/.''"^ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 466 of 2002 Sudarshan '. Vs. Statetof-C.G. JUDGMENT For consideration Sd/- Suni! Kusnar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA l:»il J cA^lr^^- • Sd/- ChiefJustice Post for Judgment :^/07/2QQ£ Sd/- Sunil Kumar Sinha Judge ,-: '^k "\ ': HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil KumaLSinha, J, APPELLANT RESPONDENT Criminal Appeal No. 466 of 2002 Sudarshan S/o Nirapad Singh Rajput, aged about 19 years, R/o Bendura P.S. Gariyaband, Distt. Raipur (C.G.) 'Versus State of- C.G. Through P.S. Gariyaband, District Raipur (C.G.) (Appeal under Section 374 (2) ofThe Code ofCriminal Procedure) Appearance: Mr. Viprasen Agrawal, Counsel for the appellant. Mr. Ravindra Agrawal, Panel Lawyer, for the State. JUDGMENT .07.2009) Following judgment of the Court was delivered by Sunil KumarSinha.J. (1) Appellant Sudarshan stands convicted and sentenced by the Special Judge (Under Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act 1989), Raipur, C.G. in Special Sessions Trial No. 122/2001 on 21st of February, 2002 in the following manner:- Conviction u/s 376 IPC read with, Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act) Sentence Imprisonment for life and fine of Rs.3,000/-, in default of payment of fine to further undergo R.l. for 6 months Criminal Appeal No. 466 of2002 u/s 342 IPC u/s 506 IPC R.l. for 6 months and fine of Rs.500/-, in default of payment of fine to further undergo R.l. for 1 month. R.l. for 6 months and fine of Rs.500/-, in default of payment of fine to further undergo R.l. for 1 month (With a furthertlirection to run the sentences concurrently) <I. (2) The facts, briefly stated, are as under:- The prosecutrix (PW-1) is the daughter of Kushal Ram Gond. She belongs to scheduled tribe community. She was aged about 15 years on the date of incident which took place 15 days prior to lodging of the First Information Report (Ex.-P/1) on 1.6.2001. The allegations are that on the said date, when she had gone to fetch water, she was forcibly taken by the appellant to his house, where he committed sexual intercourse against her and threatened her not to disclose the story to anybody else by putting a knife on her neck. The F.1.R. (Ex.-P/1) was lodged by the father of the prosecutrix, Kushal Ram Gond (PW-2). On such report, the investigation commenced and after completion of the same, a charge-sheet was filed in the Court of Judicial Magistrate, First Class, Gariyaband, who in turn committed the matter to the Special Court, where the trial was conducted and the accused/appellant was convicted and sentenced as aforementioned. (3) The Special Judge recorded a finding that the prosecutrix was aged about 15 years and she was subjected to forcible mtercourse by the ^ Criminal Auoeal No. 466 of 2002 appellant after keeping her in his wrongfully confinement and thereafter the appellant also gave threat to her for not disclosing all this to anybody. (4) Mr. Viprasen Agrawal, learned counsel appearing on behalf of the appellant, argued that the prosecutrix and her father are unreliable witnesses, therefore, they should be disbelieved and the appellant be acquitted of the charges framed under the aforementioned Sections of IPC and the Special Act. Altern'atively, he also argued that though the prosecutrix belongs to Gond Tribes but there is no evidence to attract the provisions of Section 3 (2) (v) of the Special Act. (5) On the other hand, Mr. Ravindra Agrawal, learned Panel Lawyer appearing on behalf of State, opposed these arguments and supported the judgment and order passed by the Special Court. (6) We have heard the learned counsel for the parties at length and have also perused the records of the special case. (7) The prosecutrix has been examined as PW-1. She was aged about 14-15 years studying in Class 7 . So far as her age is concerned, the school certificates have been produced and Mr. Sagun Ram Sarwa, Head Master (PW-4) has been examined. Father of the prosecutrix, Kushal Ram (PW-2) has also deposed regarding the age of the prosecutrix as 14 years. Therefore, it was established that the prosecutrix was aged about 14-15 years on the date of incident. The prosecutrix deposed that she Was taken by the appellant to his house, where she was subjected to sexual intercourse by him. She has also deposed that the appellant gave threats to her by putting a knife on her neck, due to which, she had ;sii^ Criminal Appeal No. 466 of 2002 received a minor injury on the neck. The learned Special Judge has observed in the deposition-sheet regarding a mark of injury on the neck of the prosecutrix. On a lengthy cross examination by the defence, the defence has not been able to .elicit any such circumstance on which it can be said that either the evidence of these witnesses are unreliable or they are making false allegations against the appellant. The version of the prosecutrix appears to be fully reliable and it inspires the confidence of •'t. this Court. Therefore, the findin&s of the Special Court that the prosecutrix was subjected to forcible intercourse and she was kept in wrongfully confinement and was also threaten by the appellant are unassailable and we confirm those findings. (8) So far as finding in .relation to offence u/s 3 (2) (v) of the Special Act is concerned, we do not find any basis for the same. Section 3 (2) (v) of the Special Act provides that whoever, not being a member of a Scheduted Caste or a Scheduled Tribe, 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. S/ne qua non for application of Section 3 (2) (v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes (Please^ee^-^ Dinesh^_ Buddha -Vs- State of Raiasthan. 2006 AIR SCW 1123). , "^ s Criminal Aopeal No. 466 of 2002 •a'giSitti:! (9) In the present case, there is no evidence to establish that the offence under Section 376 was committed by the appellant because the prosecutrix was a member of 'Gond' Community. In absence of any evidence to that effect, Section 3 (2) (v) of the Special Act has no application. Therefore, we do not sustain the finding of the Special Court that an offence u/s 3 (2) (v) of the Special Act was made out in this case and the said finding has to be set aside. •';. (10) Accordingly, the appeal is partly allowed. The conviction and sentences awarded u/s 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act, 1989 are set aside. However, the conviction u/ss 376, 342 & 506 IPC are maintained and instead of the sentences awarded by the Special Court for these offences, we award 10 years R.l. u/s 376 IPC and 6-6 months R.l. u/ss 342 & 506 IPC with a direction to run the sentences concurrently. The appellant is in jail since 2.6.2001. He shall be entitled to set-off the period already undergone by him. (11) The appeal is allowed to the extent indicated above. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge VEs-ti