Point of Law: When prosecutrix and her witnesses are silent on the factum of the incident occurring due to she being of caste, which falls within the purview of SC/ST Act, the conviction cannot be sustained.

Headnote:
Indian Penal Code, 1860 - Sections 376, 506 - SC/ST Act - Section 3(1)XII and 3(2)V – Criminal Trial - Offence of Rape – Appeal against conviction - Alleged that victim, complainant’s daughter on date of occurrence of the offence was sleeping with her grandmother being mother of complainant in courtyard - In the night of incident, grandmother of victim, as well as mother of complainant had gone out of house in fields to answer nature’s call. However, it was alleged in FIR that in night, appellant and an unnamed person silently came in courtyard and they tied mouth of victim with a cloth and took her out of house and committed a bad-act of rape outside village, just near mango tree - Grandmother of victim and mother of complainant became surprised, when she did not find victim at that relevant point of time in courtyard, so she immediately rushed to room of the complainant, awaking complainant and apprising him that victim is nowhere found in house and she is missing. Thereafter rapid search was being made to find out whereabouts of victim and then it was discovered that victim was coming towards her house and she was found near pond, victim thereafter narrated entire incident and agony both physical and mental sustained by her.
Finding of the court:
The onus to prove that offences have been committed by the accused-appellant under Section 376 IPC read with Section 3(2)V of SC/ST Act is upon the prosecution. However, there is neither any serious discussion nor any finding in the judgment in question with regard to fact that the victim belongs to SC/ST category. Apart from the same, this Court finds that there is no witness to prove the caste of victim. Thus inevitable conclusion is this that no offence under Section 3(2)V of SC/ST Act is made out and thus conviction and the sentence so made under Section 3(2)V of SC/ST Act is unsustainable in the eyes of law - The victim should be a person, who belongs to scheduled caste or scheduled tribe and that the offence under the Indian Penal Code is committed against such person on the basis that such person belongs to the same caste and the offender does not belong to the same caste. If this is proved, then only conviction under Section 3(2)(V) of the Act, 1989 can be invoked - As far as Section 3(2)(V) read with Section 3(1)XII) of the SC/ST Act is concerned, this Court upturns the sentence both of incarceration and fine and the same is quashed if the fine is deposited, which is a fine under Section 325 IPC, same shall be refunded. The accused is acquitted of the said charges - Sentence awarded to the appellant by the learned trial-court for the commission of offence under Section 376 read with Section 506 of IPC is reduced to a period of 8 years with fine of Rs.5,000/-and the default sentence is maintained looking to the poverty of the appellant.
Result: Appeal is partly allowed

JUDGMENT :

Vikas Budhwar, J.

1. This appeal has been preferred against the judgment and order dated 23.1.2015 passed by Special Judge (SC/ST Act)/ Additional Sessions Judge, Banda Special Trial No. 60 of 1997 in Case Crime no. 89 of 1997, under Sections 376, 506 IPC and Section 3(1)XII and 3(2)V SC/ST Act, P.S. Bisanda, District Banda, whereby accused-appellant was convicted under Section 376 IPC read with Section 3(2)V SC/ST Act for life imprisonment and fine of Rs.30,000/-and in default of payment of fine, one year additional imprisonment.

2. Brief facts of the case are that the FIR was registered on 9.5.1997 on the basis of the application moved by the complainant on the same day, in which it was alleged that the victim, the complainant’s daughter on the date of occurrence of the offence, i.e., 9.5.1997 was sleeping with her grandmother being the mother of the complainant in the courtyard. At that relevant point of time, the complainant and his wife Smt. Savitri were lying down in their room. In the night of the incident, i.e., on 9.5.1997, the grandmother of the victim, as well as the mother of the complainant had gone out of the house in the fields to answer the nature’s call. However, it was alleged in the FIR dated 9.5.1997 that at about 1:00 P.M, in the night, Bala Prasad son of Guneshi Kurmi and an unnamed person silently came in the courtyard and they tied the mouth of the victim with a cloth and took her out of the house and committed a bad-act of rape outside the village, just near the mango tree of Badri Kurmi. The grandmother of the victim and the mother of the complainant became surprised, when she did not find the victim at that relevant point of time in the courtyard, so she immediately rushed to the room of the complainant, awaking the complainant and apprising him that the victim is nowhere found in the house and she is missing. Thereafter rapid search was being made to find out whereabouts of the victim and then it was discovered that the victim was coming towards her house and she was found near the pond, the victim thereafter narrated the entire incident and agony both physical and mental sustained by her. Thereafter accordingly the complainant accompanied her daughter and approached the relevant police station while filing a complaint on 9.5.1997, which culminated into lodging of the FIR in Case Crime No.89 of 1997 under Sections 376 IPC and Section 3(1)XII SC/ST Act.

3. One Sri Shailendra Kumar Yadav, Addl. S.P, 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 under Section 376 and 506 IPC and Sections 3(1)XII and 3(2)V SC/ST Act. The matter being triable by court of sessions was committed to the sessions court.

4. The learned trial court framed charge under Section 376, 506 IPC and Sections 3(1)XII and 3(2)V SC/ST Act, which was read over to the accused. The accused denied the charge and claimed to be tried. The prosecution so as to bring home the charge, examined the following witnesses, who are as under:-

1	Victim	P.W.1
2.	Bhura son of Swamideen	P.W.2
3.	Dr. R.P. Gupta	P.W.3
4.	Dr. Pramod Kumar	P.W. 4
5.	Addl. S.P. Shailendra Kumar Yadav	P.W. 5

5. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. The accused did not examine any witness in defence.

6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence :

1.	Written report	Ext. Ka-1
2.	Recovery Memo of Sari of victim	Ext. Ka-2
3.	X-ray report prepared by the Doctor at District Hospital, Banda	Ext. Ka-3
4.	Medical Report of Victim of District Hospital, Banda as well as Pathology Test Report	Ext.