Hon'ble Gautam Chowdhary,J.
(Per Hon'ble Dr. Kaushal Jayendra Thaker, J.)
1. By way of this appeal, the appellant has challenged the Judgment and order dated 19.10.2011 passed by Special Judge (SC/ST Act), Kannauj in Special Sessions Trial No.48 of 2006 titled (State vs. Ram Rataan Batham and another) arising out of Case Crime No.1133 of 2005 for commission of offences under Sections 363, 366, 376 Indian Penal Code & 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act, 1989, (herein after to be referred as 'SC/ST Act') Police Station-Kannauj, District-Kannauj, whereby the accused-appellant was convicted and sentenced for three years rigorous imprisonment for the offence committed under Section 363 IPC read with Section 3(2) (v); for five years rigorous imprisonment and fine of Rs.1,000/- for the offence under Section 366 IPC read with Section 3 (2) (v) in default of payment of fine, one month additional rigorous imprisonment; for life imprisonment and fine of Rs.5,000/- for the offence under Section 376 IPC read with Section 3 (2) (v) of SC/ST Act and in default of payment of fine, one year additional rigorous imprisonment. Except the sentence of defaulted fine, all the sentences were to run concurrently as per direction of the Trial Court.
2. The brief facts as per prosecution case are that on the evening of 23rd October, 2005, prosecutrix aged about 13 years of age and Neetu (her sister) aged about 9-10 years went for the natural call and at that time, Ram Ratan s/o Guljari, Brijesh s/o Ramswaroop, Jaipal s/o Chunnulal and one unknown person, namely four persons in number, having countrymade pistol reached the daughters of the complainant and gauged both the girls and kidnapped them. Ram Kishore saw the two girls going with the four persons named in the FIR and at about 8-9 p.m., Neetu was sent back. The prosecutrix was taken to an unknown place, the accused had threatened the girl with dire consequences. When they started searching, they found the daughter-Neetu, Ram Ratan on seeing Neetu recognized her to be along with four persons of the village. The complainant went to the police station on the same night at Kannauj but the police did not ascribe his report and, therefore, he sent what can be said to be registered post AD as the accused were head strong people. This report was given on 31.10.2005, which is at Ex.ka-6 and has been described as FIR. The Written Report (Ex.ka-2) dated 24.10.2005 is also on similar terms. The prosecutrix was found after a period about two months. The evidence of the witnesses would have to be considered. On 1.12.2005, her statement before the Chief Judicial Magistrate, Kannauj, was recorded. The prosecutrix was medically examined and, thereafter, as she gave version against the accused, he was arrested.
3. C.O. City, Kannauj, R.D. 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. As the case was triable by court of session, the Magistrate committed the case to court of session.
5. The prosecution so as to bring home the charges examined ten witnesses as under:-
Prosecutrix P.W.1
2. Nitu P.W.2
3. Diwari Lal P.W.3
4. Ram Kishore P.W.4
5. Vishram Singh Katheriya P.W.5
6. Dr.Manjula Sharma P.W.6 7 R.D.Yadav P.W.7 8 Raj Kumar Srivastava P.W.8 9 Dr.Jyotsna Kumari P.W.9 10 Dr.Krishna Gopal P.W.10
6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:
Statement of Prosecutrix Ex.ka-1
2. Written Report Ex.ka-2
3. Recovery Memo of Kidnapped Girl & Supurdginama Ex.ka-3
4. Injury Report Ex.ka-4
5. Supplementary Report Ex.ka-5
6. F.I.R.
Ex.ka-6
7. Injury Report Ex.ka-8 8 Supplementary Report Ex.ka-9 9 Site Plan with Index Ex.ka-10
7. On 15.02.2006, the learned Sessions Judge framed the charge for the commission of offence under Sections, 363, 366, 376 Indian Penal Code (herein after referred to as 'IPC') read with Section 3 (2) (5) of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act, 1989 (herein after referred to as SC/ST Act).
8. Heard Shri Ambrish Kumar Kashyap, learned counsel for the appellant, Shri N.K.Srivastava, learned AGA appearing for the State and also perused the record.
9. It is submitted by the counsel for the appellant that as far as commission of offence under Section 3(2)(v) of S.C./S.T. Act, 1989 is concerned, the learned Sessions Judge convicted the accused because of 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) of SC/ST Act.
10. Learned counsel for appellant has relied on the following decisions of this Court in the case of (a) Mataruwa @ Amar vs. State of UP, in Cr.Appeal No.4909 of 2009 dated 15.12.2015, (b) Arvind Kumar vs. State of UP in Criminal Appeal No.1880 of 2013 dated 26.07.2019 and (c) Raj Kumar Kahar vs. State of UP, in Crl. Appeal No.4200 of 2013 dated 10.04.2018. He also also 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 judgment of High Court of Andhra Pradesh in the case of Manne Siddaiah @ Siddiramulu Vs. State of Andhra Pradesh, 2000(2) Alld(Cri) so as to contend and submit that in fact no case is made out so as to convict the accused under Section 376 IPC leave apart the offence under Sections 363 & 366 of IPC and Section 3(1)(xii) and read with Section 3(2)(v) of S.C./S.T. Act, 1989 and the prosecutrix has roped in the accused with ulterior motive.
11. Reliance has also been placed upon the various judgments of Gujarat High Court by us, which are as under:
(i) Jaysukh @ Karo Ramji Dharaviya-Satvara vs. State of Gujarat dated 10.03.2015, passed in Crl.Appeal No.145 of 2010
(ii) Somabhai Bhedarbhai Bhagora & 2 vs. The State of Gujarat dated 10.10.2013, passed in Crl.Appeal No.151 of 2006
(iii) Tulsibhai Somabhai Parmar vs. State of Gujarat dated 08.01.2015, passed in Crl.Appeal No.160 of 1997; and
(iv) State of Gujarat vs. Rafiq Dhanvarbhai Memon, passed in Crl. Appeal No.238 of 1992, and
(v) Maheshwar Tigga vs. The State of Jharkhand dated 28th September, 2020, passed in Crl.Appeal No.635 of 2020.
12. It is submitted by learned counsel for the State that prosecutrix belonged 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. 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 as she was belonging to lower strata of life.
13. Learned counsel for the appellant has relied on the judgment of Sadashiv Ramrao Hadbe Vs. State of Maharashtra (supra) and has submitted for acquittal of the accused. The judgment in the case of Manne Siddaiah @ Siddiramulu (supra) rendered by Andhra Pradesh High Court, though it is a judgment of Single Bench, i.e. by Justice B. Sudershan Reddy (as he then was). Learned counsel has relied on findings returned in paragraphs 14, 15 and 16 of the said judgment, which lay down as follows :-
"14. In nutshell the version given by P.W.5 is not supported by even P.Ws. 1 and 2. P.W.1 in his evidence in categorical terms states that he caught hold of the appellant herein as his wife informed him that the appellant has raped her. P.W.5 in her evidence does not state that she has informed P.W.1 about the rape at any time. These major inconsistencies and contradictions in the evidence of material witnesses - P.Ws. 1, 2 and 5 create a lot of suspicion and doubt about the prosecution case. Added to that, P.W.10 - the Civil Assistant Surgeon who examined P.W.5, in her evidence clearly states that she did not find any external injuries on the body of P.W.5. She has also not noticed any semen and spermatozoa in the vaginal slides.
15. In the aforesaid circumstances, it would not be safe to convict the appellant herein on mere suspicion. The inconsistencies and contradictions noticed above are fatal to the case of the prosecution and create any amount of doubt. Obviously, it is the appellant who is entitled for the benefit of doubt.
16. In the aforesaid circumstances, I find it difficult to sustain the conviction of the appellant herein for the offence Under Section 3(1) (xii) and Section 3(2) (v) of the Act read with Section 376 of the Code. The conviction as well as the sentence of the appellant herein is set aside."
14. 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 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."
15. 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 2006, 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.
16. We now decide to sift the evidence threadbare of the prosecution story, the evidence led and discussed before the trial court and as appreciated by the learned Trial Judge.
17. Provision of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes Act, 1989 read as follows : -
(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;
18. Section 3(2)(v) of Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, the FIR nor the evidence nowhere suggests that any one or any act was done by the accused on the basis that the prosecutrix was a member of Scheduled Castes and 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. 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 Atrocities Act. The reasoning 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 crime was committed because the accused had captured the will of the prosecutrix and because the police officer had investigated the matter as a attrocity case which would not be undertaken within the purview of Section 3(2)(v) of SC/ST Act and has recorded conviction under Section 3(2)(v) of 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 (as he then was) and Justice Kaushal Jayendra Thaker.
19. Learned Judge comes to the conclusion that as the prosecutrix belonged to community falling in the scheduled caste and the appellant falling in upper caste the provision of SC/ST Act are attracted in the present case.
20. While considering the judgment, we have considered the judgment of the Apex Court and the recent judgment rendered by this Bench in the case of Vishnu vs. State of UP passed in Criminal Appeal No.204 of 2021 (Defective Appeal No.386 of 2005), dated 28.01.2021, wherein we have held that unless it is made out that the accused had perpetrated any offence, which could be said to be intentional. The reliance placed by learned counsel for the appellant on the judgment relied by us, which is also referred by us in the case of Vishnu (supra), the accused-appellant cannot be held guilty.
21. We would like to refer to the following decisions for deciding whether Sections 363 or 366 and 376 IP Code are attracted:-
a) Alamelu vs. State reported in (2011) 2 SCC 385,
b) Mohd. Imran Khan vs. State (Governemnt of NCT of Delhi) reported in (2011) 10 SCC 192,
c) S. Varadarajan vs. State of Madras reported in AIR 1965 SC 942,
d) Shyam and Another vs. State of Maharashtra reported in AIR 1995 SC 2169,
e) Bhartiben w/o Sureshbhai Bhikhabhai Chauhan vs. Sushilaben Kanubhai Tevar and Anr. reported in 2009 (3) GLH 664,
f) Mussauddin Ahmedabad vs. State of Assam reported in (2009) 14 SCC 541,
e) Bhupatbhai Somabhai Sardiya vs. State of Gujarat reported in (2012) 31 GHJ 140,
f) Vinod Kumar vs. State of Kerala reported in (2014 5 SCC 678,
g) K.P. Thimmappa Gowda vs. State of Karnataka reported in AIR 2011 SCW 2281, and
h) Judgement dated 10.03.2015 of the Apex Court in the case of Satish Kumar Jayanti Lal Dabgar vs. State of Gujarat in Criminal Appeal NO.230 of 2013.
22. Provisions of Section 363 I.P.C. read as under:
"363. Punishment for kidnapping- Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
24. Provisions 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 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."
25. In respect of the prosecutrix, the doctor in medical report has opined as under :-
"General Examination: Young girl of average built Breast well developed. Axillary and pubic hair present. Hight 145 cm., weight 40 k.g. Teath 14/14. No mark of fresh injury any where on the body.
Internal Examination: No mark of fresh injury on her private parts. Hymen has old healed tears. Vagina admits two finger easily. Vagina ...(illegible).. at normal size. Vaginal smear made and sent for examination.
In supplementary report, the doctor has opined as under:
1. Xray Elbow- Epiphysis of elbow joint fused with their respected bones.
2. Xray Wrist- Epishysis of distal end of radius have not fused.
Vaginal Smear Report 25.11.2005 No.73 /2005-No spermatozoa seen in the vaginal smear.
Conclusion:
1. No opinion about rape can be given.
2. Her age is about 17 years.
26. 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 out all the tainted cloths worn at the time of occurrence as she was an illiterate lady.
27. We venture to discuss the evidence of the prosecutrix on which total reliance is placed and whether it inspires confidence or not so as to sustain the conviction of accused. 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 prosecutrix are enshrined, 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.
28. 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 prosecutrix.
29. For maintaining the conviction under Section 376 Cr.P.C., medical evidence has to be in conformity with the oral testimony. We may rely on the judgment rendered in the case of Bhaiyamiyan @ Jardar Khan and another Versus State of Madhya Pradesh, 2011 SCW3104. The chain of incident goes to show that the prosecutrix was not raped as would be clear from the provision of section 375 read with Section 376 of IPC.
30. The judgment relied on by the learned Advocate for the appellant will also not permit us to concur with the judgment impugned of the learned Trial Judge where perversity has crept in. Learned Trial Judge has not given any finding as to fact as to how commission of offence under Section 376 IPC was made out in the present case.
31. 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.
32. The learned Judge further has not put any question in the statement recorded under Section 313 Cr.P.Code, 1973 of the accused relating to rape or statement which is against him.
33. The factual data as it reveals from the testimony of the prosecutrix is that the victim herself had moved from place to place with the young accused. The evidence goes to show that she herself in her oral testimony has conveyed that she and the accused had kept a house on rent. It would be fruitful for us to reproduce the Hindi version, i.e., "hamne ghar kiraye par liya tha", which shows that she followed the accused. The provisions of Section 376 IPC would also not get attracted. The consent of the prosecutrix was too conscious and with a deliberate choice which can be detected from the factual data.
34. The possibility of the prosecutrix being above the age of 18 years on the date of incident is also not ruled out. The nature of allegations go to show that after being with the accused for two months, he either tutored or under great pressure to change her version. Though in the charge, it was mentioned that the prosecutrix was allured and thereby the accused was charged under Section 363 read with Section 366 IPC. No certificate whatsoever about the age of girl was given by father to Investigating Officer is an admitted position of fact which the witness father namely PW-3 (Diwari Lal) has accepted in the cross-examination.
35. While going through the record also we donot find any certificate describing the age of the prosecutrix. The entire change of version of the prosecutrix goes to show that she was tutored. According to the prosecutrix, she has narrated the journey between her place to Faridabad. We are unable to satisfy ourselves that a grown up girl, would gain consciousness only after she reached Faridabad was transferred to train to bus by the accused. She has been with her parents. The statement before the Magistrate under Section 164 Cr.P.C. goes to show that she has taken U-turn in her oral testimony. The medical evidence also will not permit us to hold that there was forcible sex with her, which will fall under Section 375, the doctor has given opinion that no opinion can be given about rape as there was no injury and she was above the age of 17 years. Hence, we satisfy ourselves that no case under Section 376 IPC, for which the accused has been charged, is made out.
36. Rather, we now move to the provisions of Section 363 read with Section 366 IPC. The term "kidnapping" has been defined. Provisions of Section 366 I.P.C. read as under:
"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]."
In this case, can it be said that the girl was kidnapped. When we sift the evidence, the definition of kidnapping would be kidnapped from lawful guardianship. Minor under the age of 16 for male and 18 for female. We are concerned with female. In this case, the medical evidence does not prove that the girl was below the age of 18 years. It has come on record that no certificate showing the age of the girl was ever produced before the Investigating Authority. We can safely rely on the evidence of PW-8. The learned Judge has come to the conclusion that she was 14 years of age. The finding of the learned Judge is not in consonance with the medical evidence produced. The panchayat certificate showed her age to be 21 years, therefore, there is a doubt between this fact and the oral testimony. The oral testimony cannot be said to be so sterling that conviction could be based on the same. Hence, no conviction under Section 363 I.P.Code read with Section 366 I.P.Code can also be maintained. The decision of this Court in Mataruwa @ Amar (supra) would come to the aid of the accused. Similar is the judgement of this Court in Arvind Kumar (supra).
37. 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. The accused appellant, if not warranted in any other case, be set free forthwith.
38. The appeal is, accordingly, allowed. Records be sent back to trial court.
Order Date:-10.02.2021 LNTripathi