Dullabha Paltia vs State Of Orissa
2023 Latest Caselaw 14124 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                         C.R.A No.124 of 1995

      This is an Appeal under Section 374(2) of the code of Cr.P.C.


     Dullabha Paltia                       ....         Appellant


                                -versus-


     State of Orissa                       ....         Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):

For Appellant - Mr. D.P. Dhal, Sr. Advocate along with Mr. A. Roy, Advocate.

             For Respondent    -      Mr. T.K. Praharaj,
                                      Standing Counsel.
             CORAM:
             MR. JUSTICE A.C.BEHERA

Date of Hearing :03.10.2023 :: Date of Judgment :10.11.2023

1. The appellant, by preferring the appeal has called in question to

the Judgment of conviction and order of sentence dated 13.04.1995

passed by the Sessions Judge-cum-Special Judge, Balangir-Sonepur,

Balangir in Sessions Case No.88 of 1994 arising out of G.R. Case

No.147 of 1993.

C.R.A. No.124 of 1995 {{ 2 }}

The appellant (accused) has been convicted for the offence under

Section 3 (1) (XII) of the S.C. & S.T. (Prevention of Atrocities) Act,

1989.

For the above conviction, he (Appellant/accused) has been

sentenced to undergo R.I. for a period of 3 (three) years and to pay a fine

of Rs.500/- in default to undergo R.I. for six months for the offence

under Section 3 (1) (XII) of the S.C. & S.T. (Prevention of Atrocities)

Act, 1989.

Prosecution Case

2. The case of the prosecution basing upon the story narrated in the

F.I.R. vide (Ext.6) during trial before the trial court was that, the victim

(P.W.5) belongs to Tiara by caste, which is a scheduled caste. The

accused belongs to Dumal by caste, which is not a scheduled caste or

scheduled tribe. The accused and the victim both being the persons of

same village, they were well-known to each other from their respective

childhoods. After reaching their respective age of adolescence, whenever

the victim was going to fetch water from the village Chuan, the accused

was meeting her and was expressing before her (victim) that, he (accused)

is interested to marry her. When the accused promised to marry the

victim, then, she (victim) allowed the accused to have sex with her.

Accordingly, the accused and the victim were indulged with sexual

C.R.A. No.124 of 1995 {{ 3 }}

intercourse in many occasions. So, due to such frequent sexual

intercourse between them, the victim conceived. While the victim was

carrying two months of her pregnancy, she (victim) disclosed about the

same before the accused, but the accused advised her (victim) not to go

before any doctor for termination of her pregnancy, because he (accused)

will accept her (victim) as his wife.

Subsequent thereto, when, he (accused) took the victim to his

house to keep her as his wife, the father of the accused did not allow her

(victim), rather bolted the door from inside in order to prevent the victim

from entering into his house. So, without getting any way, the victim sat

on the verandah of the accused and cried. For which, many persons

gathered there. At night, there was a Panch, wherein she (victim) narrated

the entire episode. Though the accused attended that Panch, but denied all

the allegations alleged by the victim against him. So, on its next day, the

victim came to the police station with her father along with one Sankar

Meher and lodged the F.I.R. (vide Ext.6) before the O.I.C. Binika P.S.

(P.W.10) against the accused.

3. Basing upon such F.I.R. vide Ext.6, the O.I.C. Binika P.S.

registered Binika P.S. Case No.43 of 26.08.1993 and he (O.I.C. Binika

P.S.) himself took up the investigation of the case.

C.R.A. No.124 of 1995 {{ 4 }}

During investigation, he (I.O.) examined the victim, recorded her

statements, examined her father along with other witnesses, sent the

victim through requisition for her medical examination and accordingly,

victim was medically examined. He (I.O.) visited the spot, examined

other witnesses, arrested the accused and sent him through requisition for

his medical examination and accordingly, the accused was medically

examined and then forwarded him (accused) to the court. He (I.O.) seized

one admission register of Sarguna Government U.P. School (Ext.11) and

received the medical examination report of the accused and the victim.

He (I.O.) made a prayer before the S.D.J.M. Sonepur for recording of the

statements of the victim U/s 164 of the Cr.P.C. and accordingly, her

statements U/s 164 of the Cr.P.C. were recorded.

On completion of the investigation, he (I.O) submitted final form

placing the accused for trial U/s 376 of the IPC, 1860 and Section 3 (1)

(XII) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989.

Accordingly, the accused faced trial before the court of learned

Sessions Judge-cum-Special Judge, Balangir-Sonepur, Balangir in

Sessions Case No.88 of 1994 having been charged under Section 376 of

the IPC, 1860 and under Section 3 (1) (XII) of the S.C. & S.T.

(Prevention of Atrocities) Act, 1989.

C.R.A. No.124 of 1995 {{ 5 }}

4. The plea of the defence was one of complete denial and false

implication of the accused.

The specific plea/case of the defence as per the statements of the

accused recorded under Section 313 of the Cr.P.C was that, he (accused)

has not committed rape on the victim and he (accused) was not in a

dominating position to dominate the will of the victim and he (accused)

has not exploited the victim sexually by dominating her will.

In order to substantiate the aforesaid charges against the accused

before the trial court, prosecution examined altogether 10 numbers of

witnesses, but whereas, the defence examined none on its behalf.

5. Out of the 10 witnesses of the prosecution, P.Ws.1, 2 and 8 are the

three Doctors, those had medically examined the victim. P.Ws.3 & 4 are

two independent witnesses, those have not supported the case of the

prosecution. P.W.9 is a witness to the seizure. P.W.5 is the victim herself

and P.W.7 is her father. P.W.6 is the cousin of the victim. P.W.10 is the

sole investigating officer of the case i.e. O.I.C. Binika Police Station, who

has submitted charge sheet against the accused on completion of the

investigation.

6. After conclusion of hearing and on perusal of the materials and

evidence available in the record, the learned Trial Court found the

accused not guilty for the offence under Section 376 of the IPC, 1860 and

C.R.A. No.124 of 1995 {{ 6 }}

acquitted him (accused) from the offence under Section 376 of the IPC,

1860, but whereas found the accused guilty for the offence under Section

3 (1) (XII) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 and

convicted him (accused) for that offence under Section 3 (1) (XII) of the

S.C. & S.T. (Prevention of Atrocities) Act, 1989 and sentenced him

(accused) there under as afore-stated vide judgment dated 13.04.1955

passed in Session Case No.88 of 1994.

7. I have already heard from the learned counsel for the appellant and

the learned Standing Counsel for the State.

8. In order to assail the impugned judgment of conviction and order

of sentence passed by the Trial Court against the accused, the learned

counsel for the accused (appellant) contended that, when the trial court

acquitted the accused from the offence under Section 376 of the IPC,

1860, then the trial court should not have convicted the accused for the

offence U/s 3(1) (XII) of the S.C. & S.T. (Prevention of Atrocities) Act,

1989, for which, the judgment of conviction and order of sentence passed

by the trial court against the accused for the offence under Section 3 (1)

(XII) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 cannot be

sustainable under law.

According to the learned counsel for the appellant, there is no

material in the record to fulfil the essentials of Section 3 (1) (XII) of the

C.R.A. No.124 of 1995 {{ 7 }}

S.C. & S.T. (Prevention of Atrocities) Act, 1989 for penalizing him

(accused) under the said offence. Therefore, the impugned Judgment of

conviction and order of sentence passed against the accused (appellant) is

liable to be interfered through this appeal filed by him (accused).

9. On the contrary, the learned Standing Counsel for the State argued

in support of the Judgment of conviction and order of sentence passed

against the accused by the trial court and contended that, the well

corroborated testimonies of P.Ws.5,6 and 7 is justifying the Judgment of

conviction and order of sentence passed against the accused by the trial

court for the offence under Section 3 (1) (XII) of the S.C. & S.T. (P.A)

Act, 1989, which cannot be interfered with.

10. On perusal of the Judgment of the trial court, it appears that, the

accused was facing trial for the offences under Section 376 of the IPC,

1860 and Section 3 (1) (XII) of the S.C. & S.T. (Prevention of Atrocities)

Act, 1989.

The trial court has acquitted the accused from the offence under

Section 376 of the IPC, 1860 by giving observations in Para No.7 of the

Judgment that, "as per the materials and documents available in the

record, at the time of the incident, the victim (P.W.5) was not below 16

years, for which, the mischief of commission of rape as defined under

Section 376 of the IPC, 1860 is not attracted. Therefore, the accused

C.R.A. No.124 of 1995 {{ 8 }}

cannot be made liable for the offence under Section 376 of the IPC,

1860."

The trial court has convicted the accused under Section 3 (1) (XII)

of the S.C. & S.T. (P.A.) Act, 1989 by giving observations in Para No.9

of the Judgment that, "the accused and victim (P.W.5) are persons of the

same hamlet and they were well-known to each other from their

childhood days and as such, they had intimacy and admittedly the

accused is elder than the victim. Both of them had reached their

adolescence. So, from the above circumstances, there is reason to believe

that, the accused was in a position to dominate the will of the victim and

used that position by giving her false promise to marry and he (accused)

exploited her (victim) sexually, to which she (victim) could not have

otherwise agreed. Therefore, mischief of Section 3(1) (XII) of the S.C. &

S.T. (Prevention of Atrocities) Act, 1989 has been attracted against the

accused and the accused is liable for the said offence under Section 3 (1)

(XII) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 and

accordingly, he (accused) is found guilty for the offence under Section

3(1) (XII) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989, though,

he (accused) is not found guilty for the offence under Section 376 of the

IPC, 1860."

C.R.A. No.124 of 1995 {{ 9 }}

11. It is unambiguously clear from the above findings made in

Judgment of the trial court that, the victim (P.W.5) was not below 16

years and she (victim) and the accused both had intimacy with each other

and they both were adolescent.

She (victim) P.W.5 has deposed in Para No.2 of her examination-

in-chief that, he (accused) had sexual intercourse with her on so many

occasions.

12. The above evidence of the victim itself is going to show that, there

was sexual intercourse between them in secret places for several times i.e.

on so many occasions for a long duration.

On that aspect, the propositions of law has already been clarified in

the ratio of the following decisions:

(i) 2007 (1) Crimes-452-Praveen Kumar Sahu Vs. State of Chhattishgarh-S.C. & S.T. (Prevention of Atrocities) Act, 1989 Section 3(1) (XII).

"First condition for attracting offence under Section 3(1) (XII) of the S.C. & S.T. Prevention Act, 1989 is that, accused must be in a position to dominate the will of a woman, who belongs to a particular caste or tribe and he used such position to exploit victim sexually, to which, she would not have otherwise agreed

(ii) 2014 (59) OCR Page-207-Anil Kumar Vs. State of U.P.-S.C. & S.T. (Prevention of Atrocities) Act, 1989 Section 3(1) (XIII) "The word 'position' to dominate-means commanding and controlling position-the position of the accused coupled with the use of such position to exploit the

C.R.A. No.124 of 1995 {{ 10 }}

victim women sexually are the important criteria apart from the caste/tribe factor of the victim/accused."

(iii) 2012 (3) Crimes-430-Ramnath Vs. State of Chhattisgarh-SC & ST (Prevention of Atrocities) Act, 1989-Section 3(1)(XII) "If a girl gives consent for repeated sexual intercourse up to a long duration, an offence under Section 3(1) (XII) could not be made out only on the ground that, the girl had happened to be a member of S.T.

             community

             (iv) 2010        (3)-Crimes        Page-613-Madrass-

Udaiyappan@Chelladurai Vs. State-Indian Penal Code, 1860-Section 417,506,493 and Section 3(1)

(xii) SC and ST Act.

"Where sexual intercourse by accused with prosecutrix was not concern through illicit and there was nothing to show that it was on account of prosecutrix belong to Scheduled Caste-conviction under Section 3(1) (XII) of the S.C. & S.T. Prevention Act, 1989 could not be sustained."

(v) 2008 (3) Crimes Page 456-Madhya Pradesh- Mahesh Jatav Vs. State of M.P. & Others-S.C. & S.T. (Prevention of Atrocities) Act, 1989 Section 3 (1) (XII).

"No material that, act of rape was committed only because the victim was scheduled caste, offences under the Act were not made out."

13. Here in this case at hand, when it is forthcoming from the above

evidence of the victim (P.W.5) that, she being a girl of more than 16

years was indulged in repeated sexual intercourse with the accused in

C.R.A. No.124 of 1995 {{ 11 }}

secret places for a long duration and they both were taking pleasure out of

their such sexual intercourses, then at this juncture, by applying the

principles of law enunciated in the ratio of the decisions referred to supra,

it cannot be held that, the accused has sexually exploited the victim by

dominating her will.

14. On analysis of the materials on record, as per the decisions and

observations made above, it is held that, prosecution has not become able

to establish the charge/offence under Section 3 (1) (XII) of the S.C. &

S.T. (Prevention of Atrocities) Act, 1989 against the accused beyond

reasonable doubt. For which, the impugned Judgment of conviction and

order of sentence passed by the trial court against the accused (Appellant)

under Section 3 (1) (XII) of the S.C. & S.T. (Prevention of Atrocities)

Act, 1989 cannot be sustainable. So, there is justification under law for

making interference with the same through this appeal filed by the

appellant. Therefore, the appeal filed by the appellant must succeed.

15. In the result, the appeal filed by the appellant is allowed.

16. The Judgment of conviction and order of sentence passed on dated

13.04.1995 in Sessions Case No.88 of 1994 under Section 3 (1) (XII) of

the S.C. & S.T. (P.A.) Act, 1989 against the accused (appellant) by the

Sessions Judge-cum-Special Judge, Balangir-Sonepur, Balangir is set

aside.

C.R.A. No.124 of 1995 {{ 12 }}

17. The accused (appellant) is acquitted from the offence/charge

under Section 3 (1) (XII) of the S.C. & S.T. (Prevention of Atrocities)

Act, 1989.

18. Accordingly, the accused (appellant) is directed to be set at liberty

forthwith after being discharged from the bail bonds.

19. Accordingly, the appeal is disposed of finally.

(A.C. Behera), Judge.

Orissa High Court, Cuttack.

10th November, 2023//Rati Ranjan Nayak// Junior Stenographer

Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 13-Nov-2023 16:26:43

C.R.A. No.124 of 1995