Hon'ble Naveen Srivastava,J.
(Per: Naveen Srivastava,J.) This Criminal Appeal is preferred against the judgment and order dated 30.3.2012 passed by Special Judge, SC/ST Act, Kanpur Nagar in S.T. No. 1122 of 2007 (State vs. Rais Dear and others), convicting/sentencing the appellants under Section 376 IPC read with Section 3(2)5 SC/ST Act to life with fine of Rs.20,000/- and under Section 506 IPC to 1 year imprisonment. Both sentences to run concurrently.
1. The prosecution case in brief is as under: -
(i) PW-1, informant / victim along with her friend PW-5, while returning from their workplace on 12.2.2007 at about 4:00 P.M, came across accused Mohd. Moin @ Lala and accused Rais @ Dear near Nai Basti. PW-5 in order to return a carry bag of her sister-in-law (DW-1) went to her house along with PW-1. Both the accused chased PW's-1 and 5, entered the house forcibly and sexually assaulted PW-1 at gunpoint in a room, while PW-5 was extended threats that if either of them dare to report, they would be done away with.
(ii) Post occurrence, PW-1 was escorted by PW-5 to her house, where she narrated the incident to her mother and sister (PW-3). They decided to lodge a report same day and while they were on their way to lodge a report they were obstructed by the accused, who slapped PW-3, then PW-1 along with PW-3 could muster courage to lodge a report only next evening, i.e, 13.2.2007 on the basis of a written report (Ex.- Ka-1) scribed by one Deepak Saini as Case Crime no. 112/ 2007 under Sections 376, 506 IPC and 3(2)(v) SC/ST Act at 5 PM at P.S. Chakeri, Kanpur Nagar, against above named accused persons.
(iii) During investigation, PW-1 was medically examined by PW-2/ the doctor on 14.2.2007 at about 1:45 P.M, in police custody. The statement of the victim under Section 164 CrPC was also recorded on 3.4.2007. The I.O, after recording of the statements of witnesses and carrying out other investigational formalities submitted a charge sheet against both the accused under aforesaid provisions.
(iv) The Special Court, while taking cognizance of the offences, framed charges under Sections 376, 506 IPC and 3(2)(v) of SC/ST Act against both the accused, which they denied and claimed to be tried.
(v) The prosecution in order to establish its case examined PW-1/ the victim; PW-2/ the doctor; PW-3/ the sister of PW-1, who accompanied PW-1 to lodge a report, PW-4/ the I.O, PW-5/ friend of PW-1, an alleged eye-witness and PW-6/ the Head Moharrir, who reduced the contents of the FIR in the G.D.
(vi) The accused in their statements under Section 313 CrPC denied the occurrence and alleged false implication and in support thereof produced DW-1, owner of the house, who denied the occurrence having taken place inside her house.
(vii) The trial court after evaluating the evidence on record convicted the appellants as above.
2. We have heard Sri Deepak Singh, learned counsel for the appellants and Sri A.N. Mulla, and Sri V.S. Rajbhar, the learned A.G.A's.
3. Learned counsel for the appellants raised the following contentions:-
(i) FIR is delayed with no explanation, which is also not proved as the scribe (a stranger) was not examined.
(ii) Conviction under SC/ST Act is not sustainable as there is no evidence to indicate that the victim was sexually assaulted only for the reason that she belongs to SC/ST Community, coupled with the fact that PW-1 (the victim) had no prior knowledge of the identity of the accused and vice-versa.
(iii) PW's-1 and 5 tendered contradictory statements as to sequence of occurrence and the number of witnesses.
(iv) DW-1 owner of the house completely denied the occurrence having taken place inside her house.
(v) Prosecution was launched malafidely only with a view to extract compensation.
4. Shri A.N. Mulla, the learned A.G.A controverted the above submissions as under:-
(i) Prosecution has given a satisfactory explanation for delayed lodging of the FIR, coupled with the fact that in a case involving sexual offence, delay is not of much consequence, if the case is otherwise established. Mere non-examination of the scribe/ author of the FIR could not dent the case of prosecution.
(ii) PW-1 in her testimony alleged that the accused sexually assaulted her knowingly that she belongs to a SC Community, thus conviction under SC/ST Act cannot be faulted.
(iii) No major contradiction between PW's 1 and 5, so as to doubt the veracity of prosecution story.
(iv) DW-1 was a charge-sheet witness, who appears to have been won over subsequently.
5. The sexual assault at gunpoint by both the accused on PW-1 (victim) is alleged to have taken place on 12.2.2007 at around 6 in the evening inside the house of DW-1 (sister-in-law of PW-5). An attempt is made by PW's 1, 3 and 5 to lodge an FIR same evening but they were obstructed by the accused. PW-1 along with her sister PW-3 could lodge the FIR only next day at 5 P.M. However, PW-1 under Section 164 CrPC had deposed that once they were obstructed on 12.2.2007 from lodging the FIR, she telephonically contacted one Saleem, a constable, who got the accused arrested, whereas she was also stating that the FIR was lodged next day, i.e, on 13.2.2007 at around 5 P.M, after a written report was scribed one Deepak with whom she had no previous familiarity and who did not even read out the contents as dictated by PW-1. We in the above background are of the view that lodging of the FIR is shrouded with suspicious circumstances, but that alone would not be sufficient to belie the prosecution case.
6. The sexual assault took place inside a room of the house of DW-1. DW-1 is the sister-in-law of PW-5, while latter is friend and colleague of PW-1. Against this background presence of PW-1 in the house of DW-1 is not highly unlikely. The two accused chased the two ladies and entered the house of DW-1 forcibly wherein accused Moin @ Lala forcibly dragged PW-1/ the victim in a room and sexually assaulted her at gunpoint, while the other was guarding the room and they also extended threats to the inmates that if they dare to raise alarm, they would be eliminated, thereafter it was accused Rais @ Dear, who ravished her. Both the accused came out of the house extending threats. PW-1 in cross-examination could not be dented on the vital aspects of the case.
7. PW-3 is the sister of PW-1. She stated that on the date of occurrence itself she along with PW-1 attempted to lodge the FIR, but accused prevented them. She stated that accused Moin @ Lala armed with an unlicensed weapon had slapped her and prevented them from lodging the FIR. The sisters return to their home without lodging any FIR as the report could be lodged next day at 5 in the evening.
8. PW-5 by and large has supported the sexual assault on PW-1 by both the accused inside the house of DW-1.
9. The sexual assault on PW-1 is alleged to have taken place inside the room at gunpoint by the accused. Admittedly, the house belongs to DW-1, sister-in-law of PW-5. PW-1 at page-17 of the paper-book is emphatic, when she states that when they reached the house, DW-1 was not present, rather her children were present while PW-5 at page 39 was affirming that in the said house, DW-1 along with others including tenants were present.
10. Much stress was laid on behalf of the appellants on the testimony of DW-1 as she denied the very occurrence having taken place inside her house. We lest not forget that DW-1 was enlisted as a charge-sheet witness to support the prosecution but she appeared as a defence witness and denied the occurrence. We do not attach much significance to her testimony as the testimony of PW-1 / the victim has undoubtedly established that she was raped by the accused in the house of DW-1, which is also corroborated with the testimony of PW-5 and the possibility of DW-1 having been won over by the accused cannot be ruled out as initially DW-1 in her statement under Section 161 CrPC supported the prosecution story.
11. We, after carefully perusing the evidence of witnesses, are of the view that in so far the testimony of PW-1/ the victim is concerned, same does not suffer from any infirmity, which also stands corroborated with that of PW-5, coupled with the fact that it is highly unlikely that a working lady (married) would go to the extent of foisting a case of sexual assault on her only with a view to extract compensation. Thus it can be safely said that the prosecution has been successful in establishing the offence of rape against the accused-appellants.
12. We now proceed to examine as to whether the sexual assault of the victim would entail a graver punishment under Section 3(2)(v) of the SC/ST Act.
13. Section 3(2)(v) of the SC/ST Act at the relevant time read as under:
"Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--
(i) .....
(ii) .....
(iii)......
(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,"
14. A perusal of the aforesaid provision manifests that to establish a conviction under Section 3(2)(v), the prosecution has to establish that an offence was committed against a person or property on the ground that such person or property belongs to SC/ST community.
15. The Apex Court in Ramdas and Anr Vs. State of Maharashtra (2007) 2 SCC 170, held as under:
"At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a scheduled caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside."
Similarly, in Asharfi Vs. State of U.P. (2018) 1 SCC 742 the Apex Court also held as under:
"6. In respect of the offence under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, the appellant had been sentenced to life imprisonment. The gravamen of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is that any offence, envisaged under Indian Penal Code punishable with imprisonment for a term of ten years or more, against a person belonging Scheduled Caste/Scheduled Tribe, should have been committed on the ground that "such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member". Prior to the Amendment Act 1 of 2016, the words used in Section 3(2)(v) of the SC/ST Prevention of Atrocities Act are "......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe".
7. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has now been amended by virtue of Amendment Act 1 of 2016. By way of this amendment, the words ".......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe" have been substituted with the words "........knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". Therefore, if subsequent to 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under Indian Penal Code which is punishable with imprisonment for a term of ten years or more, is committed upon a victim who belongs to SC/ST community and the accused person has knowledge that such victim belongs to SC/ST community, then the charge of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is attracted. Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act.
8. In the present case, unamended Section 3(2)(v) of the SC/ST Prevention of Atrocities Act is applicable as the occurrence was on the night of 8/9.12.1995. From the unamended provisions of Section 3(2) (v) of the SC/ST Prevention of Atrocities Act, it is clear that the statute laid stress on the intention of the accused in committing such offence in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community.
9. The evidence and materials on record do not show that the appellant had committed rape on the victim on the ground that she belonged to Scheduled Caste. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act can be pressed into service only if it is proved that the rape has been committed on the ground that PW-3 Phoola Devi belonged to Scheduled Caste community. In the absence of evidence proving intention of the appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the appellant under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained."
16. We in the light of above parameters examine as to whether in the instant case an offence under Section 3(2)(v) of SC/ST Act is made out or not.
17. PW-1 feigns complete ignorance as to the identity of both the accused, while PW-5 is familiar with both of them. We hasten to add that it was the case of prosecution that the accused were also not aware of as to the identity of PW-1 (victim) as it was the case of prosecution that the accused inquired from PW-5 as to the identity of PW-1/ the victim to which PW-5 only replied that she happens to be her colleague. We thus do not find any shred of evidence to infer that the accused had any previous knowledge as to the identity of PW-1/ the victim therefor it can be said with reasonable certainty that the alleged offence was not committed on the ground that the victim belongs to SC/ST community.
18. We in the light of above discussion are of the considered view that in so far the conviction of appellants under Section 3(2)(v) of SC/ST Act is concerned, same cannot be sustained while conviction under Section 376 and 506 IPC is liable to be maintained. Consequently, the appeal is liable to be allowed in part.
19. The appeal is allowed in part. The judgment and order dated 3.10.2016 is set aside to the extent it convicts and sentences the appellants under Section 3(2)(v) of the SC/ST Act. Conviction under Section 376 and 506 IPC is maintained.
20. Appellant no.1 has admittedly served incarceration for more than 9 years from the date of impugned judgment, while appellant no.2 is in jail for more than 14 years. We are thus of the view that appellants are liable to be released on sentence undergone.
Appellants be released forthwith unless wanted in any other case.
Let a copy of this judgment along with records be sent to the judgeship concerned for ensuring compliance under intimation to this Court.