ORDER S.R. Bannurmath, J.
1. These appellants, who were the accused in Special case No. 125/2001, have been convicted and sentenced for the offences punishable under Sections 376(2)(g) of the IPC, and also under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act') by judgment dated 28th October, 2003 passed by the Learned Sessions Judge, Bagalkot.
2. Since this is a case of gangrape in the light of the observations of the Hon'ble Supreme Court in the case of State of Karnataka v. Puttaraja we have omitted in this judgment, the names of the victim and her nephew and have described the victim as K the victim and her nephew as S(P.W.4)
3. The facts projected by the prosecution in support of its case are in brief as follows:
On 4.1.2001 at about 12 noon, 'K' (the victim) aged 15 years and her nephew 'S' (P.W.4) aged about 13 years were going near the land of one Kantennavar at Navalagi village to collect fodder for the cattle. At that time, all the accused/appellants in their twenties came near them. After threatening away 'S' (P.W.4), they dragged 'K' the victim to the land bearing Sy. No. 136/ 2002 wherein sugarcane crop had been grown. All the accused committed gang rape on 'K' (victim), 'S', P, W.4 ran to the village to get help. He met his uncle Gangaram Gadiwaddar (P.W.15), who was working in the land of Hanumant Ummakkanavar. When both of them came to the land of Kantennavar, seeing them the accused ran away. The victim was crying and she informed P.Ws 4 and 15 about the rape committed on her by the accused. P.W.15 and 'S' (P.W.4) brought the victim to her house. Her mother took the victim to the jurisdictional police at Banahatti at about 6.00 p.m. The statement of the victim was recorded by P.W.9- the P.S.I and S.H.O of the Banahatti Police Station as per Ex. PI and on the basis of the same, a case in Crime No. 2/2001 for offences punishable under Sections 376, 506 read with 34 of the IPC was registered against these four accused and investigation was taken up.
4. During the investigation the victim was sent for medical examination and clothes of the victim were seized under a panchanama. A search for the accused was launched, but they were found absconding. A2 to A4 were arrested on 6.1.2001 and accused no. 1 was arrested on 9.1.2001. They were subjected to medical examination. Their clothes were seized and all the items seized were sent to Forensic Laboratory. The statements of the relatives and other witnesses which could throw light on the incident were recorded. After the completion of the investigation and on receipt of all material reports, the accused were chargesheeted for offences punishable under Section 376(2)(g) and 506 of the Indian Penal Code. Since the victim belongs to a Scheduled Caste, the accused were charged also for the offence punishable under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities), Act. 1989 (for short 'the Atrocities Act'). On committal to the Court of Sessions, as the accused denied the charges and claimed to be tried, they were tried in S.C. No. 125/2001.
5. Apart from the evidence of the victim, the prosecution relied upon the medical evidence of PWs. 2 and 3, and to speak about the presence/conduct of the accused prior to and after the incident, relied upon the evidence of P.Ws. 4 and 15. To corroborate and establish the victim's story, her mother Tanabai has been examined as PW. 16. PW. 18 Dr. Ramesh, has been examined to prove the age of the victim which was found to be 14 to 16 years at the time of the examination, (Exhibit P.22). PW.7 is the Tahsildar who had issued the caste certificate of the victim. PWs. 5, 6, 10, 11, 12 and 13 are mahazar witnesses. Other witnesses are members of the investigations team.
6. As already noted, the Trial Court, after appreciation of the entire evidence, by the impugned Judgment, found the accused guilty on both counts and sentenced each of them to undergo R.I. for 10 years with fine of Rs. 5000/- for the offence punishable under Section 376(2)(g) r/w Section 34 of the Indian Penal Code and to imprisonment for life with fine of Rs. 3000/- carrying default sentence for the offence under Section 3(2)(v) of the Act. Hence the present appeal.
7. Sri Sharanappa Mattur, Learned Counsel appearing for the accused-appellants challenging the Judgment of conviction and the reasoning of the Trial Court therein, vehemently contended that the impugned Judgment of conviction and sentence is contrary to law and the evidence on record; that the Trial Court has not properly assessed the evidence on record which is full of discrepancies and inter se contradictory. He submitted that the Trial Court has committed an illegality in accepting the uncorroborated evidence of the victim, especially when there are discrepancies regarding time at which the alleged offence was committed or the sequence at which the same was done etc. He also submitted that as the evidence led by the prosecution was insufficient to hold the appellants guilty, the conviction and sentence awarded by the Trial Court are illegal and liable to be interfered with. He also submitted that the Trial Court has committed an illegality in convicting the accused twice. It is submitted by him that after the Trial Court held the accused guilty for an offence under the Indian Penal Code, it could not have awarded separate sentence under the Atrocities Act, which is impermissible. On these among other grounds, it is submitted that the impugned Judgment of Conviction and sentence are liable to be set aside and the accused-appellants are entitled to acquittal giving them the benefit of doubt. On the other hand, Sri Rudramani, Learned Additional Government Advocate argued in support of the prosecution evidence and the conclusion arrived at by the Trial Court.
8. We have heard the Learned Counsel in detail and have perused the entire evidence at depth. At the out set, it is to be noted that there is no much dispute to the fact that the victim was subjected to rape. The evidence of the victim and more importantly the medical evidence of Dr. Pramila and the wound certificate Ex. P.23 conclusively prove that there was forcible sexual intercourse on the victim. The injuries on thigh, buttocks and more importantly on the genitals especially fresh rupture of hymen are clear proof of the fact that the victim was subjected to forcible sexual intercourse on 4.1.2001.
9. In this regard, if one peruses the undisputed report of the radiologist PW. 18-Dr. Ramesh, it shows that the victim was of the age between 14 to 16 years. As this evidence regarding the age is not at all challenged or disproved, it is a sexual intercourse with a minor and consequently it amounts to rape as per Section 375 Indian Penal Code. In this regard, the evidence of the victim is very important. Right from the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat onwards, the Apex Court has emphasized that the approach requires to he adopted by the Courts in rape cases should be somewhat different and compassionate towards the victim. Such a case is required to be dealt with utmost sensitivity. While appreciating evidence, the Courts should not be swayed by minor contradictions and insignificant discrepancies if they are not of substantial character. In fact in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (Supra) considering the earlier observations of the Apex Court or the argument that the evidence of a victim requires corroboration and unless corroboration is given her evidence should not be accepted, the Apex Court has observed:-
Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. Rel. on.
A girl or a woman in the tradition bound non-permissive society or India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated.
On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a Sex offence is entitled to great weight, absence of corroboration notwithstanding. And, while corroboration in the form of eye-witness account of an independent witness my often be fourthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the Western World. If the evidence of the victim does not suffer from any basis infirmity, and the 'probabilities factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self preservation. Or when the 'probabilities-factor' is found to be out of tune.
In view of the same, the evidence of the victim even if it is uncorroborated assumes greater significance unless the court finds on material evidence that her evidence is either tainted with mala fides and/or palpably false.
10. In the present case, considering the evidence of the victim, we find that she has absolutely no axe to grind agains the accused so as to falsely implicate them with the crime, that too in a heinous offence of rape, when the same may seriously affect her character in the society also. In a country like ours where the society is tradition bound and non-permissive, a woman or a girl would be extremely reluctant even to admit that any incident, which is likely to reflect on her chastity, had ever occurred. She would be conscious of the danger of being ostracized by the society including her own family members, relatives, friends and neighbours. If she is unmarried, she would loose the chances of her marriage in our society. Hence it is emphasized that once a victim comes before the court and says that the accused have committed rape, the same should be accepted even without corroboration, unless the material evidence shows or the defence is successful in showing that her evidence is tainted with mala fide.
11. As already noted, there is absolutely no mala fide alleged by the accused against the victim, so as to show why she should falsely implicate them the such a crime. Further as we have already noted from the medical evidence, it is clear that she was ravaged on the after noon of 4.1.2001 and if that is so, there was absolutely no reason for her to implicate the accused with the allegation of gang rape unless it was true. After careful scrutiny of her evidence in detail including the cross-examination, we find that her evidence is truthful and acceptable one and rightly accepted by the Court below.
12. Even if any corroboration to this aspect is required, the same is also available in the form of the evidence of PW.4 a young boy who is none else than the nephew of the victim. He corroborates the claim of the victim that when she and he (PW-4) were proceeding near the land of Kantennavar, the accused came and began to drag the victim into the sugarcane field nearby. His evidence shows that he was beaten and threatened and he ran to bring his father. It is stated by him that he met victim's uncle Gangaram. (PW-15) and together they came to the place. The evidence of PWs. 4 and 15 shows that when they came to the place, seeing them the accused ran away from the spot. K, the victim had fallen in the sugarcane crop. She had sustained injuries and she complained before PWs. 4 and 15 that she had been raped. Thus from the evidence of the victim and corroborative material also produced in the form of PW.4 and 15, it is clear that the accused was sexually assaulted by these appellants.
13. The victim, apart from mentioning the rape on her by A-1 to A-4, at the earliest point of time, also narrated the same before the Investigating Officer by way of First Information Report Exhibit P. 1. She has repeated the narration in the Court; and in spite of searching Cross-Examination by the defence, her evidence on this aspect has remained unshaken. In the light of these aspects, we find that there cannot be any finding other than the finding of guilt on the part of the accused for the offence of gang rape. On going through the impugned Judgment, we find that the Trial Court has considered all aspects in proper perspective and that conclusion needs to interference.
14. This takes us to the next important question as to the sentencing part. As already observed, the accused were charged under two different heads namely under Section 376(2)(g) of the Indian Penal Code and under Section 3(2)(v) of the Atrocities Act. The Trial Court has sentenced the accused for two different offences viz. R.I. for 10 years for the offence punishable under Section 376(2)(g) of the Indian Penal Code and life imprisonment for the offence punishable under Section 3(2)(v) of the Atrocities Act. In our view, taking into consideration the aim and objects of the Atrocities Act and the wording of the provision of Section 3(2)(v), use of the provisions of the Atrocities Act for the present incident was not warranted.
15. We rarely come across a society, in which crime is not committed by a person on another. There are number of penal laws to punish the offenders of such crimes. Such laws apply to every offender, irrespective of his caste or creed. However, taking into consideration the indignities to which persons belonging to a scheduled caste or scheduled tribe were and are subjected to and atrocities committed on them only on the ground that such persons belonged to such castes, the Parliament has enacted the Scheduled Castes and scheduled Tribes (Prevention of Atrocities) Act to prevent atrocities on the persons belonging to scheduled caste or scheduled Tribe. The object behind Clause (v) of Section 3(2) of the Atrocities Act is to punish the persons, who commit offences under the Indian Penal Code punishable for a term of ten years or more, against a member of a scheduled Caste or Schedule Tribe, ON THE GROUND THAT SUCH PERSON BELONGS TO SCHEDULED CASTE OR SCHEDULED TRIBE OR SUCH PEOPERTY BELONGS TO SUCH PERSON, by higher and severe punishment.
16. The words "On the ground that such person is a member of Schedule Caste or Scheduled Tribe" used in Section 3(2)(v) of the Atrocities Act clearly implies that there must be an element of intention on the part of the accused for the commission of the offence only on the ground that the victim belongs to a Scheduled Caste. If there is no such mens rea then the provision of Section 3(2)(v) of the Atrocities Act are not attracted.
17. On going through the entire evidence on record, we find that the prosecution has failed to establish this aspect. It is not the case of the victim or her relatives that the accused committed rape on her on the ground that she belongs to Scheduled Caste. Rape in the present case is a Justful act of misguided youth i.e., the accused. That act was committed by them not on the ground that the victim belongs to Scheduled Caste. Consequently, the present incidence is not covered by the provisions of Sections 3(2)(v) of the Atrocities Act.
18. By looking into the aims and objects of the Atrocities Act as we have stated. Section 3(2)(v) is not a separate offence, but it provides only higher degree of punishment than the one awarded for the offence under Indian Penal Code covered by Section 3(2)(v) of the Atrocities Act.
19. Under Section 376 Indian Penal Code for the offence of gang rape, the punishment prescribed is minimum 10 years which may extend to life imprisonment. Discretion is given to the Trial Court to award sentance accordingly. If the mens rea on the part of the accused to commit rape on the victim was only because she belongs to Scheduled Caste is proved, then there is no discretion left to the Trial Court but to give higher punishment i.e., imprisonment for life prescribed under Atrocities Act. In the present case, on facts, we have found that the act of the accused is the result of their lust and not on the ground that the victim belonged to a Scheduled Caste. They are liable to be punished only for the offence punishable under Section 376(2)(g) of the Indian Penel Code.
20. As such the conviction of the accused under both the counts being not proper, in our view separate conviction and sentence for Section 3(2)(v) of the Atrocities Act is liable to be interfered with. For the above said reasons, we set aside separate conviction recorded by the Learned Trial Judge for the offence punishable under Section 3(2)(v) of the Atrocities Act and sentence regarding the same.
21. This takes us to the next question as to the appropriate punishment. This is a case of gang rape on a minor victim. Under Section 376(2)(g) of the Indian Penal Code minimum punishment is 10 years, which may be extended to life imprisonment. On considering the fact scenario of the entire case we find that the minimum punishment of Rigorous Imprisonment for 10 years with fine as imposed by the Trial Court would meet the ends of justice.
22. In the result and for the reasons stated above, the appeal is allowed in part and we set aside separate conviction recorded by the Learned Sessions Judge on the accused-appellants for the offence under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989 and sentence under that Section. We uphold the conviction of the accused-appellants for the offence under Section 376(2)(g) of Indian Penal Code and confirm the consequent sentence of R.I. for 10 years and fine of Rs. 5000/- for each accused. However, taking into consideration the argument of the Learned Counsel for accused appellant, and appellants' paying capacity, we direct that instead of compensation of Rs. 25,000/- awarded by the Trial Court, compensation of Rs. 15,000/- shall be paid by the accused to the victim or her parents.