1. The appellant-accused has directed this appeal under section 374 of the CrPC being aggrieved by the judgment dated 29.10.1998 passed by Special Judge (constituted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (in short the Act), in Special Case No.26/1998 whereby he has been convicted and sentenced under section 3(1)(xi) of the Act with a direction to undergo RI of 6 months with fine of Rs.500/- with stipulation of punishment in default of depositing the fine.

2. The facts giving rise to this appeal in short are that Smt. Sumitrabai as alleged Balai by caste lodged the FIR on 14.5.1998 at about 4 o’clock at Police Station Gutampura Indore contending that she being an agricultural labour at about 10 o’clock in the morning accompanied with Bhanverbai, Anterbai and Kamlabai went to collect the cow dung towards the field of one Mohan Jat. During such collection accompanied person went ahead while she was backside at some distance. At the same time, the appellant Radheshyam was grazing his buffaloes came to her and after taking his basket placed on the floor and by pressing her mouth pressed her chest. On her shouting, he fled away. She further stated that appellant committed such act with intention to commit the rape but because of shouting he could not make success. Thereafter she came to her residence and after apprising such incident to his brother-in-law Jagdish and father-in-law Mangilal accompanied with them came to police station and lodged the report. On which a crime for the offence under section 354 IPC and section 3(1)(xi) of the Act was registered, investigated and on completion of the same the appellant was charged-sheeted for his prosecution.

3. On assessment of the charge-sheet a charge of section 3(1)(xi) of the Act was framed. The appellant abjured the guilt on which the trial was held. On appreciation of the evidence by holding the appellant guilty for such offence, he was punished with the above mentioned punishment. Being dissatisfied with such judgment of conviction and sentence, the appellant has come to this Court with this appeal.

4. Shri Ashish Vyas, learned appearing counsel of the appellant assailed the impugned judgment saying that on proper appreciation of the evidence it is apparent that prosecution has utterly failed to prove the caste of the prosecutrix Balai covered with the Act. In continuation he said that in order to prove such fact prosecution has placed the caste certificate Ex.P-2 issued by the Sub-Divisional Officer but the same has not been issued in compliance to the rules and regulation and also in accordance with the direction of the apex Court which was given in Madhuri Patil’s case. He further said that in the lack of deposition of Sub-Divisional Officer or the concerning Tahsildar who signed such certificate, the same could not be a foundation to hold the caste of the prosecutrix covered with the act. In this regard, he further said in the lack of opportunity of cross-examination to the concerning authority like SDO of Tehsildar who issued such certificate with their signature the same could not be used a admissible evidence against the appellant. In this connection he also said that mere marking the exhibit by the Investigating Officer on such certificate is not sufficient to hold that the certificate has been proved on record. He also said that it is settled proposition of law that every act should be carried out by the authorities in accordance with the procedure prescribed under the law. If any act is carried out by the authority contrary to such procedure then, the same should not be the foundation to draw any inference against the accused to hold conviction against him. In this background, firstly he prayed for extending the acquittal to the appellant from the aforesaid charge of the act, in response to some query of the Court based on section 222 of the CrPC asking the counsel that in view of the available evidence whether appella