To attract the provisions of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the sine qua non is that the offence punishable under the Indian Penal Code punishable with a term of imprisonment of 10 years or more against any person on the ground that the victim is a member of Scheduled Castes or Scheduled Tribes.

ASHIM KUMAR ROY, J.

1. The appellant Bimal Gorai was placed on trial before the learned Additional Sessions Judge, 1st Court, Bankura and Judge Special Court under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 to answer charges under two heads, for offences punishable under Section 376 of the Indian Penal Code and under Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The said trial has ended in conviction of the appellant on both counts and he was sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 2,000/-, in default to suffer further rigorous imprisonment for 2 months and to suffer imprisonment for life and to pay fine of Rs. 2,000/-, in default to suffer rigorous imprisonment for 2 months, with a further direction that both the sentences shall run concurrently.

In this criminal appeal the aforesaid judgment and order of conviction and sentence is under challenge.

2. In summary the case of the prosecution goes like this; On November 25, 1995 at around 8.30 p.m. at night after “Ajan” the victim lady along with her two sons Lakhi Pada and Tara Pada went on sleep in their hut after closing the door. In the meantime the accused entered in their room and embraced her while she was sleeping in the bed. At once she woke up when the accused made some indecent proposal to her but she refused and requested him to leave her as she was not a lady of that kind and identified him as Bimal Gorai of their village. However the accused did not spare her and forcibly raped her against her will and in spite of making all out efforts to resist him she could not succeed. Although she raised hue and cry but received no response and had to bear all the tortures helplessly. As soon as the accused spared her she picked up a sickle lying in the room and gave him a blow and the accused getting injured ran away. Thereafter being attracted by the alarm raised by her although some villagers arrived there but they without attending her removed the injured accused to the hospital. Out of fear she hide entire night.

3. During the trial although the prosecution in order to establish the charges against the appellant examined as many as 10 witnesses but the victim lady P.W. 1 was the key witness and on her evidence the prosecution case is essentially based.

However, defence examined none and the specific case of the defence, transpires from the answer given by the appellant in his examination under Section 313 of the Code that on that day at around 7 p.m. he went to his field to look after the paddy already harvested, when he found a person moving there suspiciously near the place where the paddy was stacked. As soon as the said person noticed him he started running away but the appellant chased him and he entered into the hut of the victim lady and then came out with a weapon in his hand and assaulted him and fled away. He then fell down on the ground with bleeding injuries and was removed to the hospital by the villagers.

4. During the hearing of the appeal, no expected assistance was received from the learned Counsel appearing for the parties, this court requested Mr. Deep Chaim Kabir, a practicing lawyer of this Court to appear in this matter as amicus curiae and to assist us. We record our deep appreciation for the valuable assistance we received from Mr. Kabir.

5. The principal questions that arises for decision in this appeal are as follows;

(i) As to whether any person not being a member of Scheduled Castes and Scheduled Tribes when is found guilty for having committed an offence under the Indian Penal Code punishable with imprisonment for a term of 10 years or more, can be held guilty also under Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on the mere fact that the person against whom such offence is committed is a member of Scheduled Castes and Scheduled Tribes?

(ii) On