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2013 DIGILAW 478 (KER)

George v. State of Kerala

2013-06-12

P.BHAVADASAN

body2013
JUDGMENT : The accused was prosecuted for the offences punishable under Sections 376 and 506(ii) of IPC and Sections 3(2)(v) and 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act. He was acquitted of all charges except one under Section 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act. He was found guilty for the said offence and convicted and sentenced to suffer rigorous imprisonment for two years and to pay a sum of Rs.25,000/- as compensation to PW8 with a default clause of rigorous imprisonment for one year. Set off as per law was allowed. 2. PW8 is the victim in this case. She is a married lady with two children. Her husband had deserted her. She was working for the accused in a plantation. The allegation is that some day in Vrichikam 1176 (Malayalam Era), while she was in a shed taking food along with the accused, the accused over powered her in spite of her resistance and sexually assaulted her. The said act was followed on three subsequent days and as a result of the same, according to PW8, she conceived. Later, when her mother discovered that she was carrying and enquired about it, she told her mother that it was the accused who was responsible for the same. She delivered at the Govt. hospital. Ext.P1 complaint was laid by PW8 on 02.10.2001. PW3 recorded Ext.P1, First Information Statement and registered crime as per Ext.P1(a), FIR. Investigation was taken over by Deputy Superintendent of Police who prepared the scene mahazar, collected the records, completed investigation and laid charge before the court. 3. The court before which the final report was laid took cognizance of the offence and finding that the offences are exclusively triable by a Special Court, committed the case to Sessions Court, Wayanad. The said court after receipt of records and appearance of the accused, framed charges for the offences under Sections 376 and 506(ii) of IPC and Sections 3(2)(v) and 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 11 examined and Exts.P1 to P6 marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 11 examined and Exts.P1 to P6 marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. On an appreciation of the evidence in the case, the trial court came to the conclusion that the offences under Sections 376 and 506(ii) of IPC and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act are not made out and acquitted the accused for the said offences. However, holding that the victim namely PW8 was employed under the accused and using that position, he had dominated the will of the victim and had subjected her to sexual exploitation, the court below came to the conclusion that one offence under Section 3(1)(xii) of SC/ST (Prevention of Atrocities) Act is made out and accordingly convicted and sentenced the accused as already mentioned. 4. The learned counsel appearing for the appellant contended that the finding of the court below that the offence under Section 3(1)(xii) of SC/ST (Prevention of Atrocities) Act is made out, cannot be sustained on facts or in law. There is no whisper any where that the accused had knowledge of the fact that the victim belonged to a Scheduled Caste or Scheduled Tribe. There is no averment that the accused was in a position to dominate the will of the victim and that the accused had used such position to exploit her sexually. It was also contended by the learned counsel appearing for the appellant that having found that the offence under Section 376 is not made out which means the sexual contacts between the two was with the consent of the victim. In which case the later part of Section 3(1)(xii) says "..... to which she would not have otherwise agreed to” cannot be applied and therefore, viewed from any angle, offence under Section 3(1)(xii) cannot be attracted. 5. In which case the later part of Section 3(1)(xii) says "..... to which she would not have otherwise agreed to” cannot be applied and therefore, viewed from any angle, offence under Section 3(1)(xii) cannot be attracted. 5. The learned Public Prosecutor on the other hand pointed out that PW1 in her evidence has stated that on three days she was asked to come to collect wages and all the three days without paying wages, she was subjected to sexual assault. This is sufficient to attract Section 3(1)(xii) of the SC/ST(Prevention of Atrocities) Act. 6. There cannot be much dispute that there was physical contact between the two. The question is whether that by itself is sufficient to attract Section 3(1)(xii) of the SC/ST(Prevention of Atrocities) Act. This Court had occasion to consider the applicability of Section 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act in several cases. It has been held by this Court that merely because a person belonged to Scheduled Caste or Scheduled Tribe, it does not automatically attract the provisions of 3(1). At least the accused must have had knowledge that the victim belonged to a Scheduled Caste or Scheduled Tribe and with that knowledge in mind, he must have committed one of the act which fall under the various provisions of Section 3(1). 7. It is true that in the case on hand in Ext.P1, the victim has stated about her caste and so also at the time of evidence. But there is no whisper either in Ext.P1 or in the evidence of PW8 that the accused was aware of the caste and he knew that she belonged to a Scheduled Caste or Scheduled Tribe. 8. Apart from the above fact in Ext.P1, First Information Statement, there is no whisper that on three days as spoken to by her at the time of evidence, she was exploited for promising wages and thereby accused had used his dominating position and subjected the victim to sexual assault to which she otherwise would not have agreed to. Of course, at the time of evidence, PW8 come forward with such a case. But that is a clear embellishment and development so as to bring the act within the provisions of the SC/ST (Prevention of Atrocities) Act. Of course, at the time of evidence, PW8 come forward with such a case. But that is a clear embellishment and development so as to bring the act within the provisions of the SC/ST (Prevention of Atrocities) Act. PW8 has categorically stated that she had not stated that she was deprived of wages and on all the three days she was promised wages but she was exploited to the Police when she was questioned by the Police. Therefore, it could not be said that the accused had dominated the will of the victim. 9. The trial court finds that since PW8 has spoken that on three days when she went for wages, without giving wages she was sexually exploited and also the fact that the accused is the employer of the victim are sufficient to attract Section 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act. 10. It may not be correct. Merely because, the victim belonged to SC/ST (Prevention of Atrocities) Act that by itself is not sufficient to attract the provisions. There is nothing in the evidence of PW8, the victim to show that she was subjected to sexual intercourse by the accused utilizing his position as an employer of the victim. There is nothing in the evidence of PW8 to show that the accused had threatened her that she would be deprived of employment, if she did not yield. It has already been noticed that her claim that she was deprived of wages for three days does not find a place in Ext.P1, which is clear subsequent development. Therefore, it could not be said that the accused had utilized the position as such to dominate the will of the victim. 11. There is some force in the contention by the learned counsel for the appellant that having acquitted the accused for the offence under Section 376, it could not be said that the physical contact was something which should not have been agreed to by the victim. Any how, that need not detain this Court for long in the light of the other findings in this regard. Suffice to say that the finding of the court below that the offence under Section 3(1)(xii) is attracted cannot be sustained in law for the reason already made mention of. In the result, this appeal is allowed. Any how, that need not detain this Court for long in the light of the other findings in this regard. Suffice to say that the finding of the court below that the offence under Section 3(1)(xii) is attracted cannot be sustained in law for the reason already made mention of. In the result, this appeal is allowed. The conviction and sentence passed by the court below for the offence under Section 3(1)(xii) of SC/ST (Prevention of Atrocities) Act is set aside. The accused shall stand acquitted of for the said offence also. His bail bond shall stand cancelled and if he has paid any fine amount, the same shall be refunded to him. He is set at liberty.