Telangana High Court
Chinnelli , Chilumula Narsimlu, Medak ... vs State Of Ap., Rep. Pp. Hyd., on 24 November, 2023
Author: K.Lakshman
Bench: K.Lakshman
THE HON'BLE SRI JUSTICE K.LAKSHMAN
AND
THE HON'BLE SMT JUSTICE K. SUJANA
CRIMINAL APPEAL NO.1146 OF 2013
JUDGMENT:
(per Hon'ble Smt Justice K.Sujana) This appeal is preferred by the appellant/accused aggrieved by the judgment in S.C.No.2 of 2013 on the file of Special Judge for Trial of Offences Under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989-cum-V Additional Sessions Judge, Medak at Sanga Reddy, wherein the appellant is convicted for the offence punishable under Section 376 of the Indian Penal Code (for short 'the IPC') and sentenced to undergo Rigorous imprisonment for a period of ten years and to pay a fine of Rs.2000/- and in default of payment of fine to suffer simple imprisonment for a period of three months. He is also convicted for the offence punishable under Section 3 (2) (v) of SCs/STs (POA) Act, 1989 and sentenced to undergo imprisonment for life and to pay fine of Rs.2,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months and both the sentences are directed to run concurrently.
2. This appeal is filed contending that the judgment of the trial Court is contrary to law, evidence on record and vitiated the KL,J &SKS,J Crl.A.No.1146 of 2013 2 material irregularity. The trial Court believed the evidence of Pws.1 and 2 and also went wrong in not giving clear finding with regard to cell phone-M.O.3 and Bicycle-M.O.4, whether they belong to the accused. Though there are number of contradictions in the evidence of Pws.1 and 2, the trial Court did not answer the same. The trial Court erred in not giving any finding as to the version of Pws.1 and 2 that after the alleged incident of rape, blood was oozing out of the private parts of Pw.2-victim as Pw.2 is the mother of two children. The alleged victim has not raised any hues and cries which is not answered by the trial Court and the trial Court ought to have held that Pws.1 and 2 conspired to avoid repayment of Rs.20,000/- borrowed from the accused. The judgment of the trial Court is based on the assumptions and presumptions and there is no evidence on record. The prosecution failed to prove the guilt of accused beyond reasonable doubt. Therefore, prayed the Court to set aside the impugned judgment by allowing the appeal.
3. Heard Sri M.A.K. Mukheed, learned counsel for the appellant/accused and Sri T.V.Ramana Rao, learned Additional Public Prosecutor.
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4. Learned counsel for the appellant would submit that the evidence on record is not sufficient to prove the guilt of accused. There is no evidence to prove that M.Os.3 and 4 belong to the accused and there is no corroboration between the evidence of Pws.1 and 2. As such, prayed the Court to acquit the accused by setting aside the judgment of the trial Court.
5. Per contra, learned Additional Public Prosecutor would submit that the offence under Section 376 of the IPC needs no corroboration. The evidence of prosecutrix itself is sufficient. Therefore, there are no infirmities in the judgment of trial Court and appeal is liable to be dismissed.
6. The facts of the case are that on 29.04.2012 at 06.30 hours the husband of victim lodged a complaint stating that he belongs to scheduled caste-Mala and was working in Veena Poultry Farm along with his wife. They were residing in the poultry farm along with another couple Dappu Rajaiah and Laxmi situated at the outskirts of Duddeda Village. They got acquaintance with the accused Chinnelli @ Chilumula Narsimlu as he used to visit the poultry farm to chitchat with their supervisor Zakeeuddin. On 28.04.2012 at about 2100 hours after having their dinner, he slept in the room and his wife was making bundles of beedi leaves and KL,J &SKS,J Crl.A.No.1146 of 2013 4 at about 9.30 p.m., his wife woke him up by weeping and informed that when she went to bathroom situated at the rear side of their room to attend nature calls, the accused came there and pounced on her by closing mouth, thrown her on the ground and forcibly committed rape on her. As a result of which she sustained bleeding injuries to her private part and the accused fled away. His wife removed her blood soaked saree and petticoat, washed the blood and later informed the incident to the neighbours and searched for the accused in surroundings. The bicycle of the accused was found at the gate of poultry farm and his phone was found near bath room and immediately, the victim was shifted to M.C.H. Hospital, Siddipet in 108 Ambulance for treatment. As such, he requested the police to take action against the accused. Basing on the same, a case was registered under Section 376 of the IPC and under Section 3 (2) (v) of SCs/STs (POA) Act, 1989.
7. To prove the allegations against the accused, the prosecution examined Pws.1 to 12 and got marked Exs.P.1 to P.11 and M.Os.1 to 4. Basing on the evidence on record and after hearing both sides the trial Court convicted the appellant as stated supra.
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8. Now, the point for consideration is whether the prosecution has proved the guilt of accused for the offences punishable under Section 376 of the IPC and under Section 3 (2) (v) of SCs/STs (POA) Act, 1989 beyond all reasonable doubt ?
POINT :
9. To prove the offence, prosecution examined Pw.1-Nagaraju who is the complainant and husband of victim. He stated that they belong to SC-Mala caste, they are working as labourers in Veena Poultry Farm in Duddeda Village and they are having one daughter and son. Pw.4 and his wife also resides in the said poultry farm beside their room. Pw.3 is the supervisor of the poultry farm. Pw.2 is the victim and she deposed that they belong to Mala caste and they are working in the poultry farm. On the date of incident, after completion of their dinner she was making beedi bundles, at around 9.30 p.m, her husband slept in Verandah and accused went away. While she was attending nature calls, the accused pounced on her shut her mouth with hands, thrown her on the ground in the bath room and tried to commit rape on her. She resisted him, but the accused used force, inserted his penis into her vagina and forcibly committed rape, her vagina torn, blood oozed from the private part and at that time, the accused was in drunken condition. She suffered bleeding from KL,J &SKS,J Crl.A.No.1146 of 2013 6 private part, then she kicked the accused with her legs and accused fled away from the spot. Her saree and petticoat were soaked with blood then she washed blood, changed her saree and petticoat; woke up her husband and informed him and also the neighbours about the incident. When they searched for the accused, they found bicycle and mobile phone of the accused near the bath room and on the next day morning, they lodged complaint against the accused. The doctors sutured her vagina during treatment in the hospital.
10. The defense of the accused by way of cross-examination is that he disputed the scene of offence as it is a narrow place and also made a suggestion to Pw.2 that accused lent Rs.20,000/- to Pw.1 and when he asked about repayment, they filed a false case against him.
11. Pw.3 is the supervisor of the poultry farm. His evidence is to the effect that he knows the accused and he is having agricultural land opposite to the poultry farm gate and he used to visit the farm frequently for fetching water. Every day he used to come to the poultry farm at 7.00 or 8.00 a.m, and leave in the evening 7.00 or 8.00 a.m. Pw.3 came to know about the incident through Pws.1 and 2 and he saw the blood stained petticoat in the bath room and KL,J &SKS,J Crl.A.No.1146 of 2013 7 the bicycle at the gate of poultry farm belongs to the accused. Except giving suggestion to Pw.3 nothing was elicited in cross- examination in favour of the accused.
12. Pw.4 is the neighbour of Pw.1 who was also working in the same poultry farm. His evidence is that on the date of incident at about 10.00 p.m., Pws.1 and 2 came to him and informed about the incident and he saw blood stained saree and petticoat near bath room. They searched for the accused but they found cell phone near bath room and bicycle near the gate of poultry farm, he called 108 ambulance and victim was shifted to Government hospital, Siddipet for treatment. He also accompanied the victim.
13. Pw.5 is the village servant who did not support the case of prosecution. Pw.6 is the panch for scene of offence panchanama and also seizure of M.Os.1 to 4. Pw.7-Dr Suresh, issued potency certificate of the accused. Pw.8 is the Tahsildar of Dubbaka Mandal Medak District who issued caste certificate stating that Pws.1 and 2 belongs to SC-Mala community. Pw.9 is the Civil Assistant Surgeon in Mother & Child Hospital, Siddipet. He deposed that on 29.04.2012 at 12.15 a.m., Pw.2 was admitted in their hospital. The patient complained of rape and she sustained injury to her private part. On examination he did not find any KL,J &SKS,J Crl.A.No.1146 of 2013 8 external injury over her body. He found vaginal tear at 6'o Clock position, she was given treatment of suturing of vaginal tear, he gathered semen specimen from the patient and sent it to the FSL through police. On the same day he gave short opinion stating that rape cannot be ruled out as she is having vaginal tear and after receiving the FSL report, he issued final opinion that since item No.5 has spermatozoa and semen, the victim has undergone intercourse as the preserved vaginal secretions containing spermatozoa according to FSL report. In cross-examination he denied that the injury is possible if a woman falls on fencing.
14. Pw.10 issued certificate stating that accused belongs to BC- Mudiraj caste. Pw.11 is the investigating officer who issued FIR, Pw.12 is the investigating officer who investigated the case and filed charge sheet.
15. The contention of learned counsel for the appellant/accused is that Pws.1 and 2 have foisted false case against the accused to avoid payment of Rs.20,000/- to him. The evidence of Pws.1 and 2, M.Os.1 and 2 bicycle and mobile phone are not proved to be belonging to the accused.
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16. As seen from the evidence on record, Pw.2 deposed about the entire incident and evidence of Pw.9- doctor proves that on the date of incident at 1.15 mid night he admitted Pw.2, examined her and he found vaginal tear which was at 6'o clock position and Ex.P.7 which is issued after receiving FSL report shows that she had undergone intercourse as the preserved vaginal secretions containing spermatozoa according to FSL report.
17. In the offences of this nature, the prosecutrix evidence is sufficient. It does not need any corroboration. The evidence of Pw.4 who is the neighbour also shows that immediately after the incident Pws.1 and 2 approached him and he called 108 Ambulance and shifted Pw.2 to Siddipet Hospital, which is corroborating with her evidence and occurrence of offence. Further, Pw.3 evidence also shows that the accused used to come to their poultry farm for fetching water. As such, the presence of accused at the time of incident also corroborates with the evidence of Pw.3.
18. Learned counsel for the appellant relied on the judgment of the Hon'ble Supreme Court in Naim Ahamed Vs State (NCT of KL,J &SKS,J Crl.A.No.1146 of 2013 10 Delhi) 1, wherein the Hon'ble Supreme Court observed that there must be adequate evidence to show that at the relevant time i.e, at the initial stage, the accused had no intention whatsoever of keeping his promise to marry the victim. There may, of course be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance." Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."
19. To prove that there was consent on the part of prosecutrix, it must be established that she freely submitted herself while in free and unconstrained position of her physical and mental power to act in a manner she wanted. Consent is an act of reason 1 2023 Law Suit (SC) 80 KL,J &SKS,J Crl.A.No.1146 of 2013 11 accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving it cannot be deemed to be "consent". Consent means active will in the mind of a person to permit the doing of the act of and knowledge of what is to be done, or of the nature of the act that is being done is essential to a consent to an act. Consent supposes a physical power to act, a moral power of acting and a serious and determined and free use of these powers."
20. In the present case nothing was elicited in the cross- examination to prove that there is consent in this case. The contention of the appellant is that to avoid payment of Rs.20,000/-, a false case is foisted against the accused. The presence of injury on her private part clearly indicates that she objected to sexual act, she did not make an alarm when sexual assault was done by the accused is not sufficient to indicate that she consented for sexual act.
21. The contention of the appellant is that to avoid payment of Rs.20,000/-, Pws.1 and 2 lodged false complaint is not at all tenable. No one would complain alleging offence like this at the cost of character that too for a meager amount of Rs.20,000/-. The defence failed to elicit anything from Pws.1 and 2, to prove KL,J &SKS,J Crl.A.No.1146 of 2013 12 that the quarrel or disputes to foist a false complaint of this nature. Therefore, there is no force in the contention of learned counsel for the appellant. Further, the trial Court convicted the accused for the offences under Section 3 (2) (v) of SCs/STs (POA) Act, 1989 for which the contention of the appellant is that there is no evidence to prove that accused committed offence knowingly that victim belongs to scheduled caste and scheduled tribe community.
22. In the present case, there is no dispute with regard to the caste of victim that she belongs to scheduled caste and also the caste of the accused that he belongs to BC caste, whereas the prosecution has to prove that accused committed the offence knowingly that the victim belongs to scheduled caste.
23. In this regard the Apex Court in Patan Jamal Vali Vs The State of Andhra Pradesh 2 held as under :
"65. The issue as to whether the offence was committed against a person on the ground that such person is a member of a SC or ST or such property belongs to such member is to be established by the prosecution on the basis of the evidence at the trial. We agree with the Sessions Judge that the prosecution's case would not fail merely because PW1 did not mention in her statement to the police that the offence was 2 2021 SCC Online Sc 343 KL,J &SKS,J Crl.A.No.1146 of 2013 13 committed against her daughter because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW2. While it would be reasonable to presume that the accused knew the caste of PW2 since village communities are tightly knit and the accused was also an acquaintance of PW2's family, the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the intersectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of offence - whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single axis model.
66. It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words "on the ground of" under Section 3(2) (v) have been substituted with "knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". This has decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction. Section 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise. The amended Section 8 reads as follows:
"8. Presumption as to offences. - In a prosecution for an offence under this Chapter, if it is proved that (a) the accused rendered [any financial assistance in relation to the offences committed by a person accused of], or reasonably suspected of, committing, an offence under this Chapter, the Special Court shall presume, unless the contrary is proved, that such person had abetted the offence; (b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed KL,J &SKS,J Crl.A.No.1146 of 2013 14 was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or in prosecution of the common object. [(c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved.]"
67. The Parliament Standing Committee Report on Atrocities Against Women and Children has observed that, "high acquittal rate motivates and boosts the confidence of dominant and powerful communities for continued perpetration" and recommends inclusion of provisions of SC & ST Act while registering cases of gendered violence against women from SC & ST communities. However, as we have noted, one of the ways in which offences against SC & ST women fall through the cracks is due to the evidentiary burden that becomes almost impossible to meet in cases of intersectional oppression. This is especially the case when courts tend to read the requirement of "on the ground" under Section 3(2)(v) as "only on the ground of". The current regime under the SC & ST Act, post the amendment, has facilitated the conduct of an intersectional analysis under the Act by replacing the causation requirement under Section 3(2)(v) of the Act with a knowledge requirement making the regime sensitive to the kind of evidence that is likely to be generated in cases such as these."
68. However, since Section 3(2) (v) was amended and Clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26 January 2016 these amendments would not be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31 March 2011. Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) would consequently have to be set aside."
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24. In this case, offence took place on 28.04.2012, that is before commencement of Act 1 of 2016 which came into force on 26.01.2016. As such, to attract Section 3 (2) (v) of the SCs/STs (POA) Act, 1989, prosecution has to prove that accused committed rape on the ground of victim belongs to scheduled caste whereas, in the present case, Pw.1 is the complainant and husband of Pw.2 prosecutrix. Pw.1 and Pw.2 evidence does not disclose the fact that accused committed rape on the ground that victim belongs to scheduled caste. The evidence of Pw.12 who is the investigating officer is also silent about this fact. Pw.12 also not deposed that Pw.2 stated to him while recording her statement that accused committed rape on her on the ground of her caste. Therefore, prosecution failed to prove the offence under Section 3 (2) (v) of the of SCs/STs (POA) Act, 1989.
25. In view of the above, the conviction for the offence under Section 3 (2) (v) of SCs/STs (POA) Act, 1989 is hereby set aside, whereas there is no illegality in convicting the accused for the offence under Section 376 of the IPC. The trial Court sentenced the accused to under go Rigorous imprisonment for a period of ten years and to pay a fine of Rs.2000/- for the offence under Section 376 of the IPC. However, considering the age of accused the KL,J &SKS,J Crl.A.No.1146 of 2013 16 sentence is reduced to rigorous imprisonment for a period of seven years. Accordingly, the point is answered.
26. IN THE RESULT, the appeal is partly allowed. The appellant is acquitted for the offence punishable under Section 3 (2) (v) of SCs/STs (POA) Act, 1989 and his conviction for the offence punishable under Section 376 of IPC is hereby confirmed and the sentence imposed on him is reduced to rigorous imprisonment for a period of seven years instead of ten years. The accused was released on bail on 11.04.2016. The date of his conviction is 31.10.2013. The appellant/accused is directed to surrender before the trial Court within fifteen days from today, for serving out the remaining sentence. In case, the appellant fails to surrender, the trial Court shall take steps to secure the presence of accused for serving out the remaining sentence.
Miscellaneous applications, if any, pending in this Criminal Appeal shall stand closed.
_________________ K.LAKSHMAN, J ______________ K. SUJANA, J Date :24.11.2023 Rds