1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Kalu Ram @ Satyawan. vs. State of Rajasthan. D.B.CRIMINAL APPEAL NO.927/2004 UNDER SECTION 374 CrPC AGAINST THE JUDGMENT AND ORDER DATED 3.9.2004 PASSED BY SHRI B.L. MEENA, SPECIAL JUDGE, SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, HANUMANGARH IN SESSIONS CASE NO.4/2003. DATE OF JUDGMENT ::: May 15th 2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. CHAND MAL TOTLA, J. Mr.HSS Kharlia, for the appellant. Mr.JPS Choudhary, Public Prosecutor. - - - - - BY THE COURT (PER HON'BLE MR.PRAKASH TATIA, J.): Heard learned counsel for the parties. This appeal is against the judgment and order 2 dated 3.9.2004 passed by the Court of learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), Hanumangarh in Sessions Case No.4/2003 by which the learned trial court convicted the accused appellant as under :- Offence Punishment Section 3(i)(ii) To undergo imprisonment for life with of SC/ST (POA) a fine of Rs.1,000/- each and in Act, 1989 default to further undergo 2 months' rigorous imprisonment. Section 376 IPC To undergo rigorous imprisonment for 10 years with a fine of Rs.500/- each and in default to further undergo 1 month's rigorous imprisonment. Section 323 IPC To undergo rigorous imprisonment for three months. As per the prosecution case, on 19.11.2002 at 7:15 PM, complainant Mohan Lal s/o Kana Ram Meghwal submitted a written report (Ex.P/1) in the Police Station Bhirani, District Hanumangarh, wherein he stated that he is by caste Meghwal and, therefore, is a member of Scheduled Tribe. He further stated that he took an agricultural land of one Chaju Ram Hudda (Jat) for cultivation on sharing basis. On 16.11.2002, he was in above agricultural field and his daughter Saroj aged 3 13 years came to the agriculture field to take fodder. When she was returning to her house from the agricultural field at 5:30 PM, accused Kalu Ram s/o Mani Ram Sunar forcibly took her in an adjoining agricultural field. Mahaveer Singh s/o Mani Ram and Pappu s/o Madu Ram were already there. There, the girl was raped by appellant Kalu Ram and Pappu & Mahaveer kept the girl in control. The complainant, while taking a round in the agricultural land taken by him for cultivation, heard some voice of weeping of girl, then he went to the agricultural field and found Kalu Ram with the girl in an objectionable position and found the girl controlled by Pappu and Mahaveer. Upon seeing the complainant, the three accused tried to run away. The complainant tried to beat Kalu Ram, upon which Pappu and Mahaveer with Kalu Ram gave beating to him and ran away. It is also stated that about 6-7 months before this incident, the same girl was raped by Kalu Ram and the girl was threatened that in case, she will tell this incident to her parents, accused will kill girl's mother and father. Because of fear, the victim did not inform about the first incident to her parents. It is also stated that the victim is suffering from the disease of Fits and at the time of the incident, he suffered attack of Fits and became unconscious. She was brought to the house by her parents and after 2 days, when the victim became conscious, she told about the 4 incident of rape. By that time, the accused had already lodged one FIR against the complainant with the allegation that the complainant had killed one boy (Kalu Ram accused) of the accused party. The accused party threatened the complainant that in case, he will lodge any FIR (for the second incident of rape) against them, then they will kill the complainant and his family members. It is also alleged that the boys (accused) are moving around the house of the complainant and they used to abuse him by their caste name with filthy language. It is also alleged that he is being subjected to this torture because of the reason that he is by caste Harijan and the family members of the boys are influential persons. On the basis of this report, FIR no.203/2002 was registered on 19.11.2002 and a case under Section 376 and 323/34 IPC and under Section 3(i)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the SC/ST Act') was registered. During investigation, site was inspected and site map (Ex.P/13) and report (Ex.P/13A) were prepared. The victim was examined by the doctors. Her garments were recovered and sealed and were sent to the FSL for report. The complainant was also got examined from the medical jurist. Accused Kalu Ram was arrested and his medical examination was conducted and report Ex.P/6 was 5 obtained. Statement of the witnesses were recorded under Section 161 CrPC and after collecting all evidence, challan was filed against accused Kalu Ram alone under Sections 376 and 323 IPC and under Section 3(ii)(v) of the SC/ST Act. Since the case was triable by the Special Judge, therefore, the case was committed to the Court of Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Attrocities Act), Hanumangarh. Charges were framed under the aforesaid sections against the accused which were denied by him and he sought trial. At the trial, the prosecutrix PW7 Saroj ; complainant PW1 Mohan Lal, father of the victim ; PW2 Krishna, brother of the complainant ; PW3 Ram Chandra ; PW5 Omvati, mother of victim ; PW6 Vinod and PW4 Shri Rajesh Singhal, the then Judicial Magistrate, Nohar and other witnesses were examined. On 9.4.2003, an application was submitted by the learned Public Prosecutor under Section 319 CrPC for taking cognizance against the accused Pappu and Mahaveer, upon which cognizance was taken against Mahaveer and Pappu for committing offence under Section 376/109 IPC and Section 3(ii)(v) of the SC/ST Act. Accused Pappu and Mahaveer were also charged with the above sections who denied the charges and sought trial. The witnesses, referred above, who were earlier examined, were resummoned for evidence. The 6 examination-in-chief of the above witnesses was kept as it is, as wished by accused Pappu and Mahaveer. However, they cross examined the above witnesses. Thereafter, other witnesses PW8 Dr. Subash Rajput, PW9 Beghraj, PW11 Shishram Head Constable, PW10 Sunil Kumar, SHO, PS Bhirani and PW12 Rajesh Singh, then C.O., PS, Nohar were examined. Relevant documents were also produced by the prosecution. The statements of accused persons were recorded under Section 313 CrPC wherein accused persons denied the allegations and stated that the witnesses gave statement against them because of old rivalry. They denied commission of offence by them and it is stated that before the incident, accused Kalu Ram's elder father's daughter Manju's marriage was there and at that time, on 14.11.2002, there was feast (Bandola) and there, complainant's brother Krishna facing towards accused's sister started urinating for which he was reprimanded and because of that enmity, complainant Mohan Lal, his brother Krishna, Ram Chandra etc. kidnapped accused Kalu Ram and gave him beating. Mohan Lal, Krishna, Ram Chandra were kept in police custody for two days. In counter blast to that criminal case, the complainant has lodged this false case against the accused. In defence, witness DW1 Mangi Ram was examined and accused Kalu Ram himself gave his statement on oath as DW2. 7 The trial court, after appreciation of evidence, by the impugned judgment, convicted and sentenced the accused appellant Kalu Ram alone as mentioned above by judgment and order dated 3.9.2004. However, the other two accused Pappu and Mahaveer were acquitted from the above charges. Hence, this appeal by appellant Kalu Ram. Learned counsel for the appellant vehemently submitted that the present case is a concocted case and is only counter blast of the accused party's lodging case against the complainant and his brother. It is submitted that the prosecutrix herself levelled false allegation that she was raped by the accused appellant before this incident and for that, no FIR was lodged and the appellant was not prosecuted. In view of the above, the complainant party and the prosecutrix, when levelled false allegations against the appellant of committing offence of rape before the present crime, then they certainly can concoct false case against the appellant because of enmity. It is also submitted that the witnesses are interested witnesses only and, therefore, they depose falsely against the appellant. The complainant involved two innocent persons in this very case and they have been acquitted honourably by the trial court and, therefore, in view of the above conduct of the complainant, there is every possibility 8 of involving the appellant in heinous crime because of enmity as the complainant has no respect for the truth. Learned counsel for the appellant submitted that in fact there is no allegation and evidence so far as commission of offence under Section 3(ii)(v) of the SC/ST Act is concerned. It is not the case nor alleged by any of the witnesses either the prosecutrix or her father or her uncle that the appellant has committed offence punishable under Sections 376 and 323 IPC because of the fact that the prosecutrix and her family members are members of Scheduled Tribe. In view of the above, the conviction of the appellant under Section 3 (ii)(v) of the SC/ST Act deserves to be set aside. Learned Public Prosecutor vehemently submitted that the girl is of the age of 16 years as per the evidence of the doctor and as per the statement of the complainant, she was of the age of 13 years. It is also submitted that there is no reason to disbelieve the statement of the prosecutrix and her testimony has not been shattered in her cross examination and finds full support from medical evidence. The guilty persons can be convicted only on the basis of sole testimony of the prosecutrix provided it is trustworthy. In this case, the prosecutrix's statement is fully corroborated by the medical evidence. The plea of the accused that the allegation against him is because of the old rivalry, 9 cannot be believed in view of the positive evidence of the prosecutrix supported by the medical evidence. It is submitted that because of rivalry, one will not ruin herself and, therefore, the prosecutrix could not have stated in the Court of law that she has been molested by the appellant. It is also submitted that the medical evidence could not have been created and it is not the case of the accused that the evidence has been created by the doctor. It is also submitted that the statement of other witnesses who are relatives cannot be rejected on the ground of relation particularly in the matter where the honour of the girl is involved and father gives statement. We considered the submissions of learned counsel for the parties and perused the reasons given by the trial court in the impugned judgment as well as the entire record. As per the written report (Ex.P/1) submitted by the complainant, the incident occurred at 5:30 PM on 16.11.2002. At the time of commission of offence, the complainant reached on the spot and he found accused appellant involved in the crime of committing rape upon the prosecutrix. He tried to save the prosecutrix and started beating Kalu Ram, then all three accused persons gave beating to him and they ran away. He 10 stated that the girl is suffering from the disease of Fits and she became unconscious. She was taken to the house and she came in senses after two days and, therefore, he lodged FIR after getting full facts from the girl on 19.11.2002. The girl was subjected to medical examination in the Government hospital on 19.11.2002 itself at 9:30 PM. The medical report (Ex.P/5) corroborated the allegation of the prosecutrix that she was subjected to sexual assault. PW8 Dr.Subash Rajput, after medical examination, found the age of prosecutrix between 15 to 16 years and proved the medical report Ex.P/5 as well as proved the injuries found on the body of Kalu Ram which were four in number and the duration of those injuries was from 7 to 21 days. He also examined the complainant and proved the complainant's injury report Ex.P/7. The complainant complained for pain in his hip and back. In cross examination, he stated that the age of the prosecutrix was less than 17 years. Complainant PW1 Mohan Lal stated that on hearing voice of weeping, he went in the agriculture field and found her daughter being subjected to sexual assault by Kalu Ram. He also stated that Mahaveer and Pappu were there and they caught hold of girl. In cross examination, so far as evidence against Kalu Ram is concerned, statement of PW1 Mohan Lal have not been affected. The same is the position in the statement of PW3 Ram Chandra who reached on the 11 spot after the incident and found the prosecutrix lying there unconscious and he stated that they took the prosecutrix to the house in unconscious condition. He is not the eye witness of the incident but is witness to the condition of the victim on spot just after the incident. Learned Judicial Magistrate, Nohar – Shri Rajesh Singhal (PW4) recorded the statement of the prosecutrix under Section 164 CrPC and he stated that the prosecutrix gave her statement before him. There is a consistency in the statement of prosecutrix throughout. The prosecutrix's mother PW5 Omvati stated that her husband Mohan Lal told that their daughter has been molested by Kalu Ram and Pappu and Mahaver were also involved in the crime. She stated that her daughter came in senses after 2 days and her daughter was suffering from disease of Fits. From the above evidence of the prosecutrix supported by medical evidence and fully corroborated by evidence of her father Mohan Lal, her mother Omvati and her uncle Krishna, the prosecution proved the case of commission of offence by the appellant as held by the trial court which is punishable under Sections 376 and 323 IPC. The contention of the appellant that the case has been concocted because of old rivalry cannot be believed in view of the direct positive and trustworthy evidence referred above. The age of girl is less than 12 17 years and admittedly, the fact of committing crime on earlier occasion was not reported, therefore, that allegation was not investigated and whether the appellant committed offence on earlier occasion is not proved but because of that reason, no benefit can be given to the accused. The acquittal of two other accused is absolutely irrelevant and lack of evidence sufficient to convict co-accused has no relevance and effect on the evidence against the appellant which is corroborated by the injuries which he suffered during the commission of offence which is proved by the medical report Ex.P/6 of the accused. Normally it is not expected from the father of a girl to falsely depose that his daughter has been molested unless there are cogent reason to believe that the father has stated lie. It is also difficult to believe that the father and daughter can compromise to hatch a false case of rape just to take revenge from rival party. In view of the above reasons, the finding of the trial court recorded against the appellant convicting him under Sections 376 and 323 IPC is upheld. So far as the appellant's conviction under Section 3(ii)(v) of the SC/ST Act is concerned, neither in the written report submitted by the complainant PW1 Mohan Lal nor in the statement of prosecutrix PW7 Saroj nor 13 in the statement of her father PW1 Mohan Lal, there is allegation that the victim has been subjected to that cruel treatment punishable under Indian Penal Code on the ground that the girl is a member of Scheduled Tribe. Contrary to it, the allegation of the complainant in the complaint is that before this incident, the accused and family members of accused already launched a criminal case against the complainant and his family members. There is no allegation and it is a case of no evidence so far as charge that the offence has been committed because of the reason that they are member of Scheduled Tribe, hence, charge under Section 3(ii)(v) of the SC/ST Act is not proved. Therefore, the conviction and sentence of the appellant under Section 3(ii)(v) is set aside and he is acquitted from the above charge. As far as the punishment awarded to the appellant under Section 376 IPC is concerned, for that learned counsel for the appellant submitted that the accused was of the age of 21 years at the time of incident. The prosecutrix levelled false allegations against the appellant of committing crime of rape six months before this incident. That allegation was absolutely false allegation. It is also submitted that the trial court awarded sentence of 10 years rigorous imprisonment under Section 376 IPC and sentence of 3 months rigorous 14 imprisonment under Section 323 IPC under assumption which may be due to the reason that the trial court presumed that the offence has been committed by the accused because of the reason that the prosecutrix and the complainant are the members of the Scheduled Tribe. In that situation, in the present environment, the Court may take a strong view otherwise in a case under Section 376 IPC, the appellant would have been awarded lesser sentence as that would have been sufficient lesson to the accused. It is also submitted that the punishment is not awarded just to punish but to see that the culprit may take a lesson and behave properly in future and let the other live with dignity. Learned public prosecutor opposed the above contention on the ground that the crime is of heinous nature, therefore, there is no reason to take a lenient view in the matter of punishment. We considered the submissions of learned counsel for the parties on the question of sentence. The incident occurred more than 5 years ago and at that time, the accused was aged 21 years and the girl was aged 16-17 years. There was rivalry between the parties and FIR was lodged by the complainant after 2 days. There is a chance that the appellant must have 15 learnt a good lesson from the punishment awarded to him by the trial court and looking to the totality of the facts, we are of the view that the ends of justice will meet if the appellant's sentence is reduced to 7 years rigorous imprisonment in place of 10 years rigorous imprisonment. In the result, the appeal of the appellant Kalu Ram is partly allowed. The conviction and sentence of the appellant under Section 3(ii)(v) of the SC/ST Act is set aside. However, his conviction under Section 376 IPC is maintained but his sentence is reduced to 7 years rigorous imprisonment with a fine of Rs.10,000/- in default of which, the appellant shall serve two months' rigorous imprisonment. As far as the appellant's conviction and sentence under Section 323 IPC is concerned, it is upheld. (CHAND MAL TOTLA), J. (PRAKASH TATIA), J. S.Phophaliya