IMPORTANT POINT
Rape of minor girl – Merely because victim was a member of scheduled tribe community, it cannot be assumed that appellant was able to dominate her will to exploit her sexually.

JUDGMENT ON BOARD

Sanjay K. Agrawal, J.—This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the impugned judgment dated 06/02/2014 passed by learned Special Judge, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Jashpur in Special Case No. 33/2013 whereby he has been convicted for offences punishable under Section 376(2)(i) of IPC (omitted by Amendment Act 22 of 2018 w.e.f. 21/04/2018), Section 6 read with Section 5(i/k/m) of Protection of Children from Sexual Offences Act, 2012 (in short, ‘Act of 2012’), and Section 3(i)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, ‘Act of 1989’) and sentenced to undergo R.I. for 14 years with fine of Rs. 50000/- in default of payment of fine additional R.I. for 2 years and R.I. for 5 years with fine of Rs. 5000/- in default of payment of fine additional R.I. for 1 year, respectively, directing both the sentences to run concurrently.

2. Case of the prosecution, in brief, is that on 22/04/2013 at about 3 PM at Village Ghumra, Bhursapara within the ambit of Tapkara Police Station, the appellant herein committed sexual intercourse with the minor victim without her consent, knowing fully well that she is a member of Scheduled Tribes community and thereby, committed the aforesaid offences.

3. Further case of the prosecution is that on 28/04/2013 at about 1 PM, Smt. Savitri Painkra (P.W.-2) lodged a report at Police Station that on the date of the incident, she had gone towards the forest to collect wood and when she returned home at about 5 PM, her daughter informed her about the incident. On that basis, first information report was lodged vide Ex. P/1 and victim (P.W.-1) was subjected to medical examination which was conducted by Dr. Mamta Sai (P.W.-8) and in the MLC report (P.W.-9), the Doctor had opined that the victim had undergone sexual assault. After due investigation, the appellant was charge-sheeted for offences punishable under Sections 376(2)(i) and 506(II) of IPC, Section 5(i/k/m) of the Act of 2012 and Sections 3(2)(v) and 3(1)(12) of the Act of 1989 which was committed to the Court of Special Judge for trial in accordance with law. The appellant abjured his guilt and entered into defence.

4. In order to bring home the offence, prosecution examined as many as 9 witnesses and brought on record 11 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence.

5. Learned trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for offences punishable under Section 376(2)(i) of IPC (unamended), Section 6 read with Section 5(i/k/m) of the Act of 2012 and Section 3(1)(xii) of the Act of 1989, finding him guilty of the said offences and sentenced him as aforesaid.

6. Mr. Arvind Sinha, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences as there is no evidence on record upon which his conviction could have been based. In alternative, he would submit that appellant is in jail since 30/04/2013 and he has already completed sentence for more than 9 years, as such, in light of the decision rendered by the Supreme Court in the matter of Vipul Rasikbhai Koli Jhankher v. State of Gujarat, 2022 Livelaw (SC) 2884, his sentence be reduced and he be sentenced to the period already undergone.

7. Per contra, Mr. Avinash Singh, learned State counsel, would submit that prosecution has been able to prove the offence beyond reasonable doubt, as such, the trial Court has rightly convicted the appellant for the offences in question. He would further submit that apparently the victim was a minor on the date of offence and she also belonged to Scheduled Tribes community, in that view of the matter, the sentence awarded by the trial Court is absolutely justifie