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2018 DIGILAW 459 (RAJ)

Ram Charan v. State of Rajasthan

2018-02-06

KANWALJIT SINGH AHLUWALIA

body2018
JUDGMENT Kanwaljit Singh Ahluwalia, J —The present appeal has been filed to assail the impugned judgment dated 12.3.1993 whereby the court of Special Judge, SC/ST (Prevention of Atrocities) Cases, Baran convicted the accused appellant Ram Charan son of Mangi Lal for the offences under Section 354 IPC and Section 3(1) (x) of SC/ST (Prevention of Atrocities) Act (hereinafter called as 'SC/ST Act'. 2. Having convicted the appellant for the above said offences, the trial Judge vide a separate order of even date, sentenced the appellant as under:- U/s. 354 IPC read with Section 3(1) (x) of SC/ST Act- to undergo six months SI and to pay a fine of Rs.200/-, in default thereof to undergo additional one months imprisonment. 3. In the present case, criminal proceedings were set into motion on the basis of written report (Exhibit-P/1) submitted by Dayachand (P.W.2) , elder brother of husband of the prosecutrix (P.W.1-name withheld to protect her identity) . In written report (Exhibit-P/1) , the complainant Dayachand (P.W.2) stated that the prosecutrix was going to the flour mill for grinding of the grain when on the way accused caught hold of her. 4. The prosecutrix (P.W.1) in the court deposed that she had left the house for getting the grain grinded from the flour mill. She was returning from the flour mill when accused came, took her in grips and pressed her breasts. On the noise raised, Sita Ram (P.W.3) , younger brother of husband of prosecutrix was attracted to the spot. On the noise raised accused ran away from the spot. 5. In the evidence, nowhere witness has stated that the accused had used derogatory words regarding the caste of the prosecutrix. 6. Merely because accused made an attempt to outrage the modesty of a woman who belong to Scheduled Caste community, it cannot be said that the said offence was done intentionally to demean member of a Scheduled Caste community. The learned counsel for the appellant has submitted that provisions of Section 3(1) (x) of SC/ST Act are not attracted in the facts and circumstances of the case. 7. I find merit in the contention raised by the learned counsel for the appellant. The argument raised is no longer res integra. A Division Bench of this Court, to which I was party, in Ramkaran vs. State of Rajasthan, D.B. Cr. 7. I find merit in the contention raised by the learned counsel for the appellant. The argument raised is no longer res integra. A Division Bench of this Court, to which I was party, in Ramkaran vs. State of Rajasthan, D.B. Cr. Appeal No. 945/2004 decided on 25.11.2014, noticing the contentions of the counsel, observed as under:- "14. Mr. Mehla, the learned counsel for the appellant has vehemently urged that the application of offence under Section 3(2) (v) of 'the Act' is not attracted. The thrust argument of Mr. Mehla is while committing offence of rape, accused may intend to satisfy his lust, but there is no evidence or assertion by the witness that accused intended to humiliate a member of Scheduled Caste or the offence of rape was committed only on the ground that the prosecutrix belonged to Scheduled Caste community. 15. The argument raised by Mr. Mehla is not new to this Court. A Division Bench of this Court in the case of Manohar Singh vs. State of Rajasthan, 2000 2 RCC 894, in similar circumstances, held as under:- "10.The doctor opined that from the external injuries, the possibility of rape being committed, cannot be denied. The doctor also seized the 'ghaghra' of the prosecutrix on which spots of semen were detected. He further stated that the accused Manohar Singh was also examined on 19.12.1996. He was found fit for indulging in sexual intercourse. The prosecution has produced the FSL report dated 2.9.1997, which shows that human semen was found on the 'ghaghra'. Thus, on careful consideration, we find the testimony of P.W.8 Mst. Ramila as trustworthy. The learned Judge has rightly held the accused appellant guilty of rape. 11.The next question, which arises for consideration is whether the conviction of the appellant under Sec.3(2) (v) of the Act is justified and legal? 12.We have, recently in a case of Pappu Khan vs. State of Rajasthan, "D.B. Criminal Appeal No. 722/98 decided on 2.9.1999", examined the scope and ambit of Sec.3(2) (v) of the Act. It is held therein that for the offence under Sec.3(2) (v) of the Act, beside the ingredients of respective offence of Indian Penal Code, the prosecution is further required to establish that the accused being a person of non S.C./S.T. has committed the crime on a person of S.C./S.T. for the reason that such person belonged to such community or tribe." 16. The view taken by the Division Bench of this Court was subsequently followed by another Division Bench of this Court in the case of Sohan Singh & Anr. vs. State of Rajasthan , (2002) Criminal Law Reporter 1543. Their Lordships, while examining the law laid in Manohar Singh's case further to fortify had relied upon the observations of the Hon'ble Apex Court in Masumsha Hasanasha Musalman vs. State of Maharashtra , (2000) SCC(Cri) 722. Since their Lordships relying upon the observations of the Hon'ble Apex Court in a very lucid manner had answered the above question. With all reverence to Their Lordships, the relevant portion of the judgment is reproduced as under: "10.We have considered the rival submissions, and have also gone through the record carefully. We may first take up the sustainability of the conviction u/s. 3(2) (v) of the Act. We may gainfully recapitulate the language of Sec. 3(2) (v) which reads as under:- "(v) committed 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." 11.Our attention has been invited by the learned counsel for the appellants, to a recent judgment of Hon'ble the Supreme Court in Masumsha Hasanasha Musalman vs. State of Maharashtra , (2000) SCC(Cri) 722, which was a case relating to murder, wherein the accused was convicted for the offence u/s. 304-II IPC and Sec. 3(2) (v) of the Act, and under the former he was sentenced to 5 years rigorous imprisonment while under the later he was sentenced to life imprisonment. These convictions were confirmed by the High Court. In appeal the Hon'ble Supreme Court noticed that there was no dispute about the deceased dying homicidal death, and considering the nature of injuries, confirmed the conviction u/s. 304-II IPC. Facts in that case were that between 7.00 and 8.00 p.m. on the fateful day Saoji Gamaji Jadhav, a member of Scheduled Caste, who had returned to his house at dusk, and after some time had left the house informing his wife that he would be going out for some time, and would return soon, thereafter. Facts in that case were that between 7.00 and 8.00 p.m. on the fateful day Saoji Gamaji Jadhav, a member of Scheduled Caste, who had returned to his house at dusk, and after some time had left the house informing his wife that he would be going out for some time, and would return soon, thereafter. After about half an hour of the deceased left his home, the appellant came to the house of the deceased and enquired from his wife about the deceased. At that time the appellant was carrying a 'jambiya'. On coming to know from her that her husband had gone out of the house, the appellant started running through the lane. The wife getting suspicious followed, and near the hospital of Dr. Kalwaghe, she saw the appellant stabbing the deceased who fell down and died. It is on these facts Hon'ble the Supreme Court has held as under:- "To attract the provisions of Sec.3(2) (v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence u/s. 3(2) (v) of the Act arises. In that view of the matter, we think, both the trial Court and the High Court missed the essence of this aspect." 12.With the above findings the conviction u/s. 3(2) (v) was set aside. In our view, the judgment in Masumsha Hasanasha Musalman's case fully supports the contention of the learned counsel for the appellants, and since in the present case also, there is not an iota of material on record, even to indicate that, either of the offence was committed "on the basis" that the victim belongs to Scheduled Caste. Accordingly, the conviction for the offence, u/s. 3(2) (v) of the Act, is very much required to be set aside." 17. Recently, another Division Bench of this Court in Suban Khan vs. State of Rajasthan , (2014) 1 WLN(Raj) 454, on similar facts had formulated the same view. 18. In view of the consistent interpretation of law by various Division Benches of this Court, we called upon Ms. Recently, another Division Bench of this Court in Suban Khan vs. State of Rajasthan , (2014) 1 WLN(Raj) 454, on similar facts had formulated the same view. 18. In view of the consistent interpretation of law by various Division Benches of this Court, we called upon Ms. Sonia Shandilya, the learned Public Prosecutor to point out any piece of evidence or material from which we can infer that prosecutrix was subjected to rape on the ground that she was a member of a Scheduled Caste community. The learned Public Prosecutor, however, could not answer our query, as no relevant material is available in the record. 19. Lust is a vice, from which human beings do suffer. As per medico-legal report Exhibit P/6, the prosecutrix is mother of five children. To attract Section 3(2) (v) of the Act, it was incumbent for the prosecution to bring on record some material that the prosecutrix was subjected to rape only on the ground that she is a member of Scheduled Caste or appellant wanted to assert superiority of his caste by humiliating a member of Scheduled Caste. Since there is nothing on record and the very wording of Section 3(2) (v) of the Act is that 'offence is committed against a person on the ground that such person is a member of Schedule Caste', which prescribe an essential ingredient and same is not satisfied. We shall follow the dictum of law laid in Manohar Singh's case and Sohan Singh's case . 20. Hence, we answer the question in favour of the counsel for the appellant by holding that offence under Section 3(2) (v) of the Act in the facts and circumstances of the case is not made out and therefore, conviction of the appellant on this count cannot be sustained." 8. In view of the observation made and the provisions of law enunciated in the case of Ramkaran , the conviction of the appellant for offence under Section 3(1) (x) of SC/ST Act is set aside and he is acquitted of charge. 9. Now, this Court has to examine the conviction of the appellant for offence under Section 354 IPC. 10. In the present case, the prosecutrix and Sita Ram (P.W.3) have categorically stated that the accused had caught hold of the prosecutrix, embraced the prosecutrix by taking her into grip and had pressed her breasts. 9. Now, this Court has to examine the conviction of the appellant for offence under Section 354 IPC. 10. In the present case, the prosecutrix and Sita Ram (P.W.3) have categorically stated that the accused had caught hold of the prosecutrix, embraced the prosecutrix by taking her into grip and had pressed her breasts. The testimony of the prosecutrix could not be demolished in the cross-examination. Therefore, this Court has to place implicit reliance thereupon. Consequently, the conviction of the appellant for the offence under Section 354 IPC is upheld. 11. In the present case, the occurrence has taken place on 30.8.1991. A period of more than twenty-six years has already elapsed. The appellant is in the corridors of the court for more than two decades. He has suffered a protracted trial. It is submitted that in the last twenty-six years the appellant has not committed any offence. 12. Considering the sufferance of protracted trial, this Court is of the view that no useful purpose will be served by sending the appellant behind the bars. Hence, sentence of imprisonment imposed upon the appellant is reduced to the period already undergone. However, sentence of fine is enhanced to Rs.10, 000/-. In default of payment of fine, the appellant shall undergo additional six months RI. Sentence of fine so deposited shall be disbursed to the prosecutrix. 13. Considering that the prosecutrix belong to Scheduled Caste community, Secretary, Rajasthan Legal Service Authority is also directed to pay compensation under the Victim Compensation Scheme formulated by the State of Rajasthan under Section 357-A Cr.P.C. to the prosecutrix. 14. In view of above, the present appeal stands disposed of.