JUDGEMENT

Against the judgment of conviction and sentence passed by Special & Sessions Judge (East Nimar), Khandwa, on 28.9.2001 in Special (Criminal) Case No.18/2001 this appeal has been preferred whereby the appellants (hereinafter referred to as “accused”) were convicted of the offence of Section 354 IPC and Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (for short, “Act”) and were sentenced for the offence of Section 3(1)(xi) of the Act to six months rigorous imprisonment and fine of Rs.1,000/- with additional rigorous imprisonment of one month, in case of non-payment of fine.

2. Facts relevant for the decision of this criminal appeal are that on 14.1.2001 prosecutrix was on her way back from river to her home at around 12:00 hours;

both the accused restrained her, caught hold of her hands, pressed her breasts and when she screamed, they both fled away after giving threat of killing if she shared the incident with any other person; the prosecutrix was so frightened that she did not narrate the incident to her family members but on the next day she shared it with her husband and mother-in-law and on 16.1.2001 got the FIR registered against the accused persons. She was medically examined, the investigation was undertaken, the charge-sheet was filed and the trial followed.

Upon its conclusion, the impugned judgment was delivered whereunder the accused persons were acquitted of the offence of Section 506 IPC.

3. The grounds raised in this criminal appeal are that the statements of prosecutrix are contrary to her FIR, marked as Ex.P-1; further, there is contradiction in the statements of prosecutrix and other witnesses examined by the prosecution; there was an exceptional delay in lodging the FIR; there was previous enmity between the two sides and for this reason, a false FIR was registered. It was, therefore, prayed that the judgment of trial court, being illegal, erroneous and contrary to law, should be set aside and the appellants should be acquitted or at least be given the benefit of Probation of Offenders Act as they both were under the age of 21 years.

4. State has opposed the present appeal claiming that the impugned judgment deserves no interference.

5. At the stage of final hearing, accused persons failed to appear and argue, hence arguments only on behalf of State were heard and the record is perused.

6. Both the accused persons have been convicted in this case under Section 354 IPC and Section 3(1)(xi) of the Act. Interestingly, no caste certificate of prosecutrix was filed in evidence by the prosecution and it appears that only on the basis of admission made by the accused persons during their examination under Section 313 Cr.P.C. it has been held by the learned trial court that prosecutrix belonged to scheduled tribe category. Therefore, this court has first to examine whether the conviction of accused under Section 3(1)(xi) of the Act is sustainable.

7. The learned trial court has held the caste of prosecutrix proved also on the basis that she was not cross-examined on this fact and also on the ground that there was admission by the accused persons in answer to question no.1 of their examination under Section 313 of Cr.P.C. that the complainant belonged to scheduled tribe. 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 valid certificate of caste/tribe duly issued by an authorized person and mere oral testimony regarding the caste/ tribe of the victim is not sufficient. For this, the decision of Manohar Sawai Rathod v. State of Maharashtra 2007 Cr.L.J. (NOC 785) 202 is also relevant here, which has laid down that mere statements of aggrieved person about his caste/tribe is not sufficient and the prosecution has also to pro