Hanmant Ramhari Ghodake vs State Of Maharashtra
2003 Latest Caselaw 56 Bom

JUDGMENT

V.G. Palshikar, J.

1. These two appeals are directed against the order of conviction and sentence passed by the Additional Sessions Judge, Solapur convicting them in Sessions Case No. 104 of 1999 under Section 376 read with Section 109 of Indian Penal Code and to suffer imprisonment for seven years and fine. The learned Judge also proceeded to convict accused Nos. 1 and 2 under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 109 of Indian Penal Code and to suffer rigorous imprisonment for life and fine. The sentences were ordered to run concurrently. It is this order dated 22-9-1999 which is challenged by both the accused independently. Appeal No. 541 of 1999 is preferred by original accused No. 2 - Hanmant Ghodake and Appeal No. 542 of 1999 is preferred by original accused No. 1 - Bhausaheb Humbe.

2. The case of the prosecution is that accused No. 1 committed forcible intercourse on prosecutrix without her consent and thereby committed offence punishable under Section 376 of Indian Penal Code. The accused No. 2 is said to have abeted commission of this offence by reaching to the prosecutrix the gifts that accused No. 1 gave to her from time to time prior to the date of incident.

3. The prosecutrix has candidly admitted in her evidence that intercourse with her consent and the accused was to marry her and therefore she waited at the place where intercourse took place. According to her she was waiting for two days for the accused to come. At that time she saw accused No. 2 loitering around.

4. With the assistance of the learned Public Prosecutor and the learned counsel appearing for the appellants we have scrutinized the entire record and reappreciated the evidence on record. From our reappreciation of evidence it is obvious that it is a case of consent. The intercourse took place with consent. However the consent was inconsequential as at the time of alleged incident the prosecutrix was less than 16 years of age and therefore whether with consent or otherwise committal of sexual intercourse was technically an offence punishable under Section 376 of Indian Penal Code.

5. This being the factual position there is no question of accused No. 2 abeting the commission of offence in any manner. That is not even the case of the prosecutrix although she has deposed that accused No. 2 used to reach her gifts which were sent by accused No. 1. Doing such thing even with the knowledge of person to whom the gifts are given is minor cannot be abetment of rape. Accused No. 2 was aware of relationship between the prosecutrix and the accused. He was friend of accused No. 1 and therefore obliged him by taking gifts to the prosecutrix and therefore he is charged and convicted of abetment of offence of rape. Abetment is defined in Section 107 which reads as under :

"107. Abetment of a thing. -- A person abets the doing of a thing, who -

First. -- Instigates any person to do that thing; or

Secondly. -- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly. -- Intentionally aids, by any act or illegal omission, the doing of that thing."

Explanation. -- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Admittedly the action of accused No. 2 in reaching the gifts given by accused No. 1 to prosecutrix does not fit in any of the requirement of these provisions as quoted above. He did not instigate anybody and he did not engage anybody to do an illegal act. There was no wilful misrepresentation or concealment of fact by him and consequently he could not be convicted of abetment, It is unfortunate that the learned Judge did not properly consider the provisions of Section 107 while convicting the accused.

6. The learned Judge has also convicted accused No. 1 of offence under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. There is no evidence on record to show that the accused No. 2 had knowledge that the prosecutrix was belonging to scheduled caste or scheduled tribe. Assuming that he had knowledge as will be seen from the discussion hereafter he did not abet the commission of rape because he did not know that there is going to be intercourse between the prosecutrix and accused No. 1 and that the intercourse by that accused No. 1 is being done solely with a view to revenge a schedule caste woman. There is nothing on record to indicate such knowledge. The learned Judge has not considered the provisions of Section 3(2) and proceeded to convict both the accused under Sub-section (2) of Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced them to suffer rigorous imprisonment for life. Before sentencing for such a grave offence it is necessary that the trial Judge gives keen attention to the provisions of law and the proof required for such conviction. The impugned judgment is far from such consideration.

7. The provisions of Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are liable to be noted. Section 3(1) provides punishment for offence of atrocities and then Sub-section (2) provides penalties for certain other specified offences committed on member of scheduled caste and schedule tribes. Section 3(2)(v) reads as under:

"3(2) whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, --

(v) 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 this case intercourse between prosecutrix and accused No. 1 was obviously with consent and there is therefore no question of accused undertaking intercourse on the ground that the prosecutrix belongs to scheduled caste. To draw such an inference is absurd. The learned trial Judge could have better avoided it. We are unable to uphold this conviction in any manner. It is therefore set aside in relation to both the accused.

8. That takes us to conviction of accused No. 1 under Section 376. The fact that he has committed an offence cannot be disputed. Equally undisputable is the fact that the offence is only technical in nature. The accused is in jail since conviction i.e. since 22-9-1999. His bail plea was rejected. We therefore find it just and proper to sentence the accused to suffer rigorous imprisonment for three years for the technical offence of rape as has been committed by him. He has already undergone period of three years confinement and he is therefore liable to be released.

9. In the result Appeal No. 541 of 1999 is partly allowed. The order of conviction and sentence for rigorous imprisonment for life under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is set aside. The conviction under Section 376 is maintained and the accused No. 1 is punished instead of seven years rigorous imprisonment only for three years rigorous imprisonment and since he has already undergone the same he is directed to be released forthwith.

10. Criminal Appeal No. 542 of 1999 is allowed and order of conviction and sentence of accused-appellant No. 2 in both the cases is set aside and he is acquitted of both the charges. He is already on bail. His bail bond stands cancelled.