AMAR SARAN J. - (1.) THIS Criminal Appeal arises from the judgement of the Additional Sessions Judge/Special Judge, S.C./S.T. (Prevention of Atrocities) Act, Fatehpur dated 30.7.2008, whereby the appellant Bhaiya Lal Pal has been sentenced to 7 years R.I. and a fine of Rs.3000/ under section 376 IPC. In default of payment of fine, he has to undergo further simple imprisonment for four months. Under section 3 (2) (v) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, (hereafter the SC/ST Act) the appellant has been sentenced to imprisonment for life with a fine of Rs.5000/-. In default of payment of fine, he was to undergo six months simple imprisonment.
(2.) THE prosecution case as disclosed in the F.I.R. lodged by Bipati on 21.2.1999 at P.S. Khaga was that on 21.2.1999, the victim, PW 1, the wife of Bipati had gone to cut mustard branches from the field of Badloo Lodh in village Padari. The appellant, who was watering his field asked the victim to pick up his fodder. When PW 1 proceeded to pick up the fodder, the appellant snatched the hasia from her hand and at about 11 a.m. he hurled her in a wheat field. When the victim raised a cry, he closed her mouth and threatened her that if she made a noise he would kill her and thereafter he committed rape on her. The informant was present at the canal at that time. When his wife reported the matter to him, the informant went towards the field of the appellant, which led the appellant to flee to his own house and to lock himself inside. With the help of villagers, the appellant was apprehended and taken to the police chauki. The villagers were pressing the parties for a compromise. But as the incident had taken place with the wife of the informant, the informant caught hold of the appellant and took him to the police chauki along with the victim. The appellant was handed over to the police. The S.H.O. P.S. Hathgam was also given the yellow coloured petticoat worn by the victim, which bore semen marks. They also took the underwear of the appellant, which also had semen marks, which were encircled with a sketch pen. The investigation was conducted by C.O. Hathgam, Banshi Dhar Mishra. He was however not examined, as he had died before he could be examined during trial. The charge sheet and site plan prepared by Banshi Dhar Mishra were proved by P.W. 5, S.I. Durgesh Chandra Srivastava. The victim was got medically examined at Women's Hospital, Fatehpur by P.W. 3, Dr. Suraiya Jabin on 22.9.1999. No mark of injury was seen on her person. The vagina was well dilated and easily admitted two fingers, old tabs of torn hymen with healed up edges were present. Vaginal smear was taken and sent for histo-pathological examination for presence of spermatozoa. The report of the Pathologist District Women Hospital, Fatehpur dated 23.2.1999 indicates that there was no evidence of any living or dead spermatozoa in the smear slides provided. However, on the petticoat and underwear semen and spermatozoa were seen. As per the radiological examination, the age of the victim was determined to be about 30 years. Charges were framed against the accused under section 376 IPC, 3 (1) (xii) and 3 (2) (v) of S.C./S.T. Act, to which the appellant pleaded not guilty and claimed trial. P.W. 1 the victim and P.W. 2 Bipati, the informant are the witnesses of fact. P.W. 3 Dr. Suraiya Jabeen medically examined the victim and P.W. 4 Dr. K.P. Singh conducted the radiological examination. P.W. 5 Durgesh Chandra Srivastava proved the steps taken in the investigation of this case by CO, Banshi Dhar Mishra.
(3.) P.W. 2 Bipati, the informant, who is the husband of the victim, has deposed that he knew the appellant Bhaiya Lal from before. He was a co-villager. The appellant was of gadariya caste, whereas the informant was a chamar by caste. At that time, his wife had gone to cut wood in the field of Badloo Lodh, resident of village Padari. The appellant Bhaiya Lal was watering his field. The appellant asked his wife to pick up the fodder. When his wife tried to pick up the fodder the appellant snatched the hasia from her hand and hurled her in the wheat field. When his wife tried to cry out, he forcibly shut her mouth and warned her that if she raised a cry, he would kill her. Then the appellant committed rape on his wife. Then his wife came to him and disclosed the facts about the incident. When he ran towards the appellant's field, then the appellant ran away and entered into his house and locked the door. With the aid of villagers, he arrested the appellant and took him to the police chauki, where he dictated the report to Prem Shankar. The victim's petticoat and the appellant's underwear were taken by the police. P.W. 1 reiterated the aforesaid facts mentioned in the F.I.R. in her examination-in-chief. In his 313 Cr. P. C. statement, the appellant admitted that he belonged to a backward class, whereas the victim belonged to the chamar sub-caste, a scheduled caste. However, he pleaded that a false F.I.R. has been lodged against him and that the report of the Forensic Laboratory was fabricated. The complainant had taken Rs.10,000 as loan from the appellant and had falsely implicated him when he demanded return of the money. We have heard Sri B.K. Tripathi, learned counsel for the appellant and the learned A.G.A.;