Criminal Revision Application No.78 of 2016

13th March, 2019.

Petitioner Counsel: Shri C.S. DHARMADHIKARI
Respondent Counsel: Shri V.P. GANGANE

Cases Cited:
Vidyadharan Vs. State of Kerala, 2004 ALL MR (Cri) 814 (S.C.)=(2004) 1 SCC 215 [Para 3,8]
Ramdas and ors Vs. State of Maharashtra, 2006 ALL MR (Cri) 3526 (S.C.)=(2007) 2 SCC 170 [Para 4,9]
State of Maharashtra Vs. Dnyaneshwar s/o. Pandurang Bhokare, 2006 ALL MR (Cri) 404=2006(1) Mh.L.J. 849 [Para 4,10,12]

JUDGMENT

JUDGMENT :- Rule. Rule is made returnable forthwith. Heard finally by consent of learned counsel Shri C.S.Dharmadhikari for the applicant and learned Additional Public Prosecutor Shri V.P.Gangane for the non-applicant/State.

2. By the present criminal revision, the applicant challenges order below Exhibit 11 dated 20.10.2015 passed by learned 1st Ad hoc Additional Sessions Judge, Kelapur in Special (Atro) Case No.7/2013 whereby learned Judge of the Court below rejected the application filed by the applicant/accused for discharge.

3. Case of the prosecution against the applicant/accused is that, the applicant was travelling in a S.T.Bus. He touched his finger to the body of complainant from back side. The complainant went to police station and lodged report. Offence came to be registered against the applicant under Section 354 of the Indian Penal Code and under Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as, "the SC and ST Act" for the sake of brevity). Learned Judge of the Court below relied on decision of the Honourable Apex Court in the case of Vidyadharan vs. State of Kerala reported at (2004) 1 SCC 215 : [2004 ALL MR (Cri) 814 (S.C.)] and came to conclusion that Section 3(1)(xi) of the SC and ST Act is aggravated form of Section 354 of the Indian Penal Code and, therefore, the application for discharge came to be rejected.

4. Heard learned counsel Shri C.S.Dharmadhikari for the applicant/accused. He submitted that there must be knowledge on the part of the accused as per new amended Section 3(1)(w) of the SC and ST Act. He submitted that accused must be knowing that woman belongs to caste falling under Scheduled Castes or the Scheduled Tribes. Learned counsel for the applicant pointing out First Information Report lodged by the complainant submitted that the complainant simply stated that the accused who was sitting on back side touched her waist with an intention to outrage her modesty. She did not stated that the accused was knowing that she belongs to scheduled caste or scheduled tribe. Learned counsel, therefore, submitted that offence under Section 3(1) (xi) of the SC and ST Act is not attracted. In support of his submission, he relied on decision of the Honourable Apex Court in the case of Ramdas and ors vs. State of Maharashtra, reported at (2007) 2 SCC 170 : [2006 ALL MR (Cri) 3526 (S.C.)] and decision of this Court in the case of State of Maharashtra vs. Dnyaneshwar s/o Pandurang Bhokare, reported at (2006) 1 Mh.L.J. 849 : [2006 ALL MR (Cri) 404].

5. Perusal of the First Information Report it appears that the complainant has not stated that the accused belongs to caste other than caste falling under the scheduled caste or the scheduled tribes and the accused was knowing that she belongs to scheduled caste or scheduled tribes. Only allegation in the report is that she belongs to caste Manewarlu (Scheduled Tribes). She has stated in her report that she was travelling in S.T. Bus from Wani to Amravati. She was sitting on seat No.6. The accused was sitting on back side. After crossing village Umari, the accused touched her waist. Initially, she neglected the same. But again, 23 time, he touched her waist. She caught his hand and cried for help. Thereafter, she requested conductor to take the S.T.Bus to police station. The S.T.Bus was taken to police station and report was lodged.

6. Perusal of the First Information Report it appears that offence under Section 354 of the Indian Penal Code at the most can be made out. First Information Report further shows that the complainant has not stated that the accused was knowing her caste and, therefore, he intentionally tried to outrage her modesty.

7. Now, after amended Section 3(1)(xi) of the SC and ST Act is as Section 3(1)(w) which reads as under:

"3(1)(w)(i):intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Schedule Tribe, when such act of touching is of a sexual nature and is without the recipient's consent:

(ii) uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe."

The said amended Section shows that the accused must be knowing that woman belongs to Scheduled Caste or Scheduled Tribe. The report lodged by the complainant shows that the accused was not knowing the caste of the complainant.

8. The Honourable Apex Court in the case of Vidyadharan vs. State of Kerala cited supra observed that offence under Section 3(1)(xi) of the SC and ST Act is aggravated form of Section 354 of the Indian Penal Code. The said decision nowhere shows that there should not be any intention or knowledge.

9. The Honourable Apex Court in the case of Ramdas and ors vs. State of Maharashtra [2006 ALL MR (Cri) 3526 (S.C.)] cited supra observed that girl belonging to Pardhi Caste was raped not because she belongs to Scheduled Tribe and, therefore, offence under Section 3(2) (v) of the SC and ST Act is not applicable.

10. This Court in the case of State of Maharashtra vs. Dnyaneshwar s/o Pandurang Bhokare [2006 ALL MR (Cri) 404] cited supra observed that offence of rape under Section 3(1)(xi); 3(1)(xii), and 3(2)(v) are not attracted only because the victim belongs to scheduled caste.

11. In the present case, the First Information Report lodged by the complainant shows that the accused was not knowing caste of the complainant. The complainant simply stated that the accused who was sitting on back side touched her waist.

12. In view of the decision of this Court in the case of State of Maharashtra vs. Dnyaneshwar s/o Pandurang Bhokare [2006 ALL MR (Cri) 404] cited supra and more particularly the new amended Section, it is clear that the accused must be knowing caste of woman and there must be an intentional act to outrage modesty. The First Information Report in question clearly shows that the accused was not knowing the caste of the complainant. Therefore, offence under Section 3(1)(xi) of the SC and ST Act is not attracted. Learned Judge of the Court below has not considered submissions properly and rejected the application filed by the applicant.

13. In view of the above, this Court passes following order:

ORDER

(i) The order below Exhibit 11 dated 20.10.2015 passed by learned 1st Ad hoc Additional Sessions Judge, Kelapur in Special (Atro) Case No.7/2013 is hereby quashed and set aside.

(ii) Application Exhibit 11 is allowed.

(iii) The applicant/accused is discharged of offence under Section 3(1)(xi) of the SC and ST Act.

Application allowed.