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2017 DIGILAW 36 (RAJ)

SUBHASH JAT v. STATE OF RAJASTHAN

2017-01-03

GOPAL KRISHAN VYAS, KAILASH CHANDRA SHARMA

body2017
JUDGMENT : 1. In this criminal appeal filed under Section 374(2) Cr.P.C. the accused appellant Subhash has challenged the judgment dated 27.1.2010 passed by Special Judge, SC/ST (Prevention of Atrocities) Act (Sessions Judge), Hanumangarh in Sessions Case No. 30/2008 whereby the accused appellant Subhash was convicted for the offences under Sections 452 and 376 IPC and under Section 3(2)(V) of the SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act of 1989 for short) and passed the following sentences : Under Section 452 IPC Two years simple imprisonment with fine of Rs.1,000/- and in default of payment of fine to further undergo two months imprisonment. Under Section 376 IPC Life imprisonment with a fine of Rs.1,000/- and in default of payment of fine to further undergo two months imprisonment. Under Section 3(2)(V) of the Act of 1989 Life imprisonment with fine of Rs.1,000/- and in default of payment of fine to further undergo two months imprisonment. [all the sentences were ordered to run concurrently] 2. As per brief facts of the case, the complainant Banwari Lal S/o Mani Ram (PW-4) submitted a written report (Ex.P/2) on 29.2.2008 before the Police Station Goluwala, District Hanumangarh alleging therein that yesterday his brother and sister-in-law (Bhabhi) went to Talwara Jheel while leaving my nephew Jasveer and niece "X", aged about 14 years old in the house. In the evening at about 7'O Clock, when my niece "X" was washing cloths in her house, the neighbor Subhash (present appellant) entered in the house and committed rape on her and upon hearing her cry, my mother immediately went in the house where my niece was lying on floor sustained with blood. The accused appellant while pushing my mother, run away from the place of occurrence. After sometime, I and my father Maniram reached on spot and took my niece to the hospital in a tractor for treatment. The complainant prayed to take legal action against accused appellant for committing rape. 3. Upon aforesaid complaint, FIR no.27/2008 was registered under Section 376 and 452 of the IPC and under Section 3(2)(V) of the Act of 1989 and investigation was commenced. 4. After completion of investigation, the charge-sheet was filed against the accused appellant in the court of Judicial Magistrate, Pilibanga from where the case was committed to the court of Special Judge, SC/ST (Prevention of Atrocities) Act (Sessions Judge), Hanumangarh for trial. 5. 4. After completion of investigation, the charge-sheet was filed against the accused appellant in the court of Judicial Magistrate, Pilibanga from where the case was committed to the court of Special Judge, SC/ST (Prevention of Atrocities) Act (Sessions Judge), Hanumangarh for trial. 5. In the trial, the charge under Section 376 and 452 of the IPC and under Section 3(2)(V) of the Act of 1989 were framed against the accused appellant after providing an opportunity of hearing to him, but accused appellant denied charges and prayed for trial. During trial, from prosecution side, statements of 13 prosecution witnesses were recorded including prosecutrix "X" as PW-1. The statement of PW-11 Dr. Devendra Kumar and PW-12 Dr. Smt. Vinod Katewa were also recorded to prove the allegation of rape. In all 24 documents were exhibited from prosecution side during trial and after recording evidence of prosecution, the statement of accused appellant were recorded under Section 313 Cr.P.C. in which he denied all the allegations levelled against him by the prosecution witnesses and in defence four witnesses namely DW-1 Ram Kumar, DW-2 Manfool, DW-3 Om Prakash and DW-4 Rohtash were produced before the court and 9 documents were exhibited in defence. 6. After recording evidence, final arguments were heard by the learned trial court and finally, the accused appellant held guilty for committing offences under Section 376 and 452 of the IPC and under Section 3(2)(V) of the Act of 1989 and passed sentence aforementioned vide judgment dated 27.1.2010 in Sessions Case No.30/2008. 7. At the threshold, the learned counsel for the appellant submits that the appellant is not challenging the incident, but challenging the finding of conviction for the offence under Section 3(2)(V) of the Act of 1989 because in this case, no evidence is led by the prosecution to establish that rape was committed on the victim since she was a member of SC community, in absence of such evidence to that effect, Section 3(2)(V) of the Act of 1989 has no application. Therefore, the sentence for life imprisonment imposed against the accused appellant for offence under Section under Sections 376 IPC and under Section 3(2)(V) of the Act of 1989 is not sustainable in law. Therefore, the sentence for life imprisonment imposed against the accused appellant for offence under Section under Sections 376 IPC and under Section 3(2)(V) of the Act of 1989 is not sustainable in law. Further, it is submitted that as per medical report, the age of prosecutrix was in between 16 to 18 years and appellant was also 20 years of age, therefore, it is not a case in which maximum sentence, which is life imprisonment is to be imposed against the accused appellant, therefore, prayed that the sentence of life imprisonment may kindly be reduced to already undergone. In support of his arguments, the learned counsel for the appellant invited our attention towards the judgment of the Hon'ble Supreme Court in the case of Dinesh @ Buddha v. State of Rajasthan reported in 2006 Cr.L.R. (SC) 209 in which the Hon'ble Supreme Court held that if there is no evidence to establish that rape was committed on the victim for the reason that she is member of SC, then finding of trial court for offence under Section 3(2)(V) of the Act of 1989 is not sustainable in law, therefore, the sentence provided under Section 376(F) IPC does not per-se become life imprisonment. 8. Learned counsel for the appellant submits that the facts of the present case are identical to the judgment of the Hon'ble Supreme Court in Dinesh @ Buddha (supra), therefore, the finding for offence under Section 2(2)(V) of the Act of 1989 must be quashed and the maximum sentence of life imprisonment imposed against the accused appellant may kindly be reduced to already undergone. 9. Per contra, learned Public Prosecutor vehemently argued that it is a case in which the heinous offence of rape is committed by the accused appellant and he is not challenging the incident, so also, it is admitted fact that victim belonging to SC category, therefore, no interference is called for in this case to reduce the sentence or to set aside the finding of conviction under Section 3(2)(V) of the Act of 1989. 10. After hearing the learned counsel for the parties, we have perused the entire evidence on record. 10. After hearing the learned counsel for the parties, we have perused the entire evidence on record. In the statement of prosecutrix "X" (PW-1) and PW-2 Patli Devi, grand-mother of the prosecutrix, so also, PW-3 Mani Ram, grand-father of the prosecutrix and PW-4 Banwari Lal (complainant) it is nowhere alleged by them that rape was committed by the accused appellant for the reason that the prosecutrix belongs to SC community. Upon perusal of other evidence also it cannot be said that prosecution has led any evidence to prove the fact that offence of rape was committed by the accused appellant that since she is member of SC community. To consider the prayer, we have perused Section 3(2)(V) of the Act of 1989, which reads as under : "3(2)(v) : Punishments for offences of atrocities (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, - xxx xxx xxx (v) commits any offence under the Indian Penal Code 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; xxx xxx xxx" 11. We have also considered the medical examination report (Ex.P/1) of the prosecutrix in which as per opinion of medical board, the age of prosecutrix was in between 16 to 18 years and admittedly, the age of accused appellant was 20 years on the date of incident. The accused appellant is not challenging the incident, but has prayed to quash the finding under Section 3(2)(V) of the Act of 1989 on the ground that there is no evidence on record to establish the fact that rape was committed with the victim with the intention that she belongs to SC. In our opinion, the finding of the learned trial court with regard to offence under Section 3(2)(V) of the Act of 1989 is not sustainable because there is no evidence on record that offence was committed by the accused appellant against the victim for the reason that she is member of Scheduled Caste, therefore, in this case, Section 3(2)(V) of the Act of 1989 will not apply. In case of Dinesh @ Buddha (supra), the Hon'ble Supreme Court while considering identical issue gave following findings, which reads as under :- "13. The legislative mandate to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence. The proviso to Section 376(2) IPC, of course, lays down that the court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where rape is committed on a child below 12 years of age, is not less than 10 years' RI, though in exceptional cases "for special and adequate reasons" sentence of less than 10 years' RI can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for "special and adequate reasons" and not in a casual manner. Whether there exist any "special and adequate reasons" would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application. 14. At this juncture it is necessary to take note of Section 3 of the Atrocities Act. As the Preamble to the Act provides 'the Act has been enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. The expression 'atrocities' is defined in Section 2 of the Atrocities Act to mean an offence punishable under Section 3. As the Preamble to the Act provides 'the Act has been enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. The expression 'atrocities' is defined in Section 2 of the Atrocities Act to mean an offence punishable under Section 3. The said provision so far relevant reads as follows : "3(2)(v): Punishments for offences of atrocities (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, - xxx xxx xxx (v) commits any offence under the Indian Penal Code 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; xxx xxx xxx" 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. Though learned counsel for the State submitted that even in a case covered under Section 376(2)(f) IPC, imprisonment for life can be awarded, it is to be noted that minimum sentence of 10 years has been statutorily provided and considering the attendant circumstances the imprisonment for life in a given case is permissible. Neither the Trial Court nor the High Court has indicated any such factor. Only by applying Section 3(2)(v) of the Atrocities Act the life sentence was awarded. Therefore, the sentence is reduced to 10 years. The other question is legality of the compensation awarded. Neither the Trial Court nor the High Court has indicated any such factor. Only by applying Section 3(2)(v) of the Atrocities Act the life sentence was awarded. Therefore, the sentence is reduced to 10 years. The other question is legality of the compensation awarded. Since the State has not challenged the award of compensation, it is not open to it to question the legality of the award in the present appeal filed by the accused. Therefore, State's challenge to the legality and/or quantum of compensation awarded is without merit. The amount shall be paid to the victim if not already paid within a period of eight weeks." 12. The coordinate bench of Jaipur Bench of this Court, in the case of Chandra @ Harchanda v. State of Rajasthan (D.B. Cr. Appeal No.947/2005), decided on 26.11.2014 gave following verdict upon identical issue to reduce the sentence, which reads as under : "Mr. N.A. Naqvi, Senior Counsel has also very fairly stated that taking the entire perspective of the case, he will only urge and pray before this Court that there were no aggravating circumstances available with the trial Court to award maximum sentence i.e. life imprisonment. The learned counsel has stated that to award the maximum sentence, there must be compelling reasons for the trial court and such reasons are to be stated in the order whereby sentence is awarded. The learned Counsel has stated that recently Hon'ble Apex Court in case of Sunil Dutt Sharma v. State (Govt. of NCT of Delhi) reported as (2014) 4 SCC 375 while dealing with case of Section 304-B IPC had observed that Court should take notice of aggravating and mitigating circumstances while awarding sentence. The learned counsel for the appellant has also placed reliance upon Bavo @ Manubhai Ambalal Thakore v. State of Gujarat AIR 2012 SC 979 to contend that Hon'ble Apex Court considering the agony of protracted trial has awarded minimum sentence of ten years. The learned counsel states that in the present case, incident had taken place 11 years ago i.e. in the year 2003 and since then, appellant is in the corridors of the Court. It is contended before us that since, appellant was not released on bail during the trial and his sentence was also not suspended during appeal, thus he continue to languish behind the bars since 04th September, 2003, when his formal arrest was effected." 13. It is contended before us that since, appellant was not released on bail during the trial and his sentence was also not suspended during appeal, thus he continue to languish behind the bars since 04th September, 2003, when his formal arrest was effected." 13. After taking into consideration entire facts of the case and aforesaid judgment, we find no reason to take different view to reduce the sentence. 14. Consequently, this cr. appeal is partly allowed. The sentence of life imprisonment for the offences under Section 3(2)(V) of the Act of 1989 as imposed by the learned trial court vide judgment dated 27.1.2010 in Sessions Case No.30/2008 against the accused appellant is hereby quashed and set aside and sentence of life imprisonment imposed under Section 376 IPC is hereby reduced to 10 years RI while maintaining the conviction and sentence for the offence under Section 452 IPC. In the facts and circumstances of the case, we deemed it appropriate to enhance the amount of fine from Rs.1,000/- to Rs.5,000/- and in default of payment of enhanced fine, the accused appellant shall further undergo six months' RI. However, the State of Rajasthan is directed to pay compensation of Rs.50,000/- to the victim as per Victim Compensation Policy.