HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1658 OF 2007 Dated:20-07-2011 BETWEEN: Saridey Nageswara Rao …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1658 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) Sole appellant was put on trial for the offences punishable under Sections 366-A, 376 I.P.C. and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in SC ST SC No.17 of 2003 on the file of I Additional Sessions Judge-cum-Special Sessions Judge for trial of cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. By judgment dated 8.8.2007 he was convicted for the said offences and was sentenced to undergo rigorous imprisonment for five years and also to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for three months for the offence under Section 366-A I.P.C.; further sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for three months for the offence under Section 376 I.P.C.; and also sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default, to undergo simple imprisonment for three months for the offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. The gravamen of the charge against the appellant-accused is that on 12.10.2002 at his house between 12.00 noon and 2.00 p.m. he committed rape on minor-P.W.2 who belonged to scheduled Caste and that on 3.12.2002 he kidnapped her with an intention to force her for illicit intercourse. 3. The story of the prosecution as narrated during the course of trial is as under: Victim girl-Kum.Nanduri Pushpavathi @ Chinni (P.W.2) belongs to Scheduled Caste and by the time of the alleged offence, she was aged about 14 years. P.W.2 was studying 8th class at the time of alleged offence. P.W.1 is the father of P.W.2. The accused who belongs to Kalavanthula Caste used to work in the milk center of Padala Ramachandra Rao in Rajanagaram village and the said milk center is located in a portion of the thatched house of Pidugu Sathiraju. In other portion of the said house, the accused and his family used to reside. P.W.1 used to reside in a portion of the tiled house of Pidugu Sathiraju, which is situated on the rear side of the said milk center. In view of the location of the houses, the accused used to move friendly with P.W.1 and his family members. During the course of visits of P.W.2 to the house of accused, he used to state her that he loves her and likes her and could not live without her. The accused also used to address love letters to P.W.2 but she refused him. While so, on 12.10.2002 at about 12.00 Noon while P.W.2 was returning to her house from the school, accused sent a slip through L.W.18 asking her to come to his house. On that P.W.2 went to the house of the accused and on seeing her, accused pulled her into the room of his house and committed rape on her against her will. When she raised cries, he threatened with dire consequences and due to fear, P.W.2 kept quiet. On 3.12.2002 accused went to the school of P.W.2 and took her with him. He took her to Samarlakota and from there to Rajahmundry and also to his house at Velpuru in West Godavari District. On that night, the accused again committed rape on the person of P.W.2. Thereafter, the accused took P.W.2 to Hyderabad on 6.12.2002 and from there he again brought her to Visakhapatnam on 7.12.2002 and both of them stayed in the R.T.C. Complex, Visakhapatnam. In the morning of 8.12.2002, the accused asked P.W.2 to stay at the R.T.C. Complex so that he would bring back his wife and children, who were staying in the house of sister of his wife in Visakhapatnam. Meanwhile, P.W.9-mother-in-law of the accused on coming to know of these facts, came to the bus stand, took P.W.2 to the house of her daughter, admonished the accused and P.W.2 and asked the accused to hand over P.W.2 at Rajanagaram Police Station. On 9.12.2002 P.W.9 and her relatives took P.W.2 to Rajahmundry to the house of their relative and from there to Rajanagaram Police Station and handed over P.W.2. Meanwhile, on 3.12.2002 as P.W.2 has not turned up, P.W.1 made enquiries about her and came to know of these aspects and participation of the accused and gave Ex.P.1 report on 4.12.2002. Basing on Ex.P.1 report, P.W.16-Assistant Sub-Inspector registered a case in Crime No.225 of 2002 under Section 366-A I.P.C. and issued F.I.R.-Ex.P.11. On 9.12.2002 when P.W.9 handed over P.W.2, P.W.16 recorded the statements of P.W.2 under Ex.P.2, basing on which, he altered section of law from Section 366-A I.P.C. to Section 366-A I.P.C. and Section 3(1) (xi) and 2(v) of S.Cs. and S.Ts. (Prevention of Atrocities) Act and issued altered F.I.R. under Ex.P.13. Later the Sub-Divisional Police Oficer-P.W.17 took up investigation, examined the scene of offences, prepared rough sketches, sent the material objects to F.S.L. and sent P.W.2 for medical examination. P.W.12- doctor examined P.W.2 on the aspect of rape and she was also examined by P.W.18 to determine her age. On completion of investigation, P.W.17 laid the charge sheet against the accused. On committal, learned Sessions Judge framed the charges against the accused, read over the same and explained him in Telugu. The accused denied the charges and claimed to be tried. 4. To bring home the guilt of the accused, prosecution examined P.Ws.1 to 18 and marked Exs.P.1 to P.24. On behalf of defence, no oral evidence was adduced, but the contradiction in Section 161 Cr.P.C. statement of P.W.11 was marked as Ex.D.1. 5. The learned Sessions Judge after appreciation of oral and documentary evidence brought on record convicted and sentenced the appellant-accused as aforementioned. 6. It is not in dispute before this Court that P.W.2 and the accused went away from their houses and spent at various places from 3.12.2002 to 7.12.2002 and that the accused had intercourse with P.W.2. The said fact of elopement of P.W.2 with the appellant-accused is evident from the evidence of P.W.2 and also the father-in-law and mother-in-law of the appellant-accused. That is also not disputed by the appellant herein. The appellant was charged for the offences under Sections 366-A and 376 I.P.C. and under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Admitting the entire evidence of the prosecution that the appellant went along with P.W.2 and had intercourse with her and subsequently she was rescued by the father-in-law and mother-in-law of the accused and their producing her before the investigation agency, whether the said act will attract an offence as framed by the prosecution is the question before us. To attract an offence under Section 366-A I.P.C., there should be procuration of a girl below the age of 18 years. The said procuraation should be for the purpose of using that girl to had illicit intercourse with another person. Section 366-A I.P.C. runs as follows: “366-A- Procuration of minor girl.-- Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.” The said provision clearly indicates the purpose for which the procuration should be proved by the prosecution. In the case on hand, there is no such evidence and it is not the case of the prosecution that P.W.2 was procured for the purpose of prostitution or for the purpose of allowing her to have illicit intercourse with another person. Hence, on the basis of the available evidence, we are of the view that no offence under Section 366-A is made out. 7. What remains is an offence under Section 376 I.P.C. It is true that the record produced by the prosecution, which was obtained from the school where P.W.2 was studying 8th standard reveals that she is aged about 14 years. Apart from the said document, the prosecution produced Ex.P.23-age certificate issued by P.W.18, in which the age of P.W.2 is determined as 15 years. To attract an offence under Section 376 I.P.C., the explanation under Section 375 I.P.C. is to be looked into. Section 375 runs as follows: “375: Rape.-- A man is said to commit" rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under sixteen years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” As per the said provision, if the intercourse is against the will of a lady and the said intercourse with the girl who is less than 15 years even with consent also amounts to rape. In the present case, there is no dispute either by the prosecution or by the appellant that the appellant had intercourse with the victim girl-P.W.2 who alleged to be aged about 14 years, but the documents produced by the prosecution more particularly Ex.P.23 on medical examination, the doctor opined the age of P.W.2 approximately 15 years. When the doctor fixed the age of P.W.2 as 15 years, it can be either 13 years or 17 years. On the basis of the same, if the evidence of P.W.2 is appreciated, she has consented for intercourse and she traveled along with the appellant-accused from 3.12.2002 to 7.12.2002 and it is the opinion of the doctor who examined P.W.2 that she is accustomed to sexual intercourse and her vagina also admits two fingers and there is no symptom of rape on her on the date of examination. Taking into consideration the entire evidence, we are of the view that the age of P.W.2 is not properly established by the prosecution. In view of the same, with the fact that P.W.2 also consented for the intercourse, no offence under Section 376 I.P.C. is made out. 8. The learned Sessions Judge while convicting the appellant for the offence under Section 376 I.P.C. sentenced him for 7 years, but the learned Sessions Judge erroneously passed an order in connection with the provision under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. For better appreciation, the said provision is re-produced hereunder: “3. Punishment for offences of atrocities:- (1) x x x ; (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (i) to (iv) x x x (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; (vi) to (vii) x x x x.” From the above, it is clear that a person who commits any offence under Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe shall be punishable with imprisonment for life and with fine. The word "commit" means to perform an act, execute, carryout or accomplish a crime. Unless a person commits any offence under the Indian Penal Code, punishment of imprisonment for life by invoking the above provision does not arise. The above said provision is an enabling provision to enhance the punishment. If a person commits an offence under the provisions of the Indian Penal Code, there cannot be any separate sentence for an offence under Section 3(2)(v) of the Act. If the trial Judge wants to convict a person for commission of crime under the Indian Penal Code and the offence is committed against a person belongs to Scheduled Caste or Scheduled Tribe, then he can invoke the provision to enhance the sentence and sentence him only for the offence under the Indian Penal Code placing reliance on Section 3(2)(v) of the Act. As stated earlier, there cannot be any separate sentence for the said provision. In the present case, the learned Sessions Judge convicted the appellant for the offence under Section 376 I.P.C. and also under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. To attract the said provision, it is the duty of the prosecution to prove two things, namely (1) the victim belongs to Scheduled Caste or Scheduled Tribe and (2) the accused taking advantage of the same or misusing such situation committed a crime against the person who belongs to Scheduled Caste or Scheduled Tribe. Here, in the present case, the prosecution has not filed any document except the school certificate in which it is mentioned that P.W.2 belongs to Scheduled Caste. It is the prime duty of the prosecution to prove the fact that P.W.2 belongs to Scheduled Caste by positive evidence for which, it is necessary for the prosecution to obtain a certificate from the authorities those who are vested with the power to issue caste certificates and further they have to prove that the person who committed the crime against the Scheduled Caste is not a person belonging to the Scheduled Caste, but he belongs to other than the Scheduled Caste and Scheduled Tribe. In this case, the prosecution miserably failed to establish the same. The words "on the ground that such person is a member of Schedule Caste or Scheduled Tribe" used in Section 3(2) (v) of the Atrocities Act clearly implies that there must be an element of intention on the part of the accused for the commission of the offence only on the ground that the victim belongs to a Scheduled Caste. If there is no such mens rea then the provision of Section 3(2)(v) of the Atrocities Act are not attracted. In the present case, the prosecution miserably failed to establish such mens rea. Hence, the said section is totally not attracted to the facts and circumstances of the present case. Further we have already decided that the appellant has not committed any crime under Section 376 I.P.C. Once we held that he has not committed an offence under the Indian Penal Code, as already observed the invocation of the provision under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 does not arise. Thus the learned Sessions Judge has not appreciated the evidence in proper perspective. Hence, the convictions and sentences imposed on the appellant-accused are liable to be set aside. 9. In the result, the Criminal Appeal is allowed and the convictions and sentences imposed against the appellant-sole accused for the offences under Sections 366-A, 376 I.P.C. and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 by I Additional Sessions Judge-Cum-Special Sessions Judge for Trial of cases under the S.Cs. and S.Ts. (Prevention of Atrocities) Act, 1989, East Godavari at Rajahmundry in SC ST S.C.No.17 of 2003, dated 08.08.2007 are hereby set aside. The appellant is found not guilty of the said charges and he is acquitted of the same. He shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid by the appellant shall be refunded. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J JULY 20, 2011 Tsr.