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2013 DIGILAW 18 (KAR)

NAYYU @ NAYAZ v. STATE OF KARNATAKA

2013-01-02

H.S.KEMPANNA, K.L.MANJUNATH

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JUDGMENT K.L. MANJUNATH, J.-The present appeal is filed under Section 374(2) of the Cr.P.C. challenging the Judgment of conviction and order of sentence passed by the District & Sessions Judge and Special Judge at Ramanagara dt.7.7.2008 in Special (Sessions) Case No. 1/2007. 2. The appellants were tried for the offences punishable under Sections- 323, 324, 326, 376(2)(g) IPC and Section 3(2)(v) of the S.C.S.T. (POA) Act 1989, wherein they have been convicted for the aforesaid offences and sentenced to undergo simple imprisonment for three months for the offence punishable under Section 323 read with 34 IPC and to undergo simple imprisonment for six months for the offence punishable under Section 324 read with 34 IPC., and also to undergo RI for three years and to pay a fine of Rs, 1000-00 each with default sentence of rigorous imprisonment for one month for the offence punishable under Section 326 read with 34 IPC. They are further sentenced to undergo RI for ten years and to pay a fine of Rs. 5000/- each with default sentence of RI for six months for the offence punishable under Section 376(2) (g) of IPC and they are also sentenced to imprisonment for life and to pay fine of Rs. 5,000/- each for the offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is further ordered to substantive sentence for all the offences shall run concurrently. 3. Heard Sri. V. Srinivasa, the learned counsel for the appellants and Mr. P.M. Nawaz, Addl. State Public Prosecutor for the State. 4. Though several grounds are urged in support of the appeal Memo, at the time of arguments, the learned counsel for the appellants requests the Court to reconsider only the Judgment of conviction and order of sentence passed against the appellants to undergo imprisonment for life and to pay fine of Rs. 5000/- for the offence punishable under Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In other words, the appellants are not challenging the Judgment of conviction and order of sentence passed against them for other offences. 5. In the circumstances, we are considering this appeal only in regard to the Judgment of conviction and order of sentence passed in respect of the offence punishable under Section 3(2)(v) of the SC & ST (Prevention of Atrocities) Act, 1989. 6. 5. In the circumstances, we are considering this appeal only in regard to the Judgment of conviction and order of sentence passed in respect of the offence punishable under Section 3(2)(v) of the SC & ST (Prevention of Atrocities) Act, 1989. 6. In order to consider the case of the Prosecution in regard to the aforesaid conviction and sentence, it would be appropriate for us to narrate the case of the prosecution. 7. It is the case of the prosecution that on 9.3.2005 at about 7.30 p.m., complainant Sannibai PW18 was returning to her home after completion of day's work. When she was near Addahalla culvert, the accused persons wrongfully restrained her and carried her to a dilapidated house, and forcibly inter-coursed on her by one after the other and caused bite injury on her left thigh and also on her private parts of the body and inflicted the injuries with the knife MO9 and left her in the dilapidated house. PW18 however managed to reach her house and reported the incidence to her sister PW1 Munnibai and her brother-in-law PW2 Mariya Naika. On the next day, she went to Kanakapura General Hospital alongwith PW1 for treatment and a case was registered against the accused persons based on the information received by the Police. A2 was arrested and A1 and A3 surrendered before the Court. Charge sheet was filed before the Special Judge, Ramanagara as rape was committed on PW18 who belongs to Scheduled Caste (Lambani by caste ) for the aforesaid offences. Since the appellants pleaded not guilty, they were tried for the aforesaid offences. 8. In order to prove the case of the prosecution, the prosecution relied upon the evidence of PWs. 1 to PW28, Exs.P1 to P35 and M.Os.1 to 22. The Special Court recorded the statement under Section 313 of Cr.P.C. and the appellants denied the in criminative statement in the evidence of the prosecution. The Sessions Court formulated the following points for its consideration: (1) Whether prosecution proves beyond reasonable doubt that on 9.3.2005 at about 7.30 p.m. accused 1 to3 forcibly performed sexual intercourse one after other with Smt. Sannibai (complainant-PW 18) or subjected her to gang rape? (2) Whether prosecution proves beyond reasonable doubt that on the above said date, time and place, in the course of the same transaction, accused voluntarily caused simple hurt to Smt. Sannibai with hands and knife? (2) Whether prosecution proves beyond reasonable doubt that on the above said date, time and place, in the course of the same transaction, accused voluntarily caused simple hurt to Smt. Sannibai with hands and knife? (3) Whether prosecution proves beyond reasonable doubt that on the above said date, time and place, in the course of the same transaction, accused voluntarily caused grievous injuries to genital organ/sex organ of Smt. Sannibai with knife? (4) Whether prosecution proves beyond reasonable doubt that on the above said date, time and place, accused subjected victim - PW 18 to gang rape, having knowledge or reason to believe that PW18 is a lady belonging to Lambani community? (5) What order? 9. The learned Sessions Judge after considering the oral and documentary evidence and the arguments advanced by both the parties held points-1 to 4 in affirmative and convicted the accused for all the offences. Accordingly, they were convicted and sentenced as aforesaid. 10. Being aggrieved by the Judgment of conviction and order of sentence dt.7.7.2008, the present appeal is filed by the appellants. 11. We have heard Mr. Srinivasa, the learned Counsel for the appellants and Mr. Nawaz, Additional State Public Prosecutor for the State. 12. It is the contention of the appellants counsel that the prosecution has failed to prove that accused committed rape on PW18 knowing fully well that she belong to Scheduled Caste and they committed rape because she belongs to that community and even though no evidence is let in by the prosecution to prove the aforesaid ingredients in order to attract provision 3(2)(v) of the aforesaid Act, the learned Sessions Judge erroneously appreciating the evidence let in by the prosecution has convicted the accused for the aforesaid offences. The learned counsel for the appellants relying upon the Judgment of the Hon. Supreme Court reported in AIR 2007 SC 155 in the case of Ramdas and others vs. State of Maharashtra, contends that even though the prosecution has failed to prove the prosecutrix belong to Scheduled Caste community and that they committed rape on her because of her caste. Therefore, he requests the Court to set aside the order of conviction and sentence with regard to the aforesaid alleged offences. 13. Per contra, the learned Addl. Therefore, he requests the Court to set aside the order of conviction and sentence with regard to the aforesaid alleged offences. 13. Per contra, the learned Addl. SPP for the State submits that the prosecution has proved beyond reasonable doubt that prosecutrix belongs to Lambani caste which is Scheduled Caste and that the accused being the residents of the same Kanakapura and where prosecutrix is also residing were fully aware that prosecutrix belongs to Scheduled Caste and, therefore, they committed rape on her. In the circumstances, he contends that the appeal requires to be dismissed on merits. 14. Having heard the counsel for the parties, the only point to be considered by us in this appeal is: "Whether the prosecution has proved that the prosecutrix belongs to Scheduled Caste and that they knowing fully her caste has committed rape on her as she belongs to Scheduled Caste." 15. We have perused the entire Judgment. The Sessions Court in para-21 has come to the conclusion that the prosecution has proved the aforesaid offences. Para-21 reads as hereunder: "21. Point No. 4: Evidence of Investigating Officer (PW27) is that victim Sannibai (PW18) is a Lambani by caste, belonging to schedule tribe. Evidence also reveals that as residents of neighbour hood of Kanakapura Town, accused having knowledge or reason to believe that victim Sannibai is a lady belonging to Lambani community, committed the offence of gang rape. Therefore, in view of findings on points 1 to 3, offence under Section 3(2)(v) of Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989 is also attracted. Accordingly point under consideration is answered affirmatively." 16. On perusal of paragraph-21 of the Judgment, we are of the view that the Sessions Court has come to the conclusion because the accused persons are residents of Kanakapura, they had the knowledge and that they had reasons to believe that the prosecutrix is a lady belonging to Lambani community, committed the offence of gang rape. Except this one sentence there is nothing in the Judgment to show that the prosecution has let in evidence to show that the accused persons were aware that prosecutrix belong to Scheduled Caste and they committed rape on her only because she is a Scheduled Caste lady. Except this one sentence there is nothing in the Judgment to show that the prosecution has let in evidence to show that the accused persons were aware that prosecutrix belong to Scheduled Caste and they committed rape on her only because she is a Scheduled Caste lady. Even though such finding is not there, it is for us to find out from the evidence let in by the prosecution whether the prosecution has proved beyond reasonable doubt that the accused person knowing fully well the caste of the prosecutrix committed rape on her because she belongs to scheduled caste. Except the oral evidence of PW27 Investigating officer - K. Narayana and evidence of PW1 Munnibai and PW18 - prosecutorix Sannibai that prosecutrix belongs to Scheduled Caste, but no other evidence is let in by the prosecution to show that accused were aware of the caste of the victim and they committed rape on her because she happens to be a scheduled caste lady. In such circumstances, it is for the prosecution to prove the ingredients. Unfortunately, no such evidence is placed by the prosecution. Even in the FIR, it is not the case of the victim that rape was committed on her by the accused because she is a scheduled caste lady. In such circumstances we are of the view that the finding of the Sessions Court on this point is perverse and not based on proper appreciation of evidence. 17. The Judgment of the Supreme Court relied upon by the appellants counsel fully supports the case of the appellants which reads as follow: "Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989-Section 3(2)(v)-Offence of atrocities -Rape on woman belonging to scheduled caste-No ground to convict accused under Section 3(2)(v) also when there is no evidence to support charge under Section 3(2)(v)-Mere fact that victim happened to be a girl belonging to scheduled caste does not attract provisions of Act. Crl. Appeal Nos. 225, 229 and 251 of 1998, Decided on 1-7-2005 (Bom), Reversed. In the instant case rape was committed on a girl belonging to Scheduled Caste. However, 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. However, 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 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. Crl. Appeal Nos. 225, 229 and 251 of 1998, Decided on 1-7-2005 (Bom), Reversed." 18. In the result, the appeal is allowed-in-part. The Judgment of conviction and order of sentence dt.7.7.2008 in Special (Sessions) Case No. 1/2007 is set aside in regard to the Judgment of conviction and order of sentence passed under Section 3(2)(v) of SC & ST (Prevention of Atrocities) Act, 1989 is concerned. The Judgment of conviction and order of sentence in respect of other offences punishable under Sections 323, 324, 326, read with Section 34 IPC and Sections 376(2)(g) of IPC are confirmed. The accused are given benefit of Section 428 for the period of detention undergone by them during the course of trial also.