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A.F.R.

Court No. - 50

Case :- CRIMINAL APPEAL No. - 8196 of 2008

Appellant :- Jai Karan @ Pappu

Respondent :- State of U.P.

Counsel for Appellant :- S.N. Pandey,Amit Tripathi,Havaldar

Verma,Ram Ashrey Kashyap,Syed Wajid Ali

Counsel for Respondent :- Govt. Advocate

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per Hon'ble Ajai Tyagi, J.)

1.By way of this appeal, the appellant has challenged the Judgment

and order dated 24.11.2008 passed by court of Special Judge, S.C. &

S.T Act/Additional Sessions Judge, Kanpur Dehat in Sessions Trial

No.269 of 2001, arising out of Case Crime No.216 of 2001, under

Sections 363/366/376 I.P.C., read with Section 3(1)(xi) of Scheduled

Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989

(hereinafter referred to as, 'S.C./S.T. Act, 1989'), Police Station

Akbarpur, District Kanpur Dehat whereby the accused-appellant was

sentenced under Section 363 Indian Penal Code (I.P.C.) for three years’

rigorous impriosonment and with a fine of Rs.1000/-; under Section 366

I.P.C. with the sentence of five years’ rigorous imprisonment and fine of

Rs.1000/- and; under Section 376 I.P.C. with the sentence of rigorous

imprisonment for 10 years and a fine of Rs.2000/- and; under Section 3

(2) (v) of S.C. & S.T. Act with a sentence of life imprisonment and fine

of Rs.2000/- with a direction that all the sentences will run

simultaneously and in event of default of payment of fine, to undergo

two months’ further imprisonment.

2. The brief facts as per prosecution case are that on 12.8.2001 at

about 8:00 p.m., the prosecutrix was kidnapped by appellant-Jai Karan

@ Pappu and two other unknown persons. Father of the prosecutrix

given the written information about the kidnapping to the near police

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station. After two days on 14.8.2001 at about 10.00 a.m., the girl was

found by her father in the field of sorghum which is the farm of Shiv

Ram Shukla in an unconscious condition. After came to consciousness,

she disclosed the whole incident to her family members that accused-

appellant with two unknown persons committed gang rape with her by

gagged her mouth at gunpoint and went away extending threat that if

any report is lodged at the police station or this fact is divulged to

anyone, they will kill her whole faimly. When she along with her father

hiding themselves went to the police station for reporting the said

incident and after denied lodging the FIR, they sent a complaint report

to the Superintendent of Police, Kanpur Dehat then FIR was lodged on

15.8.2011 by the police.

3.Police Station Incharge, Akbarpur, Kashmir Singh Yadav tookup

the investigation visited the spot, prepared site plan, recorded

statements of the prosecutrix and witnesses and after completing

investigation submitted charge sheet against the accused.

4.The accused being charge sheeted for offence triable by court of

session. The learned Magistrate committed the case to the court of

session. The court of session summoned the accused who pleaded not

guilty to the charges framed and wanted to be tried.

5.The prosecution so as to bring home the charges examined eight

witnesses, who are as under:-

1 Suryapal P.W.1

2.Prosecutirx P.W.2

3. Shiv Nath P.W.3

4.Dr. Narendra Kumar JaiswalP.W. 4

5. Dr. Raj Rani P.W. 5

6.Kashmir Singh Yadav P.W. 6

7.Ramesh Chandra Pradhan P.W.7

8.Amar Singh P.W.8

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6.In support of the ocular version of the witnesses, following

documents were produced and contents were proved by leading

evidence:

1F.I.R. Ext. Ka-6

2.Written report Ext. Ka-1

3. Statement of Prosecutrix under

Section 164 Cr.P.C.

Ext. Ka-2

4.Recovery memo of Blood &

Semen stained Cloth Chaddhi and

Salwar

Ext. Ka-9

5.X-Ray Report Ext. Ka-3

6.Injury Report Ext. Ka-4

7.Supplementary report Ext. Ka-5

8.Charge Sheet Mool Ext. Ka-14

9.Site Plan with Index Ext. Ka-13

7.Heard learned counsel for the appellant, learned AGA for the

State and also perused the record.

8.It is submitted by the counsel for the appellant that as far as

commission of offence under Section 3(1)(xi) and 3(2)(v) of S.C./S.T.

Act, 1989 is concerned, the learned Sessions Judge convicted the

accused due to the fact that the victim was a person belonging to

Scheduled Caste Community, though there were no allegations as

regard the offence being committed due to the caste of the prosecutrix

and there were no allegations of commission of offence which would

attract the provision of Section 3(2)(v) read with Section 3(1)(xi) of

SC/ST Act, 1989.

9.Learned counsel for appellant has relied on the following

decisions of the Apex Court rendered in the case of Sadashiv Ramrao

Hadbe Vs. State of Maharashtra, 2006 (10) SCC 92 and the

judgments of this Court titled Narain Trivedi v. State of Uttar

Pradesh, LAW(ALL)-2009-1-147 decided on 15 Jan 2009 and case

titled Vishnu v. State of U.P. in Criminal Appeal No. 204 of 2021,

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decided on 28.1.2021 so as to contend and submit that in fact no case is

made out against the accused under Section 376 IPC or the offences

under Sections 363, 366 IPC and Section 3(1)(xi) read with Section

3(2)(v) of S.C./S.T. Act, 1989. It is submitted that the prosecutrix and

her family members have roped in the accused with ulterior motive.

10.It is submitted by learned counsel for the State that prosecutrix

belongs to Scheduled Caste community and the judgment of learned

Trial Judge cannot be found fault with just because there is silence on

the part of the prosecutrix about the caste and this is not so grave a

lapse that benefit can be granted to accused. It is submitted that the

incident occurred because of the caste of the prosecutrix. It is further

submitted that any incident on person belonging to a particular caste

would be an offence. It is further submitted by learned counsel for the

State that the accused ravished the prosecutrix who was a minor and

was belonging to lower strata of life.

11.Learned counsel for the appellant has relied on the judgment of

Sadashiv Ramrao Hadbe Vs. State of Maharashtra (supra) and has

submitted that learned counsel presses for clean acquittal of the accused

and not for a fixed term incarceration though the appellant has been in

jail for more than 13 years. In support of submission, learned counsel

presses into service the judgment in the case of Narain Trivedi v. State

of Uttar Pradesh, LAW(ALL)-2009-1-147 rendered by this Court and

learned counsel has relied on findings returned in paragraphs 4 and 5 of

the said judgment, which lay down as follows :-

“4.Let the appellants Sri Narain Trivedi, Ashok Kumar

@ Khanna and Pramod Kumar @ Nanhkau be released on

bail in the above case till disposal of the appeal on their

furnishing personal bond and two sureties each in the like

amount to the satisfaction of the trial court concerned.

Realization of fine to the extent of fifty per cent shall

remain stayed till disposal of the appeal. Remaining fifty

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per cent fine shall be deposited in the trial court prior to

the release.

It is worthwhile to mention that the learned Sessions Judge

has convicted and sentenced the appellants to undergo

imprisonment for life and to pay a fine of Rs.3000/- each

under section 3(2)(5) SC/ST Act. They have also been

convicted separately under section 307/34 I.P.C. and

sentenced to undergo imprisonment for seven years and to

pay a fine of Rs.2000/- each. This method of convicting and

sentencing the appellants is not in accordance with law.

Section 3(2)(5) SC/ST Act does not constitute any

substantive offence and hence, conviction and sentence of

the appellants under section 3(2)(5) SC/ST Act simplicitor

is wholly illegal. Section 3(2)(5) SC/ST Act provides as

under:-3(2) Whoever, not being a member of a Scheduled

Caste or a Scheduled Tribe.-(i) to (iv).......................(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;

As would appear from the language used by the Legislature

in section 3(2)(5) SC/ST Act, it is clear that this section

does not constitute any substantive offence and if any

person not being a member of a Scheduled Caste or a

Scheduled Tribe commits any offence under the 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 Scheduled Caste or

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Scheduled Tribe or such property belongs to such member,

then enhanced punishment of life imprisonment would be

awarded in such case, meaning thereby that conviction and

sentence under section 3(2)(5) SC/ST Act simplicitor is not

permissible and in cases where an offence under the Indian

Penal Code punishable with imprisonment for a term of ten

years or more is committed 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, then in such case the accused will be

convicted and sentenced for the offence under Indian Penal

Code read with Section 3(2)(5) SC/ST Act with

imprisonment for life and also with fine. Therefore, in the

present case, the appellants could not be convicted and

sentenced under section 3(2)(5) SC/ST Act simplicitor.

5.Mistake which has been committed by the learned

Sessions Judge in present case in convicting and

sentencing the appellants under section 3(2)(5) simplicitor

has been noticed by us in some other cases also. The

Registrar General is directed to send a copy of this order to

Sri Dilip Singh, the then Addl. Sessions Judge/Special

Judge, SC/ST Act, Fatehpur for his future guidance.

12.Learned counsel for appellant presses into service the judgment

in the case of Sadashiv Ramrao Hadbe Vs. State of Maharashtra

(supra) more particularly observations in paras 9, 10, 11 of the said

judgment, which are verbatim reproduced as follows :-

“9.It is true that in a rape case the accused could be

convicted on the sole testimony of the prosecutrix, if it is

capable of inspiring of confidence in the mind of the court.

If the version given by the prosecutrix is unsupported by

any medical evidence or the whole surrounding

circumstances are highly improbable and belie the case set

up by the prosecutrix, the court shall not act on the

solitary evidence of the prosecutrix. The courts shall be

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extremely careful in accepting the sole testimony of the

prosecutrix when the entire case is improbable and

unlikely to happen.

10.In the present case there were so many persons in

the clinic and it is highly improbable the appellant would

have made a sexual assault on the patient who came for

examination when large number of persons were present in

the near vicinity. It is also highly improbable that the

prosecutrix could not make any noise or get out of the

room without being assaulted by the doctor as she was an

able bodied person of 20 years of age with ordinary

physique. The absence of injuries on the body

improbablise the prosecution version.

11.The counsel who appeared for the State submitted

that the presence of semen stains on the undergarments of

the appellant and also semen stains found on her petticot

and her sari would probablise the prosecution version and

could have been a sexual intercourse of the prosecutrix.

12.It is true that the petticot and the underwear

allegedly worn by the appellant had some semen but that

by itself is not sufficient to treat that the appellant had

sexual intercourse with the prosecutrix. That would only

cause some suspicion on the conduct of the appellant but

not sufficient to prove that the case, as alleged by the

prosecution.”

13.Learned counsel for the appellant has also relied on the latest

decision of Apex Court in the case of Hitesh Verma Vs. State of

Uttarakhand & another, 2020(10)SCC 710, pertaining to Scheduled

Castes and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 and

has contended that the incidence reported is prior to 2016, amendment

more particularly relates to the year 2000, where no offence of S.C./S.T.

Act, 1989 has been committed on the lady on the basis of her caste

belonging to a particular caste. The learned Trial Judge has misread the

provisions of law, just because the prosecutrix is belonging to scheduled

caste community, the offence would not be made out the ingredients

and facts must prove the same.

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14.The accused is in jail since more than 12 years. Hence he has

already remain in jail and has already undergone the punishment under

Sections 363, 366 and 376 of the Indian Penal Code as senteced by the

court below. The main submission is regarding the sentence under

Section 3(2)(v) of SC/ST Act could not have been returned against the

accused when it was not proved and even if proved life imprisonment is

too harsh and sentence.

15.Learned counsel for the State has vehemently submitted that this

is a clear case of allurement and the learned trial Judge has rightly

convicted the accused under Sections 363, 366 and 376 of the Indian

Penal Code for life under Scheduled Casts and Scheduled Tribes Act

(SC/ST Act, 1989) and heavily relied on the deposition of the

prosecutrix and the medical evidence so as to contend that the incident

occurred with girl who is below the age of 14 and has submitted that the

FIR and the evidence cannot be brused aside on minor contradictions

and that the rape was committed during the entire night, the evidence of

the prosecutrix clinches the issue and that the medical evidence is

against the accused. We are unable to convince ourselves with the

submission made by learned AGA for State that she has been a victim

of atrocity as she belonged to particular community. We have been

taken through the evidence and the deposition mainly of prosecution

witnesses and judgment of Trial Court. We have read the same.

16.The recent decision of the Apex Court in the case of State of

Gujarat v. Bhalchandra Laxmishankar Dave, 2021 (0) AIJEL-SC

66983, decided on 2

nd

February, 2021 wherein the Apex Court has held

that while dealing with the matter relating to conviction, the Court

should discuss the decision of the trial court and also the judgment in

Guru Dutt Pathak v. State of Uttar Pradesh, LAW(SC) 2021 5 5,

decided on 5

th

May, 2021. All the principles laid down in this latest

decision, we are oblige to consider the evidence afresh.

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17.We venture to discuss the evidence of the prosecutrix on which

reliance is placed by learned trial judge and whether it inspires

confidence or not so as to sustain the conviction of accused. There

were concrete positive signs from the oral testimony of the prosecutrix

as regards the commission of forcible sexual intercourse. In case of

Ganesan Versus State Represented by its Inspector of Police,

Criminal Appeal No. 680 of 2020 ( Arising from S.L.P. ( Criminal )

No.4976 of 2020) decided on 14.10.2020 wherein the principles of

accepting the evidence of the minor prosecutrix or the prosecutrix are

enshrined the words may be that her testimony must be trustworthy and

reliable then a conviction based on sole testimony of the victim can be

based. In our case when we rely on the said decision, it is borne out that

the testimony of the prosecutrix cannot be said to be that of a sterling

witness and the medical evidence on evaluation belies the fact that any

case is made out against the accused.

18.PW-1, Surya Pal is the father of the prosecutrix. It was he who

was the person whom the prosecutrix had conveyed about the incident.

In his cross examination, conveyed that After two days of kidnapping

on 14.8.2001 at about 10.00 a.m., the girl was found by him in the filed

of sorghum which is the farm of Shiv Ram Shukla in an unconscious

condition. After she regained conscious, she disclosed the whole

incident to her family members that accused-appellant with one

unknown person committed rape one by one with her. The accused

gagged her mouth at gunpoint. The accused went away extending threat

that if any report is lodged at the police station or this fact is divulged to

anyone, they will kill her with entire faimly.

19.PW-2, is the prosecutrix who in her ocular version has reiterated

the statement made under Section 164 to Magistrate and contents of

FIR version that she was 14 years of age when incident occurred. She

was found in an unconscious condition from the filed of Corn. The

Prosecutrix conveyed to the author of the FIR that two persons had

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taken her rather forced her on gunpoint and had threatened her with dire

consequnces and gagged her that is why she could not shout. The

prosecutrix also mentioned that both of them committed sexual

intercourse with her and both of them used to commit rape. Jai Karan

aged about 33 years of age whose village is next to her village and

when they were commmitting this act they had done it on gunpoint.

She has also conveyed that when her FIR was not lodged by the police

station then she dictated the typed FIR and sent to the Superintendent of

Police, Kanpur Dehat, in her cross examination she deposed that she

(prosecutrix) belonged to the community known as Chamar community

which is enumerated as scheduled caste. The prosecutrix in her oral

testimony has narrated the version of forcible sex on her and that the

accused had gauged her, she did not convey this to anybody because of

threats given by the accused. In her cross examination, she conveyed

that her father had dictated the report to the police. If the police did not

mention in the FIR that the accused had done the illegal act she could

not possibly know why the same is not reflected in the report.

According to her, she was aged 17 and half years at the time of

deposition. She knew one accused- Jai Karan @ Pappu by name, but

did not know the name of another accused.

20.PW-3 is the uncle of prosecutrix who has deposed on oath that his

Niece was going out of her cottage to piss and when she did not return

till late night PW-3, complainant and other family members started

searching her. After two days the girl was found in filed of sorghum in

an unconscious condition. After she conscious, she disclosed the whole

incident.

21.The ocular version of PW-4 and 5 who are Medical Officers, PW-

6 who is the Officer who had conducted the investigation. PW-7 who is

the Principal of School stated that age of the prosecutrix as per the

school record is 1.3.1987. The medical officer in his ocular version

opined that on local examination, there was no mark of injury on

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private parts and inside the thighs, no blood was present on internal

examination of prosecutrix. Her hymen was torn and two fingers could

easily pass without pain. Doctor in her medical certificate opined that

on the above findings, it cannot be said that rape has been committed or

not, but she was habituated to sexual intercourse, she was referred to

the Radiologist and Pathology lab. The pathology report showed that no

live or dead sperm was seen in the vaginal smear and therefore the

medical evidence belies the theories of the complainant that she was

raped.

22.We now decide to sift the evidence threadbare of the prosecution

story, the evidence led and discussed before the trial court and

appreciated by the learned Trial Judge. The Apex Court recently in

State of Gujarat v. Bhalchandra Laxmishankar Dave has held that

trial court judgment and findings should be dealt with threadbare which

we are doing and therefore when there is no finding of fact that as to

how the offence under Section 3(2)(v) of SC/ST Act is made out, the

accused could be punished. Jai Karan and other person committing

gang rape and the leanred Judge did not accept the version of the

accused. There is no finding of fact as to how the case under SC/ST Act

or as popularly known Atrocities Act is made out. There is no finding

corroborated by the evidence of the prosecutrix which would bring

whom the charge under Section 3(2)(v) else neither the prosecutrix nor

her father nor other witnesses have mentioned that she was lured,

kidnapped and raped because she belonged to a particular community.

23.Provision of Section 3(1)(xi) of the Scheduled Castes and

Scheduled Tribes Act, 1989 read as follows : -

“(xi) assaults or uses force to any woman belonging to a

Scheduled Caste or a Scheduled Tribe with intent to

dishonour or outrage her modesty;”

24.Provision of Section 3(2)(v) of the Scheduled Castes and

Scheduled Tribes Act, 1989 which reads as follows has not been

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complied with and, therefore, the accused could not have been

convicted under the provisions of Section 3(2)(v) of the SC/ST Act.

(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;

25.Provision of Section 376 I.P.C. read as follows :

“376. Punishment for rape.—

(1) Whoever, except in the cases provided for by sub-section

(2), commits rape shall be punished with imprisonment of either

description for a term which shall not be less than seven years

but which may be for life or for a term which may extend to ten

years and shall also be liable to fine unless the women raped is

his own wife and is not under twelve years of age, in which

cases, he shall be punished with imprisonment of either

description for a term which may extend to two years or with

fine or with both: Provided that the court may, for adequate and

special reasons to be mentioned in the judgment, impose a

sentence of imprisonment for a term of less than seven years.

(2) Whoever,—

(a) being a police officer commits rape—

(i) within the limits of the police station to which he is

appointed; or

(ii) in the premises of any station house whether or not

situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a

police officer subordinate to him; or

(b) being a public servant, takes advantage of his official

position and commits rape on a woman in his custody as such

public servant or in the custody of a public servant

subordinate to him; or

(c) being on the management or on the staff of a jail, remand

home or other place of custody established by or under any

law for the time being in force or of a woman’s or children’s

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institution takes advantage of his official position and

commits rape on any inmate of such jail, remand home, place

or institution; or

(d) being on the management or on the staff of a hospital,

takes advantage of his official position and commits rape on

a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years

of age; or

(g) commits gang rape, shall be punished with rigorous

imprisonment for a term which shall not be less than ten

years but which may be for life and shall also be liable to

fine: Provided that the Court may, for adequate and special

reasons to be mentioned in the judgment, impose a

sentence of imprisonment of either description for a term

of less than ten years. Explanation 1.—Where a woman is

raped by one or more in a group of persons acting in

furtherance of their common intention, each of the persons

shall be deemed to have committed gang rape within the

meaning of this sub-section. Explanation 2.—“Women’s or

children’s institution” means an institution, whether called

an orphanage or a home for neglected woman or children

or a widows’ home or by any other name, which is

established and maintained for the reception and care of

woman or children. Explanation 3.—“Hospital” means the

precincts of the hospital and includes the precincts of any

institution for the reception and treatment of persons during

convalescence or of persons requiring medical attention or

rehabilitation.”

26.In respect of the victim, the doctor in medical report has opined

as under :-

“In the x-Ray of both wrist A.P., all eight carpal bones were

found present. The lower epiphyses of both wrist joints have not

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fused. In the x-Ray of both elbow joints, all the bony epiphyses

around both elbow joints had fused

In her supplementary report, lady doctor opined that no

spermatozoa was seen by her. According to physical appearance,

age of the prosecutrix was 15 to 16 years. No definite opinion

about rape was given”

27.The evidence as discussed by learned Judge shows that the mere

fact that no external marks of injury was found by itself would not

throw the testimony of the prosecutrix over board as it has been found

that the prosecutrix had washed all the tainted cloths worn at the time of

occurrence as she was a minor girl. We also do not give any credence

to that fact and would like to go through the merits of the evidence led.

28.As far as the commission of offence under Section 376 IPC is

concerned, the learned Judge has relied on the judgments of (1) Rafiq

Versus State of U.P., AIR 1981 SC page 559, (2) Nawab Khan

Versus State, 1990 Cri.L.J. Page 1179 and the judgment in (3)

Bharvada Bhogin Bhai Hirji Bhai Versus State of Gujarat, AIR

1983 SC page 753 and convicted the accused. The accused has not

sought benefit of Section 155(4) of Evidence Act.

29.The evidence of Dr. Raj Rani Kansal, District Hosptial/Dafrin

Hospital, Medical Officer, PW-5 who medically examined the

prosecutrix on 16.8.2000 at 12.00 noon, found no external or internal

injury on the person of the victim. On preabclomen examination, uterus

size was 20 weeks and ballonement of uterus was present. On internal

examination, vagina of the victim was permitting insertion of two

fingers. Internal uterine ballonement was present. The victim

complained of pain during internal examination but no fresh injury was

seen inside or outside the private part. Her vaginal smear was taken on

the slide, sealed and sent for pathological investigation for examination.

The doctor opined both in occular as well as her written report that the

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prosecutrix was having five months pregnancy and no definite opinion

about rape could be given.

30.In the x-ray examination, both wrist A.P., all eight carpal bones

were found present. Lower epiphyses of both writst joints were not

fused. All the bony epiphyses around both elbow joints were fused. In

the supplementary report, the docotr opined that no spermatozoa was

seen by her and according to the physical appearance, age of the victim

was appearing to be 15 to 16 years and no definite opinion about rape

could be given.

31.As far as the medical evidence is concerned, there are three

emerging facts. Firstly, no injury was found on the person of the victim.

We are not mentioning that there must be any corroboration in the

prosecution version and medical evidence. The judgment of the Apex

Court rendered in the case of Bharvada Bhogin Bhai Hirji Bhai

Versus State of Gujarat, AIR 1983 SCC page 753, which is a

classical case reported way back in the year 1983, on which reliance is

placed by the learned Session Judge would not be helpful to the

prosecution. The medical evidence should show some semblance of

forcible intercourse, even if we go as per the version of the prosecutrix

that the accused had gagged her mouth for ten minutes and had thrashed

her on ground, there would have been some injuries to the fully grown

lady on the basis of the body.

32.The findings in the case of Vishnu (supra) are verbatim

reproduced as there is similarly affects:-

“In our finding, the medical evidence goes to show that doctor

did not find any sperm. The doctor categorically opined that no signs of

forcible sexual intercourse were found. This was also based on the

finding that there were no internal injuries on the lady who was grown

up lady.

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The factual data also goes to show that there are several

contradictions in the examination-in-chief as well as cross examination

of all three witnesses. In her examination-in-chief, she states that

incident occurred at about 2:00 p.m. but nowhere in her ocular version

or the FIR, she has mentioned that she was going to the fields with

lunch for her father-in-law. This statement was made for the first time

in the ocular version of the husband of the prosecutrix i.e. PW-3 and

that it was father-in-law who narrated incident to the police authority.

The father-in-law as PW-2 in his testimony states that he was told

about the incident by her daughter-in-law (Bahu) on which he

complained some villagers about the accused who denied about the

incident, therefore, they decided to go to the police station on the next

day but the police refused to lodge the report on the ground that no one

was present in the police station, therefore, they went on third day of

the incident to lodge the FIR. After this, again he contradicts his story

in his own statement recorded on cross-examination on the next date

stating that the incident was told by his daughter-in-law to his wife who

told him about the same. There is further contradiction in the

statements of this witness. In examination-in-chief he states that the

parties called for Panchayat in the village but there is nothing on

record that who were the persons called for Panchayat. If the pregnant

lady carries fifth month pregnancy is thrashed forcefully on the ground

then there would have been some injury on her person but such injuries

on her person are totally absent.”

33.The judgment relied on by the learned counsel for the appellant

will also not permit us to concur with the judgment impugned of the

learned Trial Judge where perversity has crept in.

34.As far as Section 3(2)(v) of Scheduled Casts and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 is concerned, the FIR and

the evidence though suggest that any act was done by the accused on

the basis that the prosecutrix was a member of Scheduled Castes and

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Scheduled Tribes then the accused can be convicted for commission of

offence under the said provision. The learned Trial Judge has materially

erred as he has not discussed what is the evidence that the act was

committed because of the caste of the prosecutrix. The sister-in-law of

the prosecutrix had filed such cases, her husband and father-in-law had

also filed complaints. We are unable to accept the submission of learned

AGA that the accused knowing fully well that the prosecutrix belongd

to lower strata of life and therefore had caused her such mental agony

which would attract the provision of Section 3(2)(v) of the S.C./S.T.

Act. The reasonings of the learned Judge are against the record and are

perverse as the learned Judge without any evidence on record on his

own has felt that the heinous crime was committed because the accused

had captured the will of the prosecutrix and because the police officer

had investigated the matter as an attrocities case which would not be

undertaken within the purview of Section 3(2)(v) of S.C./S.T. Act and

has recorded conviction under Section 3(2)(v) of the Act which cannot

be sustained. We are supported in our view by the judgment of Gujarat

High Court in Criminal Appeal No.74 of 2006 in the case of Pudav

Bhai Anjana Patel Versus State of Gujarat decided on 8.9.2015 by

Justice M.R. Shah and Justice Kaushal Jayendra Thaker.

35.Learned trial Judge wrongly came to the conclusion that as the

prosecutrix belonged to community falling in the scheduled caste and

the appellant belonged to upper caste the provision of SC/ST Act are

attracted in the present case.

36.While perusing the entire evidence beginning from FIR to the

statements of PWs-1, 2 and 3 we do not find that commission of

offence was there because of the fact that the prosecutrix belonged to a

certain community.

37.The learned Judge further has not put any question in the

statement recorded under Section 313 Cr.P.C. of the accused relating to

rape which is against him.

18

38.In view of the facts and evidence on record, we are convinced

that the accused has been wrongly convicted, hence, the judgment and

order impugned is reversed and the accused is acquitted of charges

levelled. The accused appellant, if not wanted in any other case, be set

free forthwith.

39.Appeal is allowed accordingly.

40.Record be sent to the trial court.

41.We are thankful to learned counsel for appellant and learned

AGA for the State who have ably assisted the Court.

Order Date :- 10.11.2021

A.N. Mishra