Bhanwar Lal vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—Bhanwar Lal son of Heeralal was tried by the Court of Special Judge, Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act Cases, Sikar. The said court vide impugned judgment dated 21.10.2008 has held the appellant to be guilty of offences under Section 376 IPC and Sections 3(1)(XI) (XII) and 3(2)(V) of SC/ST (Prevention of Atrocities) Act and vide a separate order of even date, sentenced the appellant as under:--

"U/s. 376 IPC: Seven years rigorous imprisonment, to pay a fine of Rs. 100/- and in default thereof to undergo 15 days simple imprisonment.

U/s.3(1)(XI), SC/ST Act: One year rigorous imprisonment, to pay a fine of Rs. 100/- and in default thereof to undergo 15 days simple imprisonment.

U/s.3(1)(XII), SC/ST Act: One year rigorous imprisonment, to pay a fine of Rs. 100/- and in default thereof to undergo 15 days simple imprisonment.

U/s. 3(2)(V), SC/ST Act: Life imprisonment, to pay a fine of Rs. 100/- and in default thereof to undergo 15 days simple imprisonment.

(All the sentences were ordered to run concurrently)"

It is to be noted that the appellant was acquitted for offences under Sections 366, 328, 344, 506 and 379 IPC.

Case of the prosecution is that the appellant had taken away the prosecutrix (name withheld to protect her identity), aged 19 years, who was married with Rakesh Kumar, caste Balai, resident of Purohit Ji Ki Dhani. It has come in evidence that the appellant came to the matrimonial house of the prosecutrix and stated that her father had met with an accident and took her in a taxi. It has also come in evidence that the appellant took prosecutrix to Jaipur from there in a train to Kolkata and from Kolkata to Delhi and at various places.

We would have examined in detail whether offence under Section 376 IPC is made out or not, but Shri Deepak Soni learned counsel appearing for the appellant at the very outset has stated that since the appellant has already undergone 7 years and 10 months, he will not assail the conviction and sentence of the appellant under Section 376 IPC, but shall confine and limit his prayer to urge before this court that conviction and sentence of the appellant awarded by the trial court under the provisions of SC/ST (Prevention of Atrocities) Act is not warranted. Considering that appellant has undergone sentence more than, what is awarded under Section 376 IPC, we shall not carry the academic exercise, especially when counsel for the appellant is not willing to assail the conviction of appellant for offence of rape.

We may note here that the appellant being aggrieved against his conviction and sentence preferred appeal through jail and same was assigned docket No. D.B. Criminal (Jail) Appeal No. 1162/2009 and however, he has filed another appeal bearing D.B. Criminal Appeal No. 1225/2008 through counsel. We shall club both the appeals.

Since Shri Soni has confined his prayer only to assail the conviction of the appellant under the provisions of SC/ST (Prevention of Atrocities) Act, we are of the view that in view of judgment rendered by the Division Bench of this court in Ramkaran v. State of Rajasthan [D.B. Criminal Appeal No. 945/2004] decided on 25th November, 2014, conviction and sentence of the appellant under the provisions of SC/ST (Prevention of Atrocities) Act cannot be sustained as controversy raised is no longer res-integra. In case of Ramkaran (supra), we had noticed the submission of the counsel in that case as under:--

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

Having noted the contention of the counsel in Ramkaran''s case (supra), a Division Bench of this court to which one of us (K.S. Ahluwalia, J.) was a Member has held as under:--

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

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

The next question, which arises for consideration is whether the conviction of the appellant under Sec.3(2)(V) of the Act is justified and legal?

We have, recently in a case of Pappu Khan v. State of Rajasthan, "D.B. Criminal Appeal No. 722/98 decided on 2.9.1999", examined the scope and ambit of Sec.3(2)(V) of the Act. It is held therein that for the offence under Sec.3(2)(V) of the Act, beside the ingredients of respective offence of Indian Penal Code, the prosecution is further required to establish that the accused being a person of non S.C./S.T. has committed the crime on a person of S.C./S.T. for the reason that such person belonged to such community or tribe."

The view taken by the Division Bench of this Court was subsequently followed by another Division Bench of this Court in the case of Sohan Singh and Another Vs. State of Rajasthan, (2003) 1 WLC 596 : (2003) 2 WLN 551 . Their Lordships, while examining the law laid in Manohar Singh''s case (supra) further to fortify had relied upon the observations of the Hon''ble Apex Court in Masumsha Hasanasha Musalman Vs. State of Maharashtra, AIR 2000 SC 1876 : (2000) 2 JT 367 : (2000) 2 SCALE 70 : (2000) 3 SCC 557 : (2000) 1 SCR 1155 : (2000) 1 UJ 554 : (2000) AIRSCW 719 : (2000) 1 Supreme 584 . Since their Lordships relying upon the observations of the Hon''ble Apex Court in a very lucid manner had answered the above question. With all reverence to Their Lordships, the relevant portion of the judgment is reproduced as under:

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

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

Our attention has been invited by the learned counsel for the appellants, to a recent judgment of Hon''ble the Supreme Court in Masumsha Hasanasha Musalman Vs. State of Maharashtra, AIR 2000 SC 1876 : (2000) 2 JT 367 : (2000) 2 SCALE 70 : (2000) 3 SCC 557 : (2000) 1 SCR 1155 : (2000) 1 UJ 554 : (2000) AIRSCW 719 : (2000) 1 Supreme 584 , which was a case relating to murder, wherein the accused was convicted for the offence u/s. 304-II IPC and Sec. 3(2)(V) of the Act, and under the former he was sentenced to 5 years rigorous imprisonment while under the later he was sentenced to life imprisonment. These convictions were confirmed by the High Court. In appeal the Hon''ble Supreme Court noticed that there was no dispute about the deceased dying homicidal death, and considering the nature of injuries, confirmed the conviction u/s. 304-II IPC. Facts in that case were that between 7.00 and 8.00 p.m. on the fateful day Saoji Gamaji Jadhav, a member of Scheduled Caste, who had returned to his house at dusk, and after some time had left the house informing his wife that he would be going out for some time, and would return soon, thereafter. After about half an hour of the deceased left his home, the appellant came to the house of the deceased and enquired from his wife about the deceased. At that time the appellant was carrying a ''jambiya''. On coming to know from her that her husband had gone out of the house, the appellant started running through the lane. The wife getting suspicious followed, and near the hospital of Dr. Kalwaghe, she saw the appellant stabbing the deceased who fell down and died. It is on these facts Hon''ble the Supreme Court has held as under:--

"To attract the provisions of Sec.3(2)(V) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence u/s. 3(2)(V) of the Act arises. In that view of the matter, we think, both the trial Court and the High Court missed the essence of this aspect."

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

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

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

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

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

Consequently, relying upon Ramkaran''s case (supra), we set aside the conviction and sentence of the appellant for offences under Sections3(1)(XI)(XII) and 3(2)(V) of SC/ST (Prevention of Atrocities) Act. He is acquitted of the said offences. However, the conviction and sentence of the appellant for offence under Section 376 IPC is sustained and the sentence of Life Imprisonment awarded by the trial court under the provisions of SC/ST (Prevention of Atrocities) Act is set aside.

Both the appeals stand disposed of accordingly.