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Judgment
Surinder Singh, J.—The appellant hereinafter referred to, as "the accused", has challenged his conviction passed in Sessions Trial No. 15 of 2004, decided on 16.3.2005 by the learned Sessions Judge, Hamirpur, for attempted rape u/s 376 / 511 IPC and Section 3 (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act, 1989 in short ''1989 Act'' and sentenced to undergo imprisonment for the period of two years for attempted rape and to pay a fine of Rs. 1000, and for one year u/s 3 (xi) of 1989 Act and to pay a fine of Rs. 500/-. All the aforesaid sentences were ordered to run concurrently and the benefit of Section 428 of the Code of Criminal Procedure was also given to the accused. In short, the prosecution case, as emerges from the evidence on record can be stated thus. The prosecutrix (17) is the unmarried daughter of PW-3 Ajit Singh. In the month of January, 2003 she was residing in the house of her maternal grand mother PW2 Smt. Rattni Devi in village Baggi. From there, she has been going to village Dhakyora to attend tailoring centre.
On 2.7.2003 as usual, after attending her daily classes, while on her way to the house of her grand mother, around 2.15 p.m., when she was crossing ''Sukkar Khad'' at a place known as "Palothri", accused accosted and directed her to go towards bushes. On her refusal, the accused caught hold of her neck, took out a knife and dragged her. Thereafter he is alleged to have committed rape on her. The prosecutrix was threatened not to disclose this fact to any one lest she would be killed.
On reaching home, prosecutrix made the complaint to PW-2 Rattni Devi. She went to village Samela to the house of father of the prosecutrix and narrated the entire story. Then all of them went to PW-4 Ward Panch and informed him about the incident. They also visited the house of Pradhan of Gram Panchyat to bring the incident to his notice. He advised them to report the matter to the police as he was not competent to take cognizance thereof. It had gone dark, consequently, the next day, the prosecutrix went to the police Station along with her grand mother, father and ward Panch and lodged the FIR Ex. PA on 3.7.2003. She also produced her Kamij (P-2) Salwar (P-3) which were sealed by the police and taken into possession vide memo Ex. P-13.
The prosecutrix was got medically examined at Zonal Hospital, Hamirpur by Dr. Sunita Galodha (PW-12). She did not notice any injury on her person and there was no evidence of penetration.
Police visited the spot of the alleged incident and took into possession the broken pieces of bangles (P.5) vide memo Ex. PD. The said broken pieces of bangles were similar to the bangles worn by the prosecutrix. One of such bangle was also taken in to possession
The accused was arrested. He was also medically examined. He was found fit to perform sexual intercourse. The wearing apparels of the accused and pant containing knife was also taken into possession. All these articles were duly sealed and sent for forensic examination.
During investigation, the police had prepared site plan Ex. PW-10/A. Birth certificate of the prosecutrix Ex. PW-11/A, Caste Certificate Mark Y, copy of attendance register of the Stitching centre were also taken into possession vide memo Ex. PW-6/A.
The wearing apparels of the prosecutrix which were taken into possession were examined in the forensic science Laboratory as per report Ex. PW-12/A, it contained human semen.
After completing the investigation, challan was presented against the accused as aforesaid. Finding a prima-facie case against the accused, he was charge-sheeted for the offences aforesaid. At the end of the trial he was convicted and sentenced as stated above.
Ms. Vidushi Sharma, learned counsel for the accused vehemently argued that there are contradictions in the statement of prosecutrix and other witnesses with respect to the injuries which the prosecutrix is alleged to have sustained, whereas no such injury was noticed during her medical examination by Doctor (PW-10,) which causes doubt in her version. Further that there is enmity with the sister of the accused with whom the accused was residing. Except these points, there is no other point to assail the impugned judgment.
Learned Deputy Advocate General supported the impugned judgment of conviction and sentence and also argued that above discrepancies are minor in nature, which do not go to the root of the case. It is also contended that though the accused was residing with his married sister, yet the prosecutrix who was unmarried girl would not have imputed a false allegation against him at the cost of her future. He also referred to the statement of Investigating Officer as well as prosecutrix with respect to the recovery of the broken bangles from the spot which tally with the bangles worn by the prosecutrix, to afford corroboration to her statement.
I have examined the contentions raised by the learned counsel for the accused vis-�-vis the evidence on record.
Though in the FIR as well as in the statement recorded before the learned trial Court, the prosecutrix stated that she was dragged by the accused, her bangles were broken in the scuffle. She was raped and the accused while leaving the spot threatened her with dire consequences. Whereas PW-12 Dr. Sunita Galodha on her clinical examination did not find any injury on her person and opined that her vaginal orifice was small enough not admitting even the tip of little finger. She also stated that there was no evidence on the person of prosecutrix of penetration. To this effect she issued Medico Legal Certificate Ex, PW-12/B and her opinion is Ex. PW-12/C. But however, PW�10 Investigating Officer stated about the recovery of broken bangles on the spot and he also prepared site plan Ex. PW-10/A with respect to the incident in question. He further stated that broken pieces of bangles Ext. P-7 were same which were worn by the prosecutrix which fact has been affirmed by the prosecutrix when examined in the Court. PW-4 though turned hostile but corroborated the recovery of bangles from the spot. She also identified her clothes Ext. P-2 and Ext. P-3 aforesaid, having been taken into possession by the police for forensic examination. But during the trial of the case, this fact has not been assailed in the cross examination of the prosecutrix. The above facts clearly proves that there has been scuffle at the place of alleged incident in which she broke her bangles and the presence of semens on her clothes shows that the accused had ejaculated prematurely without any partial or complete penetration. Later she appears to have exaggerated the incident while making complaint to her maternal grand mother PW2, who in turn informed her father PW-3 Ajeet Singh.
The role of the Court is to find out the truth. From the evidence on record, the learned trial Court rightly came to the conclusion that it was a case of attempted rape by the accused, thus he was rightly convicted for the said offence. The alleged inimical relation with the accused are far fetched thus cannot be believed. However, in so far as the offence u/s 3 (xi) of 1989 Act is concerned, there is no iota of evidence to show that the prosecutrix belongs to "chamar community" which is notified as scheduled caste in absence of the proof of notification issued by the competent Authorities. Further the prosecution has failed that due to caste factor the accused committed the offence to humiliate her. Therefore, he deserves to be acquitted for the said offence and ordered accordingly.
Consequently, the appeal is partly allowed. The conviction of the accused for the offences under Sections 376 / 511 Indian Penal Code is upheld but his conviction and sentence for the offence u/s 3 (x) of the SC and ST (Prevention of Atrocities ), Act, 1989 is set aside and is accordingly acquitted.
In so far as the sentence for attempted rape is concerned, the alleged offence relate to the year 2003, keeping in view the extenuating and mitigating circumstances, the age of the accused, time taken during the trial and for the disposal of the present appeal and also the fact that the conviction of the accused was looming large on his head and mind. Therefore, the sentence u/s 376 read with Section 511 of IPC is reduced to six months without disturbing fine. He shall be entitled for set-off qua the pre and during trial detention u/s 428 of the Code of Criminal Procedure. However, in addition, the accused is also held liable to pay compensation of Rs. . 5000/-. (the fine of Rs. . 500 deposited for the offence u/s 3 of the 1989 Act shall not be refunded to the accused but shall be adjusted against this compensation amount) to the victim (PW1), failing to deposit balance amount of Rs. . 4500/- the amount of compensation, it shall be recoverable as a fine. On releasing the compensation, it be refunded to the prosecutrix (PW1)
Since the sentence passed against the accused was suspended by the orders of this Court vide order on 27.4.2005. He is directed to surrender before the learned trial court on 31.8.2012 to serve out the remaining sentence for the offence u/s 376 / 511 Indian Penal Code, as modified above. In case, the accused appellant would fail to surrender, the learned trial Court shall take coercive steps to commit him to jail to serve out the remaining sentence. Send down the records.