JUDGMENT
Ashok Kumar Tiwari, J.
1. Appellant herein stands convicted under Section 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short ‘the Act’) read with Section 354 of Indian penal Code and under Section 506 of Indian Penal Code vide judgment passed by 4th Special Judge, Ujjain, in Special Sessions Trial No. 27/97 on 26-5-1998.
2 (a). Briefly stated, the prosecution’s case is that the prosecutrix (P. W. 1) is a ‘Chamar’ by caste and belongs to Scheduled Caste or Scheduled Tribe community. Appellant is ‘Anjana’ by caste and he is not a member of Scheduled Caste or Scheduled Tribe community. On the date of incident, prosecutrix (P.W.1) had gone to filed of Kacharulal to cut his crop of JUWAR and in the evening at about 5.00 p.m. she was returning from there to her village, then near the temple of GANPATI, appellant arrived there and he caught hold of her hand and he tried to drag her toward the temple. On hearing cries raised by the prosecutrix (P.W. 1), Dhapubai (P.W. 3) and one woman reached on the spot. Then appellant fled away from the spot.
2 (b). Prosecutrix (P.W. 1) first went to house of Dhapubai with her and from there she went to her house. When her husband (P.W. 2) returned in the night from the field, she told him about the incident. Due to night time, her husband (P.W. 2) did not go to police station. He went to Police Station, Jharda on the next day and made report (Ex. P-3) there. Police conducted the required investigation and filed charge-sheet against the accused appellant.
3. Learned Trial Court framed the charges under Sections 354 and 506 of Indian Penal Code read with Section 3(1)(xi) of the Act. Appellant abjured his guilt. Therefore, he was put to trial. After trial he was convicted under Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 read with Section 354 of Indian Penal Code and sentenced to suffer rigorous imprisonment for 6 months and to pay fine of Rs. 500/-; in default of payment of fine, to undergo further rigorous imprisonment for one month. He was also convicted under Section 506 of IPC and sentenced to suffer rigorous imprisonment for 6 months and to pay fine of Rs. 500/-; in default of payment of fine, to undergo further rigorous imprisonment for 1 month. Hence, he has filed this appeal.
4. Learned Counsel for the appellant has contended that offence punishable under Section 3(1)(xi) of the Act is not made out and on the basis of the prosecution evidence, appellant could have been convicted under Section 354 of IPC at the most. The contention of the learned Counsel deserves to be accepted, as prosecution has failed to establish the essential ingredients required for constituting the offence punishable under Section 3(1)(xi) of the Act.
5. In order to establish the charge under the aforesaid section, it is essential to prove that the prosecutrix belongs to Scheduled Caste or Scheduled Tribe community and criminal force was used on her by a person who is not a member of Scheduled Caste or Scheduled Tribe community. In the present case, the prosecution has not led any evidence to the effect that the caste, to which the prosecutrix belongs, is included in the Scheduled Caste or Scheduled Tribe. Learned Counsel for the State has submitted that the accused appellant has admitted in his examination under Section 313 of the Criminal Procedure Code that prosecutrix is ‘Chamar’ by caste. He has not challenged the caste of the prosecutrix. Therefore, prosecution was not obliged to lead any evidence regarding the fact whether the prosecutrix belonged to SC or ST community or not.
6. In the testimony of prosecutrix (P.W. 1), it is said that she is ‘Chamar’ by caste and the appellant has admitted this fact. She has not said that she is a member of SC or ST or whether her caste is included in the list of SC caste. Her husband (P.W. 2) has deposed that he is “Suryawanshi Chamar” by caste. The prosecution has not led any evidence to the effect that “Suryawanshi Chamar” is the caste which has been included in the list of SC or ST. In the absence of any such evidence, this fact can not be taken for granted that prosecutrix belongs to the SC or ST community. As being one of the essential ingredients, this fact was required to be proved beyond any reasonable doubt by the prosecution.
7. Assuming that it is established that the prosecutrix belongs to SC or ST, still it is difficult to hold that the offence under Section 3(1)(xi) of the Act is established. There is not evidence to show that the appellant used criminal force to the prosecutrix to outrage her modesty only because she belonged to a particular caste or community. There is no such circumstance to suggest that her modesty was intended or tried to be outraged, simply because she belonged to a particular community. It is thus clear that the ingredient of Section 3(1)(xi) of the Act is not proved and conviction of the appellant under Section 3(1)(xi) of the Act deserves to be set aside. The ingredient of the offence punishable under Section 506 of Indian Penal Code has also not been proved. The so called threat given by the appellant does not appear to be real in the sense. There is no circumstance to suggest that appellant meant what he said. There is also no evidence that the victim of the threat felt threatened actually. The conviction of the appellant under Section 506 of Indian Penal Code is also not maintainable and deserves to be set aside.
8. No minimum sentence has been prescribed under Section 354 of IPC and even a sentence of fine alone can be inflicted for such an offence. Appellant has already undergone some part of jail sentence awarded to him. Looking to the facts and circumstances of the case and keeping in view that his conviction under Section 3(1)(xi) of the Act and under Section 506 of IPC has been set aside and he is being convicted only under Section 354 of IPC, the ends of justice will be served if a sentence already undergone by him is inflicted on him and sentence of fine of Rs. 500/- (Rupees five hundred) is also imposed on him.
9. Consequently, this appeal is partly allowed. The appellant is acquitted of the charge under Section 3(1)(xi) of the Act and Section 506 of Indian Penal Code, but he is convicted under Section 354 of Indian Penal Code and sentenced with imprisonment already undergone by him and pay fine of Rs. 500/- (Rupees five hundred); in default of payment of fine, he shall suffer rigorous imprisonment for one month.