Prosecution must establish the accused is not a member of SC/ST to prove an offence under the SC/ST Act; absence of such evidence voids the conviction under the Act.

JUDGMENT :

SIBO SANKAR MISHRA, J.

The present Criminal Appeal is directed against the judgment and order dated 29.06.1996 passed by the learned Special Judge, Balasore in Spl. Case No.29 of 1994, whereby the appellant- accused has been convicted under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the “SC/ST Act”) and sentenced to undergo rigorous imprisonment for six months, with no separate sentence under Section 354 IPC on the reasoning that the offences are pari materia.

2. Heard Mr. Pritam Kumar Mallick, learned Advocate, for the appellant and Mr. Ashok Kumar Apat, learned Additional Government Advocate for the State.

3. The prosecution case, in brief, is that P.W.3, the husband of the prosecutrix (P.W.1), was a retained labourer of the appellant and the accused allegedly owed some arrear wages in the form of rice. On 19.03.1994, when P.W.3 was ailing, he sent P.W.1 to bring the due rice. It is alleged that during this visit the appellant took her inside the house, sent his wife/mother outside, tore her blouse, dragged her sari, sat on her thighs, squeezed her right breast and attempted to outrage her modesty. She claimed to have escaped and that while running away, she was assaulted and abused as “Sali Chamara”.

4. The F.I.R. was lodged on the next day at 11 A.M. As per the prosecution, torn clothes were seized and later on given in zima to the prosecutrix. P.Ws. 2 and 4 were post-occurrence witnesses. The trial culminated in conviction.

5. Six witnesses were examined for the prosecution. The defence took the plea of false implication due to an alleged dispute regarding repayment of advance wages.

6. The learned trial Court, upon appreciation of the oral and documentary evidence adduced by the prosecution, recorded a finding of guilt against the accused. The Court held that the testimony of the prosecutrix was cogent and trustworthy and that her version regarding the alleged assault and use of criminal force stood sufficiently corroborated by the evidence of P.Ws. 3 and 4, who claimed to have witnessed parts of the occurrence. The trial Court further observed that the caste certificate of the victim, marked as Ext-4, established that she belonged to a Scheduled Caste community, and relying upon this, proceeded to invoke the provisions of Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act. It was concluded that the acts attributed to the accused, namely pulling the victim by her hair, tearing her blouse and saree, and touching her inappropriately, amounted to an assault intended to outrage her modesty. The relevant portion of the aforesaid judgment is extracted herein below for ready reference: -

“10. P.W.1 belongs to schedule caste community as admitted by the accused while answering to question No.16 in the statement recorded under section 313 Cr.P.C. Sub-caste "Chamara" belongs to schedule caste community as per the certificate granted by the Tahasildar (Ext.4) which was obtained by the I.0. during investigation. P.W.1 deposed that while committing the crime the accused abused her saying as "Sali Chamara". According to the defence, this statement was not made by her before the I.0; therefore, it is an improvement and not acceptable. Non-utterance of the expression "Sali Chamara" by the accused does not debar the application of section 3 of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act. Section 3 of the Act provides that whoever not being a member of scheduled caste or scheduled tribe assaults or uses criminal force on any woman belonging to scheduled caste or scheduled tribe with intent to dishonour or outrage her modesty would