Jharkhand High Court
Dilip Kumar Jha And Ors. vs State Of Bihar (Now Jharkhand) on 17 February, 2004
Equivalent citations: 2005CRILJ1783, [2004(2)JCR156(JHR)], 2005 CRI. L. J. 1783, 2005 AIR - JHAR. H. C. R. 600, (2004) 2 JCR 156 (JHA), (2004) 2 CRIMES 411, (2004) 1 JLJR 621
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This appeal at the instance of the appellants has been directed against the impugned Judgment and order dated 10.8.1998 and 11.8.1998 respectively passed in Sessions Trial No. 49 of 1997 by Shri Hart Deo Prasad. 1st Additional Sessions Judge-Cum-Special Judge, Dumka whereby and whereunder all the appellants were found guilty for the offence punishable under Sections 376(2)(g), 324 and 342 of the Indian Penal Code and also under Section 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and each of them was convicted and sentenced to undergo rigorous imprisonment for ten years, one year, one year and five years for the aforesaid offences respectively.
2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 2) of informant, PW 8 Parvati Hansda, an unmarried girl aged about 14 years, resident of Village-Sirsa, Police Station-Jama, District-Dumka, said to be the victim of gang rape, recorded by S.I. Sujeet Roy of Town Police Station. Dumka on 28.3.1997 at 7.00 hours at Sadar Hospital, Dumka regarding the occurrence which is said to have taken place between 19.00 hours and 23.00 hours on 27.3.1997 at Shanti Nagar, Police Station Town, District-Dumka and a case was instituted against the appellants by drawing of a formal first information report (Ext. 3) and the said fardbeyan and the formal first information report were received on 29.3.1997 in the Court empowered to take cognizance.
3. The prosecution case, in brief, is that the informant had come to Dumka from her village home on 27.3.1997 to witness a movie and she did attend the show from 14.00 hours to 17.00 hours in Amar Chitra Mandir, Dumka and when the show was over she was proceeding towards Dumka bus stand and in the meantime three persons came to her and asked her as to where she is going and she stated to them that she has to go to Village-Sirsa and one of them asked her to accompany them for boarding the bus. It is alleged that they on the pretext of taking her towards the bus stand and enticing her brought her to a lonely place at Shanti Nagar, east of Dumka Market where they stuffed her mouth and brought her inside a place having a boundary wall and when she attempted to raise alarms they assaulted her by dagger as a result of which injuries were caused on the little, ring and middle fingers of her right hand and thereafter they forcibly felled her on the ground near a well and they all ravished her one by one from 19.00 hours to 23.00 hours and she came to know their names during conversation between them as appellants Dilip kumar Jha, Ashok Rout and Rajkumar Verma who by profession sells chicken and fish in the Tin Bazar in the town of Dumka. The prosecution case further is that after 23.30 hours they brought her out of the said place with intention to take her some where else and finding an opportunity she managed her escape and took shelter in the courtyard of a house and in the early morning when the inmates of the said house awoke she narrated the incident to them and it transpired to her that the said house is of PW 4 Uttam Mistri, situate in Mohalla-Baganpara and a large number of persons also, came there and they were also informed about the occurrence and said Uttam Mistri along with others have brought her to the Sadar Hospital for her treatment. She has also stated that she is 14 years old.
4. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and they have been falsely implicated in this case on mere suspicion.
5. The prosecution has, in all, examined twelve witnesses to substantiate its case. PW 8 Parvati Hansda is the informant and said to be the victim of ravishment in this case. PW 1 Jitan Hansda the uncle of the informat is' an hearsay witness and claims to have learnt regarding the incident from the informant after four or five days of the occurrence. PW 2 Baijnath Mistri, PW 3 Rajkumar Sharma, PW 4 Uttam Mistri, PW 5 Kishore Mistri and PW 7 Asha Devi, all residents of Mohalla-Baganpara, have turned hostile and they do not support the prosecution case in material particulars. PW 6 Krishana Prasad Singh and P.W. 9 Jitendra Kumar Singh, both residents of Mohalla-Baganpara and said to be the witnesses of seizure of the incriminating articles recovered from the alleged place of occurrence, have also turned hostile though they admit their signatures on the seizure list (Ext. 4) and another seizure list and signature of PW 6 on the seizure lists aforesaid are Ext. 1 and Ext. 1/1 whereas the signature of PW 9 on one of the seizure lists is Ext. 1/3. Ext. 1/2 is the signature of the informant on the fardbeyan. PW 12 Dr. Sushma Verma has examined the informant on 28.3.1997 at 7.30 P.M. being the member of the Medical Board, consisting of herself, Dr. (Mrs.) Radha Gupta and Dr. K.K. Chaoubey and the medical report per her pen and its upper portion per pen of Dr. C.P. Sinha under his signature also contains her signature and two other members of the Medical Board and the said report is Ext. 5 in this case. PW 10 Mukhti Nath Mishra is the Investigating Officer and PW 11 William Kindo, Deputy Superintendent of Police, is the other Investigating Officer, who has only submitted charge sheet in this case. No oral and documenter evidence has been brought on the record on behalf of the defence.
6. Relying upon the testimony of PW 8, the informant, corroborated by PW 12, the medical witness read with the objective finding of PW 10, the Investigating Officer, regarding the place of occurrence and recovery of the incriminating articles from there, the learned Court below came to the finding of the guilt of the appellants and has convicted and sentenced them as stated above.
7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that the learned Court below did not at all scan and scrutinize the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants. It has been submitted that the solitary testimony of the informant does not stand at all corroborated by any other witness who has taken oath in this case and even the medical witness has not found any matting of the heirs and sperm, dead or alive, in the vaginal swab of the informant and the alleged injuries on the private part of the informant is the result of itching caused by nail of the informant herself and furthermore, the medical witness has not opined the age of the injuries aforesaid. Elucidating further it has been submitted that as per the prosecution case, the injuries on the fingers of the informant is said to have been caused by dagger, a sharp cutting instrument but the medical witness has opined that the aforesaid injuries have been caused by hard and blunt substance and in this view of the matter, the medical evidence on the record does not at all support the case of ravishment of the informant as alleged and the medical evidence is not at all inconformity with the prosecution case. It has further been contended that appellants Dilip Kumar Jha and Rajkumar Verma were arrested oh 29.3:1997 but they have not been examined by any doctor for the reasons best known to the prosecution and the appellants stand seriously prejudiced on this score. It has further been contended that the identification of the appellants as a participant in the alleged occurrence is doubtful and the evidence of the informant is inconsistent in respect thereof read with the testimony of other witnesses and there is inherent improbabilities, material contradictions and inconsistencies in respect thereof which equally belie the prosecution case regarding their involvement in the alleged occurrence. It has also been contended that the informant has deposed that she was going to the bus stand from Amar Chitra Mandir with one Rajesh when the appellants are said to have met her but said Rajesh has been deliberately not examined by the prosecution for the reasons best known to it and non-examination of Rajesh casts a cloud of suspicion to the very credibility of the prosecution case. Lastly, it has been contended that Section 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act has no application in the facts and circumstances of this case in view of the fact that there is no whisper either in the fardbeyan of the informant or in her evidence that the appellants were in knew of the fact that she is a member of scheduled tribe as the appellants had never asked her name. Thus, the impugned judgment is unsustainable.
8. Refuting the contention aforesaid it has been submitted by the learned Additional Public Prosecutor that PW 8, the informant, has materially corroborated the case of her ravishment by the appellants and the evidence of the medical witness is in strict conformity with her evidence regarding her ravishment as well as existence of injuries on her fingers and the Investigating Officer has also found incriminating articles at the said place of occurrence as well as trampling marks there. It has further been contended that the informant has also no animus to falsely implicate the appellants in this case as she was not known to them from before and there is also nothing on the record to show that Rajesh had also any ill will or grudge against the appellants for falsely implicating them in this case. Lastly, it has been submitted that the learned Court below has rightly relied upon the testimony of PW 8, the informant, read with the evidence of the medical witness and the objective finding of the Investigating Officer and thus, there is no illegality in the impugned judgment.
9. Let us now advert to the evidence on the record PW 8, Parvati Hansda, the informant, has stated her age as 14 years on 23.9.1997 when she has taken oath in this case. In the fardbeyan (Ext. 2) she has also stated to be 14 years old. PW 8 has described herself as a student of Class-X PW 10, the Investigating Officer, has deposed that he has inspected the Admission Register of Project High School, Bara Palasi of which the informant is a student and her date of birth stands mentioned therein which is 31.1.1982 and she is a student of Class-X of that school. PW 12 the medical witness, has deposed that 16th teeth in the upper jaw and 16th teeth in the lower Jaw of the informant have been found erupted. She has further deposed that as per X-ray Plate No. R-10 it appears that epiphysis of both iliac crests has appeared but they have not fused completely and X-ray Plate-9 shows the complete fusion of distal end of radius and on the basis of the findings aforesaid she has ascertained the age of the informant between 17 to 19 years. However, it is pertinent to mention here that the age of the Informant either as per her school Admission Register or as per the objective finding of the medical witness, has no relevancy in this case as it is not a case of consented sexual intercourse. PW 8, the informant, has deposed that she is the resident of Village-Sirsa and she had come to Dumka Town for witnessing a movie and she has witnessed a movie named 'Hiro No. 1' in Amar Chitra Mandir in the town of Dumka from 14.00 hours to 17.00 hours and after end of the show she was proceeding to her village and in the way the appellants met her and enquired from her as to where is she to go and on her reply that she is to go to her house, one of them asked her to accompany them her boarding the bus at Dumka bus stand and she proceeded ahead for the bus stand accompanied by them. Her evidence is further to the effect that they forcibly brought her to shanti Nagar instead of taking her to the bus stand and they forcibly brought her inside a place surrounded by boundary wall and on her protest one of them assaulted her by dagger causing bleeding injuries on the three fingers of her right hand and they forcibly felled her near the well inside the said boundary wall and they ravished her one by one from 17.00 hours to 23.00 hours and in that course appellant Dilip Kumar Jha had sexual intercourse with her on four occasions and appellants Ashok Raut and Rajkumar Verma each had sexual intercourse with her twice. She has also deposed that thereafter they took her out from that place intending to take her some where else but finding an opportunity she escaped from there and took shelter in the house of Uttam Mistri in Mohalla-Baganpara and in the following morning when PW 4 Uttam Mistri and the residents of locality came there she narrated the incident to them and has also shown the injuries appearing on her fingers and they brought her to the hospital for her treatment. In para 3 of her evidence she has deposed in the most clear and unequivocal terms that she came to know the name of the appellants in course of occurrence in their inter se conversation calling their names. She has also correctly identified all the appellants in the dock. In para 5 of her cross-examination she has deposed that she is known to Rajesh who is by profession a driver since long. In para 13 of her cross-examination she has deposed that when she came out from the hall of Amar Chitra Mandir, said Rajesh was with her and she was proceeding for the bus stand with him. But in para 5 of her evidence she has deposed that Rajesh did not accompany her for bus stand. According to the prosecution case, when she was proceeding towards the bus stand, all the appellants had met her and there is no whisper either in the fardbeyan of the informant or in her evidence on oath that said Rajesh was with her at that point of time. Therefore, the non-examination of Rajesh as a witness for the prosecution cannot be viewed as a lacunae of the prosecution case as well as suppressing of material evidence in this case by the prosecution and viewed thus, there does not appear any substance in the contention of the learned counsel for the appellant in respect thereof. In para 6 of her cross-examination, the informant has deposed that she was not known or acquainted with the appellants from before but she came to know them fully on the following day of the occurrence. In para 19 of her cross-examination she has deposed that she had come to know about the full name of the appellants by the persons who had assembled at Baganpara where she has taken shelter. This evidence of the informant in no way puts a question mark regarding knowing the name of the appellants in course of their conversations at the time of her ravishment. Therefore, it cannot be said that the identification of the appellants by the informant in course of ravishment by their name is doubtful and I see no justified reason to disbelieve the testimony of the informant in respect thereof. She has also deposed that she did not hand over the counterfoil of the ticket of witnessing the movie in question to the police as the said counterfoil has been lost. She has also deposed that she has not met any other acquainted person in the said Amar Chitra Mandir. The non-production of the said counterfoil ticket by the informant does not discredit her evidence that she has not gone to the said Amar Chitra Mandir to witness a movie. She has also deposed that she was well known of the fact as to where the bus stand is situated and she became apprehensive when the appellants were taking her towards other direction prior to her reaching Shanti Nagar and she raised alarms but none came to rescue her.
In para 18 of her cross-examination she has deposed that when she was forcibly brought inside the place having boundary wall she had raised alarms and by that time it has become dark and no persons of the vicinity of the place came there. There is no corroborative evidence of the solitary testimony of the informant regarding her ravishment. I have already stated above that inspite of her alarms, no persons of the vicinity came to the place of occurrence and prior to that she was assaulted by the appellants by dagger putting her under instant fear of grievous injuries or even death. Therefore, any corroborative evidence of the ravishment of the informant is totally ruled out in the facts and circumstances of this case and furthermore, such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. It is also worth consideration that ordinarily a woman more so a young unmarried girl will not stake her reputation by levelling a false charge concerning her chastity. A prosecutrix of sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated In material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and on more. What is necessary to that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. Therefore, ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation. In the case of State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658, the Apex Court has observed which runs thus :--
'To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it Is corroborated in material particulars as in the case of an accomplice to a crime..............The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realize that ordinarily a woman, more so a young girl, will not stake her reputation by leveling a false charge concerning her chastity."
However there are other circumstances on the record, which corroborate regarding the ravishment of the informant having taken place inside the said boundary wall and for that I will refer the evidence of PW 10, the Investigating Officer, who has deposed to have inspected the place of occurrence which is inside the boundary wall at Shanti Nagar, Dumka and the land belongs to one Bablu Verma and there is a well inside the said boundary wall having a path near the well. The Investigating Officer has deposed specifically to have found a torn white brassier at the said place of occurrence which he has seized in presence of PW 6 and PW 9, who have put their signatures on the seizure list (Ext.4) and Ext. 1/1 is the signature of PW 6 Krishna Prasad. PW 6 in his evidence has admitted his signature aforesaid on the said seizure list. PW 10 has further deposed to have found trampling marks by the side of the said road at the place of occurrence. In para 8 of her cross-examination, the informant has further deposed that at the time of the occurrence she was wearing jumper and salwar and the appellants had torn her clothes. There is a seizure list on the record having the signature of PW 6 and PW 9 thereon which shows that a brinjal coloured samiz having blood-stains thereon has been seized from the informant in the Sadar Hospital, Dumka. Therefore, the objective finding of the Investigating Officer coupled with the recovery of the bloodstained torn samiz of the informant and torn white brassier from the place of occurrence lends credence to the fact regarding the ravishment of the informant at the said place of occurrence. Furthermore even some of the hostile witnesses in their evidence corroborate the fact of the informant taking shelter in the house of Uttam Mistri having bleeding injuries on her three fingers of her right hand PW 3 has deposed that his wife told him that a girl has concealed herself in the house of PW 5 Krishna Mistri and in the morning she has gone from there. PW 4 has deposed that in the early morning when he was going to take tea he had found a girl weeping surrounded by several women and there was injuries on her right hand from which blood was oozing out and he had brought her to the hospital. PW 5 has deposed that between 5.30 hours and 6.00 hours on 28.3.1997 his wife awoke him and he went to the room in which coal is stored where she found a girl having concealed herself and on query she disclosed her name as Parvati Hansda and further told that she has taken shelter here as some of the boys are harassing her. He has also deposed that he had found inquires on the fingers of the said girl from which blood was oozing and thereafter he was turn out from his house. In para 4 of his cross-examination he has deposed that Santi Nagar is situated between Baganpara and Mochipara. It, therefore, appears that Shanti Nagar is contiguous to Baganpara where the informant had taken shelter after escaping from the clutches of the appellants. PW 7 who is the wife of PW 5 has deposed that in the early morning of 28.3.1990 she went to the room for bringing coal where she found a girl and she awoke her husband. She has also deposed that she has found injuries on the fingers of the said girl and her husband enquired from her in her presence and she reported that she has concealed herself in the house as some of the boys are harassing her. She has also deposed that said girl was turned out from her house and the said girl did not disclose to her the name of those boys. In para 5 of her cross-examination she has deposed that the said room is inside her house and probably the said girl had come in the said room by scaling the wall and she has found the girl sitting in the said room. It, therefore, appears from the evidence aforesaid of the hostile witnesses that they however1 support the later part of the prosecution case regarding taking shelter of the informant in the house of Uttam Mistri having bleeding injuries on her fingers of right hand.
10. The Injury report (Ext. 5) shows the existence of following injuries on the fingers of the right hand of the informant as found by Dr. C.P. Sinha on examination on 28.3.1997 at 7.00 hours :--
"(i) Lacerated wound 1/2" x 1/4" x skin deep on middle phalynx of right hand on middle finger.
(ii) Lacerated wound 1/2" x 1/4" x skin deep on middle phalynx of ring finger right hand.
(iii) Lacerated wound 1" x 1/4" x skin deep on distal phalynx of right little finger."
According to him, the age of injuries is within 24.00 hours caused by hard and blunt substance. PW 12, the medical witness, who has examined the informant on 28.3.1997 at 7.30 p.m. along with the members of the Medical Board, has deposed that no external injury was found over the person of the informant except on hand as mentioned by Dr. C.P. Sinha in the injury report (Ext. 5) PW 12, the medical witness, has further deposed that on internal examination of the private parts of the informant she has found the following injures :--
"(i) Lacerated wound of vaginal mucosa posteriorly 1/4" x muscle deep.
(ii) Lacerated wound on inner aspect of labia minora 1/8" x skin deep."
She has further deposed that nature of the injuries is simple caused by hard and blunt substance. Her evidence is further to the effect that her vagina reveals old rupture admitting two fingers easily and no spermatozoa was found in her vagina swab on pathological examination. She has also deposed that in view of the findings above in the opinion of the Medical Board the informant has probably been raped. In para 6 of her cross-examination she has deposed not to have found any matting of pubic hairs due to emission of semen or foreign hair on the person of the informant and fresh bleeding in her introitus. PW 8 has deposed in para 16 of her cross-examination that she has sustained scratches on her back when she was felled on the ground by the appellants. The medical witness has not found any other external injuries on the person of the informant except the three lacerated wounds In her findings mentioned above. The absence of the matting of pubic hairs, foreign hair or fresh bleeding coupled with the absence of scratches on her back and sperm, dead or alive, in her vaginal swab cannot outweigh the Injuries appearing on her private parts as deposed by the medical witness and it cannot be said that the aforesaid lacerated wounds on her private parts is the result of itching self-inflicted by the informant by her nail. Therefore, the medical evidence supports the fact of ravishment of the informant by the appellants and the medical evidence is inconforrnity with the prosecution case of her ravishment by the appellants. I do not see any basic infirmity in the evidence of the informant. Her evidence is trustworthy and there is a ring of truth therein. It has been observed by the Apex Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, that if the evidence of a victim does not suffer from any basic infirmity, and the 'probabilities factor' does not render it unworthy of credence, as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. It has also been observed therein by the Apex Court that Just like the testimony of the injured witness, that of the victim of sex offence is entitled to great weight. The learned Court below has meticulously considered all the facts, circumstances and materials on the record in the impugned judgment and has rightly come to the finding of the guilt of the appellants for the offence under Sections 376(2)(g) and 342 of the Indian Penal Code and I, therefore, see no reason to disagree with the finding of the guilt of the appellants.
11. According to the prosecution case, the informant was assaulted by dagger by one of the appellants when she has resisted in course of occurrence and as a result of that assault she had sustained injuries on the little, ring and middle fingers of her right hand. PW 8, the informant, has also deposed to have sustained injuries on her fingers caused by dagger. However, Ext. 5 shows that the aforesaid injuries are lacerated wounds caused by hard and blunt substance. Ext. 5 does not whisper regarding the basis of the aforesaid wounds being lacerated wounds caused by hard and blunt substance. Normally, in case of lacerated wounds their edges are torn, jagged, irregular and swollen or contused and the tissues are torn and the skin beyond the seat of injury is ecchymosed and when the lacerated wounds is caused by hard and blunt substance it is usually accompanied by a considerable amount of brushing of the surrounding and underlying tissues and has inverted and irregular edges. External hemorrhage in lacerated wounds is, as a rule, not extensive owing to the fact that the arteries are not cut evenly, but are torn across irregularly so as to facilitate clotting of the blood. Here in this case, even the hostile witnesses have found the injures bleeding in the early morning of the following day of the occurrence. Therefore, it appears that Dr.C.P. Sinha has erred in describing the injuries on the fingers of the informant as lacerated wounds. As per the evidence of the informant, the aforesaid injuries have been caused by dagger and in this view of the matter, the conviction of the appellants for the offence under Section 324 of the Indian Penal Code is equally sustainable.
12. The learned Court below has also found the appellants guilty for the offence punishable under Section 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the said Act) Sec-tion3(1)(xii) of the said Act runs thus :--
"3. Punishments for offences of atrocities.--(I) Whoever, not being a member or a Scheduled Caste or a Scheduled Tribe :
"xx xxxxxxxxxxxxxxxxxx
(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed.
"xx xxxxxxxxxxxxxxxxxx Shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine."
It is pertinent to mention here at the very outset that the informant was not known to the appellants prior to the occurrence and she claims to have learnt their name in their conversation inter se at the place of occurrence. The fardbeyan of the informant does not reveal the fact that the appellants had asked her name while taking her to the bus stand and in the way diverting to another route and bringing her at the place of occurrence in Shanti Nagar. Therefore, the appellants had no knowledge of the fact that the informant is a Scheduled Tribe girl. Furthermore to constitute the offence under Section 3(1)(xii) of the said Act, the prosecution has to establish firstly, that the appellants were in a position to dominate the will of a woman belonging to a Scheduled caste or Scheduled Tribe and secondly, uses that position to exploit here sexually to which she would not have otherwise agreed. Here in the facts and circumstances of this case, the ingredient of the offence under Section 3(1)(xii) of the said Act is completely absent. Here the case is of the ravishment of the informant by the appellants taking her to Shanti Nagar on the pretext of taking her to the bus stand for boarding a bus bound for her village. The appellants cannot be said in the fact and circumstances of this case to be in a position to dominate the will of the informant belonging to a member of the Scheduled Tribe and had used that position to exploit her sexually and there is not material on the record to show that the informant had agreed to* sexual exploitation or the appellants had any position of dominance over her. Therefore in the facts and circumstances of this case, no offence under Section 3(1)(xii) is at all made out against the appellants and viewed thus, the conviction of the appellants under Section 3(1)(xii) of the said Act is not sustainable.
13. The sentence imposed upon the appellants cannot be termed as severe in view of the fact that it is a case of gang rape of an unmarried girl, who is a student of Class X in the local school. Rape for a woman is a deathless shame and it must be dealt with as the gravest crime against human dignity. When a woman is ravished what is inflicted is not merely physical injury but the deep sense of some deathless shame. Therefore, in the facts and circumstances of this case, it cannot be said that ten years sentence is too severe. I therefore, see no force in the contention of the learned counsel for the appellants in the facts and circumstances of this case. The learned Court below has meticulously considered the evidence on the record in proper perspective and has rightly come to the finding of the guilt of the appellants for the offence under Sections 376, 342 and 324 of the Indian Penal Code and I see no illegality in respect thereof. However, the conviction of the appellants for the offence under Section 3(1)(xii) of the said Act is unsustainable and the same is set aside.
14. There is no merit in this appeal and it fails. The impugned judgment of the learned Court below is hereby affirmed subject to the modification as stated above.
The appeal is dismissed. The bail bonds of the appellants are cancelled and they are directed to surrender before the Court below to serve out the sentence. The learned Court below is also directed to take all coercive steps in accordance with law to apprehend the appellants for serving out the sentence.