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2003 DIGILAW 1156 (AP)

Kalasika Prashanta Kumar v. State Of A. P.

2003-09-11

BILAL NAZKI, K.C.BHANU

body2003
BILAL NAZKI, J. ( 1 ) HEARD learned counsel for the appellant as well as learned Public Prosecutor. These are two appeals, one directly filed by the accused and one has been filed on his behalf through Legal Services Authority against same judgment. Against judgment of 1st Addl. Sessions judge, Nalgonda, D/- 27-9-2001. Therefore, both the appeals are being decided by this common judgment. ( 2 ) THE accused was charged with an offence under Section 376 (2) (f) of I. P. C. and section 3{2) (v) of the S. C. and S. T. (Prevention of Atrocities) Act, 1989. He pleaded not guilty and was tried. Prosecution examined 16 witnesses and exhibited 16 documents. The trial Court convicted him under both the charges and sentenced him to undergo life imprisonment and to pay a fine of rs. 200/-, in default he had to undergo simple imprisonment for one month for the offence u/s. 3 (2){v) of the S. C. and S. T. (Prevention of Atrocities) Act, 1989 and rigorous imprisonment for ten years and to pay a fine of Rs. 1. 000. 00, in default he had to undergo simple imprisonment for three months for the offence u/s. 376 (2) (f) of I. P. C. ( 3 ) THE case of the prosecution was that the accused, on 7-11-2000 at about 2. 00 p. M. , took the victim i. e. , P. W. 2, a minor girl, on a scooter to a distant place and committed rape on her. The victim was taken on the promise that he would give her some chocolates and biscuits. The victim was a member of scheduled caste. A report was filed by her mother on the same day on which the occurrence took place. The victim was examined by the doctor on the same day i. e. 7-11-2000 at 8. 05 P. M. We have gone through the evidence of the prosecution and record. In view of the evidence of the victim girl which was corroborated by the medical evidence, we do not find that there is any defence with which the accused could come out of the offence u/s. 376 (2) (f), I. P. C. ( 4 ) BRIEFLY the testimony of P. W. 2 is discussed. She stated that she was 7 years old. She stated that she knew the accused. She stated that she was 7 years old. She stated that she knew the accused. While she was playing outside the house of her maternal grand-mother at about 2. 00 p. m. the accused came to her on a scooter and asked her to follow him in order to purchase chocolates and biscuits for her. She herself sat on the rear seat of the scooter. The accused asked to follow him to the house of arogyam who was her house owner, but she was taken to Duppalipalli road near Pulse mill and then to a lemon garden. The accused, after entering into the lemon garden, took her to a thick bush where the accused fell on her, removed underwear then he removed his pant and underwear and fell on her and committed raped on her. Nothing worthwhile could be made out in her cross-examination. On the same day she was examined by the doctor P. W. 14 who stated that he found blood stains around external genitalia. By vaginal examination, he found hymen with fresh, irregular tears, it would bleed on touch, vagina admitting one finger and uterus ante-verted. Vaginal examination was painful. There was severe bleeding on the left side of abdomen. There were abrasions caused by nails of fingers. The victim was referred to Nilofer hospital. Post-vaginal tear repaired. According to the report of the Forensic Science Laboratory, human semen and spermatozoa detected on item nos. 2, 3 and 4 viz. cut drawers of the victim and accused. The accused was also examined by doctor P. W. 12 who certified that the accused was potent. For these reasons we do not find that there is any defence for the accused for the offence of rape under section 376 (2) (f), IPC, since the victim was a minor less than 12 years old on the date of occurrence. The accused was also examined by doctor P. W. 12 who certified that the accused was potent. For these reasons we do not find that there is any defence for the accused for the offence of rape under section 376 (2) (f), IPC, since the victim was a minor less than 12 years old on the date of occurrence. ( 5 ) NOW coming to the offence under Section 3 (2) (v) of the S. C. and S. T. (Prevention of Atrocities) Act, 1989, it reads as under :" (2) Whoever, not being a member of a scheduled Caste or a Scheduled 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 scheduled caste or a scheduled tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. " ( 6 ) FOR attracting the offence under this section, it is not enough that an offence is committed against a member of scheduled caste or scheduled tribe. Bare perusal of this provision shows that the offence should be committed against the person belonging to scheduled Caste or Scheduled Tribe on the ground that such a person was a member of scheduled caste or scheduled tribe. Though it is a fact and it has been proved by evidence that the victim was a member of scheduled caste, but there is not an iota of evidence to show that the offence of rape was committed on her because she was a member of scheduled caste. ( 7 ) FOR these reasons, we set aside the conviction and sentence under Section 3 (2) (v) of the S. C. and S. T. (Prevention of atrocities) Act, 1989 and allow the appeal to that extent. We, however, uphold the conviction and sentence under Section 376 (2) (f) of IPC awarded by the trial Court. The appeals are according disposed of. Order accordingly.