Ramsharan Lodhi vs State of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of the CrPC preferred by the appellants / accused persons herein is directed against the impugned judgment of conviction and order of sentence dated 24.01.2019 passed by the learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bemetra, District Bemetara, Chhattisgarh in Special Case (Atrocities) No. 06/2016 by which appellants herein have been convicted for offence under Section 376D of the IPC and also under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo imprisonment for life, till natural death, and to pay fine of ₹ 2,000/-each.

Case of the prosecution, in nutshell, is that on 06.03.2016 in the night at about 8:30 pm at village Mohtara, Police Station District Bemetara, Chhattisgarh, two appellants namely Ramsharan Lodhi (A-1) and Bhupendra Lodhi (A-2) committed sexual intercourse with victim (deaf and dumb) (PW-14) against her wish knowing fully well that she is a member of Scheduled Tribe. It is further case of the prosecution that victim (PW-14) used to live in village Mohtara along with her parents and appellants herein also used to live in the same village. On the date of offence i.e. 06.03.2016, victim (PW-14) had gone to answer the call of nature towards backyard of her house and she was getting late in coming back to home; then her father (not examined) and mother Jamuna Bai Dhruv (PW-1) went towards the backyard to see her and on being shout made by victim (PW-14) they ran towards her and found that A-1 was committing sexual intercourse with victim (PW-14), consequently FIR (Ex.P/41) was registered. Victim (PW-14) was medically examined by Dr. Rajshri Devdhar (PW-17) and report was prepared vide Ex.P/24. In the medical report (Ex.P/24), proved by Dr. Rajshri Devdhar (PW-17), no trace of recent sexual intercourse has been found, but in the Query report (Ex.P/26), it has been opined by Dr. Rajshri Devdhar (PW-17) that injuries found on the thigh of victim (PW-14), could have been caused while committing sexual intercourse with victim (PW-14). Further, Nazri Naksha (Ex.P/3) was prepared and from the spot clothes & slipper of victim (PW-14) were seized vide Exs.P/4 & P/6, respectively, and slipper of A-2 was also seized from the spot vide Ex.P/5, undergarments of victim (PW-14) and appellants (A-1 & A-2) were seized vide Ex.P/18 & Exs. P/8 & 7, respectively. Virginal slides of victim (PW-14) and other seized Articles were sent for chemical analysis to FSL and in the FSL report (Ex.P/36) on articles A & B i.e. underwear and slides of victim (PW-14) stains of semen and human sperm were found. On the basis of statement of victim (PW-14), involvement of Bhupendra Lodhi (A-2) was also found in crime in question.

After due investigation, appellants were charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused persons abjured their guilt and entered into defence.

In order to bring home the offences, prosecution has examined as many as 19 witnesses and exhibited 41 documents and defence in support of its case has neither examined any witness nor exhibited any document.

The learned Special Judge after appreciating the oral and documentary evidence available on record, convicted the appellants / accused persons for the offences as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by two appellants herein questioning the impugned judgment of conviction and order of sentence.

Mr. V.G. Tamaskar, learned counsel for the appellants, submits that appellants have falsely been implicated in crime in question and they have been convicted by recording a finding which is perverse to the record. He further submits that victim (PW-14) is deaf and dumb and the manner, in which, her testimony has been recorded, she is not reliable witness and it cannot be said that the signs, which were exhibited by the victim (PW-14), conclusively meant to convey that she was subjected to rape by the appellants herein. He further submits that other prosecution witnesses have not supported the case of the prosecution and even the medical evidence also does not support the case of prosecution, therefore, the conviction of two appellants is bad in law and they deserve to be acquitted and the appeal deserves to be allowed.

On the other hand, Mr. Afroz Khan, learned State counsel, supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt. He further submits that the learned trial Court has recorded the evidence of victim (PW-14), after taking due assistance of an expert and at the time when the evidence was recorded, no specific objection was taken with regard to evidence of victim (PW-14) on behalf of defence and she was subjected to detailed cross-examination also. As such, the trial Court has rightly convicted the appellants herein and the instant appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection.

Now, the appellants herein have been convicted for offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, however, date of offence is 06.03.2013 and Section 3(2)(v) of the Act, 1989 has been amended w.e.f 26.01.2016; Section 3(2)(v) prior to its amendment stood as under:-

“3. Punishment for offences of atrocities -

(1) xxx xxx

(2) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe -

(i) to (iv) xxx xxx

(v) commits any offence under the Indian Penal Code 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;”

In the matter of Asharfi v. State of Uttar Pradesh (2018) 1 SCC 742, their Lordships of the Supreme Court, while dealing with Section 3(2) (v) of the Act of 1989, prior to its amendment on 26/01/2016, held in paragraphs 6, 7 and 8 as under :-

“6. In respect of the offence under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, the appellant had been sentenced to life imprisonment. The gravamen of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is that any offence, envisaged under Indian Penal Code punishable with imprisonment for a term of ten years or more, against a person belonging Scheduled Caste/Scheduled Tribe, should have been committed on the ground that "such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member". Prior to the Amendment Act 1 of 2016, the words used in Section 3(2)(v) of the SC/ST Prevention of Atrocities Act are "......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe".

Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has now been amended by virtue of Amendment Act 1 of 2016. By way of this amendment, the words ".......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe" have been substituted with the words "........knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". Therefore, if subsequent to 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under Indian Penal Code which is punishable with imprisonment for a term of ten years or more, is committed upon a victim who belongs to SC/ST community and the accused person has knowledge that such victim belongs to SC/ST community, then the charge of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is attracted. Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act.

In the present case, unamended Section 3(2)(v) of the SC/ST Prevention of Atrocities Act is applicable as the occurrence was on the night of 8/9.12.1995. From the unamended provisions of Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, it is clear that the statute laid stress on the intention of the accused in committing such offence in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community.”

Thereafter, the Supreme Court in the matter of Patan Jaman Vali v. State of Andhra Pradesh AIR 2021 SC 2190 noticing Section 3(2)(v) of the Act of 1989 (unamended), considered the issue of proving the offence under Section 3(2)(v) of the Act of 1989 (unamended), against a person on the ground that such person is a member of Scheduled Caste or Scheduled Tribe or such property belongs to such member and it has been held by their Lordships that it is to be established by the prosecution on the basis of evidence adduced at the trial and observed as under :-

“58. We agree with the Sessions Judge that the prosecution's case would not fail merely because PW1 did not mention in her statement to the police that the offence was committed against her daughter because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW2. While it would be reasonable to presume that the accused knew the caste of PW2 since village communities are tightly knit and the accused was also an acquaintance of PW2's family, the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the intersectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of the offence – whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single axis model.

It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words “on the ground of” under Section 3(2)(v) have been substituted with “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”. This has decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction.

However, since Section 3(2)(v) was amended and Clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26 January 2016 these amendments would not be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31 March 2011. Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) would consequently have to be set aside.”

12.Returning to the facts of the present case, in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the matters of Asharfi (supra) & Patan Jaman Vali (supra), it is quite vivid that from the entire material available on record, it is evident that no legal evidence has been led to prove that appellants (A-1 & A-2) have committed rape on the minor victim (PW-14) on the ground that she is a member of Scheduled Tribes. The prosecution could have brought legal evidence on record to show that the appellants had the knowledge that victim (PW-14) is a member of Scheduled Tribes and offence was committed on the basis of caste identity of victim. In view of the judgments rendered by the Supreme Court in Asharfi (supra) & Patan Jaman Vali (supra) wherein it has been held that knowledge by itself cannot be said to be the basis of commission of offence, having regard to the language of Section 3(2)(v) of the Act of 1989 as it stood at the time when the offence was committed and further the prosecution must have led separate evidence to demonstrate that appellant committed the offence on the basis of caste identity of the victim (PW-14) which the prosecution has failed to bring on record. In view of the above legal analysis, conviction of appellants Ramsharan Lodhi (A-1) & Bhupendra Lodhi (A-2) for offence punishable under Section 3(2)(v) of the Act of 1989 and sentence imprisonment for life as awarded by the trial Court is hereby set aside.

13.Now, we shall consider the case of the appellants herein one by one considering the nature of evidence available on record.

Case of Ramsharan Lodhi (A-1)

14.Testimony of the victim (PW-14) has been questioned on the ground that victim (PW-14) is a deaf and dumb witness and her statement has not been recorded in accordance with Section 119 of the Indian Evidence Act, 1872. However, a careful perusal of the record would show that she has been examined with the help of Mrs. Shanta N. Acharya, who is an expert / trained tutor in deaf and dumb school, Prayas Shravan Viklang Sansthan Supela, Bhilai District Durg, Chhattisgarh. The trial Court in para 8 of its judgment has clearly recorded a finding that by granting the application filed by the prosecution by order dated 28.04.2017, Mrs. Shanta N. Acharya, an expert / trained tutor has been nominated / appointed to assist in recording the statement of deaf and dumb witness / victim (PW-14) herein. As such, the finding recorded by the trial Court in para 8 in this regard and the manner in which victim has been examined, is strictly in accordance Section 119 of the Indian Evidence Act, 1872 and we do not find any infirmity and perversity in the said finding and argument to this effect deserves to be rejected.

15.The victim (PW-14) was major on the date of offence, but in para 1 of her statement before the Court she has clearly stated that she knew both the appellants prior to the date of offence and she has also stated that she was pushed down to the floor by appellants by which she suffered injuries and thereafter, she was subjected to sexual intercourse by two appellants herein one by one and immediately, when her parents – father Malikram Dhruv (not examined) and mother Jamuna Bai Dhruv (PW-1) reached on the spot, Ramsharan Lodhi (A-1) absconded. Victim (PW-14) was medically examined by Dr. Rajshri Devdhar (PW-17) and report was prepared vide Ex.P/24. In the medical report (Ex.P/24) three linear abrasions were found over the body (thigh) of victim (PW-14) and her virginal slides were sent for chemical analysis to FSL and in the FSL report (Ex.P/36), proved by R.D. Sonwani (PW-19), stains of semen and human sperm were found. Not only this, mother of victim (PW-14) Jamuna Bai Dhruv (PW-1) has also been examined and in her statement before the Court she has clearly stated that when victim (PW-14) had gone to answer the call of nature and when she (PW-14) did not return within the reasonable time then she (PW-1) and her husband Malikram Dhruv (not examined) went towards to backyard to see victim (PW-14) where they have seen her (PW-14) completely naked and A-1 was committing sexual intercourse with her. Jamuna Bai Dhruv (PW-1) has been subjected to some extent of cross-examination, but nothing has been extracted to hold that she has not seen the incident and made a false statement to implicate A-1 in crime in question.

16.As such, victim (PW-14) has fully supported the case of the prosecution to the extent of A-1 and even the injuries have been found over her body as per medical report (Ex.P/24) proved Dr. Rajshri Devdhar (PW-17); furthermore, mother of victim Jamuna Bai Dhruv (PW-1), who is the eye witness, has clearly stated that she had seen A-1 committing sexual intercourse with her daughter victim (PW-14) and further in FSL report (Ex.P/36) on Article B i.e. slides of victim (PW-14), stains of semen and human sperm were found. In that view of the matter, the trial Court has absolutely justified in convicting Ramsharan Lodhi (A-1) for offence of rape. We do not find any illegality and perversity in judgment of trial Court in convicting the appellant (A-1) herein.

Case of Bhupendra Lodhi (A-2)

17.Case of the prosecution is that two appellants herein have committed the sexual intercourse with victim (PW-14). Jamuna Bai Dhruv (PW-1), in her statement before the Court has clearly stated that victim (PW-14) had gone to answer the call of nature, when she (PW-14) did not return right in time, then she (PW-1) and her husband Malikram Dhruv (not examined) both went to the place of occurrence where they saw A-1 was committing sexual intercourse with the victim (PW-14), and in her examination-in-chief she has clearly stated that A-2 was not there and he must have hide himself there. Thereafter, FIR (Ex.P/41) was lodged by her only naming A-1 and A-2 has not been named, which she has clearly stated in her statement. FIR (Ex.P/41) has been lodged by Jamuna Bai Dhruv (PW-1) who went along with Kumar Ram Dhruv (PW-12) uncle of victim (PW-14) to the Police Station. Kumar Ram Dhruv (PW-12), in his statement, has firmly stated that his brother Malikram Dhruv (not examined) and his sister-in-law Jamuna Bai Dhruv (PW-1) have only named A-1 and accordingly, FIR (Ex.P/41) has been lodged only against A-1 by Jamuna Bai Dhruv (PW-1) and even on Article D i.e. underwear of A-2, nothing has been found in the FSL report (Ex.P/36).

18.As such, the case of Bhupendra Lodhi (A-2) is clearly distinguishable form the case of Ramsharan Lodhi (A-1), as he has not been seen by Jamuna Bai Dhruv (PW-1), eye witness, committing sexual intercourse with victim (PW-14) and FIR (Exs. P/19 & P/41) lodged by her, naming only A-1, which has also been corroborated by Kumar Ram Dhruv (PW-12) and furthermore, there is no medical evidence also against A-2, therefore, it would be unsafe to convict A-2 only on the basis of statement of victim (PW-14), as such, he is entitled for benefit of doubt and he is acquitted of the charges for offence under Section 376D of the IPC as there is no legal evidence against him led by the prosecution.

Conclusion:-

19.In view of the aforesaid discussion, appeal is allowed to the extent of appellant Bhupendra Lodhi (A-2) as there is no legal evidence led by prosecution against him, either eye witness or medical evidence and he is acquitted of the charges for offences under Section 376D of the IPC and also charges for offence under Section 3(2)(v) of the Act of 1989. He is reported to be in jail since 07.03.2016, we direct that he be released from jail forthwith, if not required in any other matter.

20.The conviction of Ramsharan Lodhi (A-1) only for offence under Section 3(2)(v) of the Act of 1989 is hereby set aside. Considering the facts and circumstances of the present case, we hereby convict Ramsharan Lodhi (A-1) for offence under Section 376(2)(l) of the IPC in place of offence under Section 376D of the IPC and sentenced him to undergo rigorous imprisonment for 10 years in place of sentence of imprisonment for life, however, the fine amount imposed by the learned trial Court shall remain intact.

Accordingly, this criminal appeal to the extent of Ramsharan Lodhi (A-1) is partly allowed as his conviction for offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is set aside. However, he is convicted for offence under Section 376(2)(l) of the IPC and sentenced to undergo 10 years for rigorous imprisonment, whereas, criminal appeal to the extent of Bhupendra Lodhi (A-2) is allowed in toto as he is acquitted of the charges for offences under Section of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 376D of the IPC.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where they are lodged and suffering jail sentence, forthwith for necessary information and action, if any.