Prosecution must provide valid documentary evidence to prove caste under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act; mere oral testimony is insufficient.

JUDGMENT :

ANURADHA SHUKLA, J.

This criminal appeal has been filed to challenge the judgment delivered on 31.1.2006 in Special (Criminal) Case No.73/2005 by Special Judge, Balaghat, whereby the appellant (hereinafter referred to as “accused”) was convicted of the offence of Section 451 and 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (for short, “Act”) and was sentenced to three months rigorous imprisonment with fine of Rs.1,000/- and additional rigorous imprisonment of one month for non-payment of fine for the offence of Section 451 IPC , and six months rigorous imprisonment with fine of Rs.1,000/- and additional rigorous imprisonment of one month in case of non-payment of fine for the offence of Section 3(1)(xi) of the Act.

2. Facts relevant for the decision of this criminal appeal are that the prosecutrix was inside her house at around 10:00 – 11:00 p.m. on 21.8.2005 and her son was sleeping in another room; accused Kishanlal arrived there and asked for sexual favour from the prosecutrix; he also used criminal force to outrage her modesty; the prosecutrix screamed upon which her son came and switched on the light; accused then fled away, but he was seen even by the brother-in-law of prosecutrix; she got the FIR registered and was medically examined; the investigation followed and the charge-sheet was filed. The impugned judgment was passed after conclusion of trial under which the accused was convicted and sentenced as aforesaid.

3. The grounds raised in this criminal appeal are that there is no material to show that the act was done with an intention that the prosecutrix belonged to scheduled caste/ tribe; there was no legal evidence to support the prosecution case; the FIR was delayed and there were material contradictions in the statements of witnesses. It was claimed that the accused was falsely implicated in the case, accordingly a prayer was made to set aside the conviction and acquit the accused.

4. State has opposed the present appeal claiming that the impugned judgment is based upon correct appreciation of facts.

5. Both the parties have been heard and the record has been perused.

6. The prosecution has claimed that the accused committed the offence of outraging the modesty of prosecutrix by using criminal force upon her while she belonged to scheduled tribe category. To prove the fact that the prosecutrix was a member of scheduled tribe community, her caste certificate has been relied upon by the prosecution, which is Ex.P-5. Incidentally, this is merely a photo copy and not the original certificate. There is no explanation given in the prosecution evidence as to the non-production of original caste certificate.

7. The Investigating Officer, Deputy Superintendent of Police Ghanshyam Malviya (P.W.6), has merely stated during his examination-in-chief that he obtained the photo copy of the caste certificate of prosecutrix and attested it. Not a single word has been spoken by this witness about comparing the contents of photo copy with the original certificate. Further, it is also not explained why the original caste certificate was not seized and from where this photo copy of caste certificate was recovered. Thus, in the absence of original caste certificate and non-disclosure of details from where the photo copy thereof was recovered and also non-disclosure about comparison of the contents of photo copy with the original certificate, it is observed that the caste certificate produced in photo copy during evidence was not duly proved by prosecution. 

8. The learned trial court has held the caste of victim proved also on the basis that she was not cross-examined on the fact that she belonged to scheduled caste category. It may be mentioned here that the judgment of Bhagwat Singh v. State of Madhya Pradesh 2006 (1) ANJ (MP) 355 has laid down the course that should be adopted in a trial under the provisions of the Act and that procedure says that the prosecution should file a vali