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2006 DIGILAW 1002 (RAJ)

Rataniya v. State of Rajasthan

2006-03-28

MANAK MOHTA, N.N.MATHUR

body2006
Judgment N.N. Mathur, J.-The appellant Rataniya was charged under Section 376, IPC for having committed forcible sexual intercourse with prosecutrix Mst. Bhagudi aged 14 years. He was also charged for offence under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the SC/ST Act). On trial the learned Special Judge, SC/ST (Prevention of Atrocities) Act, Cases, Pratapgarh by Judgment dated 07.09.2005 convicted him of offence under Section 376, IPC and sentenced to 7 years rigorous imprisonment and to pay a fine of Rs.1,000/-; in default of payment to further undergo one month simple imprisonment. For offence under the provisions of SC/ST Act he has been sentenced to imprisonment for life and to pay a fine of Rs.1,000/-and in default of payment to further undergo one month simple imprisonment. Both the sentenced have been ordered to run concurrently. 2. The prosecution case as unfolded during trial is that on 13.02.2005 PW 1 Mst. Bhagudi @ Bhagwani (hereinafter referred to as the victim) gave an oral information to PW 12 Kailash Singh, Head Constable, Police Station, Gangrar while in the Hospital at Gangrar to the effect on the same day in the afternoon at about 4:00 P.M., while she was grazing cattle in the field of Jodha Ba, the appellant Rataniya, a resident of Indora, who was also grazing cattle in the nearby field approached and asked her to put off clothes as he would have sexual intercourse with her. She declined to obey his command, on which the appellant pounced upon her and pinned down of the ground. He removed her Lehanga and underwear and threw them and committed rape on her. When she tried to raise voice he closed her mouth with palm and gave threatening of life. The appellant after committing the rape went away. The prosecutrix reached home and narrated the incident to her mother PW 2 Smt. Kanku and uncle PW 3 Rameshwarlal. On this information police registered a case for offence under Section 376, IPC and under the SC/ST Act. After usual investigation police laid charge-sheet against the appellant for the aforesaid offences. 3. The appellant denied the charges levelled against him and claimed trial. The prosecution adduced oral and documentary evidence. The appellant in his statement under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against him. After usual investigation police laid charge-sheet against the appellant for the aforesaid offences. 3. The appellant denied the charges levelled against him and claimed trial. The prosecution adduced oral and documentary evidence. The appellant in his statement under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against him. The trial Court having found the prosecution case proved convicted and sentenced the appellant in the manner stated above. 4. The learned amicus curiae Mr. K.R. Bhati assailing the conviction contended that the trial Court has failed to consider that the prosecution has failed to establish the identity of the appellant in the crime. It is also submitted that the testimony of the prosecutrix does not find corroboration from the medical evidence or any other evidence. It is also submitted that the conviction of the appellant under the provisions of the SC/ST Act is not sustainable. On the other hand, the learned Public Prosecutor has supported the Judgment of the trial Court. 5. We have carefully scrutinized and analyzed the evidence on record and considered the rival contentions. The victim, who appeared as PW 1 stated that on the date of incident, she was grazing cattle in the field of Jodha Ba. At that time the appellant Rataniya, present in the Court, came out from the bush and asked her to undress as he would enjoy sexual intercourse with her. On resistance, he pounced upon her and pinned down of the ground. He removed the Lehanga and the underwear. Thereafter, he committed forcible sexual intercourse with her. After committing the rape he went away. She returned to the house and narrated the incident to her mother and uncle. She was taken to the hospital at Gangrar. She was given treatment in the hospital. Thereafter, she was taken to the police station. She narrated the entire incident to the police. She has sustained injuries on the left hand and the back. She was discharged from the hospital on the next day. The police inspected the site in her presence. In the cross-examination, she admitted that the appellant Rataniya was not known to her. She also admitted that the incident was not witnessed by any one. It was further admitted that at the Police Station, Gangrar, she identified the accused appellant. 6. PW 2 Mst. Kanku is the mother of the victim. The police inspected the site in her presence. In the cross-examination, she admitted that the appellant Rataniya was not known to her. She also admitted that the incident was not witnessed by any one. It was further admitted that at the Police Station, Gangrar, she identified the accused appellant. 6. PW 2 Mst. Kanku is the mother of the victim. She stated that her daughter Mst.Bhagudi left the house on the date of incident at about 10:00 A.M. for grazing cattle. She returned at about 4:00 P.M. and narrated the incident of rape. She was taken to the hospital alongwith Rameshwar and then to the Police Station. Nothing substantial has been brought in the cross-examination. PW 3 Rameshwar is the uncle of the victim. His statement is almost on the line of PW 2 Mst. Kanku. 7. PW 9 Mst. Leela Bai stated that on the date of incident, she was also grazing cattle along with the victim. She had seen the accused appellant grazing cattle at some distance. She returned to the village while the victim was still in the field grazing cattle. In the evening she heard about the incident of rape committed on the victim. 8. PW 12 Kailash Singh was the Head Constable, Police Station, Gangrar at the relevant time. He recorded the statement Exhibit P/1 of Mst. Bhaguri. PW 11 Dr. Arvind Sanadhyaya was the Medical Officer posted at Government Hospital, Chittorgarh at the relevant time. He stated that a Medical Board consisting of himself , Dr. P Rathi and Dr. Laxman Singh examined the victim as to her age vide Exhibit P/6. In the opinion of the Medical Board the age of the victim was between 15 to 17 years. PW 16 Dr. Roop Narain Khadiya stated that on 13.02.2005 he examined the victim and found the following injuries on her person vide Exhibit P/5:- (1) Bruise injury length 1/2” breadth 1/2” on left elbow region back side. The vaginal smear and swab taken in two slides was given to the police for pathological examination. The duration of injuries on her body was 5-8 hours. 9. PW 10 Rajan Dushyant, Sub Inspector of Police has given the details of the investigation. PW 6 Bhagwana and PW 7 Bhura are the motbirs of different police memos. Out of the two PW 6 Bhagwana has not supported the prosecution case. As such he was declared hostile. The duration of injuries on her body was 5-8 hours. 9. PW 10 Rajan Dushyant, Sub Inspector of Police has given the details of the investigation. PW 6 Bhagwana and PW 7 Bhura are the motbirs of different police memos. Out of the two PW 6 Bhagwana has not supported the prosecution case. As such he was declared hostile. PW 4 Dharamraj and PW 5 Mahendra Singh stated that the appellant was arrested vide Exhibit P/9. PW 8 Kishanlal, PW 13 Satya Narain, PW 17 Lalit Singh, PW 14 Ratan Singh are the police witnesses of link evidence. The statements of these witnesses are not required to be discussed as the semen has not been found on the underwear, which was sent to the Forensic Science Laboratory. We are unable to understand as to why the underwear was sent to the Forensic Science Laboratory for examination as the victim herself has stated that the appellant put off the underwear and threw the same. Thus, the presence of semen on the underwear does not arise. 10. The principal criticism against the statement of the victim is that the appellant was not known to her, which she had admitted in the cross-examination. As such it cannot be said with certainty that it was the appellant who committed the rape on the prosecutrix. It is also submitted that the appellant was shown to the prosecutrix at the Police Station. We are unable to agree with the submission of the learned Counsel. In the identical circumstances, the Apex Court in State of Madhya Pradesh vs. Sunder Lal, reported in 1992 SC page 1413, rejected the contention having observed that a victim could have forgotten the face of a man, who committed ghastly crime of rape on her. As regards showing the appellant to the prosecutrix at the Police Station, we do not find any wrong therein. During investigation the police in order to confirm if they have arrested the right person could very well verify, if it was the same accused person against whom the victim has made the allegation. 11. As regards the third contention i.e. absence of corroboration, it is now well settled that the statement of a victim in a rape case does not require any corroboration unless there are strong reason to discredit her testimony. 11. As regards the third contention i.e. absence of corroboration, it is now well settled that the statement of a victim in a rape case does not require any corroboration unless there are strong reason to discredit her testimony. The Apex Court in Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, reported in AIR 1983 SC 753 , observed that refusal to act on testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. The Court deprecated viewing evidence of such victim with the aid of spectacles fitted with lenses tinted with doubt, disbelief or suspicion. Reference may also be made to a decision of Apex Court in State of Punjab vs. Gurmit Singh, reported in AIR 1996 SC 1393 , State of Rajasthan vs. N.K., reported in AIR 2000 SC 1812 . Thus, we are of the view that the trial Court has rightly arrived at the conclusion that the prosecution has established the charge of rape against the appellant beyond any manner of doubt. 12. As regards the conviction of the appellant under the SC/ST Act, we are of the view that the same is not sustainable. There is no evidence worth the name that appellant Rataniya committed rape on the victim that she is a lady belonging to Scheduled Caste. A Division Bench of this Court in Pappu Khan vs. State of Rajasthan, reported in RLW 2000(1) (Raj.) 551 , held that for offence under the SC/ST Act it is not sufficient that the victim belonged to SC/ST, but it is further required to be established that the accused committed the offence for the reason that the victim belonged to SC/ST. The Apex Court in Masumsha Hasanasha Masalman vs. State of Maharashtra, reported in RLW 2000(1) SC page 173, observed as follows:- “Section 3(2)(v) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, 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 present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3(2)(v) of the Act, the sine quo 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 Section 3(2)(v) of the Act arises. In that view of the matter, we think, both the trial Court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial Court as well as by the High Court ought to be set aside.” In view of the aforesaid the conviction of the appellant for offence under Section 3(2)(v) of the SC/ST Act is not sustainable. 13. Consequently the appeal is partly allowed. The conviction and sentence of appellant Rataniya for offence under Section 3(2)(v) of the SC/ST Act is set aside. However, his conviction for offence under Section 376, IPC is maintained. He has been sentenced to seven years rigorous imprisonment and to pay a fine of Rs.1,000/-. The sentence for offence under Section 376, IPC remains intact. The appellant is in Jail. He will serve out the remaining part of the sentence.