Oral Judgment:
1. The appellant has been convicted by the learned Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Washim for the offences punishable under Section 354 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. The appellant was resident of Dhawanda within the jurisdiction of Manora Police Station, District Washim. The victim lady Radhabai was resident of village Sawali. On the date of incident she had gone to Digras. She had returned from Digras by a Bus and got down at the main road on the junction from where a road leads to her village Sawali. The junction from where the road leads to village Sawali is known as 'Sawali Fata' and the same will be referred to as 'Sawali Fata' hereinafter. After getting down at Sawali Fata, the complainant was proceeding to her village. She was accompanied by P.W.1-Namdeo Jadhav and P.W.2-Dattaram Rathod. It is the case of respondent that P.W.1 and P.W.2 stopped for a while to urinate by the side of road and the victim Radhabai (P.W.5) proceeded further towards Sawali. While she was proceeding to Sawali, the appellant had been on the said road on his motorcycle. He stopped his motorcycle and engaged P.W.5 in a talk. The appellant was working as Headmaster in a school and P.W.5 had visited his school for admission of her child. The appellant started talking with P.W.5 on the said subject. P.W.5 informed the appellant that she had already admitted her daughter in other school. The appellant at this point of time caught hold of P.W.5, pressed her breast and torn her blouse. P.W.5 cried for help. P.W.1 and P.W.2 reached there and the appellant escaped on the motorcycle. Matter was reported to police. The First Information Report was registered for the above stated offences. P.W.5 claims to be belonging to Chambhar Caste, which is a Scheduled Caste. After completion of investigation, charge-sheet was filed against the appellant.
3. The appellant was tried by the learned Special Judge and was convicted as stated hereinabove. The conviction is based on the evidence of six witnesses examined by the prosecution, of which P.W.1, P.W.2 and P.W.5 are the material witnesses whose evidence needs to be appreciated to decide the present appeal.
4. P.W.5 has more or less given evidence in accordance with her First Information Report. She has stated in her evidence that P.W.1 and P.W.2 were left behind and the appellant taking advantage of loneliness of P.W.5 had used force against her to outrage her modesty. P.W.1 and P.W.2 were not present on the spot at the time of incident. However, both of them claimed to have seen the appellant while he had caught hold of P.W.5.
5. The learned Counsel for the appellant has submitted that the evidence of P.W.1 and P.W.2 did not support the evidence given by P.W.5. P.W.5 has not stated that the appellant continued to catch hold of P.W.5 till arrival of P.W.1 and P.W.2. She has stated that the appellant left the spot immediately after he had seen P.W.1 and P.W.2. The learned Counsel has submitted that this is material contradiction in the evidence of P.W.1 and P.W.2 on the one hand and P.W.5 on the other hand.
6. It is brought to my notice that blouse of P.W.5 was not seized by the police. The case of the respondent is that the appellant had not only pressed breast of P.W.5 but had torn her blouse. In the circumstances, it was contended before me that the blouse should have been seized by the police to establish that the blouse was torn during the course of alleged incident.
7. I have carefully examined the evidence of P.W.1, P.W.2 and P.W.5. Even if it is assumed for the sake of argument that the failure on the part of the Investigating Officer to seize the torn blouse shall not necessarily affect the case of the respondent adversely, the respondent were under obligation to establish by cogent evidence that the blouse of P.W.5 was torn during the course of the alleged incident of assault or use of criminal force by the appellant against P.W.5. Intention or knowledge is integral part of the offence punishable under Section 354 of the Indian Penal Code. The proof of assault or criminal force by itself will not prove the offence punishable under Section 354 of the Indian Penal Code unless there was proof of intention or knowledge. Therefore, before I go to the intention part of the offence, let me examine whether the factual position with regard to the incident in question has been established by the respondent. One thing which needs to be mentioned here is that P.W.1 and P.W.2 were not far away from P.W.5. They had just halted to ease themselves and P.W.5 had proceeded further. It is also admitted position that P.W.1 and P.W2 had reached the spot and they had seen P.W.5 from close quarters. The torn blouse should have been noticed by P.W.1 and P.W.2. P.W.5 has categorically stated that her blouse was torn and the buttons of her blouse were dislocated. It is thus obvious that the blouse could not be in a normal condition. If it was not shown to P.W.1 and P.W.2 by P.W.5 voluntarily, it could definitely be noticed by P.W.1 and P.W.2. It is noted that P.W.1 and P.W.2 are absolutely silent on this aspect of the case. None of them has stated that the blouse of P.W.5 was found torn. This creates a reasonable doubt about correctness of evidence of P.W.5.
8. The conduct of P.W.5 is also necessary to be taken into consideration. In normal course P.W.5 would have shown the torn blouse to P.W.1 and P.W.2. Let us assume that the body of P.W.5 was exposed and therefore, she had not shown torn blouse to P.W.1 and P.W.2. At least she could have told them that her blouse was torn and that the appellant had pressed her breast. One may go one step a head by assuming that she could not have told P.W.1 and P.W.2 that the appellant had pressed her breas. At least she could have told them that her blouse was torn. This part is missing from the evidence of P.W.1, P.W.2 and P.W.5. This creates a doubt about correctness of evidence of P.W.5.
9. Since story of P.W.5 with regard to use of criminal force or assault is disbelieved, it is not necessary to examine the intention part of the offence. It, therefore, follows that the offence under Section 354 of the Indian Penal Code could not be established. It need not be stated here that in the absence of conviction under Section 354 of the Indian Penal Code in the present case, it was not possible to convict the appellant for the offence punishable under Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. For proof of offence under Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 also the proof of assault or use of criminal force is necessary. The said section runs as under :-
"3(1)(xi). Punishments for offence of atrocities -(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -
(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intention to dishonour or outrage her modesty;
shallbe punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine."
10. It is thus obvious that in the absence of proof of use of force or assault the offence under Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 could not be proved. I am of the view that the judgment of the learned trial Court is based on unreliable evidence of P.W.5. The judgment needs to be set aside. Hence, I pass the following order.
The judgment and order passed by the learned Additional Sessions Judge, Washim, dated 9th October, 1998, in Atrocity Case No.111/1996 is set aside.
The appellant is acquitted of the offences punishable under Sections 354 of the Indian Penal Code and 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Fine amount, if any, paid by the appellant shall be refunded to the appellant.
Appeal stands disposed of accordingly.