1
Cr.A. No.3580/2014
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. CRA. No.3580 of 2014
Parties Name Vimlendra Singh alias Prince Singh
Vs.
The State of Madhya Pradesh
Bench Constituted Division Bench comprising of
Hon’ble Shri Justice Sujoy Paul
Hon’ble Shri Justice Vishal Dhagat
Judgment delivered by Hon. Shri Justice Sujoy Paul
Whether approved for YES
reporting
Name of counsels for parties For Appellant: Shri A.P. Singh,
Advocate.
For respondent/State: Shri Brindawan
Tiwari, Government Advocate.
Law laid down 1. Section 3(2)(v) of the Scheduled Castes
and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989- As per
unamended provision, the prosecution
was required to establish that the
prosecutrix who was subjected to any
offence under the IPC was subjected on
the ground that she is a member of
SC/ST community. In view of evidence
on record, the prosecution could not
establish that offence allegedly
committed was on the ground that
prosecutrix belonged to reserved
community. Hence, the offence under
Section 3(2)(v) of the Act of 1989 is not
made out.
2. Rule 12 of the Juvenile Justice (Care
and Protection of Children) Rules,
2007 – Rule 12 (3): the date of birth
certificate from the school first attended
(other than the play school) can be basis
for determination of age. In the instant
case, the admission register of primary
school, the school first attended by the
prosecutrix, was not produced. The
transfer certificate issued by the said
school was not proved by producing any
witness of the first school. Hence, the
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Cr.A. No.3580/2014
transfer certificate of first school cannot
be admitted in evidence.
3. Rule 12(3) – Interpretation of Statute – if
a statute prescribes a thing should be
done in a particular manner, it has to be
done in the same manner and other
methods are forbidden.
4. Interpretation of Statute – If provision
of a Statute is clear and unambiguous, it
has to be given effect to, irrespective of
the consequences.
5.FIR-Belated lodgment of- the
prosecutrix was allegedly raped on 27th
October, 2012 whereas FIR was lodged
on 22nd June, 2013. The delay is not
explained which causes a dent on the
credibility of story of prosecution.
Significant paragraph 23,24,26,27.28,
numbers
JUDGMENT
(16.10.2019)
1. This criminal appeal filed under Section 374 (2) of the Code of
Criminal Procedure, 1973 is directed against the judgment of conviction
and order of sentence dated 05.12.2014 passed in Special Case
No.33/2013 whereby the appellant was held guilty of committing
offence under Sections 376(1), 506-B of the Indian Penal Code and
Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. The appellant is directed to
undergo sentence for Life for the offence committed under the Atrocities
Act and for remaining offences, he was directed to undergo R.I. for a
period of 7 years and 1 year respectively with default stipulation.
2. Briefly stated, the story of the prosecution is that on 22.06.2013,
prosecutrix along with her parents lodged a first information report in
Police Station, Majhauli that the appellant on 27.10.2012 called and
hired her at his house to assist him regarding preparation of festival.
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Cr.A. No.3580/2014
When the prosecutrix was inside the house, appellant entered the room,
locked the room from inside and raped her. When she protested, he told
her that he will marry her. Thereafter also, on many occasions, appellant
developed physical relations with the prosecutrix. Later on, when she
became pregnant, she apprised this to the appellant but he refused to
marry her.
3. On 03.06.2013, prosecutrix solemnized marriage with one
Kamalbhan Singh. However, on 15.06.2013, she gave birth to a daughter
at Kamalbhan’s residence. Kamalbhan Singh refused to keep her and
sent her back to her parents’ home. Thereafter, the first information
report was lodged on 22.06.2013.
4. On the basis of the oral report, which is reduced in writing in the
shape of first information report (Ex.P/1), the investigation was carried
out. The prosecutrix was subjected to medical examination. The challan
was prepared and in turn, matter after committal, came up for
consideration before the Court of competent jurisdiction.
5. The appellant abjured the guilt and prayed for a full-fledged trial.
The prosecution examined as many as 17 witnesses. In turn, one defence
witness DW-1 Kailash Singh entered the witness box. In the statement
under Section 313 of the Cr.P.C., the appellant pleaded ignorance about
the incident even when incriminating material including D.N.A. report
was put before him.
6. The Court below after hearing the parties, framed three questions
for determination and came to hold that appellant is guilty of
committing the offences mentioned hereinabove and convicted him.
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Cr.A. No.3580/2014
7. Shri A.P. Singh, learned counsel for the appellant placed reliance
on the statement of prosecutrix (PW-1) and urged that in the entire
statement, she has nowhere stated that she was subjected to rape by the
appellant. The statement makes it clear that no offence is caused on the
prosecutrix because she belong to a particular caste. She further deposed
that she was subjected to x-ray by the Government authorities on the
basis of which her age could have been determined but such X Ray
reports were not produced in the trial.
8. Learned counsel for the appellant submits that in paragraph No.9
of cross-examination, the prosecutrix categorically admitted that she
was subjected to sexual assault by the appellant only once. By taking
this Court to paragraph No.6 of the cross-examination, it is argued that
the age of the prosecutrix was above 18 years and it is a case where she
was a consenting party to the alleged sexual intercourse. It was further
admitted that she did not inform her parents that she is pregnant till she
left for her in-laws’ house after marriage. The next reliance is on the
statement of PW-3 Nand Kumar Singh Gond, father of prosecutrix. This
witness has stated that at the time of birth of her daughters including the
prosecutrix, no birth certificate was issued by the Hospital, Police
Station or Panchayat. He cannot state with certainty about the date of
birth of her daughters including the prosecutrix. This witness also
admitted that the prosecutrix was subjected to a medical examination
which includes an x-ray test. Shri Singh, learned counsel for the
appellant also placed reliance on the portion of deposition wherein, this
witness had deposed that when his wife died, prosecutrix was a small
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Cr.A. No.3580/2014
child whereas, prosecutrix deposed that she was studying in Class-V or
VI when her mother died and his father solemnized the second marriage.
The reliance is also placed on the statement of this witness wherein he
had mentioned the gap between the births of his children.
9. Furthermore, the contention of the appellant is that PW-4 Sunita
Bai has stated that her daughter/prosecutrix informed her that appellant
subjected her to sexual contact on more than one occasion whereas this
statement is totally untrustworthy if examined on the anvil of the
statement of prosecutrix herself where she has stated that she was
subjected to sexual assault by the appellant only once.
10. The learned counsel for the appellant referred to the statement of
PW-10 Pushpraj Singh, Head Master who had deposed that date of birth
of prosecutrix mentioned in the Admission Register of the School is
08.07.1999. By meticulously reading this statement, learned counsel for
the appellant submits that it is clear that prosecutrix was admitted in this
School in Class-VIth. Thus, it is not the first School where she was
admitted. In cross-examination, this witness has clearly admitted that he
had recorded the date of birth of prosecutrix on the basis of a Transfer
Certificate (T.C.) received from the previous School/Primary School. In
Primary School, who had recorded the date of birth, cannot be deposed
by him. On the strength of this statement, which became reason to
determine the age of the prosecutrix, learned counsel for the appellant
submits that age of a juvenile needs to be determined as per the method
prescribed in Rule 12(3) of the Juvenile Justice (Care and Protection of
Children) Rules, 2007. He submits that nobody entered the witness box
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Cr.A. No.3580/2014
from the School first attended by the prosecutrix and, therefore, the
statement of Headmaster cannot be said to be in consonance with the
requirement of sub-rule (3) of Rule 12 of the Rules of 2007.
11. On the strength of statement of prosecutrix, her father and statement
of PW-10 Pushpraj Singh, learned counsel for the appellant contends that the
prosecution could not establish it beyond reasonable doubt that at the time of
incident the prosecutrix was a minor. She nowhere stated that she was
forcibly subjected to sexual assault by the appellant. Thus, prosecutrix was a
consenting party because she did not narrate about the incident even to her
parents till she was married.
12. The next contention of learned counsel for the appellant is based on
un-amended Section 3(2)(v) of the Scheduled Castes and Schedules Tribes
(Prevention of Atrocities) Act, 1989. The learned counsel urged that incident
had taken place on 27.10.2012. The aforesaid provision has been amended
w.e.f. 26.01.2016. Before the amendment, as per the then existing provision,
the prosecution was required to establish that the offence is committed on
the ground that victim is a member of Scheduled Caste or a Scheduled Tribe
community. The prosecution has not led any iota of evidence to establish
that offence was committed because victim belongs to Scheduled
Castes/Scheduled Tribes community. Mere production of her caste
certificate, which was issued after the date of incident, will not establish the
offence under the Act of 1989.
13. It is further submitted that so far offence under Section 376 of I.P.C. is
concerned, the appellant has already undergone more than six years and
three months in jail. The punishment of Life Imprisonment is imposed under
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Cr.A. No.3580/2014
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 in a mechanical manner without appreciating that the necessary
ingredients for invoking the Act of 1989 were totally missing before the
Court below. Learned counsel for the appellant, during the course of hearing
fairly admitted that in view of the finding of D.N.A. report, he is not
attacking the impugned judgment to the extent the sexual relation between
the appellant and prosecutrix is found to be established. However, such
relation was an outcome of consent and not based on any force or coercion.
In support of his contention, Shri Singh has placed reliance on the judgments
of Apex Court in the case of Dinesh @ Buddha vs. State of Rajasthan,
AIR 2006 SC 1267; Ramdas and others vs. State of Maharashtra, (2007)
2 SCC 170 and another judgment of Supreme Court in Criminal Appeal
No.1182/2015 (Asharfi vs. State of Uttar Pradesh), decided on
08.12.2017.
14. Per contra, Shri Brindavan Tiwari, learned counsel for the State
submits that the age of prosecutrix is duly established because the
Headmaster has entered the witness box and proved the Admission Register
of his School as well as the Transfer Certificate wherein date of birth of
prosecutrix is mentioned as 08.07.1999. Thus, no fault can be found on the
finding of Court below whereby prosecutrix was found to be a minor at the
time of incident.
15. The learned Government Advocate further submits that when it is
established by prosecution beyond reasonable doubt that the prosecutrix was
minor at the time of incident, the question of consent pales into
insignificance. It is established by producing a caste certificate that
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Cr.A. No.3580/2014
prosecutrix belongs to Scheduled Caste/Scheduled Tribe community. Thus,
necessary ingredients for invoking the relevant provisions of Indian Penal
Code and the Act of 1989 were duly established. There is no perversity in
the judgment which warrants interference by this Court.
16. Shri Tiwari placed reliance on a judgment of this Court passed in
Criminal Appeal No.2151/2018 (Vinod alias Rahul Chouhtha vs. State of
M.P.) decided on 08.08.2018.
17. No other point is pressed by the learned counsel for the parties.
18. We have heard the parties at length and perused the record.
19. The first attempt of the appellant was to show that prosecution has
failed to establish that prosecutrix was minor on the date of alleged rape and,
therefore, question of consent does not arise. If appellant succeeds in this
attempt, he will be out of the clutches of Section 376 (1) of IPC. Another
attempt made is to show that as per Section 3(2)(v) of the Act of 1989
(unamended) the prosecution must prove that offence was committed on a
person on the ground that such person is a member of SC/ST community.
Having failed to prove this, the conviction and sentence needs to be axed.
20. We deem it proper to deal with aforesaid contention in the light of
relevant statutory provisions. Section 3 (2)(v) of Act of 1989 reads as under:-
“3(2)(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”
[Emphasis Supplied]
9Cr.A. No.3580/2014
Rule 12 of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 reads as under:-
“(1) In every case concerning a child or a juvenile in conflict with
law, the court or the Board or as the case may be the Committee
referred to in rule 19 of these rules shall determine the age of such
juvenile or child or a juvenile in conflict with law within a period of
thirty days from the date of making of the application for that
purpose.
(2) The Court or the Board or as the case may be the Committee shall
decide the juvenility or otherwise of the juvenile or the child or as the
case may be the juvenile in conflict with law, prima facie on the basis
of physical appearance or documents, if available, and send him to
the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law,
the age determination inquiry shall be conducted by the court or the
Board or, as the case may be, the Committee by seeking evidence by
obtaining–
(a) (i) the matriculation or equivalent certificates, if available;
and in the absence whereof;
(ii) the date of birth certificate from the school (other than a
play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a)
above, the medical opinion will be sought from a duly
constituted Medical Board, which will declare the age of the
juvenile or child. In case exact assessment of the age cannot be
done, the Court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin of one
year.
and, while passing orders in such case shall, after taking into
consideration such evidence as may be available, or the medical
opinion, as the case may be, record a finding in respect of his age and
either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or
in the absence whereof, clause (b) shall be the conclusive proof of the
age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law
is found to be below 18 years on the date of offence, on the basis of
any of the conclusive proof specified in sub-rule (3), the Court or the
Board or as the case may be the Committee shall in writing pass an
order stating the age and declaring the status of juvenility or
otherwise, for the purpose of the Act and these rules and a copy of the
order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required,
inter alia, in terms of section 7A, section 64 of the Act and these rules,
no further inquiry shall be conducted by the court or the Board after
10Cr.A. No.3580/2014
examining and obtaining the certificate or any other documentary
proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those
disposed of cases, where the status of juvenility has not been
determined in accordance with the provisions contained in sub-rule
(3) and the Act, requiring dispensation of the sentence under the Act
for passing appropriate order in the interest of the juvenile in conflict
with law.”
[Emphasis Supplied]
21. On the basis of evidence on record, it is required to be seen whether
prosecutrix was major on the date of incident. In order to establish that she
was major, Shri Pushpraj Singh (PW/10), Incharge Head Master of Middle
School Chunguna entered the witness box and proved the admission register
(ExP/13). During cross examination, he fairly admitted that in his school
prosecutrix was admitted in Class 6th . The date of birth recorded in ExP/13
is based on a Transfer Certificate (TC) issued by the previous school where
prosecutrix had studied. In the said primary school, the date of birth was
neither recorded by him, nor he is aware as to who had recorded the same.
He pleaded ignorance how the date of birth of prosecutrix was recorded in
the primary school.
22. Rule 12 of Rules of 2007 prescribes the procedure to be followed for
determination of age. This procedure needs to be followed for determining
age in civil and criminal cases. The age can be determined on the basis of (i)
the matriculation or equivalent certificate, and in the absence whereof (ii)
the date of birth certificate from the school (other than a play school) first
attended and in the absence whereof (iii) the birth certificate issued by a
corporation/Municipal Authority/Panchayat. If no evidence as per (i) (ii) and
(iii) are available, the medical opinion can be sought from a duly constituted
Medical Board.
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23. In the instant case, indisputably, no evidence as per Rule 12 (3)(a)(i)
and (iii) were produced before the Court below. The statement of PW/10 and
the Admission Register produced by him became the foundation/reason to
hold that prosecutrix was minor. Rule 12 (3)(a)(ii) enjoins the Court to
accept a date of birth certificate provided it is issued by a school first
attended. When a statute prescribes a thing to be done in a particular manner,
it has to be done in the same manner and other methods are forbidden. [See
AIR 1959 SC 93 (Baru Ram vs. Prasanni), 2001 (4) SCC 9 (Dhananjaya
Reddy vs. State of Karnataka), 2002 (1) SCC 633 (Commissioner of
Income Tax, Mumbai vs. Anjum M.H. Ghaswala) and judgment of this
Court in 2011 (2) MPLJ 690 (Satyanjay Tripathi Anr. vs. Banarsi Devi)]
Thus, in our view, the Admission Register (Ex.P/13) of the second school
was not a document which satisfies the requirement of Clause (ii) aforesaid.
The parents of prosecutrix could not narrate about her date of birth with
necessary clarity. On the contrary, the statement of father (PW/3) and mother
(PW/4) is in variance on this aspect. The prosecutrix, as per prosecution
story, was subjected to X Ray and medical examination but no such report
which could throw light on the question of date of birth could be produced
before the Court below. Apart from this, the law is trite that if provision of a
statute is clear and unambiguous, it should be given effect to irrespective of
consequences. [See (1992) 4 SCC 711 (Nelson Motis vs. Union of India)]
24. Ancillary question is whether prosecution has satisfactorily
established that prosecutrix was minor at the time of incident. The answer, in
our considered opinion, is no. We say so because prosecution was required
to establish the age of prosecutrix as per requirement of Rule 12 of the said
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rules. The Apex Court in 2013 (7) SCC 263 (Jarnail Singh vs State of
Haryana) considered the Scheme of Rule 12 aforesaid and opined that in
absence of certificate issued as per Clause 12 (3)(a)(i), the date of birth
entered in the school first attended by the child can be treated as final and
conclusive. At the cost of repetition, in the present case, no such certificate
issued by school first attended by the child was produced. The Transfer
Certificate was although issued by primary school but the Admission
Register of primary school was not produced. Nobody entered the witness
box to prove any document issued by the school first attended by the child.
In (2010) 8 SCC 714 (Satpal Singh vs. State of Haryana), the Court opined
there is nothing on record to corroborate the date of birth of the prosecutrix
recorded in the school register. It is not possible to ascertain as to who was
the person who had given her date of birth at the time of initial admission in
the primary school. It cannot be ascertained as who was the person who had
recorded her date of birth in the primary school register. The primary school
register was not produced and proved before the Trial Court and, therefore, it
was opined that it cannot be held with certainty that the prosecutrix was
major. We find support in our view from the judgment of Satpal Singh
(supra) and constrained to hold that TC issued by previous school does not
fulfill the requirement of Rule 12 of the said rules.
25. Similarly, in (2011) 2 SCC 385 (Alamelu vs. State) it was poignantly
held that date of birth mentioned the Transfer Certificate has no evidencery
value unless the person who made such entry or who gave the date of birth is
examined. Pertinently, the Transfer Certificate was disbelieved because the
Head Master of concerned school which had issued the TC was not
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examined. This judgment covers the aforesaid aspect squarely and it can be
safely held that prosecution has failed to establish that prosecutrix was
minor at the time of incident.
26. In this backdrop, the question of consent of prosecutrix assumes
significance/importance. Putting it differently, if prosecution could have
established by leading cogent evidence that prosecutrix was minor, we
would have persuaded with the argument of learned Government Advocate
that question of consent is irrelevant in this case. The incident had taken
place on 27-10-2012. The FIR was lodged after about eight months on 22-
06-2013. On 03-06-2013, the prosecutrix solemnized marriage with Kamal
Bhan Singh and gave birth to a child at his residence on 15-06-2013. When
her husband returned her back to her maternal house, she lodged report on
22-06-2013.
27. The prosecutrix (PW/1) nowhere stated that she was subjected to rape
by the appellant. Her deposition is silent on yet another aspect i.e. whether
she was subjected to sexual assault on the ground that she is a member of
SC/ST community. The prosecutrix deposed that she was subjected to sexual
assault by appellant only once whereas her mother narrated a different story
of multiple sexual assaults/contacts by appellant. The father (PW/3) stated
that before marriage of her daughter, she did not inform the family members
about the sexual assaults. The mother (PW/4) followed the same line of
statement. Both the statements, in our view, do not inspire confidence for the
simple reason that the prosecutrix was married on 03-06-2013 when she was
at the stage of full time pregnancy. It is unbelievable that her aforesaid
condition could not be noticed by the parents and they came to know about
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pregnancy only when she told them about it after the marriage. There is no
plausible reason for not lodging report of alleged rape between 27-10-2012
to the date of marriage. In this view of the matter, we are unable to
countenance the findings of Court below that prosecution has proved beyond
reasonable doubt that appellant had committed rape on the prosecutrix.
28. The Court below on the basis of a Caste Certificate No.1438/B-
121/2012-13 (ExP/12) came to hold that prosecutrix belongs to ST
community. As per evidence on record, it is a case of consensual sexual
relation and hence appellant cannot be held guilty. As per the unamended
provision i.e. Section 3 (2)(v) of the Act of 1989, the prosecution was
required to establish that a person is subjected to any offence under the IPC
punishable with imprisonment for a term of ten years or more against a
person on the ground that such person is a member of a SC or a ST
community. At the cost of repetition, the prosecution could not establish that
rape was committed (although sexual relation was admittedly established)
on the ground that prosecutrix is a member of ST community. In AIR 2006
SC 1267 (Dinesh vs. State of Rajasthan) the Apex Court held as under:-
“15. Sine qua non for application of Section 3(2)(v) is that an
offence must have been committed against a person on the
ground that such person is a member of the Scheduled Castes
or the Scheduled Tribes. In the instant case no evidence has
been led to establish this requirement. It is not the case of the
prosecution that the rape was committed on the victim since
she was a member of a Scheduled Caste. In the absence of
evidence to that effect, Section 3(2)(v) has no application. Had
Section 3(2)(v) of the Atrocities Act been applicable then by
operation of law, the sentence would have been imprisonment
for life and fine.”
In 2007 (2) SCC 170 (State of Maharashtra vs. Ramdas), it was
poignantly held that:-
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“11. At the outset we may observe that there is no evidence
whatsoever to prove the commission of offence under Section
3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. The mere fact that the
victim happened to be a girl belonging to a Scheduled Caste
does not attract the provisions of the Act. Apart from the fact
that the prosecutrix belongs to the Pardhi community, there is
no other evidence on record to prove any offence under the
said enactment. The High Court has also not noticed any
evidence to support the charge under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was
perhaps persuaded to affirm the conviction on the basis that the
prosecutrix belongs to a Scheduled Caste community. The
conviction of the appellants under Section 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 must, therefore, be set aside.”
In Ashrafi (supra), the Supreme Court had an occasion to examine
effect of both the provisions namely amended and unamended Section 3(2)
(v) of the Act of 1989 and expressed its view as under:-
“6. In respect of the offence under Section 3(2)(v) of the SC/ST
Prevention of Atrocities Act, the appellant had been sentenced
to life imprisonment. The gravamen of Section 3(2)(v) of the
SC/ST Prevention of Atrocities Act is that any offence,
envisaged under the Penal Code punishable with imprisonment
for a term of ten years or more, against a person belonging to
Scheduled Caste/Scheduled Tribe, should have been committed
on the ground that “such person is a member of a Scheduled
Caste or a Scheduled Tribe or such property belongs to such
member”. Prior to the Amendment Act 1 of 2016, the words
used in Section 3(2)(v) of the SC/ST Prevention of Atrocities Act
are “… on the ground that such person is a member of a
Scheduled Caste or a Scheduled Tribe”.
7. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has
now been amended by virtue of Amendment Act 1 of 2016. By
way of this amendment, the words “… on the ground that such
person is a member of a Scheduled Caste or a Scheduled
Tribe” have been substituted with the words “… knowing that
such person is a member of a Scheduled Caste or Scheduled
Tribe”. Therefore, if subsequent to 26-1-2016 (i.e. the day on
which the amendment came into effect), an offence under the
Penal Code which is punishable with imprisonment for a term
of ten years or more, is committed upon a victim who belongs
to SC/ST community and the accused person has knowledge
that such victim belongs to SC/ST community, then the charge
of Section 3(2)(v) of the SC/ST Prevention of Atrocities Act is
attracted. Thus, after the amendment, mere knowledge of the
accused that the person upon whom the offence is committed
16Cr.A. No.3580/2014
belongs to SC/ST community suffices to bring home the charge
under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act.
8. In the present case, unamended Section 3(2)(v) of the SC/ST
Prevention of Atrocities Act is applicable as the occurrence was
on the night of 8-12-1995/9-12-1995. From the unamended
provisions of Section 3(2)(v) of the SC/ST Prevention of
Atrocities Act, it is clear that the statute laid stress on the
intention of the accused in committing such offence in order to
belittle the person as he/she belongs to Scheduled Caste or
Scheduled Tribe community.
9. The evidence and materials on record do not show that the
appellant had committed rape on the victim on the ground
that she belonged to Scheduled Caste. Section 3(2)(v) of the
SC/ST Prevention of Atrocities Act can be pressed into service
only if it is proved that the rape has been committed on the
ground that PW 3 Phoola Devi belonged to Scheduled Caste
community. In the absence of evidence proving intention of the
appellant in committing the offence upon PW 3 Phoola Devi
only because she belongs to Scheduled Caste community, the
conviction of the appellant under Section 3(2)(v) of the SC/ST
Prevention of Atrocities Act cannot be sustained.
10. In the result, the conviction of the appellant under Section 3
(2)(v) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and the sentence of
imprisonment imposed upon him are set aside and the appeal is
partly allowed.”
[Emphasis Supplied]
29. In the light of these authoritative pronouncements, we have no
scintilla of doubt that prosecution has failed to establish that offence has
been committed under Section 376 (1), 506-B and Section 3(2)(v) of Act of
1989. Resultantly, the impugned judgment dated 05-12-2014 passed in
Special Case No.33/13 is set aside. The appeal is allowed.
(Sujoy Paul) (Vishal Dhagat)
Judge Judge
sh/psm/mohsin
Digitally signed by MOHAMMED MOHSIN QURESHI
Date: 2019.10.16 17:09:14 +05’30’
