Budha @ Prasanna Kumar Pradhan vs State Of Orissa

S.S. Mishra, J

The present Criminal Appeal is directed against the judgment and order dated 27th August, 1997 passed by the learned Special Judge-cum-Judge, Special Court, Kandhamal-Boudh, Phulbani in G.R. Case No. 135 of 1995, whereby the appellant has been convicted for offences punishable under Sections 337 and 448 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹200/-, in default to undergo rigorous imprisonment for fifteen days, for the offence under Section 3(1)(xi) of the SC & ST (PoA) Act; rigorous imprisonment for three months for the offence under Section 448 IPC; and rigorous imprisonment for one month for the offence under Section 337 IPC. The learned trial court further directed that all the sentences shall run concurrently.

Heard Mr. D.P. Dhal, learned Senior Counsel, for the appellant and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State.

The prosecution case, in brief, is that the victim, P.W.1, is a Scheduled Tribe woman belonging to the “Kandh” sub-tribe. The accused is a “Sundhi” by caste and, as such, does not belong to any Scheduled Caste or Scheduled Tribe community. On 28.04.1995 at about noon, while the victim (P.W.1) was sleeping in her house, the door of the house remained open; the accused entered into the house and pounced upon her. When she raised alarm, the accused caught hold of her neck. Hearing her shouts, her mother, P.W.2, who was then sleeping in the back courtyard, came to the spot. On seeing her, the accused fled away. Thereafter, when P.Ws.1 and 2 were proceeding to the Panchayat Secretary to report the matter, the accused pelted brickbats at them, as a result of which P.W.1 sustained injury on her leg.

In order to prove its case, the prosecution examined seven witnesses. Out of them, P.W.1 was the victim. P.W.2 is the mother of P.W.1. P.W.3 is the husband of P.W.1. P.W.4 was a co-villager, who was examined to speak about the village meeting. P.W.5 was the doctor, who examined the victim and issued the injury report marked as Ext.-2. P.W.6 was the Officer-in-Charge of Firingia Police Station, who submitted the charge-sheet. P.W.7 was the Investigating Officer, who investigated the case.

The accused pleaded not guilty and refuted the allegations against him. On this stance of denial, he was put to trial after charges were framed.

The learned Trial Court by largely relying on the statement of P.W.1, the victim and other evidences on record held as under:

“12. In the instant case, prosecution. has well proved its case through the unassailed statements of P.Ws. 1, 2, 3 and 5. Further delay in lodging the F.I.R. has been satisfactorily explained.

Thus, prosecution has well proved beyond doubt that accused entered inside the house of P.W. 1 pounced on her and slept over her body. Thus, the intention of the accused to commit an offence in that house i.e. to sexually assault P.W.1 IS writ-large. Thus, the accused entered into the dwelling house with an intention to commit an offence. As such, he has committed criminal house trespass punishable u/s. 448 I.P.C.

As discussed above, the unassailed statements of P.Ws. 1 and 2 establish that accused pelted brickbats at them consequently P.W. 1 sustained a simple hurt which fact finds corroboration from the statement of doctor P.W. 5 and his injury report. The act of pelting brickbats is a negligent act of the accused to endanger personal safety of others. Thus his act squarely falls within the ambit of Section 337 I.P.C. as such he is liable to be punished u/s. 337 I.P.C.

As discussed above, it is evident from the statement of P.W. 1 and others that accused while P.W. 1 was sleeping alone, pounced on her and slept over her body and when she raised alam, he caught her neck but seeing her mother coming, he ran away. This act of the accused amply establishes that accused had used force apparently with an intent to dishonour or outrage her modesty. The statement of P.W. 1 that she is a scheduled Tribe woman whereas the accused is not a Scheduled tribe or scheduled caste person remains unchallenged. Thus evidently accused used force with an intent to dishonour or outrage the modesty of a scheduled tribe woman. Hence his act squarely falls within the purview of Sec. 3(1)(xi) of the Act. Accordingly he is liable to be found guilty thereunder.

For the reasons discussed above, I am to hold that prosecution has amply proved it's case beyond shadow of doubts against the accused u/ss. 337,448 I.P.C. and 3(1)(xi) of the Act. Accused is found guilty of all the three sections of the charge and is convicted thereunder.”

Aggrieved by the findings of the learned Trial Court which led to the conviction and order of sentence, the appellant has filed the present appeal.

Learned Senior Counsel Mr. D.P. Dhal submitted that the conviction of the accused–appellant under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is unsustainable in the eyes of law. It is contended that the prosecution has failed to adduce any cogent or reliable evidence to establish that the alleged act committed by the accused-appellant was not with the requisite intention to harass or humiliate the victim on the ground that she belonged to a Scheduled Tribe community.

It is further submitted that the essential ingredient of mens rea, namely that the offence was committed solely because of the caste identity of the victim, is conspicuously absent in the present case. Mere commission of an alleged act, without proof of such specific intention, does not attract the rigors of Section 3(1)(xi) of the Act.

Learned Senior Counsel further submitted that no material has been brought on record by the prosecution to conclusively establish the caste status of either the victim or the accused–appellant. In the absence of documentary or other legally admissible evidence proving that the victim belonged to a Scheduled Caste or Scheduled Tribe and that the accused did not, the very foundation of the charge under the SC and ST (PoA) Act stands vitiated.

In support of his contention, learned Senior Counsel placed reliance on a catena of judgments of this Court, including Sahadev Karmi v. State of Orissa[CRA No.242 of 1995], Daitari Prasad Sahu and others v. Harihara Behera and another[CRA No.301 of 1999], and Ajay Kumar Singh v. State of Orissa[CRA No.315 of 1995], wherein this Court has consistently held that for an offence under the relevant provisions of the SC and ST (PoA) Act to be made out, the prosecution must clearly establish both the caste identity of the parties and the specific intention of the accused to commit the act on account of the victim’s caste. This Court has further held that absence of proof of such intention and caste identity is fatal to the prosecution case under the said Act.

In view of the aforesaid submissions and the settled position of law, learned Senior Counsel submitted that the conviction of the accused– appellant under Section 3(1)(xi) of the SC and ST (PoA) Act cannot be sustained and is liable to be set aside.

On the contrary, Ms. Suvalaxmi Devi, learned Additional Standing Counsel appearing for the State, vehemently opposes the submissions advanced on behalf of the accused-appellant. She submitted that the materials available on record clearly justify the conviction under the relevant provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

Learned ASC draws the attention of the Court to the statement of the accused-appellant recorded under Section 313 of the Code of Criminal Procedure, wherein the accused has categorically admitted that he was aware of the caste status of the victim and that he himself does not belong to either the Scheduled Caste or the Scheduled Tribe community. Such admission, according to the learned ASC, constitutes a significant incriminating circumstance, which corroborates the prosecution case regarding the caste identity of the parties.

It is further submitted that once the accused-appellant admits his knowledge of the caste of the victim, the plea of absence of intention loses much of its force. Learned ASC contended that the awareness of the victim’s caste coupled with the commission of the prohibited act is sufficient to attract the penal provisions of the SC and ST (PoA) Act, particularly when the victim belongs to a protected community and the accused does not.

Learned ASC further submitted that a statement under Section 313 Cr.P.C., though not a substantive piece of evidence by itself, can certainly be taken into consideration to lend assurance to the prosecution case, especially when such admission goes to the root of the matter and remains uncontroverted.

In view of the aforesaid admission and the overall evidence on record, learned ASC submitted that the accused-appellant cannot escape liability merely by disputing intention at the appellate stage, and therefore, he is squarely liable to be punished in accordance with law under the provisions of the SC and ST (PoA) Act.

In so far as the conviction under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is concerned, the same requires closer judicial scrutiny. This issue is no longer res integra and stands squarely covered by a catena of judgments of this Court, as rightly relied upon by the learned Senior Counsel for the accused-appellant. The settled legal position mandates that, for sustaining a conviction under the said provision, the prosecution must affirmatively prove the caste status of the victim as well as that of the accused, in addition to establishing that the alleged act was committed on the ground that the victim belonged to a Scheduled Caste or Scheduled Tribe community.

This Court is not persuaded by the submission advanced on behalf of the State that the statement of the accused recorded under Section 313 Cr.P.C. by itself is sufficient to prove the caste identity of the parties. Such a statement cannot be treated as a substitute for substantive evidence, nor can it be used to cure the fundamental lacuna in the prosecution case. The failure of the prosecution to lead independent and legally admissible evidence to prove the caste of the victim and the accused-appellant cannot be condoned or explained on the basis of an admission made in the Section 313 statement.

In the absence of such foundational proof, and in view of the settled law laid down by this Court, the conviction of the accused-appellant under Section 3(1)(xi) of the SC and ST (PoA) Act is rendered unsustainable in law.

However, the conviction and sentence of the accused-appellant under Sections 337 and 448 of the Indian Penal Code remain uncontroverted. A careful scrutiny of the evidence on record clearly reveals that the commission of the said offences stands duly established. The oral and documentary evidence adduced by the prosecution sufficiently proves the occurrence of the incident and the involvement of the accused-appellant therein. No perversity, illegality, or material irregularity is discernible from the findings recorded by the learned trial Court with respect to these offences.

Accordingly, this Court finds no justification to interfere with the conviction and sentence imposed under Sections 337 and 448 IPC.

At this stage, Mr. Dhal, learned Senior Counsel appearing for the appellant, makes a limited and alternative submission on the question of sentence. He submitted that the appellant has already undergone about fifteen (15) days of custody during the course of investigation and trial. It is further submitted that the appellant is presently about 51 years of age, whereas at the time of the alleged occurrence and conviction, he was only about 25 years old. Learned Senior Counsel contended that considerable time has elapsed since the date of the incident, and that much water has flown under the bridge in the interregnum. The appellant, it is submitted, has since reformed himself and is now leading a settled family life, there is no material on record to suggest that the appellant has any criminal antecedents, nor is there any allegation of recidivism or involvement in similar offences either prior to or subsequent to the present case. Learned Senior Counsel further submitted that the prolonged pendency of the criminal proceedings itself has operated as a substantial punitive factor, causing mental agony, social stigma, and financial hardship to the appellant over the years. Having regard to the passage of time, the age of the appellant, his conduct subsequent to the incident, and the fact that he has already undergone a portion of the sentence, learned Senior Counsel prayed that this Court may take a lenient and reformative view in the matter. In view of the aforesaid mitigating circumstances, it is urged that the sentence imposed upon the appellant may be reduced to the period already undergone, which, according to the learned Senior Counsel, would adequately meet the ends of justice.

At this belated stage, having regard to the fact that the appeal has remained pending for nearly twenty-four (24) years, this Court deems it fit and proper to accede to the prayer advanced by the learned Senior Counsel for the appellant. While, the appellant is acquitted of the charge under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the conviction of the appellant under Sections 337 and 448 of the Indian Penal Code is hereby affirmed. Taking into consideration the long passage of time, the age of the appellant, and the mitigating circumstances placed on record, this Court is of the view that the sentence awarded under Sections 337 and 448 IPC deserves to be modified. Consequently, the sentence is reduced to the period already undergone. Nevertheless, in the interest of justice, this Court deems it appropriate to impose a fine of Rs.7,000/- (Rupees Seven Thousand) upon the appellant which shall be paid within one month from the date of judgement, in default of payment of the fine, the appellant shall undergo rigorous imprisonment for a period of fifteen (15) days. The fine amount to be deposited shall be disbursed to the victim in accordance with Section 357 of Cr.P.C.

Accordingly, the Criminal Appeal is partly allowed.