him. She further alleged that her bangles got broken, she fell down and got injured. According to Rupa, accused asked her either to stay as his wife or wash utensils in his house. The accused allegedly caught hold of her hand, inserted his hand to her blouse and pressed her breasts.

3. On a report by the complainant an offence punishable under Section 3(i)(xi) of Atrocities Act was registered and on completion of investigation charge-sheet; was sent up. The learned Special Judge charged the appellant of the offence punishable, Under Section 354 of the Penal Code and Section 3(i)(ix) of Atrocities Act. The accused pleaded not guilty and hence, was put on trial. In its attempt to bring home guilt of the accused the prosecution examined in all six witnesses. Upon consideration of the evidence tendered before him, the learned Judge held that the prosecution proved the charge for the offence punishable under Section 3(i)(xi) of the Atrocities Act and therefore, proceeded to convict and sentence the appellant, as aforementioned. Aggrieved thereby, the appellant has preferred this appeal.

4. I have heard the learned Counsel for the appellant and learned Additional Public Prosecutor for the State.

5. The learned Counsel for the appellant submitted that the prosecution in this case had not established that the complainant was member of Scheduled Caste or Scheduled Tribe. The complainant herself had stated in her deposition that she is Madia by caste. However, there is no caste certificate procured by the Investigating Officer. The learned Additional Public Prosecutor submitted that since this word of the complainant that she belongs to Madia caste has not been challenged in the cross-examination, there was no need to produce arty such certificate. It may be seen that since this important circumstance, of the complainant's claim that she belongs, to "Madia (Gond)" tribe was put to the accused in statement under Section 313 of Cr.P.C. in the form of question No. 4 and the accused had denied that the complainant belonged to "Madia (Gond)" community. He stated that she belonged to "Gowari" community. In view of this it was necessary for the prosecution to prove that the complainant belong to Schedule Caste or Scheduled Tribe in order to attract the provisions of Section 3(i)(xi) of the provisions of Atrocities Act.

6. For this purpose the learned Counsel for the appellant relied on a judgment of this Court in Ashabai Ganeshrao v. State of Mah. reported at 1999(2) Mah LJ 36. In that case too the complainant's statement that he belonged to Matang community had not been challenged. Yet the Court held that the prosecution ought to have brought on record caste certificate of the complainant. In the instant case, the accused had specifically denied that the complainant belonged to Madia tribe and had specifically alleged that the complainant belonged to Gowari caste. In view of this, since it was incumbent on the prosecution to establish that the complainant belonged to Scheduled Tribe by unimpeachable evidence, which the prosecution failed to do the conviction under Section 3(1)(xi) of the Atrocities Act cannot be sustained.

7. Next is the question of nature of assault. The complainant had stated in her deposition that the accused obstructed her on a road near the house of one Saokar, alleging that the complainant Owed him money. The complainant also spoke of an assault to outrage her modesty by pressing her breasts. In cross-examination she denied that the accused was pulling her bicycle while demanding credit dues from her. She denied having made a statement to this effect before the police. It may be seen from her report at Exh.16 that the accused had snatched away her bicycle after manhandling her and kept the bicycle at his house. He then showed her a diary of loan taken by her from him and told her that he would not return the bicycle till she paid the loan. While so saying the accused allegedly manhandled her, as a result of which her bangles broken and she sustained some injuries. It was also alleged that thereafter he made explicit suggestions to her to stay with him as wife or as maid servant and caught her hand and pressed her breasts. Now, the story given in F.I.R. Exh. 16 shows that there were two separate incidents. First was on road in front of "Prashant Khanaval" (an eatery) where the accused had snatched away complainant's bicycle. The second incident must have taken place at the house of the accused since the complainant stated that the accused had taken her bicycle and kept it in his house. She does not state that second incident took place at the same place and does not specifically indicate where it took place But if the appellant had taken away her bicycle and kept it at his house it would be reasonable to infer that the second incident would have occurred when she sought the return of bicycle.

8. P.W. 4 Askokraj is a witness who supported the prosecution. He stated that there was a quarrel between the complainant and the accused and both were pulling the bicycle. The accused pushed the complaint, as a result of which the complainant fell down and sustained injuries. The accused outraged her modesty by tearing her clothes. This story is different from that given by the complainant. The complainant had not spoken of tearing of her clothes. P.W. 4 Ashokraj does not speak of pressing complainant's breasts. In cross-examination, Ashokraj stated that the accused pushed Rupa on account of money and in course of the quarrel, she fell down and sustained injuries. He stated that except this nothing more had happened. It thus, appears that the story of assault to outrage modesty of the complainant was cooked up by the complainant only to aggravate the offence.

9. It seems to be the case of a simple assault arising out of the dispute about the loan. Therefore, it cannot be said that the prosecution had established that the accused had used force to complainant in order to outrage her modesty. Since a simple assault has to be held as proved on the facts disclosed, the conviction of the appellant for the offence punishable under Section 3(i)(xi) of the Atrocities Act would have to be set aside and instead the appellant may have to be convicted for the offence punishable under Section 352 of the Penal Code. In light of this and after considering that the incident took place about fourteen years ago hearing of this appeal, following order is passed.

The appeal is partly allowed.

The conviction of appellant for the offence punishable under Section 3(i)(xi) of S.C.S.T. (Prevention of Atrocities) Act and resultant sentence of simple imprisonment for six months and fine of Rs. Five Hundred and i/d. simple imprisonment for one month are set aside. Instead the appellant is convicted for the offence punishable under Section 352 of the Penal Code and sentence to pay a fine of Rs. One Thousand only, or in default to suffer Simple Imprisonment for three months. The fine already deposited in the trial Court for the conviction, which has been set aside, be adjusted to the fine now imposed and balance be recovered from the appellant and if the balance of fine is not deposited within one month, the trial Court may have the appellant arrested and committed to prison to serve his sentence.

Out of the sum deposited, a sum of Rs. 900/- (Rs. Nine Hundred only) be paid to the complainant as compensation.