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2011 DIGILAW 1275 (CAL)

Bimal Gorai v. STATE OF WEST BENGAL

2011-09-14

ASHIM KUMAR ROY, J.N.PATEL

body2011
Judgment : ASHIM KUMAR ROY, J. 1. The appellant Bimal Gorai was placed on trial before the learned Additional Sessions Judge, 1st Court, Bankura and Judge Special Court under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 to answer charges under two heads, for offences punishable under Section 376 of the Indian Penal Code and under Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The said trial has ended in conviction of the appellant on both counts and he was sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 2,000/-, in default to suffer further rigorous imprisonment for 2 months and to suffer imprisonment for life and to pay fine of Rs. 2,000/-, in default to suffer rigorous imprisonment for 2 months, with a further direction that both the sentences shall run concurrently. In this criminal appeal the aforesaid judgment and order of conviction and sentence is under challenge. 2. In summary the case of the prosecution goes like this; On November 25, 1995 at around 8.30 p.m. at night after “Ajan” the victim lady along with her two sons Lakhi Pada and Tara Pada went on sleep in their hut after closing the door. In the meantime the accused entered in their room and embraced her while she was sleeping in the bed. At once she woke up when the accused made some indecent proposal to her but she refused and requested him to leave her as she was not a lady of that kind and identified him as Bimal Gorai of their village. However the accused did not spare her and forcibly raped her against her will and in spite of making all out efforts to resist him she could not succeed. Although she raised hue and cry but received no response and had to bear all the tortures helplessly. As soon as the accused spared her she picked up a sickle lying in the room and gave him a blow and the accused getting injured ran away. Thereafter being attracted by the alarm raised by her although some villagers arrived there but they without attending her removed the injured accused to the hospital. Out of fear she hide entire night. 3. Thereafter being attracted by the alarm raised by her although some villagers arrived there but they without attending her removed the injured accused to the hospital. Out of fear she hide entire night. 3. During the trial although the prosecution in order to establish the charges against the appellant examined as many as 10 witnesses but the victim lady P.W. 1 was the key witness and on her evidence the prosecution case is essentially based. However, defence examined none and the specific case of the defence, transpires from the answer given by the appellant in his examination under Section 313 of the Code that on that day at around 7 p.m. he went to his field to look after the paddy already harvested, when he found a person moving there suspiciously near the place where the paddy was stacked. As soon as the said person noticed him he started running away but the appellant chased him and he entered into the hut of the victim lady and then came out with a weapon in his hand and assaulted him and fled away. He then fell down on the ground with bleeding injuries and was removed to the hospital by the villagers. 4. During the hearing of the appeal, no expected assistance was received from the learned Counsel appearing for the parties, this court requested Mr. Deep Chaim Kabir, a practicing lawyer of this Court to appear in this matter as amicus curiae and to assist us. We record our deep appreciation for the valuable assistance we received from Mr. Kabir. 5. The principal questions that arises for decision in this appeal are as follows; (i) As to whether any person not being a member of Scheduled Castes and Scheduled Tribes when is found guilty for having committed an offence under the Indian Penal Code punishable with imprisonment for a term of 10 years or more, can be held guilty also under Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on the mere fact that the person against whom such offence is committed is a member of Scheduled Castes and Scheduled Tribes? (ii) On the evidence led by the prosecution during the trial, coupled with other materials on record the conviction of the appellant under Section 376 of the Indian Penal Code is at all justified or not? 6. (ii) On the evidence led by the prosecution during the trial, coupled with other materials on record the conviction of the appellant under Section 376 of the Indian Penal Code is at all justified or not? 6. So far as the first point is concerned the learned Counsel for the appellant submitted before us that no person can be convicted under Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, merely because such person has been convicted for an offence under Indian Penal Code which is punishable with an imprisonment for a term of 10 years or more and the person against whom such offence is committed is a member of Scheduled Castes and Scheduled Tribes unless it is first proved that the accused does not belong to Scheduled Castes or Scheduled Tribes and in the present case during trial no evidence was led by the prosecution in that regard. In support of his such contention the learned Counsel of the appellant relied upon a decision of our High Court in the case of M.C. Prasannah Vs. The State, reported in 1999 C Cr LR (Cal) 45 and in the case of M. Ramchandran Vs. State of Kerala, reported in 1996 Cri LJ 3566. Going through the aforesaid two decisions, we find so far as the first case law is concerned the same has no application on the issue before us. In the said case the court after coming to a definite finding that the accused was not guilty for an offence under Section 376 IPC as the victim was above the age of 16 years and was a consenting party and allowed the accused to cohabit with her on a promise to marry and the accused never declined to marry her, then the Court came to the conclusion that there is no question of dominating the will of the victim girl and as a result no offence under Section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was made out. In the next case the Court concluded that before any person be held guilty for an offence punishable under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 it is to be proved that he is not a member of Scheduled castes or Scheduled tribes. In the next case the Court concluded that before any person be held guilty for an offence punishable under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 it is to be proved that he is not a member of Scheduled castes or Scheduled tribes. We shall deal with such question in the later stage. On the other hand, the learned Counsel for the State vehemently urged that as this was never the case of the appellant before the Trial Court that he was a member of Scheduled Castes or Scheduled Tribes the question of interfering with his conviction for an offence punishable under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on such a plea raised for the first time before this Court and more particularly when there is no doubt that the victim lady belonged to Scheduled Castes or Scheduled Tribes. It is further submitted on behalf of the State that guilt of the accused for offence punishable under Section 376 of the Indian Penal Code has been proved beyond all reasonable doubt. Now, Mr. Kabir, Amicus Curiae in the matter contended before us that even in a case where the accused found to be guilty of committing rape on a victim who is a Schedule Caste or Schedule Tribe, still the accused cannot be held guilty under Section 3 (2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 unless it is established that the victim lady was raped because of the fact she belonged to Scheduled Castes or Scheduled Tribes. In this regard Mr. Kabir relied on the observations of the Apex Court in the following decisions; (a) In the case of MasumshaHasanasha Musalman V. State of Maharashtra, reported in (2000) 3 SCC 557 at paragraph 9 held as follows; “… To attract the provisions of Section 3 (2)(v) of the Act, 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 Section 3 (2)(v) of the Act arises. In the absence of such ingredients, no offence under Section 3 (2)(v) of the Act arises. …" (b) In the case of Dinesh @ Buddha V. State of Rajasthan, reported in (2006) 3 SCC 771 at paragraph 15 held as follows; “Sine qua non for application of Section 3 (2)(v) is that an offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes or the Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the victim since she was a member of a Scheduled Caste. In the absence of evidence to that effect, Section 3 (2)(v) has no application. …” (c) In the case of Ramdas and Ors. V. State of Maharashtra, reported in (2007) 2 SCC 170 at paragraph 11 held as follows; “At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellants under Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside.” Thus, the view of the Apex Court to attract the provisions of Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the sine qua non is that the offence punishable under the Indian Penal Code punishable with a term of imprisonment of 10 years or more against any person on the ground that the victim is a member of Scheduled Castes or Scheduled Tribes. The mere fact that the victim is a Scheduled Caste or Scheduled Tribe is not sufficient to attract the provisions of Section 3 (2)(v) of the said Act, unless there is evidence that the offence against the victim was committed because of the fact he or she belongs to Scheduled Castes or Scheduled Tribes. So far as the present case is concerned, we find in the four corners of her evidence, the victim lady, P.W. 1 never alleged that she was raped because of the fact she was member of a Scheduled Caste. Nothing has been brought on record during trial by the prosecution to show the victim was raped by the appellant since she was member of a Scheduled Caste. In such view of the matter, we have no hesitation to hold that the Trial Court erroneously and illegally convicted the appellant under Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and such order of conviction cannot be sustained. Furthermore, according to the Apex Court, in the case of State of Madhya Pradesh Vs. Chunnilal @ Chunni Singh, reported in (2009) 12 SCC 649 , when a case relating to any offence punishable under Scheduled Castes and Scheduled Tribes is not investigated by a competent officer appointed under the provisions of Section 9 of the Act and Rule 7 made thereunder the entire investigation become illegal and invalid, as no officer below the rank of Deputy Superintendent of Police can act as Investigating Officer even when such investigation is supervised by an officer in the rank of Superintendent of Police. According to the said provision all offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is to be investigated by a police officer not below the rank of Deputy Superintendent of Police having past experience, sense of ability and justice to perceive the implications of the case. However, in the case at hand the entire investigation was conducted by P.W. 10 who is a Sub-Inspector of Police and much below the rank of Deputy Superintendent of Police and was never appointed for investigation into an offence punishable under the said Act following the statutory requirements. However, in the case at hand the entire investigation was conducted by P.W. 10 who is a Sub-Inspector of Police and much below the rank of Deputy Superintendent of Police and was never appointed for investigation into an offence punishable under the said Act following the statutory requirements. It was also contended before us that to hold a person guilty for an offence punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 it is not sufficient that the person against whom such offence is committed is a member of the Scheduled Castes and Scheduled Tribes but it is also required to be proved the accused is not a Scheduled Caste or Scheduled Tribe. Now, having regards to the provision of Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which prescribes punishment for offences of atrocities committed against a member of Scheduled Caste or Scheduled Tribe, we find that the very qualifying sentence to the said provision is “whoever not being a member of Scheduled Caste or Scheduled Tribe” which expressly exclude a member of Scheduled Caste or Scheduled Tribe from the ambit of the penal consequences of the said Act and incriminate a person who does not belong to such castes and tribes. Accordingly, it is incumbent upon the prosecution to prosecute any person with the offence punishable under the said Act to establish that the accused concerned does not belong to Scheduled Caste or Scheduled Tribe community. However, in the case at hand no allegation has been made by any prosecution witness far less any evidence has been led to show that the appellant does not belong to Scheduled Caste or Scheduled Tribe. We further find, although the accused not being a member of Scheduled Caste or Scheduled Tribe is one of the basic ingredient of the offence and incriminating fact so as to held guilty for an offence punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 but during examination of the accused under Section 313 of the Code nothing was put to him that he not being a member of Scheduled Caste and Scheduled Tribe committed an offence under Section 376 of the Indian Penal Code against the victim lady which is punishable with a term of 10 years or more. In our opinion, on this ground, also the conviction of the appellant under Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot be sustained. 7. Next coming to the question of conviction of the appellant under Section 376 of the Indian Penal Code, we are not however inclined to attach any importance to the submission of Mr. Kabir as regards to the contradictions between her testimony in the Court and the statement made in the FIR for the simple reason no such contradiction was taken during her cross-examination in the trial with reference to her statement made in the FIR. At the same time we are not inclined to attach any importance to the delay in lodging the FIR to the police is concerned. In this case the alleged incident took place on 25th of November, 1995 at around 20.30 hours but the FIR was lodged on 27th November, 1995 at around 11 hours, therefore there is a delay of nearly of about 39 hours, i.e. nearly one and half day as we find that the reason for delay has been explained by the informant. 8. We have already noticed the case of the prosecution hinges on the testimony of the victim lady P.W. 1, therefore it requires her testimony to be examined very carefully and cautiously. Now we find from the deposition of the victim lady, P.W. 1 that the same is in complete variance with her statement made before the Judicial Magistrate and recorded under Section 164 of the Code of Criminal Procedure. Although it is asserted by the P.W. 1. in her cross-examination that she woke up from sleep when the accused lay upon her but could not understand anything when she was made naked by the accused by removing her wearing apparels, viz. ‘Sari’ and ‘Saya’ and until the accused pushed his penis, whereas she admitted in her statement recorded under Section 164 of the CrPC by a Judicial Magistrate she stated that appellant approached her for sexual intercourse with him and although she declined still the appellant forcibly raped her. It is also her evidence that at the time of the occurrence her two sons were sleeping near her lap and when accused raped her she offered strong resistance to the best of her ability and also raised hue and cry. It is also her evidence that at the time of the occurrence her two sons were sleeping near her lap and when accused raped her she offered strong resistance to the best of her ability and also raised hue and cry. But none of her two sons were examined by the prosecution during the trial in support of its case nor the P.W. 1 disclosed at the time of the occurrence. According to her, immediately after the occurrence being attracted by her cry and when accused was about to leave her hut the people of their locality arrived there but in this case no witness was examined in support of such claim. It is also her evidence that neither at the time of occurrence when the villagers gathered near her house nor on the next day while she was leaving her house she saw the villagers but did not disclose the incident to them. It is also the evidence of the P.W. 1 that after committing the mischief the accused could not escape as she stood on his way and assaulted him with sickle and the accused immediately fell down on the floor of his hut after receiving such injury and on the next day the Investigating Officer of the case came and seized bloodstained earth from her house. But according to the P.W. 10 the Investigating Officer of the case no bloodstained earth was found either inside the hut or at the entrance. The P.W. 10 further deposed that although accused was assaulted by the victim inside the room still he did not find any blood there. We find from the evidence of P.W. 3 who is a witness to the seizure of bloodstained earth that police seized bloodstained earth from a place which is at a distance of 10/15 feet away from the hut of P.W. 1. Even the I.O. admittedly did not examine the sons of the victim. The I.O. further disclosed in his cross-examination that he seized the ‘Saya’ of the victim and sent the same for chemical examination to the Forensic Science Laboratory but the FSL report does not disclose anything against the accused. He further admitted the victim lady pointed out some spots in her ‘Saya’ claiming to be the mark of semen of the accused, but no trace of semen was found in the ‘Saya’ by the Forensic Science Laboratory. He further admitted the victim lady pointed out some spots in her ‘Saya’ claiming to be the mark of semen of the accused, but no trace of semen was found in the ‘Saya’ by the Forensic Science Laboratory. The P.W. 9 Dr. J.N. Dey on 27th November, 1995 examined the victim lady after the occurrence which allegedly took place on the night of 25th November, 1995. According to him he did not see any mark of injury internally or externally on the genital track of the victim lady. 9. It is no doubt true in a case of rape an accused can be convicted on the sole testimony of the prosecutrix but before that it is essential for a Court to be convinced on her evidence that such evidence is truthful and therefore can safely be acted upon to infer the guilt of the accused. However, in the case at hand we have noticed some serious discrepancies in the evidence of the P.W. 1, the alleged victim lady and we are of the opinion this is not such a case where relying on the evidence of the alleged victim lady the order of conviction can be maintained. 10. In the result, the appeal stands allowed and order of conviction of the appellant under Section 376 of the Indian Penal Code and under Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the sentence passed thereunder is quashed and set aside. The appellant who is now on jail be forthwith released from the custody unless is wanted in connection with any other case. The Office is directed to communicate this order to the Trial Court and send down the records at once. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgment to the parties, if applied for, as early as possible.