Ramnath vs State of Chhattisgarh

Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 12.1.2004 passed by Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth ''the Act, 1989''), Raipur in Special Sessions Trial No. 36/2003. By the impugned judgment, the accused/appellant has been convicted u/s 3(1)(xii) of the Act, 1989 and sentenced to undergo rigorous imprisonment for 2� years and to pay fine of Rs. 1,000, in default of payment of fine, to further undergo rigorous imprisonment for 6 months. Case of the prosecution, in brief is as un-

Prosecutrix Fuleshwari Bai (PW 3) is a disabled lady and was residing with her parents. Her mother and father had gone to Bhatapara for doing work as labourer and the prosecutrix was residing at her house alone at Boirjhiti. On the date of incident, in the afternoon, the appellant entered the house of the prosecutrix (PW 3) and raped her and threatened her mat if she will disclose the incident, he will kill her. Therefore the prosecutrix (PW 3) did not disclose the incident to anybody. After sometime at the time of Deepawali festival, the appellant took her to his house and again raped her. Due to sexual intercourse, the prosecutrix became pregnant. She was taken to Bhatapara hospital, where she disclosed the incident about the rape committed by the appellant with her and becoming her pregnant because of the rape. The prosecutrix (PW 3) lodged First Information Report (Ex. P3) in Police Station Newra. The prosecutrix (PW 3) was sent to Community Health Centre, Tilda for medical examination. Dr. Sudha Samual (PW 1) examined her and gave her report (Ex. P1). The appellant was also sent to Primary Health Centre. Tilda for medical examination Dr. R.S. Thakur (PW 2) examined him and gave his report (Ex. P2). The Caste Certificate (Ex. P4) was also seized vide Ex. P4. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate, First Class, Raipur, who, in turn, committed the case to the Court of Session, Raipur, from where it was received on transfer by the Special Judge under the Act, 1989, Raipur, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri S.C. Verma, learned counsel for the appellant argued that the First Information Report (Ex. P3) was lodged at belated stage. In absence of proper explanation therefor, the prosecution story becomes doubtful. He further argued that the learned Special Judge acquitted the appellant under Sections 376(1) and 506 IPC, therefore, on the same set of evidence, the appellant cannot be convicted u/s 3(1)(xii) of the Act, 1989. Hence, the appellant deserves to be acquitted of the charges framed against him.

On the contrary, Shri Sandeep Yadav, learned Deputy Government Advocate for the State/respondent supporting the impugned judgment submitted that the conviction and sentence awarded by the teamed Special Judge do not warrant any interference by this Court.

I have heard learned counsel for the parties at length and have perused the record of Special Sessions Trial No. 36/2003.

Prosecutrix (PW 3) deposed that she belongs to Gond Caste. She further deposed that the appellant was residing in another village and for last two years, he was residing at village Boirjhiti.

Clause (xii) of sub-section 1 of Section 3 of the Act, 1989 runs thus:

Punishments fro offences of atrocities--(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe:

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(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed.

Prosecutrix (PW 3) deposed that her mother and father had gone for doing work as labourer. She has been living alone at her house. The appellant came to her house and committed sexual intercourse with her. She did not say anything to the appellant. She further deposed that after 8 days, the appellant came to her house and took her in his house and he again committed rape with her. Due to the sexual intercourse, she became pregnant. Then she lodged the FIR (Ex. P3).

Prosecutrix (PW 3) further deposed that when the appellant tried to commit sexual intercourse, she did not raise alarm.

Learned Special Judge, in paragraph 10 of the impugned judgment, held that the matter is not related to rape and the prosecutrix was a consenting party. Had she not become pregnant, she would not have lodged the FIR (Ex. P3) and disclosed the incident, therefore, the appellant was acquitted of the charges under Sections 376(1) and 506 IPC.

So far as, the conviction of the appellant u/s 3(1)(xii) under the Act, 1989 is concerned, it is suffice to say that mere the victim happened to be a girl belonging to a Scheduled Caste or a Scheduled Tribe does not attract the provision of the Act, 1989. Apart from the fact that the prosecutrix belongs to Gond caste there is no other material on record to arrive at a finding that the appellant committed an offence u/s 3(1)(xii) of the Act, 1989. For such an offence, it must be proved that the accused was in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and used that position to exploit her sexually to which she would not have otherwise agreed.

In the present case, it does not appear that the appellant was in a dominating position; rather the evidence of prosecutrix would show that she consented for commission of sexual intercourse twice� a girl gives consent for repeated sexual intercourse upto a long duration, an offence u/s 3(1)(xii) of the Act. 1989 could not be made out on the ground that the girl happened to be a member of Scheduled Caste or a Scheduled Tribe by chance because it was her own will for commission of sexual Intercourse. Therefore, the conviction of the appellant u/s 3(1)(xii) of the Act, 1989 cannot be sustained. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention Atrocities) Act, 1989 are set aside. The (sic) is acquitted of the charges framed (sic) him. Presently, he is on bail. His bail bonds (sic) cancelled and sureties stand discharged.