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2003 DIGILAW 35 (CHH)

MEHANDI LAL YADAV v. STATE OF CHHATTISGARH

2003-03-12

L.C.BHADOO

body2003
L. C. BHADOO, J. ( 1 ) THIS criminal revision has been preferred by accused Mehndi Lal Yadav being aggrieved by the order dated 2nd December, 2002 passed by the Special Judge (Prevention of Atrocities) Ambikapur, sarguja by which the learned Special Judge has framed the charge against the accused/ applicant for the offences punishable under S. 376 of the Indian Penal Code read with Section 3 (2) (5) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (which will be referred hereinafter as the Act 1989 ). ( 2 ) THE relevant facts for the disposal of this criminal revision are that on 2nd December, 2001 the prosecutrix Yogeshwari mandavi lodged a report in the police station Ambikapur with the allegation that she is resident of Tikarapara District-Kanker, on 13th November, 1999 when she was working with Marg Dershak Seva Sansathan, mission Chowk, Ambikapur as a full time worker she came in contact with Mehndi Lal yadav in his office and on that day Mehandi lal Yadav after giving her a promise that they will live together life long had committed rape on her and thereafter he continued to have physical relations with her and exploited her up to 30th July, 2001. A written report in this connection has already been submitted to the Superintendent of Police, Sarguja, photo copy of the same is being submitted herewith. In that written report she mentioned that she being by caste-Gond is a member of Scheduled Tribe community, she is aged about 25 years. Her husband deserted her in the year 1998. When she was on tour as a trainee of S. M. I. L. E. Training team, she came in contract with Mehandi lal Yadav of Marg Darshak Seva Sansthan in the month of November, 1999. On 11th november as Full time Worker she came to kataroli, Chowki Tara and on 13th November after giving the promise of friendship and to live together life long said Mehandi Lal yadav committed rape on her. Since then up to 30th July, 2001 Mehndi Lal Yadav had intercourse and committed rape on her in his office at Ambikapur and Kataroli several times and thereby she became pregnant; her first pregnancy was terminated by Dr. Arihant in December, 2000 and the second pregnancy was terminated in Kumar Clinic patthalgaon on 24th November, 2001. Since then up to 30th July, 2001 Mehndi Lal Yadav had intercourse and committed rape on her in his office at Ambikapur and Kataroli several times and thereby she became pregnant; her first pregnancy was terminated by Dr. Arihant in December, 2000 and the second pregnancy was terminated in Kumar Clinic patthalgaon on 24th November, 2001. Now mehndi Lal Yadav has refused to keep her as his wife. It is therefore requested to take action against Mehndi Lal Yadav. ( 3 ) ON the above report the Station House officer, Police Station-Ambikapur registered a case under Section 376 of the I. P. C. and section 3 (l) (xii) of the Act, 1989. After completion of the investigation a charge sheet was filed against the accused/applicant for commission of the aforesaid offences. Learned Special Judge after hearing the arguments passed the impugned order and framed the charge under Section 376, I. P. C. read with Section 3 (2){v) of the Act, 1989. ( 4 ) I have heard Shri Abhishek Sinha, learned counsel for the applicant and Shri prafull Bharat, learned Panel lawyer for the state and perused the record. ( 5 ) LEARNED counsel for the accused/applicant argued that as far as charge under section 376, I. P. C. is concerned he has no grievance but as far as offence under Section 3 (2) (v) of the Act, 1989 is concerned there is no iota of evidence in the matter which goes to show that the accused/applicant had intercourse with the prosecutrix on the ground that the prosecutrix is a scheduled tribe. He also argued that no certificate of the Tehsildar or Sub Divisional magistrate has been filed by the prosecution to prove that the prosecutrix is a member of scheduled tribe. On the other hand learned Panel lawyer supported the order of the trial Court. He also argued that no certificate of the Tehsildar or Sub Divisional magistrate has been filed by the prosecution to prove that the prosecutrix is a member of scheduled tribe. On the other hand learned Panel lawyer supported the order of the trial Court. ( 6 ) IN order to appreciate the arguments advanced by the learned counsel for the accused/applicant it will be appropriate to look at the provisions contained in Section 3 (2) (v) of the Act 1989, which reads as under :"3 (2) (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. "therefore, if we look at the provisions contained in the above section and in order to attract the provisions of this section and to bring the act of the accused within the ambit of this section, it is necessary that the accused (a) has committed the offence of Indian Penal Code punishable for an imprisoment of a term of 10 years or more against the person or property; (b) that offence has been committed on the ground that such person is a member of the scheduled caste or scheduled tribe or such property belongs to such member. In view of the above provision it is necessary for the prosecution to bring on record the material indicating that the crime has been committed against the victim only because she/he being a member of the Scheduled Caste or scheduled Tribe. In other words the offence has been committed because she/he belongs to Scheduled Caste or Scheduled Tribe. For this view I am supported by the judgment of the Honble Apex Court rendered in the case of Masumsha Hasanasha Musalman v. State of Maharashtra, reported in (2000) 1 Crimes 239 : (AIR 2000 SC 1876) in which Honble apex Court has held that to attract the provisions of Section 3 (2) (v) of the Act, 1989. For this view I am supported by the judgment of the Honble Apex Court rendered in the case of Masumsha Hasanasha Musalman v. State of Maharashtra, reported in (2000) 1 Crimes 239 : (AIR 2000 SC 1876) in which Honble apex Court has held that to attract the provisions of Section 3 (2) (v) of the Act, 1989. the sine qua non is that the victim should be a person who belongs to a Scheduled caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a scheduled Tribe. In the absence of such ingredients, no offence under S. 3 (2) (v) of the act arises. ( 7 ) IN the light of the above decision if we look in to the evidence of the present case, the only allegation levelled by the prosecutrix against the accused/applicant is that on 13th November she came in contact with the present accused/applicant for the first time in his office and the accused applicant after promising her that they will remain as a friend and they will live together life long, committed rape on her and thereafter he continued to had physical relations with her and had intercourse with her till 30th July. 2001. In have gone through the statements of the prosecutrix recorded under Section 161 of the Criminal Procedure Code. She has narrated in her statement how she came into contact with the accused/applicant and thereafter how the accused/applicant had physical relations and had intercourse with her at various places. In the whole statement there is no material even an iota of evidence which goes to show that the accused/applicant had committed rape on the prosecutrix, just on the ground that she belongs to Scheduled Tribe community. Therefore, in view of this I am of the opinion that there is no material available on the record of the file that the accused/applicant committed rape on the prosecutrix on the ground of her being a member of the Scheduled Tribe community. In order to frame the charge against the accused/applicant for the offence punishable under Section 3 (2) (v) of the Act, it is necessary that there must be prima facie case made out against the accused/applicant. In order to frame the charge against the accused/applicant for the offence punishable under Section 3 (2) (v) of the Act, it is necessary that there must be prima facie case made out against the accused/applicant. ( 8 ) AS discussed in the foregoing part of this order there is no iota of evidence in this matter to attract the provisions of Section 3 (2) (v) of the Act, 1989, as such the order of the learned Special Judge framing the charge for the offence under Section 3 (2) (v) of the Act, 1989 is not correct and legal, there is no prima facie legal evidence to frame the charge under this section. Therefore the order of the learned Special Judge to this extent cannot be sustained, the same being not in accordance with the provisions of law. In the result, this criminal revision is allowed and the order impugned dated 2-12-2002 is set aside to the extent that there is no prima facie case for framing the charge against the accused/applicant for the offence under Section 3 (2) (v) of the Act. However, in this matter the charge sheet against the accused/applicant has been filed under section 376 of the I. P. C. and Section 3 (l) (xii) of the Act, 1989 and in this order I have not expressed any opinion on the point as to whether the offence under Section 3 (l) (xii) is made out or not. ( 9 ) IN view of the above learned Special judge is directed to pass the approrpiate order in the matter after going through the material available on record, in accordance with law and proceed with the matter. Petition allowed. --- *** --- .