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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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