This Criminal Appeal is filed by the appellant against the conviction and sentence passed in S.S.C.(CC)No.92 of 2002 dated 13.12.2002, on the file of the learned Principal Sessions Judge, Erode wherein, the appellant stands convicted for the offence punishable under section 450 IPC r/w 511 and r/w Section 3 (2) (v) of SC/ST (P.A.) Act r/w 511 IPC and Section 3 (1)(xii) of SC/ST (P.A.) Act, 1989 and was sentenced to undergo seven years R.I. and to pay a fine of Rs.1,000/- in default, to undergo six months R.I., convicted under section Section 3 (2) (v) of SC/ST (P.A.) Act r/w 511 IPC and sentenced to undergo a period of 7 years R.I. And to pay a fine of Rs.1,000/- in default to undergo six months R.I. and convicted under Section 3 (1)(xii) of SC/ST (P.A.) Act, 1989 and sentenced to undergo six months R.I. and to pay a fine of Rs.1,000/- in default to undergo three months R.I. and all the three sentences were directed to run concurrently.
2. The prosecution case in brief is as follows:
P.W.1 who is the complainant was residing at Thirumugam Malarathapuram Village and said to belong to Hindu Kuravar community which is a Scheduled Caste whereas, the appellant belongs to Hindu Navithar community of Backward caste. On 23.05.2000 at about 4.00 p.m., P.W.1 was alone and cooking in the kitchen of her house. Her husband is working as conductor in the Tamil Nadu State Transport Corporation, Kavundapadi Branch and the appellant was working as a driver of the same State Owned Corporation at Kangayam. On the door was being merely closed, the appellant entered into the house without her permission with an intention to rape her, took her to the bed room despite her resistance and attempted to rape her. P.W.1 by using her force tried to push him away and escaped from the clutches of the accused but however, the accused/appellant pressed her chest and mouth due to which she got pain. Somehow she escaped by pushing the accused aside and in the meanwhile, the accused/appellant went out of the house. P.W.4, the husband of P.W.1 came home the next day after his duty and enquired as to why she was very dull and sorrowful. She informed him about the occurrence. P.W.4 brought his brother and uncle of P.W.1 who was working as Sub-Inspector of Police and informed them about the occurrence. On 26.05.2000, P.W.1 accompanied by her husband's brother and uncle went to Chennimalai Police station and lodged a complaint before the Sub-Inspector of Police, Chennimalai who in turn registered the case and sent P.W.1 for medical examination to the Government Hospital, Erode.
3. P.W.2, Dr.Sathyavathi who was the duty Doctor at the Government Head Quarters Hospital, Erode enquired P.W.1 who came with police memo and P.W.1 told her that an attempt was committed to rape on her. She referred her to medical examination by a Gynecologist and requested for a woman constable to accompany her. P.W.3 Dr.Latha, Gynecologist examined P.W.1 and collected smear from the vagina and after getting the analytic report gave an opinion that there is no symptoms of rape or sexual harassment committed on the victim.
4. The Sub-Inspector of Police received community certificate of P.W.1, belonging to Hindu Kuravar community and also the community certificate of the accused. The Inspector of Police, Sennimalai Police Station took up the case for further investigation and recorded the statements of the witnesses and further investigation was taken by P.W.10/the Deputy Superintendent of Police who after completing the investigation laid charge sheet against the appellant under
Section 3 (1) (XII) &
Section 3 (2) (V) of SC/ST (P.A.) Act (hereafter referred as Act) and under
section 450 r/w 511 I.P.C.
5. Mr.V.Barathidhasan, the learned counsel for the appellant strenuously contended that the charges have not been properly framed by the trial court since there is absolutely no material whatsoever to show that the appellant was not in a position to dominate the will of P.W.1 and exploit the victim sexually. He would contend that there is no material to show that the appellant had knowledge of the caste of P.W.1 at the time of commission of the alleged offence. The learned counsel vehemently contended that there was a delay in lodging the complaint nearly for three days and even if the explanation offered by P.W.1 was considered even then there was a delay of 2 days thereafter. He would point out that though the occurrence had taken place on 23.05.2000 at 4.00 p.m., the complaint was given only on 26.05.2000 at 21.30 hours. He would submit that except the evidence of P.W.1, there is no other evidence to corroborate her evidence. He would submit that without any corroboration, her evidence cannot be relied upon to convict the appellant.
6. According to P.W.1, she has raised alarm when the appellant attempted to sexually assault her but since there were power looms at the time of occurrence running in the vicinity of the residence of P.W.1, no one heard her noise and therefore, no one came to her rescue. It is admitted by her that there were residential house surrounding her residence and in fact all those houses were within 2 to 3 feet from the house of P.W.1. Though her evidence discloses that the appellant entered inside the house and attempted to commit rape but charge framed against the appellant is only under
section 450 r/w 511 I.P.C. That apart, P.W.1 has stated that the appellant attempted to rape her but the trial court has not framed any charge under
section 376 r/w 511 I.P.C. It is significant to note that to the Doctor P.W.3/Dr.T.Latha P.W.1 has stated that she was raped by a known person. It is relevant to refer to Ex.P2, the Accident Register wherein, it is stated as follows:
"Alleged to have been raped by a known person at about 4 P.M. on 23.05.2005 at her house".
7. Even as per the prosecution case, there is only an attempt to rape but there was no completion of an act of rape. As she has alleged that she was raped by a person it shows her conduct that she wanted to implicate the appellant somehow in a serious crime like commission of rape on her. The explanation given by her that due to the working of power looms in the vicinity of her house her alarm was not heard by anyone is unacceptable as P.W.9, the Investigating Officer has stated categorically that there are no power looms near the vicinity of P.W.1's house. Even in the plan no such power loom is shown. Therefore, her evidence that due to the running of the power loom, the neighbours could not hear her cry cannot be accepted.
8. There is absolutely no explanation for the delay in lodging the complaint to the police. P.W.1 has stated in her evidence, the next day when her husband came home after his duty she told him about the occurrence who called his brother and her uncle to her house and they were also informed about the incident. The uncle of P.W.1 is working as Inspector of police which is admitted by P.W.1 and P.W.4. If P.W.1 had informed about the incident, the next day to those persons including her uncle/Inspector of Police, they would not have kept quiet but would only lodge the complaint immediately or atleast on the next day. In this case, the occurrence has been reported to the police only after three days. The explanation offered by the prosecution only before Court is unacceptable as there is no plausible explanation for the delay caused atleast after the arrival of P.W.4 and other persons.
9. The important factor in this case which has not been given weight to by the trial court is the major discrepancy in the community certificate of P.W.1. Ex.P.7 which shows the husband's name of the victim as Thangamuthu instead of Maruthamuthu and the village as Murungathozhuhoo. It is the appellant who actually belong to Murunguthozhuhoo Village and admittedly, P.W.1 and P.W.4 belong to Thirumugam Malarathapuram Village. The community certificate issued to P.W.1 does not prove that she belong to Hindu Kuravar community as there is no clear evidence in that regard. Therefore, the said certificate cannot be relied upon to prove the fact that the victim/P.W.1 belongs to Hindu Kuravar of Scheduled Caste Community.
10. Coming to the question as to whether the conviction of the appellant under
Section 3 (2) (v) of the Act is sustainable, it is seen that there is no whisper in the complaint regarding her Caste. In fact on the allegations made in the complaint, the case is registered only under
Section 376 r/w 511 I.P.C. and there is no material in the complaint to register the case under
Section 3 (2) (v) r/w 511 or
Section 3 (1) (xii) of SC/ST (Prevention of Atrocities) Act, 1989.
11. Mr.Bharathidhasan, the learned counsel for the appellant strenuously contended that it is not the case of the prosecution that the accused/appellant deliberately attempted to commit sexual assault on the victim on the ground that she belongs to Schedule Caste and therefore, he would content that when the evidence is lacking attracting the ingredients of
Section 3 (2) (V) of the Act no conviction could be sustained. The learned counsel relied upon the judgment reported in Tutu @ Bijaya Kumar Patnaik & Others and etc. Vs. State of Orissa (2008 STPL (LE-Crim) 29664 ORI, ORISSA High Court) wherein, it has been held that when nothing transpired from the evidence to the effect that the victim girl's caste was known to the accused at the time of commission of the offence, no conviction could be sustained under
Section 3 (2) (v) of the Act.
12. The Orissa High Court has made a reference to the decision of the Hon'ble Apex Court in the case of Masumsha Hasansha Musalman Vs. State of Maharashtra, reported in (2000) 1 OCR (SC) 521 : (AIR 2000 SC 1876) wherein Para-9 of the judgment la quoted below:
"Section 3(2)(v) of the Act provides that whoever, 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 a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v) of the Act arises. In that view of the matter, we think both the trial Court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial Court as well as by the High Court ought to be set aside."
13. This court in a decision reported in Muthu Vs. State, rep. by the Deputy Superintendent of Police, Villupuram (2005 M.L.J.(Crl.) 95) was of the similar view and held as below:
"The words 'on the ground' occurring in Sec.3(2)(v), therefore, shows that the offence should be committed by an accused against a person on the ground that he or she belongs to a Scheduled Caste or a Scheduled Tribe. It is not the case of the prosecution that the appellant in this case deliberately raped the victim on the ground that she is a Scheduled Caste."
14. Coming to the offence under
Section 3 (1) (xii) of Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 it reads as follows:
"(XII) Being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;"
15. In order to attract the application of the provision under
<act id=arGwPokB_szha0nW8s-1 section=3>Section 3 </act>(1) (XII) of SC/ST Act, it must be proved that she was exploited by the appellant. "Exploit' means to make use of, to utilize, use to make ends culpable out of it. The evidence in this case does not indicate that the appellant was in a position to dominate her and use that position and successfully exploit her. There is no material even to suggest that the appellant took advantage of her position. Merely, because the victim was a member of SC/ST Community, it cannot be assumed that the appellant was able to dominate her will and exploit her successfully. Hence, the appellant cannot be guilty under
<act id=arGwPokB_szha0nW8s-1 section=3>Section 3 </act>(1) (XII) of SC/ST (P.A.) Act.
16. In this case, there is absolutely no evidence to show that the appellant allegedly attempted to commit sexual assault on the ground that P.W.1 belong to Scheduled Caste community. Mere knowledge that the victim belongs to SC/ST is not sufficient to constitute the offence, on the other hand, such knowledge should necessarily be coupled with intention to commit such an offence in order to belittle the person as she belongs to Scheduled Caste community. But there is no such evidence in this case. Therefore, convictions under Section 450 r/w 511 I.P.C. and
Section 3 (2) (v) r/w 511 and
Section 3 (1) (xii) of Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 cannot be sustained.
17. In this case, the testimony of P.W.1 suffers from inherent unreliability and does not inspire confidence. The defence story that there was money transaction in relation to conduct of chit by P.W.4 and he failed to return the money to the appellant and other persons who deposited money to him and in order to escape from the said liability, the appellant has been falsely implicated by P.W.1 and P.W.4 cannot be brushed aside, in view of the facts and circumstances of the case. In view of the discussions made above, the conviction and sentence imposed on the appellant cannot be sustained and the judgment of the trial court is liable to be set aside.
In the result the Criminal Appeal is allowed and the conviction and sentence passed in S.S.C.(CC)No.92 of 2002 dated 13.12.2002, on the file of the learned Principal Sessions Judge, Erode is set aside. The appellant is acquitted of the charges levelled against him. The bail bond if any executed by the appellant shall stand terminated and the fine amount if any paid is ordered to be refunded to him.
DP/pri To
1.The Principal Sessions Judge, Erode.
2.The Deputy Superintendent of Police, Erode Rural, Sub Division, Perundurai, Erode District.
3.The Public Prosecutor, High Court, Madras