Karnataka High Court
State Of Karnataka vs Mahantappa And Ors. on 14 September, 1995
Equivalent citations: ILR1996KAR2730
JUDGMENT Kumar Rajaratnam, J.
1. This is an appeal preferred by the State against the order passed by the learned Special Judge at Raichur, in Special Atrocities Criminal Case No. 1 of 1990, acquitting the respondents- accused of the offences under Sections 376, 506 Part II IPC and under Section 3(2)(v) of the S.C. and ST. Prevention of Atrocities Act, 1989.
2. The facts very briefly are:
Mariyawa, PW-1, who is the Harijan woman, the victim of rape, sometime about 15 days prior to 2.1.1990 (the date of occurrence) returned from her parents' house at Talikere to Mukta Rampur for the purpose of 'Karthika' festival. She was married and was happily living at Mukta Rampur along with her husband and had come to her parents' House for the "Karthika' festival. On 2.1.1990 at about 5 p.m. PW-1 had gone towards 'Hire Halla' for washing her clothes. While she was passing the banks of 'Hire Halla', she noticed that both the accused sitting near the 'Kangina Podhi'. When she came close to the 'Halla', both the accused caught hold of her and accused No. 1 dosed her mouth using his hand and put his other hand over her neck. Accused No. 2 threatened PW-1 with an axe. Both the accused took PW-1 towards the 'Kanagina Podhi'.
3. The first accused - raped her and the second accused also committed rape. The victim was prevented from raising alarm. During the struggle it is alleged that Accused No. 1 had sustained scratch mark on his cheek. At about that time PW-4 came near the scene of occurrence. Seeing P.W.4 the accused ran away threatening PW-1 that she should not disclose the incident which had taken place. PW-1 told PW-4 about the rape committed on her both the accused. He directed her to go to her house and tell her parents about the incident. PW-1 went to the house. On the way, she met one Hanumappa and Shivabasawa and told them about the incident. She returned to the house in a shocked state. However, her parents were not there and had not yet returned to the house. She went to the house of the first accused and poured her grief and agony to their female members. The female members in the first accused's house stated that since no male members are present in the house, they will inform the male members on their return. She went back to her parents' house. She informed her parents about the incident. Parents decided to consult their cousin one Durgappa - PW-3, who resides at Huliyur village. After seeing PW-3, all of them went to Thavargere police station on 3-1-1990 at about 5.30 p.m. and lodged the complaint with the police which is Ex P-1. The S.H.O. registered the case in Crime No. 1/90. He sent express report to the Court and his other superior officers and he arranged to send PW-1 to the Lady Medical Officer, Kushtagi, with a memo. The Lady Medical Officer, Kushtagi, PW-11 examined the prosecutrix, PW-1 at about 8 p.m. on the same day which is marked at Ex P-10. In her evidence the Doctor, PW-11 found the following external injuries:
"Abrasion over the middle of right thigh 1/8" X 1/8", external genetalia was normal, no discharge, no bleeding, no injuries at vagina."
He also opined that the rape is not excluded.
4. The S.H.O. continued with his investigation and also searched for the accused. In the meanwhile, C.P.I. took up further investigation. On the next day ie., on 4.1,1990 the accused were arrested. During the course of investigation, panchas and spot mahazar were also prepared. The Investigating Officer recorded the statement of the accused and admissible portion is marked as Ex. P-17. The accused showed the place, where the axe MO-8 was hidden which was seized by the Investigating Officer under Ex P-9. The Investigating Officer continued with the investigation. After recording the statements of medical officers, who examined the victim and others and after completing the investigation, he filed the charge sheet against the accused.
5. The prosecution relies on the testimony of PW-1 with respect to the occurrence. PW-2 is the mother of PW-1. PW-2 in her evidence states that her husband and herself had gone out and that PW-1 on finding that her mother PW-2 was not in the house, had gone to call PW-2. PW-2 the mother of PW-1 also states that her husband had gone Kustagi and had returned to the house in the night. It is only after that both the father and the mother of PW-1 (PW-2) were informed of the incident that they went to see Durgappa PW-3 the relation of PW-1 to seek his advice. The evidence of PW-3 who is a dose relation of PW-1 is to the effect that PWs1 and 2 had come to visit him at 11 a.m. PW-3 also admits in his evidence that PW-1 had told him that both the accused had committed rape on her on the earlier day. He accompanied PW-1 to the police station to lodge the complaint. He also admits that he reached Thavargere police station between 2 and 3 p.m. PW-3 has been treated hostile as he did not support the rest of the prosecution case,
6. PW-4 who, according to the prosecution, heard accused No. 2 shouting at PW-1 and later PW-4 who stated to have seen PW-1, did not support the prosecution case, when he entered the witness box and was treated as a hostile witness. PW-5 who, stated before police that he saw Accused 1 and 2 armed with axe, running away from Hire Halla did not support the prosecution and was treated hostile. PW-6 was also treated hostile. However, nothing much turned on the evidence of PW-6. PW-7 is also treated hostile. He is a witness, who claimed before police that PW-1 complainant told him after the occurrence about the rape on her. PW-8 was also treated hostile and did not support the prosecution case. He is a dose relation of Accused No. 2. PW-8 is the witness to whom PW-1 went to complain about the conduct of the accused. Since she is a close relation to Accused No. 2, she did not support the prosecution and was treated hostile. PW-9 is a witness who attested the panchanama with regard to the place of occurrence. He is also witness for the recovery of MO-3 axe on the information given by Accused No. 2, He also turned hostile- A suggestion by the prosecution to PW-9 was that in view of his dose relationship with Accused No. 1 he did not support the prosecution case, PW-10 also turned hostile. P.W.10 is the second panchanama witness in Exs. P-8 and 9. PW-11 is the doctor who examined PW-1 at about 8.15 p.m. on 3.1.90. The doctor noticed on the Saree and Langa which she was wearing the evidence of semen stains. The doctor also noticed the external injury and described it as an abrasion over the middle of right thigh 1/8" X 1/8". The doctor stated that the swab and smear taken by her, were sent for Chemical Examination. The doctor opined that rape is not excluded. She issued a certificate Ex P-10. She also opined that PW-1 might have had sexual intercourse about 24 hours earlier to her examination. PW-12 is the doctor who examined the accused on 4.1.1990 at about 5 p.m. The Medical Officer had noticed the following injuries on A:2:
"Abrasion over the left cheek 2" in length and 1/8" in width, stains on Dhoti and underwear were found. There were no injuries noticed on external genital organs or over the penis, no clinical evidence veneral disease. Pubic hairs, Dhoti, and Nicker were preserved for sending it to Chemical Examiner."
The Chemical Examiner's report was to the effect that the presence of semen test was positive over nicker and Dhoti. He also gave his opinion that probability of rape cannot be ruled out. He also examined Accused No. 1 and found an abrasion over the nape of neck measuring 1" X 1/8", no stains were noticed on Dhoti and nicker, no evidence of veneral disease noticed. He also opined the abrasions on the neck or cheek is likely to be caused by scratch marks with finger nails.
7. However, the contents of the Chemical Examiner's report had not been put to the accused while he was being questioned under Section 313 Cr.P.C. and has to be eschewed. In this regard we rely on the decision of the Supreme Court, reported in SHARAD v. STATE OF MAHARASHTRA, , wherein it was held as follows:
"142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat, this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra this Court held thus:
"The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him."
8. PW-15 was the S.H.O. from 1987 to April 1991 at Thavargere Police Station. He recorded Ex P-1, registered a case in Crime No. 1/90 under Section 376 and 506 IPC. He also sent the victim PW-1 to the Lady Medical Officer, Kustagi, for examination through PC 984. PW-18 took up investigation from PW-15 and arrested Accused 1 and 2 and recovered axe MO-3 on the information given by Accused No. 2. PW-18 also sent the accused persons to the Medical Officer, Kustagi, and handed over the investigation to PW-19. PW-19 on transfer, handed over the investigation to PW-20. PW-20, after completing the investigation filed the charge sheet,
9. The learned trial Judge acquitted the accused of all the charges on the ground that the case of the prosecution rested solely on the evidence of PW-1 prosecutrix, her mother PW-2 who is not an eye witness and other medical evidence. The Trial Court further found certain minor contradictions in the evidence of PW-1 and also the fact that she had not sustained any injuries during her struggle against the accused. The learned Judge noted that she did not state anything about the injuries on her thigh portion during the course of her struggle in evidence. The trial Court also found certain minor contradictions in the evidence with respect to her being gagged by the accused. The Trial Court also found that that the conduct of PW-1 approaching the female members of the second accused was strange and her evidence was also not corroborated according to the Trial Court. The Trial Court was impressed by the absence of any marks of violence on PW-1.
10. The Trial Court however, reiterated that the evidence of victim is in the nature of an injured witness and if the conviction is based on the evidence of prosecutrix without any corroboration, it will not be illegal on the sole ground. The Trial Court referred to various Judgments of the Supreme Court and stated that PW-1 was a competent witness and if her version can be trust-worthy there is no need for corroboration. The learned Judge also found that apart from an injury on the right thigh of PW-1 there was no other external injuries. He also noticed that evidence of the doctor PW-12 does not in any way support the prosecution. He noticed the contradictions in the evidence of PW-1 and has held that her evidence is far from satisfactory. The fact that she was gagged by the accused, according to him, is not probable. The learned Trial Judge also found that people usually go to the Halla' between 10 a.m. and 1 p.m. and generally they are accompanied by other ladies. The fact that PW-1 went alone, according to the learned Judge, also makes her version improbable. The learned Judge was also impressed by the fact that the prosecutrix had given an earlier complaint against one Hujji Veerappanna about the attempt made by him to molest her. Learned Judge also held that the delay has not been satisfactorily explained by the prosecution. He was also of the opinion that the delay created a doubt and held that the filing the complaint with due deliberation cannot be ruled out. The delay being a married lady, according to the Trial Court, used to sexual intercourse and that by itself would not lend assurance. He also concluded that the existence of semen in doth of accused or victim lady by itself would riot be a circumstance to lend assurance. He concluded that the evidence of PW-1 is full of infirmities and discrepancies and her statement did not inspire confidence. Consequently the Trial Court gave the benefit of doubt to the accused and acquitted them of all the charges,
11. The learned State Public Prosecutor relied heavily on a recent Judgment of the Supreme Court, reported in STATE OF RAJASTHAN v. SHRI NARAYAN, 1992 Cri L.J. 3655. The Supreme Court referred to an earlier Judgment and held as follows:
"In State of Maharashtra v. Chandra Prakash Kewal Chand Jain, this Court had emphasized that a woman who is a victim of rape is in the same position as an injured witness and her evidence should receive the same weight. This is what this Court, observed in that case (para 16 of Crl.LJ):
"A prosecutrix in a 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 and her evidence must receive the same weight as it attached to an injured in cases of physical violence.' The learned Judge in the High Court rejected her testimony for wholly unacceptable reasons, Firstly, he pointed out that because the 'bada' was situated at a short distance from the western thoroughfare it would not be possible to believe that in the days of festivities when there is considerable movement on the thoroughfare a person would try to have forcible sex with a woman. It must be remembered that the husband had gone out and the prosecutrix was all alone in the 'bada'. The accused came suddenly from behind, took her by surprise, threw her on the floor and had sexual intercourse with her. It seems that the accused was lust ridden and seeing the prosecutrix alone lost control over himself and took her by force. There is nothing surprising in the conduct of a man who is lust-ridden in behaving in a carefree manner trying to make most of the situation of the prosecutrix being alone and helpless. There is nothing inconceivable about the accused committing rape with the prosecutrix merely because he happens to be a relative of the latter. Therefore, the line of reasoning adopted by the learned Judge in the High Court is difficult to accept. In addition to her own testimony there is the testimony of PWs 4 and 7 both of whom had reached the place of occurrence on hearing the shouts of the prosecutrix. These two persons also did not have any axe to grind against the accused and they had no reason to be actuated by malice against him. They are natural witnesses being neighbours and in the absence of strong reasons to disbelieve their versions, it is not possible to ignore their evidence as has been done by the learned Judge in the High Court. Further corroboration is to be found from the evidence of Dr. Soni. He saw abrasions which, as pointed out earlier, corroborate forcible taking. Teeth marks on the breast also provide corroboration, The fact that the vagina was swollen also goes to show that she was forcibly taken against her wish. The presence of 90% dead and 10% live sperms has been hotly contested by the defence. Considerable importance has also been given thereto by the learned Judge in the High Court. The learned Judge observes that since prosecutrix was a married woman and her husband had come only a few days ago to celebrate Diwali with her, the possibility of she having sexual intercourse with her husband cannot be overlooked. Thus far there is no difficulty. We may assume so although no such question was put to either the prosecutrix or her husband in the course of cross examination. But it is not possible to believe that when a married woman has sex with her husband in the privacy of their bed-room she would suffer abrasions on her body and the vaginal walls. The abrasions on the vaginal wall and the cosequential inflammation of the labia majora as well as minora and the clitoris provide corroborative evidence that someone had forcible sex with her. The learned Single Judge was, therefore, wrong in brushing aside this important objective evidence tendered by the prosecution. May be the torn clothes were worn once again by the prosecutrix when she and her husband went to lodge the complaint two days later or the police made out such panchanama. The same can be said about the attachment of the dhoti also. That by itself does not provide strong reason to doubt the prosecution's story regarding the incident. True it is that the complaint was lodged two days later but as stated earlier Indian society being what it is the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a married woman, A woman and her relatives have to struggle with several situations before deciding to approach the police, more so when the culprit happens to be related. In such cases, therefore, the delay is understandable and hence merely on that account the prosecution version cannot be doubted.
In the result we find it difficult to accept the line of reasoning adopted by the learned Single Judge in the High Court in regard to the commission of the crime in question. We think the learned Counsel for the appellant is right in submitting that the totally wrong approach adopted by the learned Single Judge in the High Court has resulted in miscarriage of justice. We are, therefore, compelled to interfere."
12. The learned Public Prosecutor also relied on another Judgment of the Supreme Court to contend that if the testimony of PW-1 is reliable, cogent and convincing and can be safely accepted and relied on, there is ho necessity for corroboration. In case of STATE OF MAHARASHTRA v. CHANDRAPRAKASH KEWLCHAND JAIN, , the Supreme Court has stated in clear terms on the nature of evidence of prosecutrix as follows:
"16. A prosecutrix of a 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 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 no more, What is necessary is 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. We have, therefore, no doubt in our minds that 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. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:
It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary.' With respect, the law is not correctly stated. If we may say so, it is just the reverse. 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,
17. We think it proper, having regard to the increase in the number of sex-violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. 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 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. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. 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 realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity,"
13. We are afraid that the learned Trial Judge has misdirected himself on the question of law and on the question of facts before him. The approach of the learned Trial Judge was to look for corroboration of the evidence of PW-1 and the learned Judge was carried away by the fact that many witnesses turned hostile to the prosecution. Our concern will be to evaluate the evidence of prosecutrix along with the medical evidence to determine whether the prosecution has proved the guilt of the accused beyond reasonable doubt. It is not open to us to speculate as to why the witnesses turned hostile. We are also not impressed with the reasoning of the learned Trial Judge with respect to the delay in giving the complaint to the police. The learned Judge failed to note that in rape cases there is bound to be a grave stigma to the prosecutrix which may sometimes result in the break down of the marriage itself. The offence of rape involves social implications and therefore, women tend to consult their parents and elder members of the society before launching the prosecution. It is not necessary in all cases of rape that the woman rushes to the police station and launches the FIR. It all depends on the facts of each case and circumstances leading to the incident. However, suffice to say that in rape cases, unlike in murder cases, the delay in launching the FIR should be viewed in the back ground of a conservative society. This is specially so in cases of down-troden people living in remote areas.
14. With the above statement of law and the nature of evidence of PW-1, we proceed to analyse the evidence of prosecutrix. Her evidence is cogent, convincing and natural. The prosecutrix has explained the delay in giving the first information report. She states in her evidence, that she went back to her parents' house, however, her parents were not there and had not yet returned to the house. She went to the house of first accused and poured her grief and agony to the female members. The female members in the first accused's house stated that since no male members are present in the house, they will inform the male members on their return. Then she went back to her parents' house and informed her parents about the incident. The parents of PW-1 decided to consult their cousin one Durgappa PW-3, who resides at Huliyapur village. After seeing PW-3, all of them went to Thavargere police station on 3.1.1990 at about 5.30 p.m. and lodged the complaint with police which is Ex P-1, If the delay has been properly explained and in this case we do not doubt the explanation, we see no reason why reliance could not be placed on the evidence of PW-1.
15. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. It is not necessary that her evidence should be corroborated. The degree of proof required need not be higher than that of an injured witness. We also feel, having regard to the increase in the number of sex related cases in the recent past, particularly with respect to molestation and rape, testimony of a victim does not require corroboration except in the rarest of rare cases. To insist on corroboration 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 is also permissible for us to take judicial notice that rape is committed generally in a clandestine manner. In these circumstances to require eye witness to corroborate the act of rape would be adding insult to injury.
16. The other submission made by the learned Counsel is that the Courts must be slow to interfere with an order of acquittal by the Trial Court. If two views are possible the accused will be entitled to the benefit of doubt.
We are also conscious of the fact that in an appeal against the acquittal the Court will be slow to interfere with the verdict unless for compelling reason. When two views are possible the benefit must undoubtedly go to the accused. There is no doubt that the Courts will be slow to overturn an order of acquittal and will have to take into account the advantage which the Trial Court has had in seeing witnesses in the witness box. It is well settled that to reverse an order of acquittal it must be only on the ground that the prosecution has proved the case beyond all reasonable doubt to the hilt.
17. It the Trial Court has not appreciated the law and the facts correctly and has relied upon minor contradictions in the prosecution case it would be the duty of this Court to state the law correctly and to reverse such a finding. From this point of view we have examined the evidence of PW-1 and the medical evidence. We will also have to consider whether there is any unexplained delay in launching the first information report. If we are satisfied that reliance can be placed on the evidence of PW-1 and that there has been a satisfactory explanation of the delay then the Court will necessarily have to conclude that the charge has been proved beyond reasonable doubt.
18. The Trial Court apparently got carried away on the question of corroboration of the evidence of the prosecutrix. We have stated earlier that the testimony of prosecutrix has been corroborated with the testimony of her mother PW-2 and along with the evidence of the doctor. With respect to the contents of the Chemical Examiner's report we have not placed any reliance on it as the contents of the report was not put to the accused under Section 313 of the Code of Criminal Procedure. Notwithstanding this, there is sufficient medical corroboration of the testimony of PW-1 We have held that the evidence of PW-1 is reliable and cogent and we do not find any flaw in her evidence except some minor contradiction which does not affect the case. On a perusal of evidence of PW-1, we find that there is a ring of truth in her testimony and her evidence has been amply corroborated by medical evidence.
19. Mr. Lokesh, the learned Counsel for the respondents, submitted that number of witnesses have turned hostile and therefore, the Court cannot rely on the evidence of PW-1. When certain witnesses turn hostile, it cannot by itself be a ground for an acquittal. Notwithstanding the fact that certain witnesses turned hostile, if a reliance can be placed on the testimony of PWs 1 and 2, there can be no occasion to hold that the accused had not committed the offence. On the question of hostile witnesses in , Sheikh Zakir v. State of Bihar, the Supreme Court has held as follows:
'It is not quite strange that some witnesses do turn hostile but that by itself would not prevent a Court from finding an accused guilty if there is otherwise acceptable evidence in support of the prosecution. In the instant case, both the Trial Court and the High Court have believed evidence of the prosecutrix and the evidence of the other prosecution witnesses who had been examined at the trial."
The Supreme Court further held as follows:
"In so far as non production of a medical examination report and the cloths which contained semen, the Trial Court has observed that the complainant being a woman who had given birth to four children it was likely that there would not have been any injuries on her private parts. The complainant and her husband being persons belonging to a backward community like the Santhal tribe living in a remote area could not be expected to know that they should rush to a doctor. Infact the complainant has deposed that she had taken bath and washed her clothes after the incident. The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved. In this situation the non production of a medical report would not be of much consequence if the other evidence on record is believable. It is, however, nobody's case that there was such a report and it had been withheld."
20. We will now come to the charge under Section 3(2)(v) of the SC and ST Act 1989. No doubt PW-1 is a Harijan. The question that arises for consideration is, whether there is a strict liability from a plain reading of the statute. It is dear that the object of the Act was to protect Scheduled Castes and Scheduled Tribes people from being the victims of atrocities on the ground that they belong to the said caste. It was never the intention of the legislature to bring a person within the purview of this Act, merely on the ground that the victim is a Harijan. There must be the necessary mens-rea that the act committed by the accused has been done on the ground that the victim belongs to Scheduled Caste community. If there is no evidence forthcoming from the prosecution that the accused were in the knowledge that the victim belong to the said community and that the criminal act was done on the ground that the victim belongs to SC then it would not be permissible to invoke the Act.
20(a). The question that arises for consideration is, whether any offence is made out under Section 3(2)(v) of SC and ST (Prevention of Atrocities) Act, 1989. This again in our view depends on the facts of each case.
21. The preamble of the said Act reads as follows:-
"An Act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribe, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto."
22. There is no doubt that the victim happened to belong to the Scheduled Caste. However, there is nothing on record to show that the accused knew that she belonged to the Scheduled Caste. It is also not in dispute that the accused No. 2 is also a member of the Scheduled Tribe.
Section 3(2)(v) reads as follows:
"3. Punishments for offences of atrocities.
(2) Whoever not; being a member of a Scheduled Caste or a Scheduled Tribe.
xx xx xx
(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."
The words "on the ground that such person is a member of the Scheduled Caste" clearly implies that there must be an element of mens-rea and if there is no mens-rea with respect to the fact that the accused committed the offence against the prosecutrix knowingly she belongs to the Scheduled Caste, it would be difficult to hold that Section 3(2)(v) of the Act can be applied. It all depends on the facts of each case since there is no strict liability.
In NATHULAL v. STATE OF M.P., AIR 1966 SC 45, the Supreme Court has held as follows:
"Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication included mens rea, The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof."
23. Since no evidence was placed before the Court that the accused were conscious of the fact that the act was committed knowing that the victim to be a Scheduled Caste, the Act will not apply to the facts of this case and the accused will have to be acquitted for an offence under Section 3(2)(v) of the Act.
24. The delay in launching the FIR has been satisfactorily explained, the injuries found on the accused along with the injuries found on PW-1 also corroborates the evidence of PW-1. In these circumstances, we have no hesitation in allowing this appeal and to reverse the finding of the Trial Court. We therefore, hold that the accused are guilty of the offences under Section 376 and 506 IPC.
25. On the question of sentence, we have heard the elaborate arguments from the learned Counsel for the respondents-accused. It is submitted that the accused are of tender age. The occurrence is said to have taken place in the year 1990. Taking all these factors into consideration, we feel the ends of justice will be met if the accused are sentenced for a period of two years R.I. for the offence punishable under Section 376 IPC and one year R.I. for the offence punishable under Section 506 IPC, the sentence shall run concurrently, and to pay a fine of Rs. 5000/- each in default to undergo R.I. for six months, the fine shall be paid in the trial Court within a period of one month from this day, failing which default sentence shall prevail, the accused shall surrender and serve the remaining portion of the sentence.
On the payment of fine, the Trial Court will issue notice to PW-1 and PW-1 Mariyawa will be entitled to receive the said sum as compensation.
26. We acquit the accused and uphold the acquittal for an offence under Section 3(2)(v) of the SC and ST (Prevention of Atrocities) Act, 1989. The appeal is allowed in part.
ORDER ON STAY dated 14.9.1995 After pronouncement of the order allowing the appeal in part and convicting the respondents accused, the learned Counsel for the respondents made an application under Section 389 read with Section 482 of the Code of Criminal Procedure for suspension of sentence to enable the respondents to take up the matter in appeal to the Supreme Court. In the circumstances, we think it is proper to suspend the sentence for a period of 8 weeks from to-day, I.A. Shall stand disposed off accordingly.