Gauri Shankar Tiwari vs State of C.G.

D.R. Deshmukh, J.—With the consent of learned Counsel appearing for the parties, this revision was heard finally at the stage of admission.

The applicant Gauri Shankar Tiwari is aggrieved by the framing of charges against him u/s 376 of the Indian Penal Code and u/s 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth ''the Act'') by the Special Judge (Atrocities), Bilaspur on 9-2-2009.

Brief facts on which the prosecution of the applicant for the abovementioned offences rests are that the prosecutrix is Gond by caste. She had worked as a daily wage earner in the construction of a bridge undertaken by the applicant, who was an engineer in the Irrigation Department, Pendra Road. On the fateful day, i.e., 15-12-2006, one Munnibai, who is a Panch, lured the prosecutrix to her house for collection of wages, which were due, from the engineer, the applicant herein, who was present at her house. She made the prosecutrix sit beside the applicant on the cot inside here house and left the room while shutting the door behind her. It is alleged by the prosecutrix that the applicant committed rape on the prosecutrix. Report of the incident was lodged by the prosecutrix on 16-12-2006 at Police Station Gaurela. The prosecutrix being a married woman, Dr. Nalini Singh could not give definite opinion regarding the commission of rape on her. After completion of investigation, the applicant was prosecuted for the offences as aforesaid in paragraph 2 above.

Shri Ashok Soni, learned Counsel for the applicant and Shri Sudhir Bajpai, learned Deputy Government Advocate for the State/non-applicant were heard at length. Annexure to wit the copy of the charge-sheet filed before the Special Judge (Atrocities), Bilaspur is perused.

It is well settled that at the time of framing of charges, it has to be seen that a prima facie case exists or not. The test for ascertaining whether a prima facie case exists against the accused is that if the documents u/s 173 of the Code of Criminal Procedure filed by the prosecution are taken at their face value, whether the offence which has been alleged against the accused can be said to exist or whether a strong suspicion as to commission of the alleged offence by the applicant can be said to exist.

The prosecutrix had lodged a prompt F.I.R. at Police Station Gaurela situated 8 kilometers away from the place of occurrence on 16-12-2006 naming the applicant for the commission of rape on her on 15-12-2006 inside the house of Munnibai. The statements of Kalavati, her father Pyarelal as also the statements of witnesses Premlal, Chainsingh, Ramsingh and Jeevanpal, recorded u/s 161 of the Code of Criminal Procedure during investigation, substantiate that the prosecutrix had narrated to them about the commission of rape on her by the applicant. Thus, I am of the considered opinion that a prima facie case does exist against the applicant u/s 376 of the Indian Penal Code.

So far as the charge u/s 3(2)(v) of the Act is concerned, the sine qua non of framing a charge under that section is that any person not being a member of the scheduled caste or the scheduled tribe should be shown to have committed any offence under the Indian Penal Code punishable with imprisonment for a term of 10 years or more against a person or property on the ground that such person is a member of the scheduled caste or the scheduled tribe or such property belongs to such member. On a close scrutiny of the documents u/s 173 of the Code of Criminal Procedure, it appears that there is not even an iota of material to show that the applicant had committed an offence of rape on the prosecutrix on the ground that she was a member of the scheduled caste or the scheduled tribe. Shri Sudhir Bajpai, learned Deputy Government Advocate appearing for the State/non-applicant frankly conceded that no such material exists on record to substantiate framing of charge u/s 3(2)(v) of the Act.

In the result, the criminal revision is partly allowed. Charge u/s 3(2)(v) of the Act framed by the Special Judge (Atrocities), Bilaspur against the applicant is set aside. Trial u/s 376 of the Indian Penal Code against the applicant shall continue.