Judgment:
Oral Judgment:
1. Heard rival arguments on this criminal appeal, preferred by the convicted accused/appellant, challenging the judgment and order of conviction in Special Case No.29/1995.
2. Perused the record and proceedings and the relevant documents in the matter. The impugned judgment and order was passed on 20.8.1998 by the Special Judge, Gondia, whereby the accused was acquitted of the charge punishable under Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. However, he was convicted for the offence punishable under Section 354 of Indian Penal Code and sentenced to suffer rigorous imprisonment for two months and to pay a fine of Rs.200/-, in default to suffer further rigorous imprisonment for seven days.
3. Prior to ascertaining whether the Special Court had properly appreciated the evidence brought before it, the case of the prosecution as narrated before the trial Court so also as mentioned in the First Information Report can be narrated as under.
4. The alleged incident of outraging modesty of the complainant, P.W.1 Smt. Tarabai occurred at about 9:00 a.m. on 27.11.1995. On that day, the complainant was on her way to reach the field, where her father-in-law was working. She was carrying food and drinking water for her father-in-law. On the way, when she reached near Nala, the accused rather distinct relative came there and made some gestures to her, indicating that he wanted some sexual favour from her and apparently prompted her to come to near Nala. Noticing such ill-intention of the appellant/accused, the complainant did not give any response. In spite of this, the appellant/accused came forward and tried to catch-hold of her hand after saying that she should keep the articles on the ground, which she was carrying with her. According to the complainant, he caught-hold of the hand of the complainant and tried to drag her. In that process, the bangles she was wearing, were broken. Noticing the evil intention of the appellant/accused, she raised shouts for help. Noticing such shouts, one Kamlabai then working in the nearby field, arrived at the spot and scolded the accused, making him aware that his such activities are indecent and he should have behaved in proper manner, concerning other women in the said village. Said Kamlabai is P.W.2.
5. According to the prosecution, after the said incident and after scolding by Kamlabai, the appellant/accused left the spot. Complainant, Tarabai then went to the field and narrated the incident to her father-in-law. However, written report was lodged to the concerned police station on the next day. The said written report appears to be handwritten in Hindi language and bears thumb impression of the complainant as this factual position has been noticed while perusing the record and proceeding of the matter. The said written report is Exh.11 in the record.
6. On the next day of the incident i.e. 29.11.1995, spot panchanama was conducted, however, nothing incriminating was seized from the spot, much less the pieces of broken bangles. It is curious to note that in the said spot pancanama, which is Exh.19 in the record and proceeding, there is specific mention of the statement of the complainant apparently recorded on 29.11.1995. In fact, such statement allegedly made by the complainant at the time of drawing of panchanama should not have been mentioned in the panchanama at all and more so, shelter of such statement should not have been taken by the trial Court while analyzing the evidence and considering the effect of substantive evidence of complainant, P.W.1. However, in this matter shelter of such alleged statement of complainant recorded in the panchanama on 29.11.1995 has been taken by the trial Court and which is in fact complete erroneous approach adopted by the trial Court.
7. Detailed discussion on this shall be mentioned at the appropriate place hereunder.
8. It appears that during the trial six prosecution witnesses were examined. However, only important evidence is that of complainant, P.W.1 - Tarabai. She is able bodied and young woman of 20 years of age, whereas the appellant/accused is also able bodied person and aged about 27 years and resident of the same village. P.W. 2 _ Kamlabai is the alleged eye witness, who happened to have appeared on the spot on hearing the shouts, raised by the complainant. At this juncture, itself it is to be mentioned that said P.W. 2 _ Kamlabai did not support the case of the prosecution and was declared hostile and was cross-examined by the learned Assistant Police Prosecutor. However, nothing was extracted from her cross-examination so as to support the case of prosecution and also thereby corroborating the version of the complainant. P.W.3 is a spot panch again who has turned hostile. However, in view of the factual position that nothing incriminating was recovered from the spot panchanama more so when no broken bangles or any other articles were found, hostility or otherwise of P.W.3 has no much significance. Another important witness after the complainant is P.W.4, who is father-in-law of complainant. However, his entire evidence is to the effect that complainant narrated him what had happened as to appellant/accused holding her hand and indicating his evil intention and also specific instance regarding pressing of the breast of the complainant. According to P.W.4, after such incident was narrated to him, he accompanied Tarabai to their home and informed in the village about the said conduct of the appellant/accused. He is silent as to with whom he narrated the said incident in the village. P.W. 5 is the Head Constable Waman, who recorded the F.I.R., which is in the F.I.R. format and which is Exh.18 in the record and proceeding. According to him, he visited the spot on 29.11.1995. After he received the case papers on that day itself, he conducted spot panchanama in the presence of complainant Tarabai and in the spot panchaname (Exh.19), he allegedly recorded statement of Smt. Tarabai during the process of panchanama and as to the conduct of the accused including the alleged incident of pressing the breast of the complainant. He also recorded statement of P.W. 2 - Kamlabai. Last prosecution witness is P.W. 6, Head Constable - Harichand Patle. According to him, he received written report (Exh.11) from the complainant and registered the crime for the offence punishable under Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act and also directed for lodging of FIR in the printed form, which is Exh.18.
9. During the arguments, learned Counsel for the appellant/accused put his emphasis on mainly following points.
â(A) There is a clearcut omission on the vital aspect as to the appellant/accused pressing the breast of the complainant as it is not so mentioned in Exh.11, the report, first lodged by the complainant.
(B) The sole eye witness to the incident i.e. Kamlabai had not supported the case of the prosecution and deposed that during the incident, she was present in her field and it was morning time and she was tying paddy stacks and she had not witnessed the incident. Neither she saw the complainant nor the accused and she had returned back to her home after finishing the work in the field. Though the prosecution was allowed to cross-examine this witness on behalf of the State, nothing was extracted from her evidence, which would support and corroborate the version of the complainant.
(C) According to substantive evidence of P.W.1, during the incident, bangles were broken and fell on the ground. In spite of such specific case, in the spot panchanama nothing incriminating was recovered by the police and moreover, there was nothing on record that the complainant sustained any injury much less any abrasion or scratch marks on her hand.â
10. On carefully going through the reasonings given by the Special Court, it appears that the Special Court was influenced by the sole testimony of P.W.1, Complainant in spite of factual position of not finding any injury or scratch mark on the hand of the complainant and not finding any broken bangles on the scene of the offence, though it was so specific the case of the prosecution. Moreover, it appears that the trial Court ignored the effect of vital omission from the substantive evidence of P.W.1 on the aspect of pressing of the breast of the complainant by the appellant/accused. Though the Special Court had accepted that it was in fact an omission as not appearing in the FIR Exh.11, the Special Court went ahead to accept the contents of the panchanama so far as narration of the incident by P.W.1 at the spot of offence on 29.11.1995.
11. In the considered view of this Court here the Special Court had fallen in error in accepting such alleged statement of complainant as mentioned in the panchanama, dated 29.11.1995. According to the said panchanama, though it is allegedly mentioned by the complainant on the spot apart from giving all other details, the incident of pressing her breast by the appellant/accused, this part of the evidence was required to have been ignored. However, shelter of the same has been erroneously taken, thus, committing an error in arriving at the conclusion that the effect of said vital omission has been diluted.
12. Again the hostility of P.W. 2 was overlooked by the Special Court. The substantive evidence of the complainant coupled with the effect of the omission was not at all corroborated by any independent evidence i.e. either by way of oral testimony of the alleged eye witness P.W.2 or by circumstance as to finding of any broken bangle pieces on the spot.
13. In that view of the matter, definitely, the trial Court had fallen in an error in coming to the conclusion of the establishment of the offence punishable under Section 354 of Indian Penal Code against the appellant/accused.
14. Prior to parting with the present appeal, it is required to be mentioned that considering the case of the prosecution, the another charge under the Atrocities Act, which was pressed against the appellant/accused being the offence punishable under Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was in fact misconceived. At the most, on the facts of the case, the said offence could have been under Section 3 (1) (xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act inasmuch as it was the assault or use of force on the complainant belonging to the Scheduled Caste or Scheduled Tribe with intent to dishonour or outrage her modesty. In spite of this error and framing of a charge on the wrong count, the Special Court went on to acquit the appellant/accused of the said charge under Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act on the ground that the alleged incident was not within the public view and that the appellant/accused was not knowing the caste of the complainant woman. It must be noted that the concept of the offence contemplated by Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act in a public view is different from the concept of the offence punishable under Section 3 (1) (xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act as the wording âpublic view is only appearing in the former section and not in the later. All the same, definitely, there was no charge framed for the offence punishable under Section 3 (1) (xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act and the appellant/accused was acquitted of the charge under Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. Even against such acquittal, there is no appeal preferred by the State mentioning that on the facts of the case in fact charge should have been not for Section 3(1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act but for Section 3 (1) (xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.
15. In any event, considering the reasonings given by the trial Court, it is warranted that the interference in the judgment and order impugned in the present appeal is required to be done and in the result, the present appeal must succeed and the same is accordingly allowed. Hence, the following order.
(i) Criminal Appeal No.286/1998 is allowed.
(ii) The impugned judgment and order, dated 20.8.1998, passed by the Special Judge, Gondia in Special Case No.29/1995 is quashed and set aside.
(iii) If fine amount is already paid, the same shall be returned back to the appellant.