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2012 DIGILAW 963 (PNJ)

Papender @ Shish Pal v. State of Haryana

2012-07-23

JASBIR SINGH, RAKESH KUMAR JAIN

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JUDGMENT Mr. Rakesh Kumar Jain, J.: - The trial Court has convicted the appellant for offence under Section 376 read with Section 506 of the Indian Penal Code, 1860 (for short ‘the Act’) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the SC & ST Act’), and sentenced as under: Under Section 376 IPC Rigorous Imprisonment for a period of seven years and fine of Rs.10,000/-. In default of payment of fine to undergo RI for a period of one year; Under Section 506 IPC Rigorous Imprisonment for a period of three years and fine of Rs.5,000/-. In default of payment of fine to undergo RI for a period of six months; and Under Section 3(2)(v) of SC & ST Act Imprisonment for life and fine of Rs.20,000/-. In default of payment of fine to undergo RI for a period of one and a half years. 2. On the formal complaint (Ex.PA) lodged by Resham wife of Mohan Lal, Ruqa (EX.PA/2) was sent and FIR (EX.P/A1) was registered in which it was alleged that on 13.8.2008 at 12.00 noon, the victim had gone to the mountains for collecting vegetables (Karela/ bitter gourd), when Bhupinder @ Papender s/o Indraj caste Gujjar resident of Abheypur (appellant) came there and caught hold of her in his lap from back and after throwing her on the ground, broke open string of her undergarments and committed rape despite her objections and resistances, gave slaps and fists blows on her face and threatened her calling Chamari (Scheduled Caste) that in case you disclose it to anybody then she would be killed and he fled after committing the rape. On reaching home she disclosed all the facts to her husband Mohan Lal and came to the Police Station for lodging the report. 3. The victim was medico-legally examined on 13.8.2008 at 8.35 P.M. vide report (Ex.PH/1), proved by Dr. Meenakshi Baswana (PW9), who tendered her affidavit (Ex.PH) in her examination-in-chief. According to her, the following observations were made during examination: “(i) There was no external mark of injury. (ii) The external Genitalia was normal for age and there was no mark of any injury. (iii) On P/V examination Vagina was two finger tight, there was no abrasion 0.5 cm size on posterior wall of vagina.” 4. According to her, the following observations were made during examination: “(i) There was no external mark of injury. (ii) The external Genitalia was normal for age and there was no mark of any injury. (iii) On P/V examination Vagina was two finger tight, there was no abrasion 0.5 cm size on posterior wall of vagina.” 4. She had opined that as per Forensic Science Laboratory Report (Ex.PJ), the possibility of sexual intercourse is not ruled out. In the cross-examination, she had admitted that there was no injury on labia, majora and minora and that she did not give any opinion at the time of conducting MLR whether any sexual assault has taken place or not. 5. The appellant was medico-legally examined on 22.8.2008 vide report (EX.PD/1) which was proved by Dr. Jai Bhagwan (PW5), who tendered his affidavit (Ex.PD) in which he had opined that the appellant was capable of doing sexual intercourse. He also did not find any marks of injury on his body. Dr. Jai Bhagwan (PW5) was not cross-examined by the appellant despite opportunity given. 6. The victim was examined as PW1, who has given the same version that has been given in (Ex.PA) and (Ex.PA/1). Moreover, as per report from the Forensic Science Laboratory (Ex.PJ), human semen was detected on Ex. 1a (Salwar) & 1b (Vaginal swab), but it could not be detected on Ex.2 (underwear) belonging to the appellant. 7. In the statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.), the appellant has pleaded innocence and has also led evidence in his defence producing Ashok, Member Panchayat (DW1) and Ram Mehar son of Jokhi Ram (DW2), who have stated that the victim and her husband used to reside in the temple of Harizans, which was looked after by Kamal Dass Priest, who was not a good person. Victim used to sleep in the temple itself. The villagers were annoyed with the Priest and threw him out from the temple. The appellant was one amongst the villagers and as the victim was not happy with the treatment given to the Priest, she has falsely implicated him in the present case. 8. Victim used to sleep in the temple itself. The villagers were annoyed with the Priest and threw him out from the temple. The appellant was one amongst the villagers and as the victim was not happy with the treatment given to the Priest, she has falsely implicated him in the present case. 8. First of all, learned counsel for the appellant has submitted that the learned trial Court has illegally convicted and sentenced the appellant under the provisions of Section 3(2)(v) of the SC & ST Act for life and imposed the fine of Rs.20,000/-, as no offence under the said provision is made out. It is submitted that Section 3(2)(v) of the SC & ST Act would apply where any offence is committed under the Indian Penal Code which is punishable with imprisonment for a term of 10 years or more, keeping in view the person against whom the offence is committed is the member of Scheduled Caste or Scheduled Tribe or such property belongs to the member of the Scheduled Caste or Scheduled Tribe. 9. Counsel for the appellant has also relied upon a Division Bench judgment of Calcutta High Court in the case of “Bimal Gorai Vs. State of West Bengal” 2012 (3) RCR (Crl.) 379, Single Bench judgment of Andra Pradesh High Court in the case of “Mekala Raji Reddy Vs. State of A.P.” 2002 (3) RCR (Crl.) 6, Division Bench judgment of Madhya Pradesh High Court in the case of “Bablu @ Abdul Akhtar Vs. State of M.P.” 2005(1) RCR (Criminal) 211 and the Division Bench judgment of Allahabad High Court in the case of “Dharmendra Vs. State of U.P.” 2011 (1) RCR (Crl.) 309. 10. Counsel for the respondent/State has merely submitted that since the victim belongs to the Scheduled Caste, therefore, the provision of Section 3(2)(v) of the SC & ST Act would apply. 11. We have heard learned counsel for the parties in this regard. State of U.P.” 2011 (1) RCR (Crl.) 309. 10. Counsel for the respondent/State has merely submitted that since the victim belongs to the Scheduled Caste, therefore, the provision of Section 3(2)(v) of the SC & ST Act would apply. 11. We have heard learned counsel for the parties in this regard. Before proceedings further it would be relevant to refer to the provisions of Section 3(2)(v) of the SCST Act, which reads as under: “Section 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.” 12. According to the aforesaid provision, if a person, who is a member of Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code, which is punishable with imprisonment for a terms of 10 years or more, against a person or property of the member of a Scheduled Caste or a Scheduled Tribe on the ground that such a person is a member of Scheduled Caste or a Scheduled Tribe, then only he would be liable for punishment for life and fine. 13. In the present case, however, even as per the case of the victim, the appellant had first committed rape. At that time, it was not his intention to commit rape with the victim only on the ground that she belongs to Scheduled Caste or Scheduled Tribe community. The provisions of SC & ST Act would not come into play when he gave her little thrashing and put her under threat not to disclose to anyone about his alleged act. 14. As per the aforesaid proviso and the judgments which have been relied upon, in order to attract Section 3(2)(v) of the SC & ST Act, the sine qua non is that the victim should be a person who belongs to Scheduled Caste or Scheduled Tribe and the offence under the IPC is committed against him or her on the basis that such a person belongs to Scheduled Caste or Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v) of the SC & ST Act, would come into play. In the absence of such ingredients, no offence under Section 3(2)(v) of the SC & ST Act, would come into play. The prosecution has miserably failed to prove that the appellant had committed rape with the victim only because of the reason that she belongs to the Scheduled Castes and Scheduled Tribes as she herself has not stated in her statement rather her case is that after committing rape, the appellant threatened her calling Chamari (Scheduled Caste) that in case she would disclose fact of rape to anyone he would kill her. 15. In view thereof, we are satisfied that the trial Court has committed a patent error in convicting the appellant under Section 3(2)(v) of the SC & ST Act and sentencing him for life imprisonment. Hence, the said conviction and sentence is hereby set aside. 16. The second submission of the counsel for the appellant is that even offence under Section 376 IPC is not made out. He submits that in the medico-legal report and the statement of Dr.Meenakshi Baswana (PW9), no mark of injury was seen either on the external parts or her private parts. He also submits that the victim was 70 years of age and the appellant was 24 years of age at the time of alleged occurrence which is highly improbable. He further submits that as per medico-legal report of the appellant, which has been proved by Dr. Jai Bhagawan (PW5), no mark of injury on his body or even on his Genital was found. He further submits that underwear of the appellant was also sent for forensic test but, as per the report Ex.PJ, human semen was not detected on his underwear. It is also submitted that place of occurrence was pathway where commission of such an offence was not possible in the day time at 12.00 noon and as per Section 53-A of the Cr.P.C., it was incumbent upon the prosecution to match DNA profile of the semen of appellant with that of the victim. 17. In reply, counsel for the respondent has submitted that in a case of rape the solitary statement of victim is sufficient which has to be treated at par with the statement of an injured witness. 17. In reply, counsel for the respondent has submitted that in a case of rape the solitary statement of victim is sufficient which has to be treated at par with the statement of an injured witness. He further submits that semen has been detected on the clothes as well as on the Vaginal swab of the victim which was taken on the same day as per FSL report (Ex.PJ) and could not have been found on the underwear of the appellant, apparently, for the reason that he was medico-legally examined on 22.8.2008 i.e. after about nine days of the occurrence. Simultaneously, it is submitted that injury on the private parts of the appellant could not have been found after gap of nine days. 18. Counsel for the respondent/State has further argued that the victim had immediately reported the matter to the Police after the alleged occurrence, medico-legally examined on the same day and the clothes were taken into possession by separate parcels on which semen has been found which corroborates her version as in ordinary circumstance, no lady much less an elderly woman would put her character at stake. It is also submitted that defence of the appellant was also not of much credence that the victim would involve the appellant only for the reason that he was one of the member of the village community who were opposing the presence of Priest Kamal Dass in Harizan Mandir. 19. We have heard learned counsel for the parties and are of the view that conviction and sentence of the appellant under Section 376 and Section 506 of the IPC deserves to be maintained because the victim has stood strong in her statement before the Police as well as before the Court as there could hardly be any discrepancy in her statement. Moreover, she was medico-legally examined on the same day after having reported the matter to the Police without any delay and the report of the FSL has proved the presence of human semen on her clothes as well as on her Vaginal swab. Moreover, the appellant has not given any cogent defence as to why he has been falsely implicated in this case. Moreover, the appellant has not given any cogent defence as to why he has been falsely implicated in this case. The stand taken by the appellant that he is being involved in this case only for the reason that he was one amongst the villagers, who had opposed the presence of Priest Kamal Dass in Harizan Mandir, who was not considered a good person by the villagers is hardly any ground for considering vindictive attitude of the victim against the appellant. It is also not a case of the appellant that victim was a consenting party, who had later on turned hostile and involved the appellant for some other reason rather the victim is 70 years of age, who would not take a blemish on her character by going to the Court on the pretext of having been raped by a young man of 24 years of age. 20. Keeping in view the totality of facts and circumstances, we are of the considered opinion that the learned trial Court has not committed any error in convicting the appellant for an offence under Section 376 and Section 506 IPC and in view thereof, the present appeal is partly allowed and the conviction and sentence of the appellant under Section 3(2)(v) of the SC & ST Act is set aside and under Section 376 and Section 506 IPC is hereby upheld.