The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.144 of 1995 Pardeshi Patel …. Appellant Mr. M.K. Das, Advocate (Amicus Curiae) -versus- State of Odisha …. Respondent Mr.S. Patra, ASC CORAM: JUSTICE CHITTARANJAN DASH ------------------------------------------------------------------------------------------ DATE OF JUDGMENT : 15.02.2024 ---------------------------------------------------------------------------------------- Chittaranjan Dash, J 1. The sole Appellant, namely, Pardeshi Patel faced trial in the offence U/s.376/511 IPC and under Section 3(1) (xii) of the SC & ST (PA) Act for having committed attempt to rape being in a position to dominate the will of the victim with a view to exploit her sexually, she being a member of Scheduled Caste community. The learned court having found the Appellant guilty only under Section 3(1) (xii) of the SC & ST (PA) Act convicted him there under and sentenced him to undergo R.I. for one year and to pay fine of Rs.1,000/- in default to undergo RI for further period of six months. The learned court, though did not find the case of the prosecution proved beyond reasonable doubt U/s 376/511 IPC expressly held could be one within the ambit of section 354 IPC, however, did not held him guilty as it held the alternative charge found proved against the Appellant. CRA No.144 of 1995 Page 1 of 8 // 2 // 2. The prosecution case as revels from the case record and evidence is that on 23rd October, 1993 the Appellant along with one Rasananda Patel (PW 3) had been to the village of the victim girl to purchase a he-goat. At about the mid-day they purchased the goat. The victim girl who happened to be the daughter of the sworn friend of said Rasananda (PW3). She was called by Rasananda to accompany him to witness the Dasahara Jatra. The victim girl having taken permission of her parents accompanied Rasananda. Accordingly, the Appellant along with Rasananda accompanied by the victim and the goat proceeded in a motorcycle driven by the Appellant. After covering almost half way, Rasananda badly inconvenienced to proceed further carrying the goat in the motorcycle. He, therefore, got down from the motorcycle with the goat at village Kelda and asked the Appellant to proceed with the victim to village Gudigaon in the motorcycle. Thereafter, the Appellant and the victim girl went in the motorcycle towards village Gudigaon. On the way to Gudigaon the Appellant drove the motorcycle inside Kelda jungle and there he forcibly made the victim to sleep on the ground underneath a tree with her face upward and asked her to open her wearing apparels including undergarments. The victim did not agree and cried after which the Appellant caught hold her breasts and started squeezing. It further revealed from the case record that due to such act of squeezing of the breasts, the victim sustained injury on her person. The victim could be saved from the contemplated carnal act of the Appellant, as, to her good fortune an old lady who was engaged in collecting leaves in the jungle appeared in the place of occurrence and raised objection to the illegal act of the Appellant. Taking advantage of the presence of the old lady the CRA No.144 of 1995 Page 2 of 8 // 3 // victim girl gained strength and escaped from the place of occurrence in a weeping condition and ran towards village Gudigaon. She narrated the incident before her relations in village Gudigaon where after one Jayakumar Jaipuria (P.W.2) took the victim to Laikera Police Station for the purpose of lodging a report. The OIC, Laikera Police Station for
Legal Reasoning
want of territorial jurisdiction sent the FIR to the OIC, Kulabira Police Station for further action in the matter. Pursuant to the report lodged, the case was registered under Section 354 IPC and investigation commenced. 3. In course of the investigation, the I.O. examined the victim girl sent her for medical examination by issuing requisition vide Ext.1/2. The IO examined other witnesses available at the Police Station, seized the wearing apparels of the victim girl on production by her at the Police Station under Ext.3. On 24th October, 1993, the IO visited the spot i.e. the place of occurrence as shown by the victim, prepared the rough sketch map under Ext.4 and examined witnesses from the village Gudigaon. He arrested the Appellant on 27th October, 1993, seized his wearing apparels under Ext.5. The I.O. also seized black color model Rajdoot motorcycle along with its document under Ext.6 and left the motorcycle on the zimma of its owner under Ext.7 and forwarded the accused to the court. The I.O. also seized the incriminating material and sent the same to RFSL for chemical examination by order of the learned S.D.J.M., Jharsuguda under Ext.8. Received the medical opinion in respect to the examination of the victim under Ext.1 and on completion of investigation submitted the charge sheet against the accused to face trial. CRA No.144 of 1995 Page 3 of 8 // 4 // 4. The case of the defence is one of complete denial and false implication besides the plea that because of the animosity between Rasananda and the father of the victim, he has been implicated in this case. 5. The learned court having examined the material on record framed the charge against the Appellant under Section 376/511 IPC and in alternative the offence under Section 3(1) (xii) of the SC & ST (PA) Act, 1989. To bring home the charges, the prosecution examined as many as six witnesses and proved documents vide Ext.1 to 9. The defence on the other hand examined the sole witness, namely, Niladri Patel as DW 1. 6. The learned trial court having considered the testimony of the victim though found it cogent and reliable though not on the charge U/s.376/511 IPC deduced the act alleged by the victim to be one under Section 354 IPC. However, on the ground that alternative charge under Section 3(1) (xii) of the SC & ST (PA) Act has also been formulated, the learned court considering that it would amount to double jeopardy did not prefer the Appellant to convict under Section 354 IPC and having found the material sufficient to fasten the Appellant in the offence under Section 3(1)(xii) of the SC & ST (PA) Act found him guilty and convicted him there under. 7. Primarily from the impugned judgment it can be gathered that the learned trial court has found the evidence led by the prosecution through PW 4, (the victim girl), P.W.3 (Rasananda Panda) and that of the medical opinion proved through PW 1 ( Dr. J. Patjoshi ) besides that of CRA No.144 of 1995 Page 4 of 8 // 5 // the Informant P.W. 2 (Jaykumar Jaipuria) arrived at a conclusion that the testimony of the victim girl cannot be faulted with for the reason that the material witness to support the version of the victim have not been examined such as the old lady who allegedly arrived in the jungle and objected the act of the Appellant and further those before whom the victim narrated the incident in village Gudigaon as advanced by the defence and held it sacrosanct.
Legal Reasoning
8. Learned counsel for the Appellant, Ms. Mina Kumari Das, the Amicus Curiae who assisted the Court in the matter strenuously argued and submitted that the learned trial court having found the evidence insufficient to bring home the charge U/s.376/511 IPC could not have convicted the Appellant on the self same evidence. It is further submitted by the learned Amicus Curiae that there is no evidence whatsoever brought from the side of the prosecution with regard to the act alleged that could suggest that the appellant being aware of the fact that the victim belong to Scheduled Caste community exploited her sexually. She also drew the attention of this Court to the relevant provision of the Atrocities Act and further reiterated that the prosecution did not bring any evidence to attract the provision either oral or documentary so as to conclude that because of the fact that the victim girl belonging to the community of Scheduled Caste was exploited by the Appellant. 9. Learned counsel for the State, on the contrary, supported the impugned judgment and submitted that the version of the victim being consistent so as to derive that she was sexually exploited by the Appellant because of the fact that she belonged to the Scheduled Caste CRA No.144 of 1995 Page 5 of 8 // 6 // community and the conclusion derived by the learned court below being inconformity with law requires no interference. 10. On a close scrutiny of the evidence led by the prosecution through the victim girl coupled with the evidence of PW 2, 3 and 5 and that of the medical evidence through P.W.1 the very fact that the incident occurred wherein the victim girl was subjected to sexual exploitation cannot be denied though not held proved on the charge U/s.376/511 IPC. However, a pertinent question that strikes the mind of this Court is that if the trial court held the evidence of the victim that fairly subscribes to the offence under Section 354 IPC what prompted the court not to held the Appellant guilty thereof . 11. On this score since the trial court took the view that the Appellant is also charged alternatively under Section 3(1)(xii) of the SC & ST (PA) Act the conviction in the said offence would amount to double jeopardy. The State did not dispute this finding. This Court, therefore, having not indulged itself in the arena of the subject matter if it could be one coming within the ambit of the double jeopardy simply advert to examine if the conclusion drawn by the court convicting the Appellant in the offence under Section 3(1)(xii) of the Atrocities Act is justified. This is more so because the State did not come against the judgment challenging the aforesaid findings of the learned trial court. 12. Coming, therefore, to the sustainability of conviction for the offence under Section 3(1)(xii) of the Atrocities Act, it is profitable for this Court to refer to the provision. The same reads as follows: “3. Punishment for offences of atrocities:- CRA No.144 of 1995 Page 6 of 8 // 7 // (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe- (i) to (xi) xxx xxx xxx (xii) be in a position to dominate will of a woman belonging to a Scheduled Caste or a Scheduled Tribe or that position to exploit her sexually to which she would not have otherwise court agreed.” 13. The ingredients to constitute the offence as found from the relevant provision are that (i) the offender must be a person who is not a member of Scheduled Caste and Scheduled Tribe (ii) he be in a position to dominate will of a woman belonging to a Scheduled Caste or a Scheduled Tribe (iii) the said position was used to exploit the woman sexually to which she would not have otherwise agreed. 14. In the case in hand admittedly there is no whisper by any of the witness with regard to the factum of community to which the victim belonged to. Neither in the FIR nor in the evidence through any of the witnesses it could be brought in any manner that the Appellant being aware of the fact that the victim belonged to Scheduled Caste community could be exploited sexually and did the act alleged. It is disturbing to note that there is not even a prima facie material before the trial court to frame the charge in the offence under sectin 3(1)(xii) of the Atrocities Act . There is no evidence brought through the IO to the effect that he made any requisition to the Tahasildar seeking the caste particulars of the victim much less to speak about its proof. The trial court proceeded with the presumption that the victim girl belonged to Scheduled Caste CRA No.144 of 1995 Page 7 of 8 // 8 // community and that the Appellant with an intention to satisfy his lust being fully aware of the fact that the victim belonged to SC community sexually exploited her whereas there is no iota of evidence from the side of the prosecution either oral or documentary to prove that the victim girl belonged to SC community. 15. Neither the victim girl herself nor in the evidence of any witnesses it is proved that she was subjected to the alleged act for the reason that she belonged to SC community. Consequently, the assertion of the learned trial court coming to the conclusion that the Appellant did exploit the victim sexually being in a position to dominate her for she being a member of SC community or that the overt act alleged being on the person belonging to the SC community is based on surmises and conjecture only and as such cannot sustain in the eye of law.
Decision
16. In the result, the Appeal is allowed. The Appellant is acquitted from the charge U/s 3(1) (xii) of the Atrocities Act. He is discharged from the bail bond. Judge (Chittaranjan Dash) Dated the 15th February, 2024 KC Bisoi/A.R.-cum-Sr. Secretary Signature Not Verified Digitally Signed Signed by: KRUSHNA CHANDRA BISOI Designation: Secretary Reason: Authentication Location: orissa high court Date: 19-Feb-2024 17:50:11 CRA No.144 of 1995 Page 8 of 8