Kothari Nisad vs State of U.P.

Surendra Vikram Singh Rathore, J.—Heard Shri Sunil Singh, learned Amicus Curiae for the appellant, and Shri Rajendra Dwivedi, learned AGA for the State.

Instant appeal has been preferred by appellant Kothari Nisad challenging the judgment and order dated 09.02.2009 passed by Additional Sessions Judge, Court No. 2, District Sitapur in Sessions Trial No. 585 of 2003 arising out of Case Crime No. 701 of 2003, Police Station Kotwali, District Sitapur, whereby the appellant was convicted for the offence under Section 368 , 376 IPC and Section 3(2)(5) of the SC/ST Act. For the offence under Section 368 IPC, he was convicted and sentenced to undergo rigorous imprisonment for a period of eight years and also with fine of Rs. 1,000/- with default stipulation of four months'' additional imprisonment; for the offence under Section 376 IPC, he was convicted and sentenced to undergo rigorous imprisonment for a period of ten years'' and also with fine of Rs. 1,000/- with default stipulation of four months'' additional imprisonment, and for the offence under Section 3(2)(5) of the SC/ST, he was convicted and sentenced to undergo imprisonment for life and also with fine of Rs. 2,000/- with default stipulation of six months'' additional imprisonment. However, he was acquitted of the charges levelled under Section 363 and 366 IPC. One Rajesh alias Tuinya was also tried with the present appellant for the offence under Section 368 IPC and Section 3(2)(5) of the SC/ST Act. However, he was acquitted of the said charges.

In brief the case of the prosecution was that the complainant Smt. Rampati lodged a first information report at the police station Kotwali Sitapur on 11.05.2003 at 1530 hours alleging therein that her minor daughter aged about 14 years (hereinafter referred to as the victim) was enticed away by the appellant about 10 days ago. She was seen by her son Gopal and other persons of Mohalla namely Chhanu Lal. It was alleged that they were chased at that time but the victim could not be traced out. Thereafter they made efforts to search the victim but their efforts failed. She is Dhobi by caste. Hence, case was registered under Sections 363 , 366 IPC and Section 3(1)(12) SC/ST Act.

After registration of the case, the investigation started and during investigation on the secret information of the informer, the victim was recovered from the house of Rajesh alias Tuinya. After recovery of the victim, she was sent for medical examination. Her medical examination took place on 12.05.2003. At the time of her medical examination, her height was recorded as 151 cm and weight was recorded as 38 kilograms and teeth were reported as 7+7/7+7. No mark of injury was present anywhere on the body. Breasts were developing, axillary and pubic hair were present. On her internal examination, no mark of injury on private parts was reported. Hymen was old, torn and healed. Uterus was small in size. Vaginal smear was prepared and sent for pathological test. The victim was also referred for radio-logical examination for determination of her age. On the basis of the aforesaid test, the age of the victim was reported by the doctor to be about 13 years and no definite opinion regarding sexual assault could be given.

After completing the investigation, charge sheet was filed against the appellant.

The case of the defence was of his false implication because of enmity.

In order to prove its case, the prosecution has examined PW-1 the victim, PW-2 Smt. Rampati - the mother of the victim and the complainant of this case, PW-3 Gopal-brother of the victim, PW-4 SI Komal Singh, who has prepared the Chik report and GD of this case, PW-5 Dr. Deepa Sharma, who has medically examined the victim, PW-6 Circle Officer Dr. V.K. Singh - the Investigating Officer of this case, PW-7 Inspector Amar Singh, a witness of recovery of the victim, PW-8 Dr. S.K. Nigam, Radiologist, who has prepared X-ray report of the victim.

No evidence in defence was adduced on behalf of the appellant.

After appreciating the evidence on record, learned trial court has convicted the appellant, as above, hence, the instant appeal.

Submission of learned counsel for the appellant was that in the instant case there was absolutely no allegation which may bring the case within the purview of Section 3(2)(5) of the SC/ST Act. He has further submitted that learned trial court has committed error of law by inflicting imprisonment for life for the offence under Section 3(2)(5) of the SC/ST Act. It is submitted that keeping in view the facts as alleged by the prosecution there was absolutely no ingredient to constitute such offence under Section 3(2)(5) of the SC/ST Act. On the contrary, the appellant wanted to marry the victim, which is clear from her statement recorded under Section 164 Cr.P.C. and also during trial. So it cannot be said that the offence was committed because of the caste discrimination and to insult the victim or her family. It is submitted that the victim, in her evidence in Court, has also stated that the appellant had told her that her marriage will be solemnized with him only. Therefore this offence cannot, by any stretch of imagination, be said to be an offence committed to insult the members of the Scheduled Caste. Learned counsel for the appellant has submitted that he does not want to challenge the conviction of the appellant for the offence under Section 368 and 376 IPC but his challenge is only restricted to the sentence inflicted for the offence under Section 3(2)(5) of the SC/ST Act.

Learned AGA has submitted that the judgment of the trial court is well reasoned and needs no interference.

It has been submitted on behalf of the accused-appellant that the rape was not committed for the reason that the victim was the member of the scheduled caste or scheduled tribe. It is essential to appreciate the provision contained in Section 3(2)(5) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities), Act, 1989 which reads as under:--

"3(2) whoever, not being a member of Scheduled Caste or Schedule Tribe-(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"

For appreciation of the commission of the offence under Section 3(2)(5) SC/ST Act, it would be appropriate to have a glance over the Dinesh @ Buddha Vs. State of Rajasthan, . The observation of the Hon''ble Apex Court are reproduced here below:

"15. Sine qua non for application of Section 3(2)(5) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of 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 view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the sentence provided in Section 376(2)(f) , IPC does not per se become life sentence."

Hon''ble Supreme Court in Ramdas and Others Vs. State of Maharashtra, has held as under:

"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.".

From the perusal of above proposition of law, it is clear that for the application of Section 3(2)(5) SC/St Act, it is essential that the offence should have committed because the victim belongs to a SC/ST community with the intention to denigrate her position as being the member of the SC/ST community. Nowhere the evidence to this effect has been led that the prosecutrix was victimized because she belonged to the SC/ST community. On the contrary, appellant wanted to marry her. In absence of such evidence we are of the considered opinion that the offence under Section 3(2)(5) SC/ST Act would not be made out.

Mere perusal of section 3(2)(5) of the SC/ST Act shows that it does not constitute any substantive offence but it only provides for an enhanced punishment whenever an offence is committed and the conditions mentioned in the aforesaid sections are fulfilled. Therefore, no separate sentence for the offence under Section 3(2)(5) of the SC/ST Act can be passed and if the Court is of the view that any offence has been committed with the member of the scheduled caste or scheduled tribe and the conditions mentioned in Section 3(2)(5) of the SC/ST Act stand fulfilled then Court would be justified in inflicting enhanced punishment for the said offence with the aid of Section 3(2)(5) of the SC/ST Act but in no case a separate sentence under Section 3(2)(5) of the SC/ST Act can be inflicted for the offence. In the instant case, there is absolutely no allegation to bring the offence within the purview of Section 3(2)(5) of the SC/ST Act.

Thus, in view of aforementioned legal position, the conviction of the appellant for the offence under Section 3(2)(5) of the SC/ST Act becomes unsustainable under law. Regarding other offences, though learned counsel for the appellant has not challenged the conviction of the appellant but in spite of that being the Court of first appeal we have gone through the entire evidence and also the impugned judgment. The victim has supported the case of the prosecution, which stands corroborated by the evidence of two other witnesses. The victim has made specific allegation of rape against the present appellant that he committed rape with her two or three times against her will. The radiological age of the victim was reported to be only 13 years and her hymen was also found to be torn. The victim was kept in his custody for a period of more than ten days. So the conviction of the appellant for the offence under Section 368 and 376 IPC was justified and it has also not been challenged. Accordingly, this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of the appellant recorded by learned trial court under Section 3(2)(5) of the SC/ST Act is hereby set-aside. The conviction and sentence inflicted by the learned trial court for the remaining offences is hereby confirmed. However, it is modified only to the extent that imprisonment in default of payment of entire fine amount shall be one month instead of what is imposed by the learned trial court. Appellant Kothari Nisad shall be released after serving out his sentence as modified by this Court.

Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.