Telangana High Court
Maddur Sailoo vs The State Of A.P. Rep., By Its Pp 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.1167 OF 2013
JUDGMENT:
(per Hon'ble Smt Justice K.Sujana)
Feeling aggrieved by the judgment of the 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 in S.C/S.T.S.C.No.31 of
2011, wherein the appellant/accused is convicted for the offences
punishable under Section 366, 376 (1) of the Indian Penal Code
(for short 'the IPC') and under Section 3 (2) (v) of SC/ST (POA) Act,
1989 and sentenced him to undergo rigorous imprisonment for
five years and to pay fine of Rs.3,000/- and in default of payment
of fine to undergo simple imprisonment for three months for the
offence punishable under Section 366 of the IPC. He is also
sentenced to undergo rigorous imprisonment for a period of ten
years and to pay fine of Rs.3,000/- and in default of payment of
fine to suffer simple imprisonment for three months for the offence
under Section 376 (1) of the IPC. He is also sentenced to undergo
life imprisonment and to pay fine of Rs.3,000/- and in default of
payment of fine to suffer simple imprisonment for three months for
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the offence punishable under Section 3 (2) (v) of SC/ST (POA) Act,
1989 and all the sentences were directed to run concurrently.
2. The appellant filed this appeal stating that the trial Court
committed grave illegality by convicting the appellant under
Section 3 (2) (v) of SC/ST (POA) Act, 1989 and under Sections 366
and 376 (1) of the IPC, without there being any evidence and there
is no iota of evidence to show that Pw.2 raised hues and cries.
Admittedly, Pw.2 and accused were inmates in the house of one
Srinu, but no one was informed nor raised cries, when they went
in auto she did not raise cries which clearly show that Pw.2
voluntarily went with the appellant and consented for sexual
intercourse. The trial Court ought not to have noted that there is
no consistency in the evidence of Pws.1 to 4 and Pw.7 with regard
to rape committed by the appellant, so also there is variation in
the evidence of Pws.2 and 12 with regard to place of occurrence
and time. As such, their evidence is not believable. Further there
is no evidence to show that on what date the victim was examined
by Pw.8 and how many days after the incident she was examined,
whether she sustained injuries on her private parts but simply
relied on the report of FSL concluding that there is evidence of
sexual intercourse and convicting the appellant is against the law.
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3. He therefore, prayed the Court to set aside the conviction
and sentence and acquit the appellant.
4. Heard Sri B. Vengal Reddy, learned counsel representing
Smt A. Gayatri Reddy, learned counsel for the appellant and Sri
T.V.Ramana Rao, learned Additional Public Prosecutor appearing
for the respondent-State.
5. Learned counsel for the appellant would submit that the
evidence on record is not sufficient to convict the accused. His first
contention is that the victim is major and she voluntarily went
with the accused. As such it does not amount to abduction and
the conviction under Section 366 of the IPC is not tenable. His
second contention is that the victim is major, she voluntarily went
with the accused and consented for sexual intercourse. Therefore,
it does not come under Section 376 (1) of the IPC. His third
contention is that there is no evidence on record to show that the
accused is aware of the caste of victim and knowingly he
committed offence against her. Therefore, he prayed the Court to
set aside the judgment of the trial Court and acquit the accused.
6. Per contra, learned Additional Public Prosecutor would
submit that the evidence on record is sufficient to prove the guilt
of accused and the bonafide certificate filed by the prosecution
proves that victim is a minor on the date of commission of offence.
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As such the accused is liable for punishment and there are no
infirmities in the judgment of the trial Court and prayed the Court
to dismiss the appeal.
7. To prove the case, the prosecution examined Pws.1 to 13
and got marked Exs.P.1 to P.12 documents and M.Os.1 to 8.
Basing on the evidence on record and after hearing both sides, the
trial Court convicted the appellant as stated supra.
8. Now, the points that arise for consideration are :
1. Whether the prosecution is able to prove the guilt of accused
for the offence under Section 366, 376 (1) of the IPC and
under Section 3 (2) (v) of SC/ST (POA) Act, 1989 ?
2. Whether there are any infirmities in the judgment of the trial
Court and it needs interference ?
POINT NOs.1 & 2 :
9. The facts of the case are that on 04.04.2011 at 9.00 hours
Pw.1 lodged a complaint stating that he belong to SC Mala caste
and on 01.04.2011 at about 9.00 hours his daughter Pw.2 aged
about 16 years studying X th class went to Jyothi School at BHEL
Township to attend science examination, but she did not return
home and on enquiry with the friends of his daughter he came to
know that accused took his daughter to Jeedimtla area and kept
her in the house of Srinu's brother upon which he went there and
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found his daughter therein. His daughter informed him by
weeping that the accused took her to the house of his friend Srinu
situated at Ameenpur Village and committed rape on her. Later,
the said Srinu and his wife Hari Bai took her to the house of
Swamy, elder brother of Srinu, there also the accused committed
rape on her during night hours and on the next day i.e., on
02.04.2011 the accused left her alone at that place by saying that
he would come back after attending duty and threatened her not
to reveal the same to anyone.
10. Basing on the said complaint, the investigation officer
registered a crime, examined Pw.1 and recorded the statement of
victim girl and sent her to medical examination. Basing on the
statement of witnesses, he filed charge sheet for the offences
punishable under Section 366, 376 (f) of the IPC and under
Section 3 (2) (v) of SC/ST (POA) Act, 1989.
11. Pw.1 is the father of victim. According to him, on the date of
incident, the victim was studying Xth class and he know the
accused as he is working as the driver of a DCM van which
belongs to their villager. On 01.04.2011 at about 9.00 a.m., his
daughter went to attend examination but did not return home.
Then he went to school and enquired with her friends and came to
know that accused took her to Jeedimetla. He searched for his
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daughter and after two days he came across the accused in
Jeedimetla, caught hold of him and enquired about the victim girl.
The accused took him to his friends room where the victim girl was
found and he brought the victim along with him. His daughter
informed him that the accused committed rape on her.
12. Pw.2 is the victim girl and her evidence is that at the time of
incident she was studying X th class and was aged about 16 years.
She got acquaintance with the accused as he was driver of DCM
van and they got hired the DCM van when they went to
Komaravelli. On 01.04.2011 at about 9.00 a.m., she went to
attend X th class Physical Science examination at BHEL Jyothi
School. After completion of examination when she came out, the
accused was waiting for her and she went along with him to
Ameenpur to the house of his friend Srinu. She further stated
that she does not know what the accused told to the inmates of
the house, closed the door and committed rape on her forcibly and
from there he took her to Jeedimetla to the house of one Swamy
and there also he committed rape on her. On 03.04.2011 her
parents came there along with the accused and took her to the
police station and Pw.1 gave complaint.
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13. Pws.3 and 4 are the panch witnesses for scene of offence
and seizure of clothes of victim girl. Their evidence is that on
04.04.2011 at Ramchandrapuram the police took them to one
house at Ameenpur. The police prepared scene of offence
panchanama and rough sketch and they seized M.Os.1 to 5.
14. Pws. 5 and 6 are panchas for confession statement and
seizure panchanama. Their evidence is that on 05.04.2011 at
about 10.00 a.m., they went to the police station
Ramchandrapuram. The accused was present in the police
station. On instructions of DSP, they enquired with the accused
and he confessed about commission of offence on the victim girl
and stated that he kept his clothes in his house. The police seized
M.Os.6 to 8 at the instance of accused.
15. Pw.7 is the Tahsildar who issued caste certificate of accused
stating that he belongs to Backward class. Pw.8 is the medical
officer. She examined the victim girl and collected smears from
the vagina and sent to FSL for detection of semen and
spermatozoa and she received FSL report on 14.07.2011 and
opined that semen and spermatozoa are detected.
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16. Pw.9 is the Civil Assistant Surgeon, District Hospital,
Sangareddy. On requisition from the SDPO, R.C puram sub
division, he examined the accused and found him physically and
mentally sound and he gave fitness certificate. Pw.10 is the
Tahsildar and he issued caste certificate of the victim stating that
she belongs to SC Mala caste.
17. Pw.11 is the ASI of R.C. Puram who received complaint and
issued FIR. Pw.12 is the investigating officer who investigated the
case and filed charge sheet. Pw.13 is the head master, ZPHS,
Tellapur wherein the victim girl studied in the said school at the
time of incident. She deposed that victim studied X th class in
their school and as per the school records the victim joined in
their school in the year 2006 and completed X th class in the year
2011. As per the school records the date of birth of the victim is
05.01.1996.
18. Basing on the above evidence, the trial Court convicted the
accused for the offences stated supra.
19. Now, the first contention of the appellant is that on the date
of incident, the victim was major and she herself went with the
accused and consented for sexual intercourse.
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20. Going through the said contention and the evidence on
record is that the victim was studying X th class on the date of
incident and as per the evidence of Pw.13-head master the date of
birth of the victim is 05.01.1996. The incident occurred on
01.04.2011. As per the evidence available on record, the age of
the victim was 15 years and as per the evidence of Pw.1, the victim
was 16 years old. Therefore, viewed from any angle, the victim
was minor on the date of incident. Therefore, her willingness to go
with the accused and consented for sexual intercourse cannot be
considered and there is no force in the said contention.
21. The second contention of the appellant is that as the victim
is major, she consented for sexual intercourse and therefore, she
has not raised hues and cries though she was taken in an auto on
national highway for second time and has not informed to anybody
hence, it does not amount to rape.
22. After going through the said contention, and as per the
ingredients of Section 375 of the IPC when the victim girl is under
16 years of age, her consent is immaterial even though she had
sexual intercourse at her will. Consent given by minor girl is not
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valid. In Iqbal Vs State of Kerala 1, the Hon'ble Supreme Court in
paragraph No.8 observed as under :
8. Clause "sixthly" clearly stipulates that sexual intercourse with
a woman with her or without her consent when she is under 16
years of age, amounts to rape. The evidence on record clearly
establishes that the victim was less than 16 years of age and,
therefore, the conviction for offences punishable under Section
376 IPC cannot be faulted.
23. Therefore, the contention of appellant that there is consent
and it does not amount to rape is not tenable.
24. The third contention of the appellant is that though the
appellant belongs to BC community, he does not know about the
caste of victim. There is no evidence on record to show that the
appellant committed the offence against the victim on the ground
that she belongs to SC community.
25. Having considered the said contentions, the evidence on
record would show that the victim belongs to SC community and
Pw.10 certified that the victim belongs to SC community but no
where in the evidence of Pws.1 and 2 stated that the offence was
committed by the accused as she belongs to the SC community.
Prosecution has to prove that accused committed rape on the
victim girl on the ground that she belongs to SC community.
1 (2007) 12 Supreme Court Cases 724
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There is no evidence on record to show that accused and victim
are residing in same locality or they are known persons. As per
the prosecution story accused was a DCM van driver and the
father of victim engaged his services to go to holy places.
Therefore, it cannot be said that accused committed offence on the
ground of her caste. In this regard the Hon'ble 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 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
2021 SCC Online Sc 343
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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 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.]"
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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."
26. In this case offence took place on 01.04.2011 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
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committed rape on the ground of victim belongs to scheduled
caste whereas, in the present case neither Pw.1 nor
investigating officer deposed about the caste of minor girl.
Further, the evidence of Pws.11 and 12 is silent about the fact
that accused committed rape on the ground that victim belongs
to scheduled caste. Pw.12 also not deposed that Pws.1 and 2
stated to him while recording their statement that accused
committed rape on the ground that victim belongs to scheduled
caste. Therefore, the finding of trial Court against the appellant
for the offence under Section 3 (2) (v) is without any evidence.
As such, the conviction under Section 3 (2) (v) is liable to be set
aside.
27. In view of the above discussion, the accused is found guilty
and convicted for the offences punishable under Section 366 and
376 (f) of the IPC. The appellant is found not guilty for the offence
under Section 3 (2) (v) of the SC/ST (POA) Act, 1989. The trial
Court awarded sentence of rigorous imprisonment for ten years for
the offence under Section 376 (1) of the IPC and also five years
rigorous imprisonment for the offence under Section 366 of the
IPC. Accordingly, Point Nos.1 and 2 are answered.
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28. IN THE RESULT, the appeal is partly allowed by acquitting
the accused for the offence under Section 3 (2) (v) of the SC/ST
(POA) Act, 1989 and conviction of the appellant/accused for the
offences under Sections 366 and 376 (1) of the IPC is hereby
confirmed. However, the sentence awarded for the offence under
Section 376 (1) of the IPC is reduced to seven years. The
appellant/accused was convicted by the trial court on 04.10.2013
and he got released on interim bail on 26.02.2019. 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
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