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2015 DIGILAW 2835 (ALL)

RAM SINGH v. STATE OF U. P.

2015-09-10

RAGHVENDRA KUMAR, SURENDRA VIKRAM SINGH RATHORE

body2015
JUDGMENT Hon’ble Raghvendra Kumar, J.—Heard learned counsel for the accused-appellant, learned AGA for the State of U.P. and perused the material available on record. 2. Under challenge in the appeal is the judgment and order dated 2.4.2007 passed by the learned Additional Sessions Judge, Court No. 2, Mahoba in S.S.T. No. 50 of 2004, State v. Ram Singh, in Case Crime No. 312 of 2004, under Sections 376/506 IPC read with Section 3 (2) V Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, P.S. Ajnar, District-Mahoba,whereby the accused-appellant has been convicted for the offence under Section 376 IPC and sentenced to R.I. for 10 years alongwith fine of Rs. 5000/- and further convicted for the offence under Section 3 (2) V Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and sentenced to imprisonment for life alongwith fine of Rs. 5000/- with default stipulation of one year additional imprisonment. 3. The FIR of the case was registered on 15.9.2004 at 18:20 hours with respect to incident that took place on 9.9.2004 at about 12 hours. The prosecutrix is the resident of Village-Sagunia, P.S. Ajnar, District-Mahoba. On 9.9.2004 at about 12 hours of the day, the victim was going to give meals to her grand mother Sarjoo. The accused-appellant Ram Singh was following her. As the prosecutrix/victim reached the field of Harish Chandra Lodhi, the accused-appellant Ram Singh took her to the field and thereafter undressed her and committed sexual assault. She raised alarm then the accused-appellant threatened her. On hearing the alarm, the grand mother who was in nearby field reached to the spot. The accused-appellant Ram Singh fled away leaving the victim/prosecutrix there then the victim conveyed a message to her parents through Kallu who were living away from the village but he did not come from there. Thereafter she lodged the FIR on 15.9.2004. After lodging of the FIR, the investigation proceeded. During the course of investigation the victim was medically examined, her under garment were taken by the police in the custody. Her radiological examination was also conducted to ascertain her age. The I.O. prepared the site plan. The investigation of the case culminated into filing of the charge-sheet. 4. After lodging of the FIR, the investigation proceeded. During the course of investigation the victim was medically examined, her under garment were taken by the police in the custody. Her radiological examination was also conducted to ascertain her age. The I.O. prepared the site plan. The investigation of the case culminated into filing of the charge-sheet. 4. After complying with the procedure contemplated under law, the learned trial Court framed charge against the accused for the offence under Sections 376/506 IPC read with Section 3 (2) (5) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. The accused denied the charge and claimed trial on merit. 5. The defence has taken a case of complete denial and false implication due to village party-bandi. The testimony of the prosecution witnesses is self contradictory. 6. To substantiate the charge against the accused-appellant, the prosecution has examined prosecutrix-Km. Munni (P.W.-1), Sarjoo (P.W.-2), Dr. Gyanendra Nikhra (P.W.-3), Dr. S. Rajpoot (P.W.-4), Swarajya Singh (P.W.-5), C.O., Ayodhya Ram (P.W.-6), Constable clerk Ram Prashad (P.W.-7) and S.O. Vikas Rai (P.W.-8). 7. The accused-appellant has been examined under Section 313 Cr.P.C. He has denied prosecution allegation and has stated that prosecution witnesses have wrongly deposed against him. P.W.-2 has falsely deposed because of the village party-bandi. The prosecution was launched due to enmity. He has refused to lead any evidence and he further refused to make any additional statement. 8. After considering material available on record, learned Court below recorded the conviction of the appellant for the offence under Section 376 IPC and 3 (2) V SC/ST Act. 9. It has been submitted on behalf of the accused-appellant that the offence under Section 3 (2) V SC/ST Act is not made out from the evidence available on record. Hence the conviction recorded by the learned Court below is not justified in law. He is in jail since 19.9.2004. He has prayed for the mercy of the Court and prayed for release of the appellant. 10. The learned AGA submitted that the learned Court below has recorded findings of conviction which are well substantiated from the evidence available on record. 11. It is a case based on the testimony of child who is the victim of the offence. The principle for appreciation of the testimony of a child witness has been enunciated by the Hon’ble Apex Court from time to time. 12. 11. It is a case based on the testimony of child who is the victim of the offence. The principle for appreciation of the testimony of a child witness has been enunciated by the Hon’ble Apex Court from time to time. 12. In the cases of Shivasharanappa and others v. State of Karnataka and Jagadevappa and other v. State of Karnataka and others, decided on 7.5.2013 in Criminal Appeal No. 1366 of 2007 and Criminal Appeal No. 508 of 2007 respectively in paragraph 16 of the judgment, the Hon’ble Apex Court has propounded as follows : “Thus, it is well-settled in law that the Court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the Court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, applies to a child witness, who is competent and whose version is reliable.” 13. In the case of Alagupandi @ Alagupandian v. State of Tamil Nadu, in reference to Criminal Appeal No. 1315 of 2009 decided on 8.5.2012, the Hon’ble Apex Court in paragraph 23 has pleased to observe as follows : “It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence.” 14. In the case of State of Rajasthan v. Chandgi Ram and others, reference to Criminal Appeal No. 937 of 2008 decided on 9.9.2014 the Hon’ble Apex Court has highlighted the safeguards, which the Courts should undertake for appreciating the evidence of a child witness. The safeguards have been disclosed in paragraph 11, which are being reproduced below : “The evidence of a child must reveal that he was able to discern between right and wrong and the Court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The safeguards have been disclosed in paragraph 11, which are being reproduced below : “The evidence of a child must reveal that he was able to discern between right and wrong and the Court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The Court may ascertain his suitability as a witness by putting questions to him [pic] and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. The law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the Court and there is no embellishment or improvement therein, the Court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition. It is well-settled in law that the Court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the Court thinks it desirable to see the corroboration from other reliable evidence placed on record. The priniciples that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable.” 15. The priniciples that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable.” 15. In view of the proposition of law discussed above, it is crystal clear that there is no legal impediment in placing the reliance upon the testimony of a child witness, even without corroboration if the testimony is found to be credible and wholly reliable and inspires confidence. 16. In this case as per the prosecution version, on 9.9.2004 at about 12 in the day hours, the accused-appellant Ram Singh committed sexual assault/rape with the prosecutrix, a girl of about 12 years of age. When she raised alarm, her grand mother reached to the spot. She has corroborated the FIR version. She has categorically stated that the appellant undressed her and thereafter lied down upon her, inserted male organ in her private part. When she cried, the accused threatened her. On her cry, her grand mother reached to the spot then the appellant left the prosecutrix and fled away. She has proved the execution of written report Ext. Ka-1. She has further stated that her underwear was taken by the police and a recovery memo was prepared. In view of the fact that there was bleeding from her private part, she has further stated that she was medically examined by the lady doctor. The witness has been put to lengthy cross-examination. She has at the time of her deposition, stated her age to be 12 years. She has categorically stated that when she raised alarm, she was threatened for life. Nothing could be elicited from the witness by way of cross-examination which may be termed as material contradiction. There is a complete consistency and coherence in her examination in-chief and cross-examination. Nothing has been admitted by P.W.-1 either in her examination in-chief or in cross-examination which may raise doubt upon the veracity of the statement which has been made before this Court. 17. P.W.-2-Smt. Sarjoo has stated on oath that when she reached to the spot, she saw her grand daughter in a nude condition and further saw appellant-Ram Singh fleeing away. She has stated that the underwear of the victim-girl was found to be blood stained. 17. P.W.-2-Smt. Sarjoo has stated on oath that when she reached to the spot, she saw her grand daughter in a nude condition and further saw appellant-Ram Singh fleeing away. She has stated that the underwear of the victim-girl was found to be blood stained. The witness categorically stated in cross-examination that when the appellant-Ram Singh caught hold of her grand daughter, she did not see. She had seen the appellant running away from the place of occurrence. She has further stated that victim was feeling difficulty in walking. Her testimony is confined to the fact that she had seen her grand daughter in a nude condition and she also saw the accused-appellant Ram Singh fleeing from the place of occurrence. She was put to lengthy cross-examination but she has not made any admission in her cross-examination which may create doubt about her presence in nearby field. She has not made any admission which may be termed as material contradiction and which may demolish the credibility of her testimony. The witness appears credible and reliable with respect to the facts, she has deposed in the Court. 18. P.W.-3 is a formal witness who has conducted radiological examination and has assessed age of the prosecutrix to be 13 years. 19. P.W.-4-Dr. S. Rajpoot has conducted medical examination of the prosecutrix. The doctor has recorded opinion that attempt to penetration has been made in the private parts. The doctor has stated in his statement that there was a lacerated wound which was red in colour and was inflamed. Seroflorate thin pus like material was found. The part of the vagina was injured. Hymen was torn or broken. The torn or broken part of the hymen was inflamed. The report of the doctor also indicates that the vagina had a lacerated wound. There was inflammation which indicates towards the sexual activities which is alleged to have been performed by the appellant. We are of the considered opinion we should bear in mind that the medical examination of the prosecutrix/victim girl was conducted on 17.9.2004 whereas the incident took place on 9.9.2004. The oral testimony of P.W.-1 with respect to the sexual assault finds full corroboration from the medical testimony. 20. No irregularity during the course of investigation or trial has been brought to our notice by the appellant. The oral testimony of P.W.-1 with respect to the sexual assault finds full corroboration from the medical testimony. 20. No irregularity during the course of investigation or trial has been brought to our notice by the appellant. In view of the full corroboration of evidence of prosecutrix by medical evidence, we are convinced that the victim was subjected to sexual assault on the date, time and place as alleged in the FIR. Though the findings recorded by the learned Court below with respect to sexual assault committed by the accused-appellant have not been challenged, but by way of abundant precaution being a Court of first appeal we have critically appraised the evidence available on record with respect to offence of sexual assault and we are convinced with the findings recorded by the learned Court below with respect to commission of offence under Section 376 IPC. Section 376 (2) (f) IPC provided for rigorous imprisonment which shall not be less than 10 years but which may be for life and shall also be liable to fine. For this offence learned Trial Court has also inflicted punishment for ten years. 21. Now the next aspect is whether the Section 3 (2) V Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act is attracted in the facts of the case ? It would be appropriate to discuss legal and judicial position in this regard. 22. The Section 3 (2) V Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 which reads as under : “3(2) whoever, not being a member of Scheduled Caste or Schedule Tribe— (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” 23. For applicability of Section 3 (2) (5) SC/ST Act, it would be appropriate to have a glance over the Dinesh @ Buddha v. State of Rajasthan, AIR 2006 SC 1267 (para 15, 16). The observation of the Hon’ble Apex Court are reproduced here below : “15. For applicability of Section 3 (2) (5) SC/ST Act, it would be appropriate to have a glance over the Dinesh @ Buddha v. State of Rajasthan, AIR 2006 SC 1267 (para 15, 16). The observation of the Hon’ble Apex Court are reproduced here below : “15. 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 Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine. 16. In view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the sentence provided in Section 376(2)(f), IPC does not per se become life sentence.” 24. Hon’ble Supreme Court in Ramdas and others v. State of Maharashtra, (2007) 2 SCC 170 (para 11) has held as under: “11. 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.” 25. 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.” 25. Nowhere it has been mentioned in the FIR that the prosecutrix/victim girl was subjected to sexual assault for the purposes of insulting or humiliating her because of the fact that she belonged to a SC/ST community and moreso, it has not been stated on oath by P.W.-1-victim girl that she was subjected to sexual assault because of being a member of the SC/ST community. Her grand mother (Sanjoo) has also not stated that her grand daughter was victimised (of the offence) since she being the member of the SC/ST community. Hence Section 3(2) V of SC/ST Act has no application. Section 3 (2) (V) SC/ST Act does not provide for any substantive offence. It only provides for enhanced punishment when an offence is committed under the conditions enumerated in this section. If any offence is found to have been committed under the condition mentioned in Section 3(2) V of SC/ST Act then the accused would only be liable for enhanced punishment of imprisonment of life. As Section 3(2) (V) is not a substantive offence hence no sentence can be inflicted under this section. Section 3(2)(V) of the SC ST Act it is not an independent offence. It is always read with substantive offence under the Indian Penal Code and it is for the purpose of imposing the higher quantum of punishment. 26. In view of the facts, we are of the considered opinion that the findings recorded by the learned Court below for the commission of offence under Section 3 (2) (V) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act against the appellant cannot be sustained. The findings of conviction recorded against appellant for offence under Section 3 (2) (V) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act deserves to be set aside. The appeal deserves to be partly allowed. 27. The criminal appeal is partly allowed. The conviction recorded by the learned Court below for the offence under Section 376 IPC is hereby affirmed and the conviction and sentence awarded by the learned Court below against the appellant for the offence under Section 3 (2) (5) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act is hereby set aside. 28. The accused-appellant is in jail since 19.9.2004. 28. The accused-appellant is in jail since 19.9.2004. This fact has not been disputed by the learned AGA for the State of U.P. The accused has already undergone a period of more than 10 years. Hence his sentence is hereby modified with the period already undergone by him for the offence under Section 376 IPC (which is more than 10 years). He be set at liberty if not wanted in any other case. 29. Let copy of the judgment and order alongwith lower Court record be transmitted to learned Court below forthwith for compliance.