*HON’BLE SRI JUSTICE D.S.R.VARMA & *HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +Crl.A. No.1763 OF 2006 % 02-03-2010 #Katkam Raajanna (A-1) ….Petitioner Vs. $ State of AP rep. By the Public Prosecutor, High Court of AP. …. Respondent !Counsel for the Petitioner : Sri C. Praveen Kumar Counsel for the Respondent: Public Prosecutor <Gist : >Head Note: ? Cases referred: [1] (2001) 10 Supreme Court Cases 736 IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HON’BLE SRI JUSTICE D.S.R.VARMA & HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1763 OF 2006 DATE:02.03.2010 Between: Katkam Raajanna (A-1) …… Appellant/Accused No.1. And: State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad. …..Respondent. HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1763 OF 2006 JUDGMENT: (per Hon’ble Sri Justice Samudrala Govindarajulu) The sole accused who is A-1 who faced trial in the lower court, is the appellant herein. The lower court i.e., Special Judge for Trial of Cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act-cum-VIII Additional Sessions Judge, Nizamabad, framed charges against A-1 under Sections 376, 305 IPC and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (in short, the Act). A-1 pleaded not guilty for the charges. During trial in the lower court, P.Ws.1 to 20 were examined and Exs.P.1 to P.29 were marked on behalf of the prosecution. The lower court found A-1 not guilty of the offence under Section 305 IPC. At the same time, the lower court found A-1 guilty under Section 376 IPC and Section 3(2)(v) of the Act and convicted and sentenced him to life imprisonment and fine of Rs.500/- each for both the offences separately. There is no dispute that the victim woman belonged to Scheduled Caste, as she belonged to ‘Nayakapu’ caste. She was a minor girl aged 17 years. A-1 is ‘Kapu’ by caste. The victim woman as well as the accused belong to one village. It is alleged that knowing caste of the victim woman, A-1 and A-2 followed her when she was going alone to school on 01.09.1997 and that A-1 dashed her and lifted her into Maize field in S.No.366, threatened her and forcibly committed rape on her, while A-2 was standing in support of A-1. Subsequently on 15.04.1998, the victim girl became humiliated with the incident of rape and having no scope for being married, became vexed on her life and attempted suicide by self immolation and succumbed to burn injuries on 27.04.1998. After the incident of rape, neither the victim nor any of her family members or any others gave any report about the alleged rape on 01.09.1997. On 02.09.1997, P.W.18 who is the then Sub Inspector of Police, Makloor police station after receiving reliable information regarding rape, went to Ramachandrapally village and recorded statement of the deceased as per Ex.P-27 and registered the same as case in Crime No.87 of 1997 under Section 376 IPC and Section 3(ii) of the Act and issued Ex.P-28 F.I.R. P.W.9 Civil Assistant Surgeon at Government Head Quarters Hospital, Nizamabad examined the victim girl on 03.09.1997 and gave Ex.P-15 medical certificate. Ex.P-16 is F.S.L report on Vaginal smears collected by P.W.9. P.W.11 who is Civil Assistant Surgeon in Government Headquarters Hospital, Nizamabad examined A-1 on 09.12.1997 and issued Ex.P-19 certificate to the effect that A-1 is physically potent and mentally well in order to participate in sexual intercourse. P.W.20 is the then Sub Divisional Police Officer, Nizamabad who investigated into the case, arrested the accused and filed final report/charge sheet under Section 173(2) Cr.P.C. P.W.1 is mother, P.W.12 is father and P.W.2 is classmate of the deceased. All the witnesses except official witnesses turned hostile to the prosecution. To say it specifically, P.Ws. 1 to 5, 8, 12 and 16 did not support the prosecution case. Neither parents nor classmates supported version of the deceased Vinoda contained in Ex.P-27 statement of the victim. Since maker of Ex.P-27 statement is no more, Ex.P.27 is not useful to the prosecution as it becomes irrelevant piece of evidence. Under Section 32 of the Indian Evidence Act, dead person’s statement becomes relevant only when it relates to cause of death or transactions leading to death of the deceased. So no reliance can be placed on Ex.P-27 as it is not a substantive piece of evidence. In Inderpal v. State of M.P, [1] it was held by the Supreme Court:- “Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question.” At the same time, Ex.P-26 dying declaration of the victim recorded by the Magistrate P.W.17 is relevant under Section 32 of the Indian Evidence Act. In Ex.P-26 dying declaration, the deceased stated that because of rape, she is not able to get married as marriage alliances are going away from her. She further stated that about five or six months ago Toorpu Raajanna aged about 35 to 40 years committed rape on her and that the said Toorpu Raajanna belonged to ‘Peraka’ caste. She finally says that the said Toorpu Raajanna should be punished severely. It is contended by the Appellant’s counsel that there is no matching of identification of A-1 with details of Toorpu Raajanna given by the deceased in Ex.P-26 dying declaration. As per charge sheet, name of A- 1 is Katkam Raajanna and his age is 26 years and he belongs to ‘Kapu’ Caste. Except the name Raajanna, no other details regarding surname, age and caste of the said Raajanna given by the deceased matched with those of A-1. Therefore, it would be highly improper to conclude from contents of Ex.P-26 dying declaration that Toorpu Raajanna who is aged 35 to 40 years and who belongs to ‘Peraka’ caste, is no other than A-1. Thus, neither Ex.P-26 dying declaration nor Ex.P-27 First Information Report is sufficient to find A-1 guilty of the offence. Apart from there being no oral evidence and no connectivity for A-1 with the crime, medical evidence regarding rape is also not definite. P.W.9 found hymen tear at 6 O’clock position to the extent of ¼” x ¼” with tenderness and inflammation. Though P.W.9 found bleeding from vagina, in cross examination, she deposed that the victim was in periods when she examined. Ex.P-16 F.S.L report on vaginal smears is to the effect that there is no evidence of semen and spermatozoa. P.W.9 did not state any thing either in her Ex.P-17 certificate or in her evidence whether hymen tear was old one or fresh one. Because of there being no definite findings from the medical evidence, it can be said that it is inconclusive. Thus, on scrutiny of the entire evidence on record, we are of the opinion that there is no evidence much less conclusive evidence that there was rape on the victim girl and that A-1 committed rape on her. It may be noted that simply because the victim is a person belonging to either Scheduled Caste or Scheduled Tribe, Section 3(2)(v) of the Act cannot operate unless the offence was committed “on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe”. In this case there is no allegation much less proof to show that A-1 committed the alleged rape on the victim girl on the ground that she belongs to Scheduled Tribe. The fact that the victim belongs to Scheduled Tribe ipso facto cannot attract Section 3(2)(v) of the Act, unless the offence was committed on the ground that the victim belongs to Scheduled Tribe. Further, Section 3(2)(v) of the Act reads as follows:- (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--------- ----------------------------------------------------- (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;) Thus, Section 3(2)(v) of the Act is not penal provision by itself. It only prescribes that in case of offence punishable under I.P.C., with imprisonment for a term of ten years or more was committed against a person or property belonging to a Scheduled Caste or Scheduled Tribe on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe, then enhanced punishment is prescribed in that provision to the effect that such offender shall be punishable with imprisonment for life and with fine. In our opinion, Section 3(2)(v) of the Act is similar in operation to Section 75 of the Indian Penal Code. Therefore, no separate or additional punishment can be imposed by a Court under Section 3(2)(v) of the Act after imposing sentence of punishment for the offence under the Indian Penal Code. In case of applicability of Section 3(2)(v) of the Act to any particular case, then the trial court has to frame single charge for the offence under IPC read with Section 3(2)(v) of the Act for enhanced punishment. Thus, in our opinion, separate sentence of imprisonment for life and separate fine of Rs.500/- imposed by the lower court on the appellant/A-1 under Section 3(2)(v) of the Act is not in accordance with law and amounts to awarding of double punishment for single offence. In the result, the appeal is allowed setting aside the convictions and sentences passed by the lower court against the appellant/A-1. He shall be released forthwith if he is not required in any other case. Fine amount, if any, paid by the accused shall be refunded to him. _________________ D.S.R.VARMA,J. ____________________________________ SAMUDRALA GOVINDARAJULU, J. 02.03.2010 Note: L.R. copy to be marked. // By Order// Gk. HON’BLE SRI JUSTICE D.S.R.VARMA & HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1763 OF 2006 DATE:02.03.2010 Gk [1] (2001) 10 Supreme Court Cases 736