For conviction under the SC/ST Act, prosecution must prove both caste identity and an intent to harm due to that identity; lack of such proof invalidates the charge.

JUDGMENT :

S.S. Mishra, J.

The present Criminal Appeal is directed against the judgment and order dated 27th August, 1997 passed by the learned Special Judge-cum-Judge, Special Court, Kandhamal-Boudh, Phulbani in G.R. Case No. 135 of 1995, whereby the appellant has been convicted for offences punishable under Sections 337 and 448 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.200/-, in default to undergo rigorous imprisonment for fifteen days, for the offence under Section 3(1)(xi) of the SC & ST (PoA) Act; rigorous imprisonment for three months for the offence under Section 448 IPC; and rigorous imprisonment for one month for the offence under Section 337 IPC. The learned trial court further directed that all the sentences shall run concurrently.

2. Heard Mr. D.P. Dhal, learned Senior Counsel, for the appellant and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State.

3. The prosecution case, in brief, is that the victim, P.W.1, is a Scheduled Tribe woman belonging to the “Kandh” sub-tribe. The accused is a “Sundhi” by caste and, as such, does not belong to any Scheduled Caste or Scheduled Tribe community. On 28.04.1995 at about noon, while the victim (P.W.1) was sleeping in her house, the door of the house remained open; the accused entered into the house and pounced upon her. When she raised alarm, the accused caught hold of her neck. Hearing her shouts, her mother, P.W.2, who was then sleeping in the back courtyard, came to the spot. On seeing her, the accused fled away. Thereafter, when P.Ws.1 and 2 were proceeding to the Panchayat Secretary to report the matter, the accused pelted brickbats at them, as a result of which P.W.1 sustained injury on her leg.

4. In order to prove its case, the prosecution examined seven witnesses. Out of them, P.W.1 was the victim. P.W.2 is the mother of P.W.1. P.W.3 is the husband of P.W.1. P.W.4 was a co-villager, who was examined to speak about the village meeting. P.W.5 was the doctor, who examined the victim and issued the injury report marked as Ext.-2. P.W.6 was the Officer-in-Charge of Firingia Police Station, who submitted the charge-sheet. P.W.7 was the Investigating Officer, who investigated the case.

5. The accused pleaded not guilty and refuted the allegations against him. On this stance of denial, he was put to trial after charges were framed.

6. The learned Trial Court by largely relying on the statement of P.W.1, the victim and other evidences on record held as under:

“12. In the instant case, prosecution. has well proved its case through the unassailed statements of P.Ws. 1, 2, 3 and 5. Further delay in lodging the F.I.R. has been satisfactorily explained.

13. Thus, prosecution has well proved beyond doubt that accused entered inside the house of P.W. 1 pounced on her and slept over her body. Thus, the intention of the accused to commit an offence in that house i.e. to sexually assault P.W.1 IS writ-large. Thus, the accused entered into the dwelling house with an intention to commit an offence. As such, he has committed criminal house trespass punishable u/s. 448 I.P.C.

14. As discussed above, the unassailed statements of P.Ws. 1 and 2 establish that accused pelted brickbats at them consequently P.W. 1 sustained a simple hurt which fact finds corroboration from th