Ram Lal vs State of Chhattisgarh

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 29th April, 2006, passed in Special Sessions Trial No. 16/2005 by the Special Judge, [under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989], Korba, District Korba (CG). By the impugned judgment, the appellant has been convicted and sentenced in the following manner with a direction to run the sentences concurrently:

The facts, briefly stated, are as under:-

On 7.3.2005, at about 8.00 a.m., prosecutrix-Laxmin Bai (PW-1) had gone to the forest for collecting Mahua seeds. Her brother-Shiv Raj Singh (PW-4) and one Bhogsingh (PW-5) were also present with her. The case of the prosecution is that when these 2 persons went to another area in the forest for collecting wood, the appellant, who was also collecting Mahua seeds, called the prosecutrix and took her to a nearby ditch and committed forcible sexual intercourse against her. The further case of the prosecution is that while the appellant was committing sexual intercourse, Shiv Raj Singh (PW-4) and Bhogsingh (PW-5) came to the ditch and saw the prosecutrix in compromising position with the appellant. They abused the appellant, then the appellant ran away from the place of occurrence. The matter was reported to the Police. During the course of investigation. School certificate of the prosecutrix was seized by the Police. A copy of gist of admission register of the School was also seized. In both the documents, the date of birth of the prosecutrix was mentioned as 5.11.89. The prosecutrix was a member of Kanwar community and thus, was belonging to Scheduled Tribe. The prosecution, therefore, filed a charge sheet u/s 376 IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ''Special Act''). The learned Special Judge recorded the finding that the prosecutrix was a minor girl, as her age was below 16 years on the date of the incident. It was proved that the appellant committed forcible sexual intercourse against the prosecutrix, who was belonging to Kanwar community, therefore, the appellant was liable for punishment under the aforementioned section of the IPC and the Special Act. The appellant, thus, was convicted and sentenced as above.

Mr. N.K. Chatterjee, learned counsel appearing on behalf of the appellant, argued that the finding relating to age is not correct; it was a case of consent; and further more it was not proved that the appellant committed sexual intercourse against the prosecutrix for the reason that she was a member of Scheduled Tribe; the prosecutrix, by chance was a member of Scheduled Tribe, therefore, the conviction u/s 3(2)(v) of the Special Act, or Section 376 IPC cannot be sustained.

On the other hand, Mr. D.K. Gwalre, learned Government Advocate appearing on behalf of the State opposed these arguments and supported the judgment passed by the Special Court.

We have heard the learned counsel for the parties at length and have also perused the records of the Special case.

Vishram Singh (PW-2) is father of the prosecutrix. He deposed that his daughter was aged about 14 years on the date of the incident. Though he could not tell the correct date of birth of his daughter, but he clearly stated that his daughter was firstly studying in Shiksha Guarantee School and thereafter, she was admitted in a different Middle School. He deposed that at the time of her initial admission, he had produced the record before the School authorities, which he had collected from the village Kotwar, who used to keep the record of birth, Shivkumari (PW-3) is mother of the prosecutrix. She also deposed that her daughter was aged about 14 years on the date of the incident.

Besides the above evidence of the parents, entry of the School register has been proved as Ex. P/17. The entry has been proved by Bhagatram Kurre (PW-11), who was the Headmaster of the concerned School. He deposed that according to the School register, the date of birth of the prosecutrix was 5.11.89. The prosecutrix was admitted in his School in class 6th and the above entry was made on the basis of the documents of previous School, in which, she had earlier studied.

Mr. Chatterjee has argued that on the basis of above evidence, it was not proved that the prosecutrix was below 16 years on the date of the incident. We are unable to accept the above argument advanced by Mr. Chatterjee. Father and mother of the prosecutrix have clearly stated that she was aged about 14 years on the date of the incident. Father of the prosecutrix has stated in clear words that at the time of her initial admission, he had produced the document relating to date of birth of his daughter, which he had collected from the village Kotwar and on the basis of the said document, the date of birth of the prosecutrix was entered in the School register. In the instant case, the admission register of the first School has not been produced. However, the entries contained in the admission register of the subsequent School (Ex. P/17) would show that those entries were made on the basis of the entries in the records of the earlier School. Therefore, the entry in the School register i.e. Ex. P/17 would assume importance and it can safely be gathered that this subsequent entry was true and correct on the basis of the initial entry made in the first School on the declaration of father of the prosecutrix while she was being admitted in the said School. According to the above documents filed by the prosecution, the date of birth of the prosecutrix was 5.11.89. The incident took place on 7.3.2005. Therefore, it is apparent that the prosecutrix was aged about 15 years and 4 months on the date of the incident, which is less than 16 years and thus, the learned Special Judge has rightly recorded the finding that the prosecutrix was minor on the date of the incident.

Mr. Chatterjee has taken us to the evidence of the prosecutrix and has tried to make out a case of consent. We have gone through her evidence. Though there appears to be some element of consent in the evidence of the prosecutrix, but, since we have held that the prosecutrix was aged about 15 years and 4 months on the date of the incident, the said portion of her evidence indicating towards her consent, would be of no use. On appreciation of the evidence of the prosecutrix and her parents, we find that the prosecutrix was minor on the date of the incident and she was subjected to forcible sexual intercourse by the appellant. Thus, the finding of the learned Special Judge that an offence u/s 376 IPC is made out, has to be maintained.

Now we shall consider the conviction u/s 3(2)(v) of the Special Act.

Section 3(2)(v) provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, 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.

There is no dispute that the prosecutrix is a member of Scheduled Tribe and the appellant is not a member of Scheduled Tribe or scheduled caste. The question,-which has to be examined in this matter is, as to whether the relevant offence punishable under the Indian Penal Code, was committed on the ground that the prosecutrix was a member of Scheduled Tribe? If the answer to the question is affirmative, then only the appellant would be liable for punishment under the Special Act. However, if the answer is negative, an offence u/s 3(2)(v) of the Special Act. would not be made out. After going through the entire evidence on record, particularly, the evidence of prosecutrix-Laxmin Bai (PW-1) and her parents, Vishram Singh (PW-2 father) and Shivkumari (PW-3 mother), it does not appear that the appellant committed rape against the prosecutrix on the ground or for the reason that she was a member of the Scheduled Tribe. There is absolutely no evidence in this regard. This is a case, in which, the prosecutrix happened to be a girl belonging to Scheduled Tribe by chance. Even there is no evidence to show that it was in the knowledge of the appellant that she belonged to Kanwar community.

In Ramdas and Others Vs. State of Maharashtra, , rape was committed on a girl belonging to Scheduled Caste. However, there was no evidence whatsoever to prove the commission of offence u/s 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Supreme Court held that the mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the provisions of the Special Act. It was held that 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 Special Act. The conviction was awarded on the ground that the prosecutrix belongs to a scheduled caste community only. The Supreme Court held that in such circumstances, the conviction of-the appellant u/s 3(2)(v) of the Special Act must, therefore, be set aside.

The situation, in case on hand is almost similar. There is absolutely no evidence to attract the offence u/s 3(2)(v) of the Special Act. Therefore, the conviction and sentence awarded to the appellant u/s 3(2)(v) of the Special Act, cannot be sustained and the same has to be set aside.

Now, we shall consider as to what sentence would have been awarded to the appellant for the offence u/s 376 IPC. The prosecutrix was aged about 15, 14 years on the date of the incident. The prosecutrix and the appellant both were collecting Mahua seeds in the forest area. The appellant called the prosecutrix and took her to a nearby ditch, where she was subjected to sexual intercourse by the appellant. While the sexual intercourse was being performed, the brother of the prosecutrix reached there and saw them in compromising position. The medical report regarding forcible sexual intercourse is also not supporting. We are of the view that in the above facts and circumstances, on the conduct of the prosecutrix, it was not a case in which punishment of life imprisonment along with above fine sentence was required to be imposed against the appellant. In our considered view, rigorous imprisonment for 7 years simplicitor, would be sufficient punishment, which shall serve the ends of justice. Accordingly, the appeal is party allowed. The conviction and sentences awarded to the appellant u/s 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are set-aside. However, his conviction u/s 376 IPC is maintained. But the sentence of life imprisonment and fine of Rs. 1000/- awarded u/s 376 IPC are set aside. Instead thereof, the appellant is sentenced to undergo R.I. for 7 years. The appellant is in jail since 9.3.2005. Thus, he has already undergone the sentence now imposed upon him. He be set at liberty forthwith, if not required in any other case.