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Ram Charan vs State on 6 February, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Appeal No. 122 / 1993
Ram Charan
—-Appellant
Versus
State
—-Respondent

__
For Appellant(s) : Mr. Rinesh Gupta
For Respondent(s) : Mr. Prakash Thakuriya PP
__
HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Judgment
06/02/2018

The present appeal has been filed to assail the

impugned judgment dated 12.3.1993 whereby the court of Special

Judge, SC/ST (Prevention of Atrocities) Cases, Baran convicted the

accused appellant Ram Charan son of Mangi Lal for the offences

under Section 354 IPC and Section 3(1)(x) of SC/ST (Prevention

of Atrocities) Act (hereinafter called as ‘SC/ST Act’.

Having convicted the appellant for the above said

offences, the trial Judge vide a separate order of even date,

sentenced the appellant as under:-

U/s. 354 IPC read with Section 3(1)(x) of SC/ST Act- to undergo

six months SI and to pay a fine of Rs.200/-, in default thereof to

undergo additional one months imprisonment.

In the present case, criminal proceedings were set into

motion on the basis of written report (Exhibit-P/1) submitted by

Dayachand (P.W.2), elder brother of husband of the prosecutrix
(2 of 8)
[CRLA-122/1993]

(P.W.1-name withheld to protect her identity). In written report

(Exhibit-P/1), the complainant Dayachand (P.W.2) stated that the

prosecutrix was going to the flour mill for grinding of the grain

when on the way accused caught hold of her.

The prosecutrix (P.W.1) in the court deposed that she

had left the house for getting the grain grinded from the flour mill.

She was returning from the flour mill when accused came, took

her in grips and pressed her breasts. On the noise raised, Sita

Ram (P.W.3), younger brother of husband of prosecutrix was

attracted to the spot. On the noise raised accused ran away from

the spot.

In the evidence, nowhere witness has stated that the

accused had used derogatory words regarding the caste of the

prosecutrix.

Merely because accused made an attempt to outrage

the modesty of a woman who belong to Scheduled Caste

community, it cannot be said that the said offence was done

intentionally to demean member of a Scheduled Caste community.

The learned counsel for the appellant has submitted

that provisions of Section 3(1)(x) of SC/ST Act are not attracted in

the facts and circumstances of the case.

I find merit in the contention raised by the learned

counsel for the appellant. The argument raised is no longer res

integra. A Division Bench of this Court, to which I was party, in

Ramkaran vs. State of Rajasthan, D.B. Cr. Appeal No.
(3 of 8)
[CRLA-122/1993]

945/2004 decided on 25.11.2014, noticing the contentions of the

counsel, observed as under:-

“14. Mr. Mehla, the learned counsel for the appellant has
vehemently urged that the application of offence under Section
3(2)(v) of ‘the Act’ is not attracted. The thrust argument of Mr.
Mehla is while committing offence of rape, accused may intend
to satisfy his lust, but there is no evidence or assertion by the
witness that accused intended to humiliate a member of
Scheduled Caste or the offence of rape was committed only on
the ground that the prosecutrix belonged to Scheduled Caste
community.

15. The argument raised by Mr. Mehla is not new to
this Court. A Division Bench of this Court in the case of
Manohar Singh vs. State of Rajasthan reported in 2000(2)
RCC 894, in similar circumstances, held as under:-

“10.The doctor opined that from the external injuries,
the possibility of rape being committed, cannot be
denied. The doctor also seized the ‘ghaghra’ of the
prosecutrix on which spots of semen were detected. He
further stated that the accused Manohar Singh was also
examined on 19.12.1996. He was found fit for indulging
in sexual intercourse. The prosecution has produced the
FSL report dated 2.9.1997, which shows that human
semen was found on the ‘ghaghra’. Thus, on careful
consideration, we find the testimony of P.W.8 Mst.
Ramila as trustworthy. The learned Judge has rightly
held the accused appellant guilty of rape.

11.The next question, which arises for consideration is
whether the conviction of the appellant under Sec.3(2)

(v) of the Act is justified and legal?

12.We have, recently in a case of Pappu Khan vs. State
of Rajasthan, “D.B. Criminal Appeal No. 722/98 decided
on 2.9.1999″, examined the scope and ambit of
Sec.3(2)(v) of the Act. It is held therein that for the
offence under Sec.3(2)(v) of the Act, beside the
ingredients of respective offence of Indian Penal Code,
the prosecution is further required to establish that the
(4 of 8)
[CRLA-122/1993]

accused being a person of non S.C./S.T. has committed
the crime on a person of S.C./S.T. for the reason that
such person belonged to such community or tribe.”

16. The view taken by the Division Bench of this Court
was subsequently followed by another Division Bench of this
Court in the case of Sohan Singh Anr. vs. State of
Rajasthan reported in 2002(2) Cr.L.R. [Raj.] 1541. Their
Lordships, while examining the law laid in Manohar Singh’s case
(supra) further to fortify had relied upon the observations of the
Hon’ble Apex Court in Masumsha Hasanasha Musalman vs.
State of Maharashtra reported in 2000 SCC (Cri) 722. Since
their Lordships relying upon the observations of the Hon’ble
Apex Court in a very lucid manner had answered the above
question. With all reverence to Their Lordships, the relevant
portion of the judgment is reproduced as under:

“10.We have considered the rival submissions, and have
also gone through the record carefully. We may first
take up the sustainability of the conviction u/s. 3(2)(v)
of the Act. We may gainfully recapitulate the language
of Sec. 3(2)(v) which reads as under:-

“(v)committed any offence under the Indian Penal Code
punishable with imprisonment for a term of ten years or
more against a person or property on the ground that
such person is a member of a Scheduled Caste or a
Scheduled Tribe or such property belongs to such
member, shall be punishable with imprisonment for life
and with fine.”

11.Our attention has been invited by the learned
counsel for the appellants, to a recent judgment of
Hon’ble the Supreme Court in Masumsha Hasanasha
Musalman vs. State of Maharashtra reported in 2000
SCC (Cri) 722, which was a case relating to murder,
wherein the accused was convicted for the offence u/s.

304-II IPC and Sec. 3(2)(v) of the Act, and under the
former he was sentenced to 5 years rigorous
imprisonment while under the later he was sentenced to
life imprisonment. These convictions were confirmed by
the High Court. In appeal the Hon’ble Supreme Court
(5 of 8)
[CRLA-122/1993]

noticed that there was no dispute about the deceased
dying homicidal death, and considering the nature of
injuries, confirmed the conviction u/s. 304-II IPC. Facts
in that case were that between 7.00 and 8.00 p.m. on
the fateful day Saoji Gamaji Jadhav, a member of
Scheduled Caste, who had returned to his house at
dusk, and after some time had left the house informing
his wife that he would be going out for some time, and
would return soon, thereafter. After about half an hour
of the deceased left his home, the appellant came to
the house of the deceased and enquired from his wife
about the deceased. At that time the appellant was
carrying a ‘jambiya’. On coming to know from her that
her husband had gone out of the house, the appellant
started running through the lane. The wife getting
suspicious followed, and near the hospital of Dr.
Kalwaghe, she saw the appellant stabbing the deceased
who fell down and died. It is on these facts Hon’ble the
Supreme Court has held as under:-

“To attract the provisions of Sec.3(2)(v) of the
Act, the sine qua non is that the victim should be
a person who belongs to a Scheduled Caste or a
Scheduled Tribe and that the offence under the
Indian Penal Code is committed against him on
the basis that such a person belongs to a
Scheduled Caste or a Scheduled Tribe. In the
absence of such ingredients, no offence u/s. 3(2)

(v) of the Act arises. In that view of the matter,
we think, both the trial Court and the High Court
missed the essence of this aspect.”

12.With the above findings the conviction u/s. 3(2)(v)
was set aside. In our view, the judgment in Masumsha
Hasanasha Musalman’s case fully supports the
contention of the learned counsel for the appellants,
and since in the present case also, there is not an iota
of material on record, even to indicate that, either of
the offence was committed “on the basis” that the
victim belongs to Scheduled Caste. Accordingly, the
conviction for the offence, u/s. 3(2)(v) of the Act, is
very much required to be set aside.”

(6 of 8)
[CRLA-122/1993]

17. Recently, another Division Bench of this Court in
Suban Khan vs. State of Rajasthan reported in 2014 (1)
WLN 454, on similar facts had formulated the same view.

18. In view of the consistent interpretation of law by
various Division Benches of this Court, we called upon Ms. Sonia
Shandilya, the learned Public Prosecutor to point out any piece
of evidence or material from which we can infer that prosecutrix
was subjected to rape on the ground that she was a member of
a Scheduled Caste community. The learned Public Prosecutor,
however, could not answer our query, as no relevant material is
available in the record.

19. Lust is a vice, from which human beings do suffer.
As per medico-legal report Exhibit P/6, the prosecutrix is
mother of five children. To attract Section 3(2)(v) of the Act, it
was incumbent for the prosecution to bring on record some
material that the prosecutrix was subjected to rape only on the
ground that she is a member of Scheduled Caste or appellant
wanted to assert superiority of his caste by humiliating a
member of Scheduled Caste. Since there is nothing on record
and the very wording of Section 3(2)(v) of the Act is that
‘offence is committed against a person on the ground that such
person is a member of Schedule Caste’, which prescribe an
essential ingredient and same is not satisfied. We shall follow
the dictum of law laid in Manohar Singh’s case (supra) and
Sohan Singh’s case (supra).

20. Hence, we answer the question in favour of the
counsel for the appellant by holding that offence under Section
3(2)(v) of the Act in the facts and circumstances of the case is
not made out and therefore, conviction of the appellant on this
count cannot be sustained.”

In view of the observation made and the provisions of

law enunciated in the case of Ramkaran (supra), the conviction of

the appellant for offence under Section 3(1)(x) of SC/ST Act is set

aside and he is acquitted of charge.

(7 of 8)
[CRLA-122/1993]

Now, this Court has to examine the conviction of the

appellant for offence under Section 354 IPC.

In the present case, the prosecutrix and Sita Ram

(P.W.3) have categorically stated that the accused had caught hold

of the prosecutrix, embraced the prosecutrix by taking her into

grip and had pressed her breasts. The testimony of the

prosecutrix could not be demolished in the cross-examination.

Therefore, this Court has to place implicit reliance thereupon.

Consequently, the conviction of the appellant for the offence under

Section 354 IPC is upheld.

In the present case, the occurrence has taken place on

30.8.1991. A period of more than twenty-six years has already

elapsed. The appellant is in the corridors of the court for more

than two decades. He has suffered a protracted trial. It is

submitted that in the last twenty-six years the appellant has not

committed any offence.

Considering the sufferance of protracted trial, this Court

is of the view that no useful purpose will be served by sending the

appellant behind the bars. Hence, sentence of imprisonment

imposed upon the appellant is reduced to the period already

undergone. However, sentence of fine is enhanced to Rs.10,000/-.

In default of payment of fine, the appellant shall undergo

additional six months RI. Sentence of fine so deposited shall be

disbursed to the prosecutrix.

Considering that the prosecutrix belong to Scheduled

Caste community, Secretary, Rajasthan Legal Service Authority is
(8 of 8)
[CRLA-122/1993]

also directed to pay compensation under the Victim Compensation

Scheme formulated by the State of Rajasthan under Section 357-A

Cr.P.C. to the prosecutrix.

In view of above, the present appeal stands disposed

of.

A copy of this judgment be sent to the Secretary,

Rajasthan Legal Services Authority, Jaipur.

(KANWALJIT SINGH AHLUWALIA)J.

Mak/-

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