HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
CRIMINAL APPEAL No. – 1059 of 2012
Son of Lalta Singh Thakur,
Resident of Village Bamhana,
Police Station Safipur, District Unnao
…………….. Appellant (In Jail)
The State of U. P ……… Opposite Party
Counsel for Appellant :- Ran Vijay Singh,M.S.Tomar,Soniya Mishra
Counsel for Respondent :- Govt. Advocate
Hon’ble Prashant Kumar,J.
Hon’ble Anil Kumar Srivastava-II,J.
(Delivered by Hon’ble Anil Kumar Srivastava-II,J)
1. Heard Sri Rajiv Misra holding brief of Ms. Soniya Mishra, learned counsel for the appellant and Sri Diwakar Singh, learned AGA.
2. Instant appeal has arisen against the judgment and order dated 27.6.2012 passed by learned Special Judge, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Unnao in Sessions Trial No.628 of 2006 arising out of Case Crime No.364 of 2006, under Sections 376, 506 IPC and Section 3(2)(v) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Police Station Safipur, District Unnao whereby accused-appellant Kallu Singh was convicted under Section 376 IPC read with Section 3(2)(v) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, and sentenced to imprisonment for life and fine of Rs.25,000/-, under Section 506 IPC to rigorous imprisonment for three years and fine of Rs.2500/- with default stipulation of additional imprisonment for three years and six months’ respectively. Both the sentences were directed to run concurrently.
3. According to the prosecution version, a first information report was lodged by Manohar Lal Raidas father of the victim on 26.8.2006 at 12.10 AM at Police Station Safipur, District-Unnao stating that he is cultivating the field of Sri Krishan on lease on crop sharing basis. Crop of Maize was sown. On 23.8.2006 at about 9.00 AM when the victim aged about 14 years was sitting on the ”Machan’ in the field, accused-Kallu came and asked the victim to get down and pushed her down by catching her leg. He took her to nearby sugarcane field and committed rape upon her. He threatened that if she will narrate the incident to anyone he would kill his family members. Accused ran away from the scene of incident. Victim came her house and narrated the story to her father. Complainant, Manohar Lal Raidas, father of the complainant, went in the field but the accused ran away after seeing them. First information report was lodged on 26.8.2006 under Sections 376, 506 IPC and Section 3(2)(v) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. Investigation was handed over to investigating officer. Victim was medically examined on 26.8.2006 at S.D.W. Hospital, Unnao. Vaginal smear was taken for further examination. Site plan was prepared. Statements of victim and witnesses were recorded. Victim was sent for X-ray for assessment of her age which was reported to be 12 years on the basis of X-ray. After concluding investigation, charge-sheet was submitted against the accused.
4. Accused was charged under Sections 376, 506 IPC and Section 3(2)(v) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, who denied the charges and claimed trial.
5. In order to prove its case prosecution has produced P.W.1 Victim, P.W.2 complainant Manohar Lal Raidas, P.W. 3 Dr. Rachna Saxena, who had medico legally examined the victim on 26.8.2006 and opined that no mark of external injuries was found. Vaginal smear was taken out. Hymen was found torn. Dead sperms were found. Doctor opined that she has been subjected to rape. On the basis of supplementary report her age was assessed as 12 years. P.W. 4 Circle Officer Arun Kumar Srivastava is investigating officer while P.W.5 constable Moharir Uma Shankar is formal witness, P.W.6 Dr. R.C. Bhatt radiologist has conducted the X-ray of the victim.
6. In the statement under Section 313 Cr.P.C. accused has stated that all the witnesses have given false statement. D.W.1 Gayan Prakash Principal of Prathmik Vidhyalay, Bamhana, Safipur, District Unnao is produced who has proved the admission register of one Savitri.
7. After appreciating the evidence on record, learned trial court has placed reliance upon the statement of P.W.1 victim. Learned trial court has also placed reliance upon the Statement of doctor who has opined that the victim was subjected to rape. Accordingly, learned trial court has recorded a finding of conviction against the accused.
8. At the very outset, learned counsel for the appellant has pressed the appeal on the point of sentence only and submitted that the accused is languishing in jail for the last about six years and he may be sentenced for the period already undergone. When attention of learned counsel was drawn on legal preposition that the accused appellant has been convicted under Section 376 IPC read with Section 3(2)(v) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, wherein the minimum punishment is imprisonment for life then learned counsel gave up his earlier submission and pressed the appeal on merit also.
9. Learned counsel for the appellant submits that the age of the victim is show differently at different places. In the first information report, she is shown as 12 years’ old, while in the evidence it has come that she was 15 years’ old. It is further submitted that the date of birth in the school register, which is proved by D.W. 1 Gayan Prakash, is 14.7.1988. Learned counsel submits that discrepancies in age is a ground for disbelieving the prosecution version.
10. Learned counsel further submits that except for the testimony of P.W.1.victim, there is no other witness to support or corroborate her version. No injury was found on the body of the victim, while it is stated by her that she has sustained injury in the incident. It is further submitted that the first information report was lodged with considerable delay, which itself raises a suspicion that the first information report was lodged against the accused after due deliberation. It is further submitted that no explanation about torn cloths of the victim could be given.
11. It was held in Dinesh Alias Buddha vs. State of Rajasthan (2006) 3 Supreme Court Cases 771 read as under:
“It is a crime against basic human rights, and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the ‘Constitution’) The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.”
12. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society.
13. It was held by Hon’ble Apex Court in Dinesh @ Buddha v. State of Rajasthan (2006)3 Supreme Court Cases 771 as under:
11 . In the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracised by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sexual offence is entitled to great weight, notwithstanding the absence of corroboration. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. The observations of Vivian Bose, J. in Rameshwar vs. The State of Rajasthan (AIR 1952 SC 54) :
“The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge…”.
14. The Hon’ble Apex Court has further placed reliance upon following paragraphs wherein it was held as under:
25.In Karnel Singh v. State of Madhya Pradesh (1995)5 SCC 518 this Court observed that:
“7…The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society’s attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false…”
26. Likewise, in State of Punjab v. Gurmit Singh Ors. (1996)2 SCC 384 , it was observed:
“8…The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged…” :
15. The incident occurred on 23.8.2006. First information report was lodged on 26.8.2006 at 12.10. PM by P.W. 2 Manohar Lal Raidas, father of the victim. It is stated by the P.W.2 Manohar Lal Raidas that he went to the Police Station continuously but his report was not lodged by the Police officials. Report was lodged on 26.8.2006 when he met the Superintendent of Police. Even in the cross-examination, he has supported his version that the report was lodged on the fourth day of the incident. Victim was also medico legally examined on the same day. It has been held by the Hon’ble Apex Court that delay in lodging the first information report cannot be used for discarding the prosecution case.
16. In a recent judgment of Hon’ble Apex Court in State of Himachal Pradesh vs. Sanjay Kumar @ Sunny (2017)2 Supreme Court Cases 51; Apex Court has placed reliance upon Tulshidas Kanolkar v. State of Goa (2003)8 SCC 590
“5. ……. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle.”
17. The learned trial court has considered the aspect of delay and held that although the complainant made all efforts to lodge the first information report but the concerned police officer did not register the first information report. P.W. 5 Constable Uma Shankar is the scribe of chik FIR who has stated that the first information report was registered on 26.8.2006. He was not cross-examined on the point that the complainant has not made earlier efforts for registering the first information report. Hence, the delay in lodging the first information report is satisfactorily explained by P.W.2 Manohar Lal Raidas.
18. P.W. 1 victim has stated that she was sitting on ‘Machan’ in the field wherein the accused came. She has given a graphic description of the incident wherein, firstly, the accused assured that himself that no one else is present in the field. Accused asked her to come down from the ‘Machan’. Then she called her father. Then accused- Kallu dragged her from ‘Machan’ and took her to the sugarcane field. Learned counsel for the appellant submits that P.W.1 victim has stated that she has sustained injuries but in the medico legal examination report, no such injury was found. Bangles on her wrist were also broken causing injuries. Medico legal examination report of the victim was done on 26.8.2006 wherein P.W.3 Dr. Rachna Saxena did not find any external injury on body of the victim. P.W.1 victim has stated that injuries on her body were shown to the Doctor. One injury was in the thumb. It might have been possible that when she was pushed down from the ‘Machan’, she might have received some abrasion which might have been healed up by 26.8.2006, when she was medically examined. Even no suggestion was given to the doctor P.W.3 Rachna Saxena that the victim was having injuries on her body but she has not shown them in the medico legal examination report. In such circumstance, we are of the considered view that the statement of P.W. 1 Victim is wholly reliable.
19. P.W.1 victim has stated that she was raped by the accused. In the medico legal examination report, dead sperms were found. Learned trial court has considered this aspect in detail.
20. In Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, 6th Edn. It is mentioned that ., …..
Presence of spermatozoa and other micro-organisms: Normally, sperms remain motile in the vagina for about six to eight hours and occasionally 12 hours. Non-motile forms are detectable for about 24 hours with occasional reports of 48 to 72 and very rarely 96 hours. Motility persists longer at body temperature. The sperms remain motile in the uterine cavity for 3-5 days. Non-motile forms may be found in the female genital tract for weeks or months after death. To demonstrate the presence of sperms, the vaginal contents are aspirated by means of a blunt-ended pipette. A wet preparation is then made on a slide and examined under a microscope for motile spermatozoa. If motile sperms are seen, it would mean that intercourse has taken place within about 12 hours. If the sperms are not motile, it is not possible to say exactly when intercourse took place except that it may be over 12 hours and within about 24 to 48 and occasionally up to 72 hours. Intact spermatozoa are rarely found in the vagina after 72 hours after coitus. In such a case, sperm heads and tails can be separately demonstrated by using picroindigocarmine which stains sperm heads red and the tails green and red. A smear is also made from the vaginal contents, fixed by gentle heat, and stained by Ziehl-Neelson’s method, and examined for the presence of spermatozoa and smegma bacilli…..”
21. P.W.3 Dr. Rachna Saxena, has found hymen of the victim ruptured and in her vaginal swab, dead sperms were found. She has opined that rape was committed upon the victim. No cross examination was done on this point. Statement of P.W.1 victim finds support from the statement of P.W.3 Dr. Rachna Saxena.
22. It is a settled legal position that the medical evidence is also a corroborative piece of evidence but where the medical evidence does not support the otherwise clinching and trustworthy ocular evidence of any material witness then, the testimony of such ocular evidence will prevail on the medical opinion and not vice versa. In Ranjit Hazarika v. State of Assam [(1998) 8 SCC 635 : 1998 SCC (Cri) 1725] , the opinion of the doctor was that no rape appeared to have committed because of the absence of rupture of hymen and injuries on the private part of the prosecutrix, the Supreme Court took a view that the medical opinion cannot throw over board an otherwise cogent and trustworthy evidence of the prosecutrix. Relevant paragraph of the said judgment is reproduced as under:
6. The evidence of the prosecutrix in this case inspires confidence. Nothing has been suggested by the defence as to why she should not be believed or why she would falsely implicate the appellant. We are unable to agree with the learned counsel for the appellant that in the absence of corroboration of the statement of the prosecutrix by the medical opinion, the conviction of the appellant is bad. The prosecutrix of a sex offence is a victim of a crime and there is no requirement of law which requires that her testimony cannot be accepted unless corroborated. In State of Punjab v. Gurmit Singh [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] to which one of us (Anand, J.) was a party, while dealing with this aspect observed: (SCC pp. 395-96, para 8)
“The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”
23. Hon’ble the Supreme Court in B.C. Deva v. State of Karnataka [(2007) 12 SCC 122], in spite of the fact that no injuries was found on the person of the prosecutrix, yet finding her version to be reliable and trustworthy, the Supreme Court upheld the conviction of the accused. The Court observed that:
“18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted.”
24. It was held by the Hon’ble Apex Court in State of Himachal Pradesh Sanjay Kumar @ Sunny (2017)2 Supreme Court Cases 51 held that Para 31;
“31. ……….By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance (See Bhupinder Sharma v. State of H.P. (2003)8 SCC 551).”
25. Statement of P.W.1 victim is natural which could not be disbelieved.
26. Learned counsel further submits that there is no independent witness of the incident.
27. Now, it is to be seen as to whether the statement of P.W.1 is reliable and trustworthy?
28. P.W.1 victim has stated that she was raped by the accused in the sugarcane field. She was sitting on the ”Machan’. Accused asked him to come down when she did not come down, he pushed her. When she was sitting on ‘Machan’ Kallu was nearby alongwith she buffalo. Kallu pushed her from ‘Machan’ and took her to the sugarcane field and committed rape upon her. There was noneelse in the field. After committing the rape accused ran away. Then she went to her house and narrated the story to her father. This statement of the victim is natural statement. A suggestion was given to the witness that she is falsely implicating the accused on the instigation of Narendra Singh and Ram Bahadur. What is the connection of victim or her father with these two persons could not be established by the defence. There was no occasion for false implication, rather, the statement of the victim is beliveable that accused has committed rape upon her. There is no reason shown by the defence as to why the victim would depose against her own chastity? Furthermore, statement of victim itself is sufficient to prove the charges against the accused.
29. Presumption under Section 114 A of the Indian Evidence Act as amended with effect from 25.12.1983 by the Criminal Law (Amendment ) Act, 1983 is as under :
“23……114-A. Presumption as to absence of consent in certain prosecutions for rape.- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.”
30. It was held by Hon’ble Apex Court in Deepak vs. State of Haryana (2015)4 Supreme Court Cases 762 held para 24:
24. In order to enable the court to draw presumption as contained in Section 114-A against the accused, it is necessary to first prove the commission of sexual intercourse by the accused on the prosecutrix and second, it should be proved that it was done without the consent of the prosecutrix. Once the prosecutrix states in her evidence that she did not consent to act of sexual intercourse done by the accused on her which, as per her statement, was committed by the accused against her will and the accused failed to give any satisfactory explanation in his defence evidence on this issue, the court will be entitled to draw the presumption under Section 114-A of the Indian Evidence Act against the accused holding that he committed the act of sexual intercourse on the prosecutrix against her will and without her consent. The question as to whether the sexual intercourse was done with or without consent being a question of fact has to be proved by the evidence in every case before invoking the rigour of Section 114-A of the Indian Evidence Act.
31. Statement of P.W.1 victim shows that the sexual intercourse was committed by the accused on the prosecutrix without her consent. Now the burden shifts upon the accused that sexual intercourse was not done or with the consent of the victim. No ground of consent has been taken by the accused in his defence. Further commission of rape upon the victim has been proved by the statement of P.W.1 Victim. Hence, the presumption under Section 114-A Indian Evidence Act will also be operative against accused in this case.
32. Much emphasis has been laid by learned counsel for the appellant about the age of the victim. An effort is made to show that her name is also Savitri, whose date of birth has been shown as 14.7.1988 in the exhibit Kha I which is admission register proved by D.W.1 Gayan Prakash, Headmaster of Prathmik Vidhyalay, Bamhana, Safipur, District, Unnao. P.W.1 victim has specifically denied that her name is also Savitri.
33. Learned counsel for the appellant has placed reliance upon a photostat copy of Pariwar Register which is on record as exhibit Kha 2. Exhibit Kha 2 is not legally proved document. It has not come on record from whose custody it has been produced. Whether it was produced from proper custody? It is a photostat copy which is in the nature of secondary evidence, since, the document itself is not proved. Hence, no reliance could be placed on this document. Further even if it is accepted for the sake of argument then who has written the name Suman @ Savitri in this pariwar register while victim herself has denied that her name is also Savitri. Learned counsel has submitted that the victim has shown different age at different places, which is of no help to the defence. Even if we accept the submission of learned counsel for the defence, then too victim is minor.
34. In such circumstances, we are not inclined to extend any benefit to the defence on this count.
35. Whatever age of the victim is accepted on any calculation, she was minor at the time of incident. Rape was committed upon her by the accused against her consent. Hence, learned trial court has rightly held the accused guilty for the offence punishable under Section 376 IPC.
36. Investigation of the case has been done independently.
37. Learned counsel for the defence submits that clothes of the victim were not taken into possession by the investigating officer which was produced by her in the court. P.W.1 victim has stated that she had shown the cloths to the investigating officer but he did not receive the same and took them into possession. P.W.1 victim herself has produced her kurta and rope of salwar in the court. Even if the same were not taken into possession by the investigating officer which can only be said to be a fault on part of the investigating agency but the fault is not such which can extend any benefit in favour of the accused.
38. Accused was also convicted under Section 3(2)(v) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.
39. Learned counsel for the accused-appellant submits that no offence under section 3(2)(v) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act is made out from the evidence of the accused.
40. Section 3(2)(v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act reads as under:
3(i) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-
(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-
(v) commits any offence under the Indian Penal Code (45 of 1860) 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;
41. P.W.1 victim and P.W. 2 Manohar Lal Raidas have specifically stated that they belong to chamar by caste and member of Scheduled Caste and the accused is thakur who is not a member of Scheduled Caste. Both belongs to the same village. Accused has knowledge of the fact that victim is member of Scheduled Caste. He has committed rape upon the victim who is a member of Scheduled Caste. P.W.1 victim has stated that after the commission of rape, the accused abused her and threatened that if she will narrate the incident to any one, he would kill her family members. Such conduct of the accused coupled with the fact that he was knowing the fact that victim is a member of Scheduled Caste, specially, covered the offence under Section 3(2)(v) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act as the offence was committed knowing it fully well that the victim is a member of the Scheduled Caste.
42. Learned counsel for the appellant has placed reliance upon Dinesh @ Buddha vs. State of Rajasthan (2006)(3) Supreme Court Cases 771 which is distinguishable from the facts of present case. In Dinesh (Supra) it was submitted by learned counsel for the State that though Section 3(2)(v) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act may not be applicable but imposition of life sentence is also permissible in a case covered under Section 376 (2)(f) IPC. In the present case, it is not the situation, rather, it is submitted by learned AGA that victim was sexually assaulted by the accused knowing it fully well that she is a member of Scheduled Caste, while accused is not a member rather, thakur by caste. In such circumstances, accused cannot take any benefit of the law laid down in Dinesh (Supra). Learned trial court has rightly held the accused guilty under Section 376 IPC read with Section 3(2)(v) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
43. Having considered the submission of learned counsel for the appellant and learned AGA on the basis of discussion made hereinabove, we are of the considered view that the prosecution has successfully proved the charges levelled against the accused. Learned trial court has rightly convicted and sentenced the accused. Appeal lacks merit and is liable to be dismissed.
44. Accordingly, appeal is dismissed. Judgment and order dated 27.6.2017 passed by learned court below is confirmed. Accused is in jail. He shall serve out the sentence as imposed by learned trial court and confirmed by this Court.
45. Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance. Compliance report be submitted within eight weeks.
Order Date :-08.11.2017
Subodh/- [Anil Kumar Srivastava-II,J] [ Prashant Kumar,J]