S.R.K. Prasad, J.
1. The Accused has preferred this appeal against the conviction and sentence of rigorous imprisonment for 5 years for the offence punishable under Section 354, IPC and also sentencing him to undergo simple imprisonment for a period of 6 months for the offence under Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the SC and ST Act') and also imposing a fine of Rs. 100/- under each count by the Additional Sessions Judge, Vizianagaram in SC 77 of 1996 On 26-3-1999.
2. It is the case of the prosecution that on 6-3-1996 at about 5.00 p.m. during evening time, the accused caught hold the hand of P.W. 1 and dragged her into his motor shed, and thereupon, she got herself released from his clutches and reported the same to her husband--Paturi Venkatarao (P.W. 2). Later, they went to the Police Station and presented a report on 6-3-1996 at about 9.30 p.m. which resulted in registering of Cr. No. 30 of 1996 of Gurla Police Station under Section 354, IPC under Ex. P. 2-FIR. After investigation, the accused was charge-sheeted by the Police under Section 354, IPC. The Sessions Judge framed charges under Section 354, IPC and also framed additional charge under Section 3(1)(xi) of the SC and ST Act. The plea of the accused was one of denial for the said charges.
3. The prosecution in all examined three witnesses. P.W. 1 is the victim. P.W. 2 is her husband. P.W. 3 is the Investigating Officer who is said to have recorded Ex. P. 1 statement and registered it as Ex. P2-FIR. The accused also examined two witnesses who alleged that the said accused tried to mediate the dispute in between P.W. 2 and an aluminium vessel vendor and there was an altercation between P.W. 2 and the accused, and the said incident took place at the house of D.W. 1. The Additional Sessions Judge recorded a finding of guilt for the offences under Section 354, IPC as well as under Section 3(1)(xi) of the SC and ST Act. The Sessions Judge convicted the accused to undergo R.I. for 5 years under Section 354, IPC and also sentenced to undergo S.I. for a period of 6 months under Section 3(1)(xi) of the SC and ST Act and also sentenced to pay a fine of Rs. 100/- under each count, in default to undergo S.I. for a period of one week. Thereupon, the accused has preferred this appeal.
4. This Court has now to consider whether the evidence is sufficient to find that prosecution has proved the guilt of the accused beyond all reasonable doubts for the offences under Section 354, IPC and 3(1)(xi)
of the SC and ST Act.
5. Before admitting to the evidence, it is necessary to have a glance at Section 354, IPC and 3(1)(xi) of the SC and ST Act. Section 354. IPC reads as follows :
'Assault or criminal force to woman with intent to outrage her modesty--whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term which may be less than five years, but which shall not be less than two years.'
Section 3(1)(xi) of the SC and ST Act reads as follows :
'3. Punishment for offences of atrocities
(1) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe,
(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty,'
6. In cases of commission of offences against the SC and ST community under SC and ST Act, a person can be prosecuted under Section 3(1)(xi) of SC and ST Act. In cases of others, the Special Act will not have any application, and only a person can be prosecuted under Section 354, IPC for the alleged offence. Under Section 354, IPC, whenever an assault or criminal force is used with an intent to commit outraging of modesty, it is punishable offence. Whereas, if the same offence is perpetrated against an SC or ST, it cannot be prosecuted under the said provision. But, in addition to the outraging of modesty, if there is any intention to dishonour also, the person can be prosecuted. A close look at both sections disclose that the outraging of modesty is punishable under both the sections. The Sessions Judge has framed the charges under both the sections. Accused is being prosecuted for outraging of modesty on two counts under two different sections which is not permissible under law. It is only a repetition of the charge. But, penal sections are quite different. The prosecution shall always keep it in mind that it is not open to prosecute the accused for the self-same offence under two different charges. When once a charge is framed under Section 3(1)(xi) of the SC and ST Act, it excludes the applicability of Section 354, IPC and the accused shall not be prosecuted for the offence under Section 354, IPC, in cases where Section 3(1)(xi) is invoked. The learned Sessions Judge has failed to keep in view the same and framed an additional charge regarding the offence under Section 3(1)(xi) of the SC and ST Act. The FIR-Ex.P2 has been registered in this case only under Section 354, IPC. It took cognizance under Section 354, IPC and committed to the Court of Session under Section 354, IPC. It is only the Sessions Judge who framed additional charge under Section 3(1)(xi) of the SC and ST Act. He has forgotten the salutary principles which give guidance for prosecuting a person under SC and ST Act. There is lot of difference in between prosecution under Section 354 and under Section 3(1)(xi) of SC and ST Act. The investigation is always made by a Circle Inspector or SHO, in case arising under Section 354, whereas the investigation has to be made under Section 3(1)(xi) of the SC and ST Act by an officer not less than the rank of a Dy. SP. The penal sections are also quite different. Under Section 354, IPC, as per the Andhra Pradesh Amendment, the offence is punishable for not less than 5 years, but may extend to 7 years and also liable for fine. A lesser sentence can always be imposed after recording special reasons as per Section 354, Proviso, which reads as follows :
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term which may be less than five years, but which shall not be less than two years.'
7. Whereas, the penal provision under Section 3(1)(xi) of the SC and ST Act makes the offence punishable upto 5 years and with fine, and the minimum punishment being 6 months.
8. Hence, these aspects have to be kept in view before launching prosecutions and the applicability of the provisions. The victim belonged to SC and ST community. Investigation was not taken up by Dy. SP in this case. It is left to ASI-PW. 3 to speed up the things. He has filed the charge sheet under Section 354, IPC. It is only the Court that started realizing its responsibility and then framed a charge under Section 3(1)(xi) of the SC and ST Act. When investigations have to be made by different officers under different Acts and the Court takes the cognizance of the offence and frames the charge treating the offence under Section 3(1)(xi) of SC and ST Act, the investigation is sealed, in any view of the matter, I am of the considered view that a person cannot be prosecuted for S. 354, IPC as well as for the offence under Section 3(1)(xi) of SC and ST Act at one and the same time and cannot be tried for the offence under different Acts. As the victim happens to be a person belonging to SC community, the only provision that can be applicable is Section 3(1)(xi) of the SC and ST Act and not Section 354, IPC. The prosecution under Section 354 as well as giving a finding of guilt is misconceived.
9. Turning to the evidence, P.W. 1 is the victim. She categorically spoke about the incident, namely, catching hold of the hand and dragging inside the motor shed. It is mainly contended by the learned counsel appearing for the appellant that Ex. P. 3 sketch does not show any motor shed and there is discrepancy regarding the direction where the opening is facing. It is also contended that this case has been foisted due to attempt made by accused to settle the dispute in between the aluminium vessel vendor and P.W. 2 who is husband of P.W. 1. Reliance is also placed on another circumstance by the counsel for the appellant-accused- about the discrepancy found regarding holding of shoulder and dragging by hand mentioned in Ex. P. 1 as deposed by P.W. 1 in her evidence.
10. The learned prosecutor contends that the evidence of P.W. 1 is reliable and trustworthy and the Court can act upon it as there is no bar to act upon sole testimony of prosecutrix. Adverting to the said contentions, P.W. 1 is the victim. No doubt, there are minor discrepancies found in her evidence. It appears that P.W. 1 and her husband P.W. 2 went together to the Police Station and when the Police found P.W. 2 in a drunken state, he was prosecuted and sentenced. But it has to be seen whether the evidence of P.W. 1 is reliable, trustworthy and acceptable one.
11. The incident took place on 6-3-1996 at about 5.00 p.m. as per the evidence of P.W. 1 and the report was said to have been given at about 9.30 p.m. The learned counsel was critical upon the delay caused in giving the report and wanted the Court to disbelieve the version, of P.W. 1. Adverting to the same, PW. 1 is the sole prosecutrix. It is now well settled that there is no bar to accept the sole testimony of the prosecutrix, if it is reliable and trustworthy. Moreover, this is a case where she narrated the incident immediately to P.W. 2. She went along with him to the Police Station. There is corroboration forthcoming in the evidence of P.W. 2 being her husband, it has to be considered whether the alleged quarrel that took place in between aluminium vessel vendor and P.W. 2 and mediation said to have been made by the accused has got any bearing over the alleged incident and whether there is possibility of launching a false complaint.
12. The accused has placed evidence of D.Ws. 1 and 2 which amply show that there is an incident of quarrel in between P.W. 2 and aluminium vessel vendor and the accused mediated the same. Even assuming that it is correct, the same is not the case of P.W. 1 that accused was present at the scene. Even according to P.W. 1, she alone was present along with accused when the incident took place. No doubt, she stated that she raised huge cries. The learned counsel appearing for the appellant has contended that non-examination of neighbours is fatal to the version of prosecution. The alleged offence is said to have taken place at about 5.00 p.m. It is not the case of P.W. 1 that it took place in an open place that the accused tried to drag her by hand into the shed. The discrepancy regarding the existence of motor in the shed, in any way, does not affect the evidence of P.W. 1. Discrepancies do occur in truthful witness and it is a symptom of truthfulness rather than a badge of falsehood.
13. I also find that all the discrepancies canvassed before me are only minor and do not in any way affect the theory of P.W. 1 or her evidence. Moreover, P.W. 1 is an illiterate rustic female and there is no motive for her to speak falsehood against the accused, though the husband of P.W. 1 has grudge against the accused. Viewed through the said angle, it cannot be said that P.W. 1 has come with a false version and launched a false case. The Telugu word 'Rekka' has to be interpreted as the hand and cannot be treated as shoulder. In any view of the matter, she has categorically stated that the accused dragged her into the motor shed. I am of the considered view that the evidence is reliable and trustworthy and the intention is clear that he has solicited her for sexual intercourse, but she escaped from his clutches. It certainly constitutes an offence under Section 3(1)(xi) of the SC and ST Act. So far as the sentence imposed under Section 354, IPC is concerned, the same is liable to be set aside.
14. On a reappraisal of the entire evidence, the Sessions Judge has rightly come to the conclusion that the offence has been committed, but he committed mistake by proceeding under both the Sections 354, IPC and 3(1)(xi) of SC and ST Act. I am of the considered view that the accused being appellant herein can be found guilty only for the offence under Section 3(1)(xi) of SC and ST Act and sentence can be passed only under that Act as the victim is an SC and offence is proved beyond all reasonable doubt.
15. Hence, the appeal is partly allowed. The conviction and sentence imposed under Section 354, IPC to undergo R.I. for 5 years and also imposition of fine of Rs. 100/-is set aside. The conviction and sentence imposed under Section 3(1)(xi) of SC and ST Act to undergo S.I. for 6 months along with imposition of sentence of fine of Rs. 100/-is confirmed. The period of custody is ordered to be given set off.
16. The appeal is partly allowed accordingly.