Madhya Pradesh High Court
Chaman vs The State Of Madhya Pradesh on 13 September, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 13th OF SEPTEMBER, 2022
CRIMINAL APPEAL No. 1525 of 2015
BETWEEN:-
CHAMAN S/O LAXMAN, AGED ABOUT 23 YEARS,
OCCUPATION: LABOUR, R/O GRAM TEJPUR
GADBADI, DISTT. INDORE (MADHYA PRADESH)
.....APPELLANT
(MAHENDRA KUMAR SHARMA, LEARNED COUNSEL FOR THE
APPELLANT].
AND
THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THRU. P.S. AJK, INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHASKAR AGRAWAL, LEARNED GOVERNMENT ADVOCATE
FOR THE RESPONDENT/STATE.
This appeal coming on for orders this day, JUSTICE VIVEK
RUSIA passed the following:
JUDGMENT
Today this appeal is listed for consideration on an application under Section 389(1) of Cr.P.C.
This criminal appeal is preferred under Section 374 of the Cr.P.C. against the impugned judgment of conviction and order of sentence dated 28.03.2014 passed in Special Sessions Trial No. 96/2012 by Special Judge Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, Indore by
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which the appellant herein has been convicted for an offence under Section 376 (2) (f)/511, 377, 506-B of I.P.C. and section 3(2) (5) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, and sentenced to undergo 10 years R.I., 10 years R.I., 3 years R.I. and Life Imprisonment and further sentenced to pay a fine of ₹ 2,000/-, ₹ 2,000/- and ₹ 1,000/-, ₹ 1,000/- and to further undergo simple imprisonment for One year - One year months for want of failure to pay the fine amount.
The facts of the case in short are as under:
[2] On 19.08.2012 at about 09:30, the prosecutrix went to the temple for taking a meal. Chaman (hereinafter referred to as '' appellant'' for short) took her behind bushes near the Indrapuri Colony Shiv Mandir and committed rape and unnatural sex. Due to fear, the report was not lodged immediately to the police. After three days of the above incident, when the prosecutrix was standing along with her mother, the appellant was passing there, then she told that this appellant committed the bad act with her. Thereafter mother of the prosecutrix tried to catch the appellant but he ran away. Upon enquiry, she came to the name of the appellant that who is the brother-in-law of Maya, who resides in the same locality. [3] Upon complaint to the Police Station, Crime No.805 of 2012 under Section 376/511, 377 and 506 of I.P.C. was registered against the appellant as Ex.P/2. Police visited the place of occurrence and prepared a spot map (Ex.3). Victim was medically examined by Ex.12. Caste certificate of the victim was seized by Ex. P/5 and the appellant was arrested by Ex. P/9.
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[4] Upon completion of the investigation, the appellant was charge-sheeted before the jurisdictional criminal court who committed the trial to the Court of Sessions for hearing and disposal in accordance with the law.
[5] The trial Court framed charges under Section 376 (2)
(f)/511, 377, 506-B of I.P.C. and section 3(2) (5) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, against the appellant and proceeded on trial. The accused / appellant abjured guilt and entered into the trial.
[6] The prosecution in order to bring home the offences examined as many as 11 witnesses and brought on record various documents to prove its case. Statement of the accused / appellant was recorded under Section 313 of the CrPC in which he abjured the guilt and pleaded innocence and false implication, however, he has not produced any witnesses or exhibited any document in his defence.
[6] At the very outset, learned counsel for the appellant submits that the appellant has already undergone 10 years jail sentence, therefore, there is no need to assailing the conviction for the offence punishable under Sections 376 (2) (f)/511, 377, 506-B of I.P.C. So far as conviction section 3(2) (5) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, is concerned, the appellant has wrongly been convicted because it is not a case of the prosecution that the appellant committed the sexual offence with the knowledge that she belongs to reserve community. It is not a case of the prosecution that the appellant has committed rape as well as committed unnatural sex with the knowledge that the prosecutrix belongs to the schedule caste community. Hence,
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conviction is bad in law and liable to be set aside. Learned counsel for the appellant further submits that even offence under Section 376 (2) (f)/511, 377, 506-B of I.P.C. is based on the oral testimony of PW-1 otherwise medical report Ex.P/12 is completely silent about external injury and no marks of injury over the anal region. The delay in lodging the FIR has also been not considered by the Trial Court. However, he has completed the 10 years of the jail sentence, hence, he is not pressing the appeal for the offence punishable under Section 376 (2) (f)/511, 377, 506-B of I.P.C.
[7] The Government Advocate opposes the prayer made by the appellant by submitting that the appellant has committed the heinous offence with 8-9 year of girl. The appellant as well as prosecutrix are resident of the same locality, therefore, he was very much aware of the caste of the prosecutrix, hence, conviction under section 3(2) (5) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act has rightly been awarded to the appellant thus no interference is called for and appeal is liable to be dismissed.
We have heard learned counsel for the parties and perused the record.
[8] The Apex Court in the case of Ashrafi Vs State U.P. reported in (2018) 1 SCC 743 has held that Section 3(2) (5) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act can press into service only if proved that rape was committed on the ground that prosecutrix belongs to SC community in absence of any evidence proving the intention of appellant in committing the offence only she belongs to SC community his conviction under section 3(2) (5) of Scheduled
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Caste and Scheduled Tribe (Prevention of Atrocities) Act cannot be sustained. In the said case also the appellant therein has already undergone more than 10 years jail sentence for the offence punishable under Section 376 of I.P.C., and he has been directed to be released. A relevant portion of the above judgment is reproduced below:-
7. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has now been amended by virtue of Amendment Act 1 of 2016. By way of this amendment, the words ".......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe"
have been substituted with the words "........knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". Therefore, if subsequent to 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under Indian Penal Code which is punishable with imprisonment for a term of ten years or more, is committed upon a victim who belongs to SC/ST community and the accused person has knowledge that such victim belongs to SC/ST community, then the charge of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is attracted. Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act.
8. In the present case, unamended Section 3(2)(v) of the SC/ST Prevention of Atrocities Act is applicable as the occurrence was on the night of 8/9.12.1995. From the unamended provisions of Section 3(2) (v) of the SC/ST Prevention of Atrocities Act, it is clear that the statute laid stress on the intention of the accused in committing such offence in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community.
9. The evidence and materials on record do not show that the appellant had committed rape on the victim on the ground that she belonged to Scheduled Caste. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act can be pressed into service only if it is proved that the rape has been committed on the ground that PW-3 Phoola Devi belonged to Scheduled Caste community. In the absence of evidence proving intention of the appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the appellant under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained.
10. In the result, the conviction of the appellant under Section 3(2)
(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the sentence of life imprisonment imposed upon him are set aside and the appeal is partly allowed.
11. So far as the conviction of the appellant under Section 376(2)
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(g) IPC and other offences and sentence of imprisonment imposed upon him are confirmed. As the appellant had already undergone more than ten years, the appellant is ordered to be released forthwith unless he is required in any other case.
[9] In the present case also the prosecutrix as well as her mother have not stated that the caste of the prosecutrix was within the knowledge of the appellant before committing the crime. The prosecutrix even could not identify him at the time of the commission of the offence.
[10] As a result, Criminal Appeal is partly allowed. Conviction and sentence of appellant for the offence punishable under Section 376 (2) (f)/511, 377, 506-B of I.P.C. is affirmed. Conviction and sentence for the offence punishable under section 3(2) (5) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act is hereby set aside. The appellant shall be released forthwith if not required in any other case. The appeal is accordingly disposed of.
Record be sent back to the trial court.
(VIVEK RUSIA) AMAR NATH (KESHARWANI)
JUDGE JUDGE
praveen
Digitally signed by
PRAVEEN NAYAK
Date: 2022.09.16
17:10:08 +05'30'