Awdhesh Singh vs State Of Chhattisgarh

Sanjay K. Agrawal, J

Since common question of fact and law is involved in all these three appeals, therefore, they have been clubbed together, heard together and are being decided by this common judgment.

Criminal appeal No. 407/2015 has been preferred by appellant/accused Awdhesh Singh (A-1), criminal appeal No. 436/2014 has been preferred by appellant/accused Nan Guddu @ Parmeshwar Prajapati (A-2) and criminal appeal No. 450/2014 has been preferred by appellant/accused Pintu @ Bhupendra Jaiswal (A-3) against the impugned judgment dated 04/04/2014 passed by learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Koriya, Baikunthpur whereby they have been convicted and sentenced as under :-

Awdhesh Singh (A-1) :-

Conviction

Sentence

U/s 376(2)(g) of IPC

Life imprisonment with fine of Rs. 1000/-, in default payment of fine further R.I. for 6 months

U/s 302 of IPC

Life imprisonment with fine of Rs. 1000/-, in default payment of fine further R.I. for 6 months

U/s 201 of IPC

R.I. for 3 years with fine of Rs. 1000/-, in default payment of fine further R.I. for 6 months

Nan Guddu @ Parmeshwar Prajapati (A-2) :-

Conviction

Sentence

U/s 376(2)(g) of IPC

Life imprisonment with fine of Rs. 1000/-, in default payment of fine further R.I. for 6 months

U/s 302/34 of IPC

Life imprisonment with fine of Rs.1000/-, in default payment of fine further R.I. for 6 months

U/s 201 of IPC

R.I. for 3 years with fine of Rs. 1000/-, in default payment of fine further R.I. for 6 months

U/s 3(2)(v) of the Act of 1989

Life imprisonment with fine of Rs. 1000/-, in default payment of fine further R.I. for 6 months

U/s 3(1)(xii) of the Act of 1989

R.I. for 5 years with fine of Rs. 1000/-, in default payment of fine further R.I. for 6 months

Pintu @ Bhupendra Jaiswal (A-3) :-

Conviction

Sentence

U/s 376(2)(g) of IPC

Life imprisonment with fine of Rs. 1000/-, in default payment of fine further R.I. for 6 months

U/s 302/34 of IPC

Life imprisonment with fine of Rs.1000/-, in default payment of fine further R.I. for 6 months

U/s 201 of IPC

R.I. for 3 years with fine of Rs. 1000/-, in default payment of fine further R.I. for 6 months

U/s 3(2)(v) of the Act of 1989

Life imprisonment with fine of Rs. 1000/-, in default payment of fine further R.I. for 6 months

U/s 3(1)(xii) of the Act of 1989

R.I. for 5 years with fine of Rs. 1000/-, in default payment of fine further R.I. for 6 months

Prosecution Case :-

Case of the prosecution, in a nutshell, is that from 10 PM on 13/09/2012 to 8 AM on 14/09/2012, appellant/accused Awdhesh Singh (A-1) committed sexual intercourse with the victim in the school ground, Chakdand and thereafter, caused her death and in order to screen himself from the offence, he threw her dead body in the field of one Udit Singh and thereby, committed the aforesaid offences. Appellants/accused persons Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) helped the appellant/accused Awdhesh Singh (A-1) in commission of the aforesaid offences knowing fully well that the deceased victim was a member of Scheduled Tribes.

Brief facts of the case which led to filing of the charge-sheet against the appellants herein are as follows :-

4.1. On 14/09/2012, complainant Genda Agariya (PW-2) informed at Police Station Sonhat that on 13/09/2012, he along with his wife and daughter slept around 10 PM. When he woke up at about 06:30 AM on 14/09/2012, he found that her daughter (deceased) was not in her bed. Thereafter, at about 8 AM, one Rampati informed him that the dead body of his daughter is lying under a tree in the field of Udit Singh. When he went to the spot, he identified the dead body of his daughter which was lying under a tree.

4.2. On the said report, morgue intimation was registered vide Ex. P/3 and summons were issued to the witnesses vide Ex. P/1. Inquest was conducted vide Ex. P/2 and the dead body of the deceased was subjected to postmortem which was conducted by Dr. R.P. Singh (PW-4) and as per the postmortem report (Ex. P/16), cause of death is said to be asphyxia due to suffocation and nature of death is said to be homicidal.

4.3. First information report was lodged against the appellants vide Ex. P/49 for offence punishable under Sections 302 and 201 of IPC and after taking the appellants into custody, their memorandum statements were recorded vide Ex. P/10, P/12 and P/14 and pursuant thereof, at the instance of appellant Awdhesh Singh (A-1), one mobile phone and two broken idea sim cards were seized vide Ex. P/11 and slippers belonging to the deceased were seized from the spot vide Ex. P/15. Mobile phone found in the pocket of appellant Pintu @ Bhupendra Jaiswal (A-3) was seized vide Ex. P/12. Medical examination of the appellants was conducted. Certain seized articles were sent for forensic examination and as per the FSL report (Ex. P/44), semen spots and human sperm was found in the petticoat worn by the deceased and the slide collected from her, in the underwear of appellant Awdhesh Singh (A-1) and the slide collected from appellant Pintu @ Bhupendra Jaiswal (A-3).

4.4. After due investigation, the appellants were charge-sheeted which was committed to the Court of Special Judge for trial in accordance with law wherein the appellants abjured the guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 19 witnesses and brought on record 64 documents and 5 articles. Statements of the appellants were taken under Section 313 of CrPC wherein they denied guilt, however, they examined none in their defence and brought on record 4 documents.

Learned trial Court, after appreciation of oral and documentary evidence on record, finding the appellant Awdhesh Singh (A-1) to be the author of crime in question proceeded to convict him for offences punishable under Sections 376(2)(g), 302 and 201 of IPC and further finding that appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) helped the appellant Awdhesh Singh (A-1) in commission of the aforesaid crime, convicted them for offences punishable under Sections 376(2)(g), 302 and 201 of IPC and Sections 3(2)(v) and 3(1)(xii) of the Act of 1989 and sentenced them as aforesaid.

Submissions of the Parties :-

Mr. Akhilesh Kumar, learned counsel appearing in CRA/407/2015 for the appellant Awdhesh Singh (A-1), would submit that there is no direct evidence available on record and the present case is based on circumstantial evidence, but the same is not as such, which can be made basis for conviction of the appellant and he has been convicted by the trial Court mainly on the ground of his past record, where it is alleged that earlier also a case was registered against him for committing rape of the deceased victim. He would further submit that the other ground on the basis of which the appellant has been convicted is that prior to the incident, he talked with the deceased on mobile phone, but the same has not been proved by the prosecution beyond reasonable doubt, therefore, the appellant Awdhesh Singh (A-1) is liable to be acquitted.

Mr. Ashok Kumar Shukla, learned counsel appearing in CRA/436/2014 for appellant Naan Guddu @ Parmeshwar Prajapati (A-2) and Ms. Ranjana Jaiswal, learned counsel appearing in CRA/450/2014 for appellant Naan Guddu @ Parmeshwar Prajapati (A-2), would submit that there is no legal evidence available on record to convict these two appellants for offences punishable under Sections 376(2)(g), 302 and 201 of IPC. Learned trial Court has clearly recorded a finding that it was appellant Awdhesh Singh (A-1) who committed rape and thereafter, murder of the victim and since appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) did not stop appellant Awdhesh Singh (A-1) from committing rape and murder of the victim, therefore, they have been implicated with the aid of Explanation I to Section 376(2)(g) of IPC as stood prior to amendment on 03/02/2013. They would further submit that that the trial Court is also unjustified in convicting the appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) for offences punishable under Sections 3(2)(v) and 3(1)(xii) of the Act of 1989 as prosecution has failed to prove that the appellants committed the offence knowing that deceased victim belonged to Scheduled Tribes. Thus, in absence of legally admissible evidence available on record, the appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) deserve to be acquitted.

Per contra, Mr. H.S. Ahluwalia, learned Deputy Advocate General appearing on behalf of the State/respondent in all the three appeals, would submit as under :-

(i) So far as conviction of appellant Awdhesh Singh (A-1) is concerned, pursuant to his memorandum statement (Ex. P/10), a mobile phone and two broken idea sim cards were recovered vide Ex. P/11 and slippers belonging to the deceased were recovered vide Ex. P/15. Moreover, as per the FSL report (Ex. P/44), human sperm has been found on the petticoat worn by the deceased at the time of incident as well as her slide and on the underwear and slide of the appellant, thus, the trial Court is absolutely justified in convicting the appellant Awdhesh Singh (A-1) for the offences in question relying upon the aforesaid incriminating circumstances which have been proved by the prosecution beyond reasonable doubt.

(ii) With regard to the case of the appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) is concerned, the trial Court has rightly held that the three appellants had common intention of committing rape and murder of the deceased victim and in furtherance of their common intention, appellant Awdhesh Singh (A-1) committed the rape and murder and since appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) were present but they did not stop appellant Awdhesh Singh (A-1), they are also liable to be convicted. Thus the instant appeals deserve to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records with utmost circumspection.

Nature of death :-

Learned trial Court has clearly recorded the finding that the death of deceased was homicidal in nature relying upon the expert medical opinion of Dr. R.P. Singh (PW-4) who has proved the postmortem report (Ex. P/16) in which cause of death is said to be asphyxia and nature of death is said to be homicidal.

Dr. R.P. Singh (PW-4), in his statement before the Court, has opined as follows :-

Considering the aforesaid statement made by Dr. R.P. Singh (PW-4) as well as considering the postmortem report (Ex. P/16), we are of the considered opinion that the trial Court has rightly held the death of deceased to be homicidal in nature. We hereby affirm the said finding, more so as it has not been challenged by learned counsel for the appellants.

Circumstantial evidence :-

There is no direct evidence available on record and the entire case of all the three appellants is based upon circumstantial evidence. The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 has laid down the five golden principles that constitute the panchsheel of the proof of a case based on circumstantial evidence, which state as under :-

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

XXX XXX

XXX

(2) the facts so established should be consistent only with the hypothesis of guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be prove, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

In order to convict the appellants for the aforesaid offences, the trial Court has recorded the following findings :-

We shall now firstly consider the case of appellant Awdhesh Singh (A-1) and thereafter, consider the case of appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) together.

Case of Awdhesh Singh (A-1) :-

As noticed above, the trial Court has convicted the appellant Awdhesh Singh (A-1) for offences punishable under Sections 376(2)(g), 302 and 201 of IPC by clearly recorded the finding that on the night of the incident, appellant Awdhesh Singh (A-1) called the deceased on the spot and committed sexual intercourse with her and thereafter, he sat on the chest of the deceased and pressed her nose and mouth and caused her death by suffocating her and then, in order to screen himself from the offence, the appellant Awdhesh Singh (A-1) threw her dead body in the field of one Udit Singh.

The incriminating circumstances put forth by the prosecution and found proved by the trial Court against the appellant Awdhesh Singh (A-1) are as follows :-

I). Call details.

I). Memorandum and seizure.

II). FSL report.

Parasmati (P.W.-1), mother of the deceased as well as Genda Agariya (P.W.-2), father of the deceased, both of them have stated in their deposition that on the night of the incident at about 10 PM, mobile of the deceased rang and when they asked the deceased who was calling her, she told them that Awdhesh Singh (A-1) was calling her. As per the call details (Ex. P/55) of mobile number 8120170406 which was registered in the name of father of the deceased and was being used by the deceased, she received a call from mobile number 7354006839 which was registered in the name of appellant Pintu @ Bhupendra Jaiswal (A-3) on 13/09/2012 at 11:10 PM, 11:17 PM, 11:18 PM & 11:20 PM. The said call detail has been proved by Manish Singh (P.W.-17). As such, prosecution has been able to prove that on the night of the incident, appellant Awdhesh Singh (A-1) had called the deceased from the mobile phone of appellant Pintu @ Bhupendra Jaiswal (A-3) and asked her to come to the spot.

Moreover, pursuant to the memorandum statement of appellant Awdhesh Singh (A-1) recorded vide Ex. P/10, seizure of deceased's mobile phone as well as two broken sims was made vide Ex. P/11 and slippers belonging to the deceased were seized vide Ex. P/15, which were identified by her father Genda Agariya (P.W.-2) vide Ex. P/5.

Certain seized articles including the clothes worn by the deceased at the time of the incident, her slides, clothes worn by the appellant and his slide were sent for FSL and as per the FSL report (Ex. P/44), semen stains were found on the petticoat of the deceased as well as on the underwear of the appellant Awdhesh Singh (A-1) and human sperm was found on petticoat of the deceased and her slide as well as on the underwear and slide of the appellant Awdhesh Singh (A-1). Furthermore, from the FSL report (Ex. P/46), the soil seized from the spot also matched with the soil taken from the soles of the slippers belonging to the deceased.

Thus, from the aforesaid evidence available on record, we are of the considered opinion that prosecution has been able to prove the offences against appellant Awdhesh Singh (A-1) beyond reasonable doubt and he has rightly been convicted by the trial Court for the aforesaid offences on the basis of the aforesaid circumstantial evidence which has also been corroborated by medical evidence.

Case of appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) :-

The appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) have been convicted by the trial Court for the offences punishable under Sections 376(2)(g), 302 and 201 of IPC and Sections 3(2)(v) and 3(1)(xii) of the Act of 1989 by recording a finding that both of them were present on the spot when the appellant Awdhesh Singh (A-1) committed rape and murder of the deceased but they did not stop him and as such, they are also liable to be convicted with the aid of Section 34 of IPC.

At this stage, it would be relevant to notice the provisions contained under Section 376(2)(g) of IPC as it stood prior to the amendment w.e.f. 03/02/2013, which provides as under :-

“376. Punishment for rape – (1)

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(2) Whoever, -

(a) to (f) XXX XXX

(g) commits gang rape,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine :

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1 – Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.”

In a similar factual position, with regard to Section 376(2)(g) of IPC, the Supreme Court in the matter of Hanuman Prasad and others v. State of Rajasthan (2009) 1 SCC 507 has held as under :-

“10. The important expression to attract Section 376(2)(g) is “common intention”. The essence of the liability in terms of Section 376(2) is the existence of common intention. In animating the accused to do the criminal act in furtherance of such intention, the principles of Section 34 IPC have clear application. In order to bring in the concept of common intention it is to be established that there was simultaneously consensus of the minds of the persons participating in the act to bring about a particular result. Common intention is not the same or similar intention. It presupposes a prior meeting and prearranged plan. In other words, there must be a prior meeting of minds. It is not necessary that preconcert in the sense of a distinct previous plan is necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons which has to be gauged on the facts and circumstances of each case.”

In the instant case, neither any evidence has been brought on record by the prosecution nor any clear-cut finding has been recorded by the trial Court that the three appellants had common intention of committing rape and murder of the deceased and they acted in furtherance of their common intention and committed the offence. As such, if Explanation I to Section 376(2)(g) of IPC is read with the principle of law laid down by their Lordships of the Supreme Court in Hanuman Prasad (supra), it is evident that in the present case, Explanation I would not be attracted at all and as such, the trial Court has erred in convicting the appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) for offences punishable under Sections 376(2)(g), 302 and 201 of IPC, particularly when there is no other evidence available on record, either direct or circumstantial, against both of these appellants. Pursuant to memorandum statement of appellant Naan Guddu @ Parmeshwar Prajapati (A-2) vide Ex. P/14, no seizure has been made and pursuant to the memorandum statement of the appellant Pintu @ Bhupendra Jaiswal (A-3) vide Ex. P/12, his mobile phone has been seized vide Ex. P/13. There is no evidence such evidence to hold that they committed rape or murder of the deceased, as such, we are of the considered opinion that both of these appellants, Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) are liable to acquitted for offence punishable under Sections 376(2)(g), 302 and 201 of IPC.

Now, so far as the conviction of the appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) for offences punishable under Sections 3(2)(v) and 3(1)(xii) of the Act of 1989 is concerned, it is the case of the prosecution that the appellants committed the offence knowing fully well that the deceased belonged to Scheduled Tribe community.

Section 3(i)(xii) and 3(2)(v) of the Act of 1989 prior to its amendment w.e.f. 26/01/2016, stood as under :-

“3. Punishment for offences of atrocities -

(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -

(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;

(2) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe -

(v) commits 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;”

In the matter of Asharfi v. State of Uttar Pradesh AIR 2021 SC 2190, their Lordships of the Supreme Court, while dealing with Section 3(2)(v) of the Act of 1989 prior to its amendment on 26/01/2016, held thus in paragraphs 6, 7 and 8 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 SC/ST Prevention of Atrocities Act is that any offence, envisaged under Indian Penal Code punishable with imprisonment for a term of ten years or more, against a person belonging 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".

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 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under Indian 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 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 belongs to SC/ST community suffices to bring home the charge under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act.

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 8/9.12.1995. 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.”

The Supreme Court in the matter of Patan Jaman Vali v. State of Andhra Pradesh AIR 2021 SC 2190 noticing Section 3(2)(v) of the Act of 1989 (unamended) considered the issue of proving the offence under Section 3(2)(v) of the Act of 1989 against a person on the ground that such person is a member of Scheduled Caste or Scheduled Tribe or such property belongs to such member and held that it is to be established by the prosecution on the basis of evidence adduced at the trial and held as under :-

“58. We agree with the Sessions Judge that the prosecution's case would not fail merely because PW1 did not mention in her statement to the police that the offence was committed against her daughter because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW2. While it would be reasonable to presume that the accused knew the caste of PW2 since village communities are tightly knit and the accused was also an acquaintance of PW2's family, the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the intersectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of the offence – whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single axis model.

It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words “on the ground of” under Section 3(2)(v) have been substituted with “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”. This has decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction.

However, since Section 3(2)(v) was amended and Clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26 January 2016 these amendments would not be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31 March 2011. Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) would consequently have to be set aside.”

Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments (supra), it is quite vivid that from the entire material available on record, it is evident that no legal evidence has been led to prove that appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) have committed the offence on the ground that deceased belonged to Scheduled Tribes community. Section 3(2)(v) of the Act of 1989 (unamended) can be pressed into service only if it is proved that the offence of rape has been committed on the ground that deceased victim was a member of Scheduled Tribes community. As mentioned herein-above, we have already held that prosecution has not been able to prove that appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) were involved in commission of the crime and the offence under the Act was committed on the ground that deceased was a member of Scheduled Tribe community. No separate evidence was led by the prosecution to show that appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) committed the offence on the basis of caste identity of the deceased. As such, the conviction of these two appellants, Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) for offence punishable under Section 3(2)(v) of the Act of 1989 is liable to be set aside. Similarly offence under Section 3(1)(xii) of the Act of 1989 is not established as there is no evidence on record to establish that the two appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) were is a position to dominate the will of the victim/deceased belonging to Scheduled Tribe and used that position to exploit her sexually to which she would not have otherwise agreed to.

Conclusion :-

In view of the aforesaid legal analysis, conviction of the appellant Awdhesh Singh (A-1) for offence punishable under Section 376(2)(g) is altered to Section 376 of IPC and the sentence awarded to him by learned Special Judge as well as the default sentence is hereby maintained. His conviction for offences punishable under Sections 302 and 201 of IPC as well as the sentence and default sentence as awarded by the trial Court is also maintained. Since he is in jail, he shall serve out the sentence as awarded to him by the trial Court by judgment and order dated 04/04/2014. However, conviction and sentence awarded to the appellants Naan Guddu @ Parmeshwar Prajapati (A-2) and Pintu @ Bhupendra Jaiswal (A-3) for offences punishable under Sections 376(2)(g), 302 and 201 of IPC and Sections 3(1)(xii) and 3(2)(v) of IPC is hereby set aside and they are acquitted of the charges levelled against them. Since both of them are already on bail, therefore, they need not surrender, however, their bail bonds shall remain in force for a period of six months in view of the provision contained under Section 437A of CrPC.

Accordingly, Criminal Appeal No. 407/2015 is dismissed whereas Criminal Appeals No. 436/2014 and 450/2014 are allowed.

Let a certified copy of this order along with the original record be transmitted to trial Court concerned for necessary information and action, if any.