MOHAN SINGH DOBHAL Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) APPELLANT Mohan Singh Dobhal has been convicted and sentenced for the offence of Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act). The trial No. 31/1997 pertains to PS Munsiyari, District Pithoragarh. Accused Mohan Singh Dobhal was chargesheeted for the offence of Section 493/506 IPC as well as Section 3(1)(xii) of the Act. Learned Sessions Judge, however, levelled the charge of only Section 3(1)(xii) of the Act for the reasons best known to him. No levelling of the charge was made for any of the offences of the IPC. The victim/prosecutrix was Km. Bindra Devi, an unmarried girl in her mid twenties. She was a Scheduled Tribe woman. The accused used to visit her house, where she lived along with her mother and one brother. PW3, the real uncle of the victim, has deposed that his house was adjacent to the house of the victim. It transpires that the victim hails from the lower economic strata of the society and used to reside in the hut shaped structure of her house, albeit having 2 to 3 separate portions. PW3 has stated that officials of hydel, forest and block administration at times visited their houses in connection to purchase some vegetables.

(2.) IT has been in the evidence that the accused is a low class forest official and on account of his visit to the house of the victim, as has been aforementioned, the intimacy between the victim and the accused grew up to the extent of physical relations. That relationship continued for 2 -3 years. In due course of time, she was conceived. The accused was a married man having a living wife and 2 -3 children. When the conception was of 5 to 6 months, she realised the gravity of her situation and declined her mother to marry with any other person. The situation was disclosed to the accused. He assured to keep the victim with him thenceafter. So, the victim was sent to the house of the accused, but he did not permit to extend any shelter to her. Eventually, Km. Bindra Devi was sent to the Government Women Shelter and there she breathed her last. So, it was constrained for the prosecution in its failure to examine Km. Bindra Devi before the Court. However, before her death she made a complaint (Ex. Ka -2) to the District Magistrate, Pithoragarh on 19.6.1995 alleging that the accused was consistently having the physical relations with her for last two and half years. It was also stated in the complaint that the accused disclosed himself to be an unmarried man and promised her to marry in the future. So, she succumbed her body to the accused with the result she was conceived having six months foetus in her womb. When the things were brought to the notice of the accused, he denied any such promise from her.

(3.) THE learned Trial Judge has held the appellant guilty for the above offence on the basis that being a Government Official, he was in a position to dominate the will of the victim under the promise to marry with her. In the opinion of the Court, given circumstances of the case can hardly be taken that the accused, a Class IV official of the Forest Department, was in a position to dominate the will of Km. Bindra Devi abusing his position to be a forest official. It is on the record that he was a married man and was having 2 -3 children. So, if any assurance was given to Km. Bindra Devi for marriage and that was the basis of procuring her consent for sexual relations, then undoubtedly the act of the accused was such as envisaged under Section 90 of the Indian Penal Code and as such it was punishable as if he has committed the offence of Section 376 IPC because he committed the sexual intercourse with the prosecutrix by giving false assurance that he will marry her, but at the same time and all the times he knew that the promise (if any on his part to the prosecutrix) was a false promise/assurance and her consent was obtained under a misconception of fact. Unfortunately, for that offence i.e. Section 376 IPC the chargesheet has not been submitted against him, much less levelling any charge and finding him guilty for that offence. So, in the absence of appropriate charge against the accused, it is not possible for this Court to punish him for that offence. In any case, this Court is not ready to accept that the accused/appellant, being a forest official of a lower class, was in a position to dominate the will of Km. Bindra Devi in such a manner as to sexually abuse her not twice or thrice but continuously for two and half years in her own hut shaped house, where she used to reside with her mother and younger brother.