S.Balaraman v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.6.2009CORAMTHE HONOURABLE MR. JUSTICE C.NAGAPPANAND THE HONOURABLE MRS. JUSTICE CHITRA VENKATARAMANCrl.A.No.681 of 2008 S.Balaraman .. Appellant/Accused Vs.State, represented by the Deputy Superintendent of Police, Tirupattur, Vellore District. (Crime No.235/2003).. Respondent/ComplainantPrayer: Appeal against the Judgment, dated 8.11.2004, passed in Special Sessions Case No.1 of 2004 on the file of PrincipalSessions Judge, Vellore. For Appellant :: Mr.Kaithamalai Kumaran For Respondent :: Mr.M.Babu Muthu Meeran Additional Public Prosecutor J U D G M E N T (Judgment of the Court was made by C. NAGAPPAN,J.)The appellant-Balaraman is the sole accused in SpecialSessions Case No.1 of 2004 on the file of Principal SessionsJudge, Vellore and he has preferred this appeal challenging theconviction and sentence imposed on him by judgment dated 8.11.2004in the case. For the sake of convenience, in this Judgment, theappellant will be referred to as accused.

Charges under Sections 376 IPC and Section 3(2)(v) ofthe Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 were framed against the accused. The learnedPrincipal Sessions Judge found the accused guilty under Section376 IPC read with Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act and convictedand sentenced him to undergo Life Imprisonment and to pay a fine of https://hcservices.ecourts.gov.in/hcservices/ Rs.10,000/-, in default, to undergo Rigorous Imprisonment for sixmonths.

To prove the charges, the prosecution examined P.Ws.1to 16 and marked Exs.P1 to P19 and M.Os.1 to 7.

The case of the prosecution, as could be discerned fromoral and documentary evidence, can be briefly summarised asfollows. P.W.1-Chinnakulandai and P.W.3-Sagunthala are the parentsof P.W.2, minor victim. P.W.4-Balasubramaniam is the sister'sson of P.W.1-Chinnakulandai. P.W.2, the victim, studied uptofirst standard and was grazing the sheeps. On the date ofoccurrence viz., on 4.9.2003, P.W.2, the victim, was grazing thesheeps along with P.W.5-Ananthi, Lavanya, Jayalalitha and in theafternoon at about 2 pm, P.W.6-Venkatesan asked the accusedBalaraman, who was a pump operator, to set-right the channel courseof the canal. The accused Balaraman directed P.W.5-Ananthi, Lavanya and Jayalalitha to go and bring spade and they refused. The accused directed P.W.2, the victim, to go and get the spade.P.W.2, the victim went through the sugarcane field and the accusedfollowed her and inside the sugarcane field, the accused Balaramancaught hold of P.W.2, the victim, laid her in the channel, closed her mouth with cloth and raped her in violent manner.

The accused was questioned under Section 313 Cr.P.Cand he denied complicity. No witness was examined and no documentwas marked on his side.

The Trial Court found the accused guilty of the chargesand sentenced him as stated earlier. Challenging the convictionand sentence, the accused has preferred the present appeal.

The prosecution case is that accused Balaraman committedrape on P.W.2 minor victim during the occurrence. P.W.2 Victim isthe unmarried daughter of P.W.1 Chinnakulandai and P.W.3Sagunthala, aged 16 years and she studied upto first standard andthereafter she was grazing the sheeps along with P.W.5 Ananthi andother girls and she belongs to Adi-Dravida Community. AccusedBalaraman was employed as pump operator in the Panchayat Board inthe same place and he belongs to Hindu Vanniyar Community. On thedate of occurrence, i.e. on 4.9.2003, P.W.2 Victim was grazing thesheeps along with P.W.5 Ananthi, Lavanya and Jayalalitha and at https://hcservices.ecourts.gov.in/hcservices/ about 2.00 p.m., P.W.6 Venkatesan asked the accused Balaraman toset-right the channel course of the canal. Accused Balaramandirected P.W.5 Ananthi and Jayalalitha to go and bring the spadeand they refused and thereafter he directed the victim to do so.

P.W.2 Victim has testified that accused Balaramandirected her to go and bring the spade and she proceeded throughthe sugarcane field and accused Balaraman followed her and insidethe sugarcane field the accused caught hold of her and laid her inthe channel and closed her mouth with cloth and raped her inviolent manner. P.W.5 Ananthi has testified that when they weregrazing the sheeps in the field on the occurrence day, the accuseddirected P.W.2 Victim to go and get the spade and when P.W.2 Victimwent through the sugarcane field, accused Balaraman followed herand P.W.2 Victim did not return even after considerable time andhence, she along with others went there and saw the accused runningfrom the place and they saw P.W.2 Victim's clothes stained withblood. According to P.W.1 Chinnakulandai and P.W.3 Sagunthala,P.W.2 Victim returned home in the evening at 6' O clock lookingtired and she did not take her food and went to sleep and on thenext day, P.W.3 Sagunthala noticed blood in the clothes worn byP.W.2 Victim and P.W.2 Victim complained of stomach pain and didnot go for grazing the sheep on that day and at about 6.00 p.m.,P.W.7 Rajamani came to their house and told that he came to knowthrough Lavanya that accused Balaraman had raped P.W.2 Victim inthe sugarcane field and they enquired P.W.2 Victim and she narratedthe rape committed by accused Balaraman on her in the sugarcanefield on the previous day. P.W.4 Balasubramaniam, uncle of thevictim, wrote Ex.P1 complaint and obtained Left Thumb Impression ofP.W.1 Chinnakulandai and they lodged the complaint in the policestation.

The learned counsel appearing for the appellantsubmits that P.W.1 Chinnakulandai in his complaint has not statedthat P.W.7 Rajamani first informed him about the occurrence andwhereas in his testimony he has stated so and there iscontradiction and his testimony is doubtful. It is true that P.W.1Chinnakulandai in Ex.P1 complaint has not stated that he cameto know about the occurrence only through P.W.7 Rajamani, but thatdoes not affect the prosecution case in any way. P.W.7 Rajamani isthe Nattamai (Village headman) and he has testified that Lavanyainformed him at 5.00 p.m. on 5.9.2003 that accused Balaramancommitted rape on P.W.2 Victim on 4.9.2003 and he immediately wentto the house of P.W.2 Victim and informed the same to her parents.P.W.1 Chinnakulandai and P.W.3 Sagunthala have categoricallystated that P.W.7 Rajamani came to their house at 6.00 p.m. on5.9.2003 and conveyed the information about the occurrence receivedfrom Lavanya and they enquired their daughter P.W.2 Victim and thevictim told them the rape committed by the accused on her insugarcane field. Though Lavanya was not examined in the case, P.W.5Ananthi has been examined and she has stated about the occurrence. https://hcservices.ecourts.gov.in/hcservices/

After the case was registered, P.W.2 Victim was referredfor medical examination and P.W.9 Dr. Lakshmipathy had seen thevictim at 1.20 a.m. on 6.9.2003 in Thiruppathur Government Hospitaland has referred her to a lady doctor for examination and Ex.P7 isthe Accident Register issued by him. P.W.10 Dr. Parimala on thesame day had examined P.W.2 Victim and according to P.W.10 Dr.Parimala, the Hymen was found torn and there was vaginal tear inthe post Fornix and there was bleeding from the injury and shesutured the wound with difficulty. P.W.10, the Doctor hasexpressed opinion stating that the approximate age of the victim is16 years and there is possibility of rape in a violent manner. Ex.A8 is the Accident Register issued by her.

P.W.2 Victim is 16 year old rustic girl grazingthe sheep on the field. She has testified about the rape committedby the accused Balaraman on her at the time of occurrence. Hertestimony is natural, cogent and convincing and it is corroboratedby the testimony of P.W.5 Ananthi. Further the medical evidencealso corroborates her testimony. The evidence of a victim of sexoffence is entitled to great weight and there exist nocircumstances which cast a shadow of doubt over her veracity. Thetrial Court has rightly accepted the testimony of P.W.2 Victim andfound the accused guilty of the offence under Section 376 IPC.

The next contention of the learned counsel for theappellant is that there is no evidence to prove the commission ofoffence under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and theconviction and sentence of the trial Court for the said offenceare liable to be set aside. In support of his submission, thelearned counsel relies on the following two decisions of the Supreme Court -(1) DINESH ALIAS BUDDHA v.. STATE OF RAJASTHAN[2006 CRI. L.J. 1679]; and(2) RAMDAS AND OTHERS v.. STATE OF MAHARASHTRA[(2007) 1 SCC (CRI) 546].

Per contra, Mr. Babu Muthu Meeran, learned AdditionalPublic Prosecutor, submits that the prosecution has adducedevidence to show that the minor victim belongs to Adi-DravidarCommunity and the accused belongs to Hindu Vanniyar community andsince the rape was committed on the victim, who is a member of Scheduled Caste, the offence under Section 3(2)(v) of the ScheduledCastes and the Scheduled Tribes (Prevention of Atrocities) Act,1989 is attracted and the conviction and sentence for the saidoffence are sustainable. https://hcservices.ecourts.gov.in/hcservices/

In the first decision in DINESH ALIAS BUDDHA v.. STATEOF RAJASTHAN, Their Lordships of the Supreme Court considered theapplicability of the provision under Section 3(2)(v) of the Act andlaid down as follows: "14. At this juncture it is necessary to takenote of Section 3 of the Atrocities Act. As the Preamble to the Act provides 'the Act has been enactedto prevent the commission of offences of atrocitiesagainst the members of the Scheduled Castes and Scheduled Tribes. The expression 'atrocities' is definedin Section 2 of the Atrocities Act to mean an offencepunishable under Section 3. The said provision so farrelevant reads as follows: "3(2)(v): Punishments for offences of atrocities - (2) Whoever, not being a member of a Scheduled Casteor a Scheduled Tribe, - xxx xxx xxx (v) commits any offence under the Indian PenalCode punishable with imprisonment for a term of ten yearsor more against a person or property on the ground thatsuch person is a member of a Scheduled Caste or aScheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and withfine; xxx xxx xxx15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against aperson on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instantcase no evidence has been led to establish thisrequirement. It is not case of the prosecution that therape was committed on the victim since she was a memberof Scheduled Caste. In the absence of evidence to thateffect, Section 3(2)(v) has no application. "

Subsequently, the Apex Court considered the offenceunder Section 3(2)(v) of the Atrocities Act in the decision inRAMDAS AND OTHERS v.. STATE OF MAHARASHTRA and has observed asfollows: "11. At the outset we may observe that there isno evidence whatsoever to prove the commission of offenceunder Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.The mere fact that the victim happened to be agirl belonging to a Scheduled Caste does not attract https://hcservices.ecourts.gov.in/hcservices/ the provisions of the Act. Apart from the fact thatthe prosecutrix belongs to the Pardhi community, there isno other evidence on record to prove any offence underthe said enactment. The High Court has also not noticedany evidence to support the charge under the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities)Act, 1989 and was perhaps persuaded to affirm theconviction on the basis that the prosecutrix belongs to aScheduled Caste community. The conviction of theappellants under Section 3(2)(v) of the Scheduled Castesand Scheduled Tribes (Prevention of Atrocities) Act, 1989must, therefore, be set aside. "

In the present case, the prosecution examined P.W.13Tahsildar to prove that P.W.2 Victim belongs to Adi-Dravidarcommunity. Ex.P16 is Community Certificate issued by him. P.W.14Deputy Tahsildar has been examined to prove that accusedBalaraman belongs to Hindu Vanniyar Community. Ex.P17 is the Community Certificate issued by PW.14. P.W.1 Chinnakulandai in histestimony has stated that they belong to Adi-Dravidar Community andaccused Balaraman belongs to Hindu Vanniyar Community. The merefact that the victim happened to be a girl belonging to a ScheduledCaste does not attract the provision under Section 3(2)(v) of the Act and it is not the case of the prosecution that the rape wascommitted on the victim since she was a member of Scheduled Casteand there is no other evidence on record to prove the said offenceunder the Act. Hence, the conviction and sentence imposed on theappellant under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are liable to beset aside.

The learned counsel for the appellant submits thatthe trial Court has awarded the sentence of life imprisonment onthe finding that Section 3(2)(v) of the Atrocities Act isapplicable and in view of the fact that it has no application tothe present case, a lesser sentence may be imposed on the accusedfor the conviction under Section 376 IPC. Undisputedly, the victimwas 16 years of age at the time of occurrence and the accused isundergoing the sentence for the past four years. In the facts andcircumstances of the case, we are of the considered view thatsentence of seven years Rigorous Imprisonment, which has beenstatutorily provided as minimum sentence, would meet the ends ofjustice for the conviction under Section 376 IPC.