STALIN FATHER Vs. STATE OF A P

JUDGEMENT

(1.) Stalin Father, Father (Pastor) in-charge and care taker of R.C.M. Church compound, Mogalthuru, A-1 in S.C.No.5-96 under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 preferred this Appeal as against the Judgment in S.C. S.T. Sessions Case No.5/96 on the file of Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, West Godavari District dated 10-9-1997. The appellant/A1 was found guilty under Section 376(2)(c)r/w. Section 511 I.P.C. and Section 323 I.P.C. The findings of the learned Special Judge, in nut shell, are that the victim girl PW-1 does not belong to Scheduled Caste being a Christian and hence the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are not applicable and the accused are not liable to be punished under Section 3(1)(xii) and 3(2)(v) of the said Act. The further finding is that A-1 to A-5 did not wrongfully confine PW-1 with common intention and hence Section 342 r/w. Section 34 I.P.C. also is not attracted. A-1 is not guilty of the offence under Section 376(2)(f) I.P.C. A-1 attempted to commit rape on PW-1, being a person in management of childrens institution taking advantage of his position and is liable to be punished under Section 376(2)(c) r/w. Section 511 I.P.C. A-1 also is liable to be punished under Section 323 I.P.C. for beating PW-1. A-2 to A-5 are entitled for an acquittal.

(2.) The case of the prosecution is that PW-1, aged 12 years, belongs to Hindu Arundhateeya, Scheduled Caste, and she was one of the inmates of the childrens home under the management of A-1 and on 10-10-1995 at about 8 P.M. A-1 sent for PW-1 and her brother PW-3 through PW-9 to come and see him in his private room and that PW-1 and PW-3 went to the bed room of A-1 and A-1 had sent away PW-3 and expressed his intention to kiss PW-1 and further instructed PW-1 not to sleep in that night and he was coming to her hall in the night PW-1 is slept in the hall along with other inmates and at about 11 P.M. A-1 entered the said hall and PW-1 pretended as though she was sleeping. A-1 closed the month of PW-1 and carried her into his bed room and committed rape on PW-1 on his cot after making PW-1 naked and A-1 feel on PW-1, penetrated his penis into her vagina despite resistance and after the commission of the offence A-1 asked PW-1 to wear her clothes and to go to her room and also instructed not to disclose the same to any one. It is also the case of the prosecution that PW-1 went to the hall and noticed bleeding from her private part and on 11-10-1995 at 7 A.M. PW-1 and PW-3 met near Ramalayam of Mogalthuru and when she was weeping PW-10 to PW-14 noticed the same and she had disclosed this incident to them and they collected Rs.8/- and gave the same to PW-1. PW-1 and PW-3 left Mogalthuru, reached Yendagandi village and while going to their village, A-1 along with along with A-2 went there and brought back PW-1 to Church home and A-1 beat PW-1 causing simple injuries. It is further the version of the prosecution that A-1 handed over PW-1 to A-3 to A-5 with instructions to confine PW-1 wrongfully and A-2 to A-5 wrongfully confined PW-1 in a room till 12-10-1995 at 8 A.M. and PW-1 was taken by A-1 and A-2 to the house of PW-4. It is further the case of the prosecution that PW-1 disclosed the offence to PW-4 and PW-2 and PW-4 and others questioned A-1 at K.P. Palem Church and A-1 replied arrogantly. After framing charges, the accused pleaded not guilty.

(3.) The prosecution had examined PW-1 to PW-29 and Exs.P-1 to P-44 were marked and MO-1 also was marked. Ex.D-1, Ex.D-2 and Ex.D-3 also were marked and DW-1 to DW-3 were examined on behalf of appellant/A-1. Submissions of Sri C. Padmanabha Reddy, Counsel representing the appellant/A-1: The learned Senior Counsel Sri Padmanabha Reddy on behalf of the appellant/A-1 submitted that the accused were acquitted of offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 since PW-1 does not belong to Scheduled Caste but she is a Christian. The learned Counsel also would submit that the evidence of PW-1 is quite exaggerated, unnatural and definitely cannot be believed in the light of the medical evidence and several of the circumstances and the probabilities in the present case. The learned Counsel would submit that it is not for the appellant/A-1 to explain why he was falsely implicated in such a heinous crime; it may be for having some monetary gain from the Government or otherwise. The learned Counsel also would submit that the evidence may have to be appreciated in the back drop of the facts. There is evidence on record that PW-1 and the brother of PW-1, PW-3, have not been regular and disciplined and have been disorderly and the evidence of PW-1 also would lend support to this aspect. The learned Counsel also would submit that the confident conduct of the appellant/A-1 while asserting that he had taken action against PW-1 and PW-3 for not being regular and disciplined and nothing more, would also point out the innocence of the accused in relation to the offences with which he had been charged with. The Counsel also had pointed out that it is not the case of the prosecution that there were no other inmates on the fateful day and all these inmates who were examined were treated hostile. The learned Counsel also would submit that if the evidence of PW-1 is carefully scrutinized, it would be highly doubtful whether she is speaking truth. Apart from the exaggerated versions, the medical evidence also negatives the commission of the offence of rape. The learned Counsel had pointed out to the inherent probabilities in the evidence of PW-1. The learned Counsel also would submit that PW-1 had not intimated this to PW-2, her father, and PW-2 also accompanied the appellant/A-1. Subsequent thereto it is said that PW-1 disclosed the commission of the offence at the earliest point of time to PW-14 and PW-10 to PW-13 turned hostile. PW-14 only speaks of PW-1 informing him about the commission of the offence. The Counsel would point out that a responsible person like PW-14, an active member of Communist Party of India, would not have left the matter there and this is an inherent improbability. The learned Counsel also had pointed out to the evidence of PW-2 and his statement that PW-3 had informed him about the incident. The evidence of PW-4 and PW-17 is to the limited extent that they verified and checked up the body of PW-1 to satisfy themselves whether the offence was committed or not. PW-18 to PW-21, the neighbours of PW-4 also had not supported the version of the prosecution. The learned Counsel also pointed out that it is the evidence of PW-4 that at the earliest point of time to satisfy whether the offence was committed or not, PW-1 was taken to a Doctor and they were satisfied that the offence in fact was committed, but the said Doctor was not examined. The final opinion of PW-24, Ex.P-30, is that PW-1 had not lost her virginity. On the strength of this material, the learned Jude had definitely erred in convicting A-1 under Section 376(2)(c) v/w. Section 511 I.P.C. on the ground of attempt to commit rape. When the evidence of PW-1 suffers from several inherent improbabilities convicting the appellant/A-1 on the strength of such evidence would be totally unjust and appellant/A-1 is definitely entitled to the benefit of doubt. The learned Senior Counsel would conclude that may be that while enforcing discipline the appellant/A-1 might have exceeded the permissible limits but while evaluating the standard of discipline and enforcing thereof, the standards vary from human being to human being. The learned Counsel also had pointed out to the evidence of DW-1 to DW-3 and would contend that in view of the fact that their version had been accepted by the learned Judge the same need not be elaborated. The learned Counsel also made certain submissions relating to the non-production of age certificate by the headmistress who was examined and the medical evidence relating to the age of PW-1. Ultimately the learned Senior Counsel concluded that this is definitely a framed up case either expecting some monetary gain from the Government by implicating the appellant/A-1 in an offence of this nature, or being aggrieved by the way in which discipline was enforced by the appellant/A-1.