HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.936 of 2002 W APPELLANTS: 1. Bhanjan son of Shri Ishwar Singh Lodhi, aged about 20 years, 2. Anuj alias Mohna son of Shri Faguram Lodhil aged about 22 years Ramlal, son of Shri Nakul Lodhi, aged about 25 years, AII are residence of Village Sildaha, Police Station’ Pathariya, ‘Distt. Bilaspur . (CG) ‘ ‘ Versus‘r ‘ RESPONDENT: State of Chhattisgarh {Criminal *apfpeal‘under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Abhay Tiwari: counsel for the appellants. Mr Rakesh Jha, Deputy Govt. Advocate for the State/respondent. i Division Bench; — Hon’blei Mr. T.P. Sharma & Hon’blei Mr. R.L. Jhanwar, JJ ORAL JUDGMENT (5—1-2010) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of entence dated 15-7'2002 passed by the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bilaspur in Special Case No.80/2001, whereby & whereunder learned Special Judge after holding the appellants guilty fcr commission > of offence under Sections 341, 506B, 376 (2) (g) of the l.P.C. & 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act’), sentenced each of them to undergo S.l. for one month, R.l. for six months, R.l. for ten years and fine of Rs.200/-, in default of payment of fine further S.l. for two months & imprisonment for H s 2 g5 life and fine of Rs.200/—, in default of payment of fine further S.l. for two months, respectively. 2. Judgment is impugned on the ground that without any evidence of identification and evidence of the fact that the offence has been committed on the ground of caste, the Court below has convicted & sentenced the appellants and thereby committed illegality. 3. Case of the prosecution in brief is that on 20-3-2001 at about 6 p.m. the prosecutrix (PW-1) who was worklng as Anganbadi Assustant was comlng from Slldaha to Mohbhatta while she was gomg on foot and t u s passing near the pond, the accused persons came, caught hold of her, pressed her mouth and took her inside the pond which was dry. AII the three appellants forcefully committed sexual intercourse on the prosedutrix one by one without her will & consent. They also threatened her. ‘After the commission of rape, the prosecutrix requested the appellants to accompany her up to her house and when they went to the house of Kotwar, she requested the Kotwar to catch the appellants and finally, they succeeded to ca‘tch one accused/appellant namely, Bhanjan, however, the two remaining accused/appellants fled away from the spot. The prosecutrix lodged the report vide Ex.P-1. Her petticoat was seized vide Ex.P-3. She was sent for medical examination vide Ex.P-8A and she was examined by Dr. Smt. Vibha Sendur (PW-4) vide Ex.P-8. Petticoat of the prosecutrix was also examined. Underwear of accused Bhanjan was seized vide Ex.P-4. Underwear of accused Anuj was seized vide Ex.P-5.r Appellants Anuj, Ramlal & Bhanjan were sent for mEdical examination, they were examined vide Exs.P—6, P—7 & P-14 and found them capable of committing sexual intercourse. Underwear of accused Ramlal was seized vide Ex.P—1 3. Spot map was prepared by the Investigating Officer vide Ex.P-16. Caste certificate of the (g9 prosecutrix was also recovered vide Ex.P-21. During the course of examination of the prosecutrix, two slides of her vaginal smear were taken and same were sealed & seized. Seized articles were sent for medicai examination and presence of sperm was confirmed over petticoat & slides of vaginal smear of the prosecutrix and under wears of the appeiiants vide Ex.P-22. Statements of the witnesses were recorded under $ection 161 of the Cr.P.C. and after completion of investigation, charge ‘sheet was fiied before the Judicial Magistrate First Class, Mungeli who in turn, committed the case to the Court of Special Judge, Bilaspur. . In orderVto prove the guilt of the appellants, the prosecutiOn has examined as many as twelve witnesses. The accused persons were £ examined under Section 313 of the Cr.P.C. in which they denied the circumsitances appearing against them, pleaded innocence and false implication. After affording opportunity of hearing to the parties, learned Special Judge convicted & sentenced the appellants as aforementioned. . We have heard learned counsel for the parties, perused the judgment impugned and record of the Court below. . Learned counsel for the appellants vehemently argued that even according to the case of the prosecution, appellant Bhanjan was found and was caught hold by the villagers after commission of the allege'd incident, but other accused persons were not found on the spot. After commission of gang rape, the factum of accompanying the prosecutrix by the appellants is unnatural. Learned counsel further argued that it appears that some other persons have committed the offence, as a courtesy and mercy, the appellants herein have accompanied the prosecutrix and the prosecutrix has falsely implicated the appellants. Learned counsel also argued that the prosecutrix has not deposed that she has been rapedon the ground of her caste and in absence of such evidence, conviction & sentence of the appellants under Section 3 (2) (v) of the Act are not sustainable. Learned counsel placed reliance in the matters of Ramdas and others v. State of Maharashtra {2007 STPL (LE) 37686 SC} & Dinesh @ Buddha v. State of Rajasthan {2006 ‘. i3 STPL (LE) 36602 SC} in which the Apex Court has held that in absence of evidence to the effect that the offence has been committed on the groundl of caste, conviction & sentence under Section 3 (2) (v) of the Act are not-sustainable. 7. On the other hand, learned State counsel opposed therappeal and vehemently argued that victim of the offence the prosecutrix (PW-1) has categorically deposed that the appellants are the! persons who have $ ‘ , forcefully took her and after threatening her they have committed gang rape upon her. With a viewto apprehend the appellants, the prosecutrix has requested the appellants to accompany her and she succeeded in apprehending one accused Bhanjan. The appellants have also admitted before other witnesses Bedudas (PW-2), Jhamsingh (PW-5) & Ashwani Singh Thakur (PW-6) that they have committed rape on the prosecutrix. ‘ These evidences are sufficient for drawing inference that the appellants are the persons who have committed the aforesaid offence. 8. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 9. The prosecutrix (PW-1) has deposed that while she was coming from Sildaha and passing besides the pond, all the three accused persons whom she know earlier, came and forcefully took her inside the pond x which was dry and after threatening her, committed rape on her one by one. After the commission of rape, she requested the accused persons to accompany her till her village where she succeeded in apprehending one accused Bhanjan, however, two accused persons fled away from the spot, but they were subsequently arrested. 10.The prosecutrix is a married Iady and according to the case of the prosecution, she is a widow lady. She has not deposed that the appellants have Used force in the commission of offence, therefore, no injury Would be possible on her body or private parts. '11.Bedudas (PW—2) Kotwar has‘ specifically deposed that he caught Bhanjan and two accused persons fled away Bedudas (PW—2) Jhamsmgh (PW-5) & Ashwanl Singh Thakur (PW—6) have deposed that , $ ‘ accused Bhanjan has made extra JudICIaI confessron that he has committed rape on‘ the prosecutnx. According to the case of the prosecution, the offence took place at a lonely place at about 6—8 p.m. and nb other persons were present near the place of incident. Defence l has cross-examined the prosecutrix in detail, but it has not been able to elicit anything in her cross-examination to discredit her testimony. The prosecutrix (PW—1) is the victim of the offence. ' Her statement is corroborated by the evidence of Bedudas (PW-2), Jhamsingh (PW-5), Ashwani Singh Thakur (PW-6) and the F.l.R. (Ex.P-1). Her clothes & petticoat were seized and she was examined by Dr. Smt. Vibha Sendur (PW-4). Slides of vaginal smear of the prosecutrix were taken and same were sent chemical examination along with under wears of the accused persons and presence of sperm over petticoat, slides of vaginal smear of the prosecutrix and under wears of the accused persons was confirmed vide EXP-22. Seizure of clothes from the accused persons was c3rroborated by the evidence of D.P. Chandra (PW-1 1). 12.Evidence of the prosecutrix (PW-1) inspires confidence, same is trustworthy well corroborated by the F.I.R. (Ex.P—1) and evidence of Bedudas (PW~2), ,Dr. Smt. Vibha Sendur (PW-4), Jhamsingh (PW-5) 1& \ ‘ \ ‘ I \ \ Ashwani Singh Thakur (PW-6) and also by the chemical analysis report which is sufficient for drawing inference that the appellants are the persons who have forcefully took the prosecutrix and after threatening her, committed rape on her one by one against her consent & will. 13.After appreciating the evidence available on record, the Special Judge has convicted & sentenced the appellants under Sections 341, 506B & 376 (2) (g) of the l.P.C. and the same is based on credible and clinching evidence sustainable under the law. 14.As regards the question of conviction & sentence of the appellants under Sectignf3 (2) (v) of the Act, the prosecutrix has not deposed anything to show that she has been raped or the appellants have committed the $ offence on the ground of her caste. Only on the ground that she is a member of Scheduled Caste, any conviction would not be possible unless the offence has been committed on the ground of her caste. In the matters of Ramdas & Dinesh (supra), the Apex Court has held that in order to attract the provisions of Section 3 (2) (v) of the Act, the prosecution is required to establish that the offence has been committed on the ground of caste and not the mere fact that the victim happens to be a member of any caste. 15.ln the present case, the prosecution has not adduced any material to show that the offence has been committed on the ground of caste of the prosecutrix. Therefore, conviction & sentence of the appellants under Section 3 (2) (v) of the Act would not be legally sustainable. 16.For the foregoing reasons, the appeal is partly allowed. Conviction & sentences of the appellants under Sections 341, 506B & 376 (2) (g) of the l.P.C. are hereby maintained, however, the appellants are acquitted M,\ofthe charge urng_er\s\ection 3 (2) (v) of the Act. «Wk - \ Sd/:\‘“‘* ., , l Sdl- v ~,\ TIP, sharma a - R.L. Jhanwgr Judge 'Judge‘