Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1501 (ALL)

Mani Ram Chaudhary v. State of U. P.

2022-09-19

ASHWANI KUMAR MISHRA, SHIV SHANKER PRASAD

body2022
JUDGMENT : 1. This criminal appeal is directed against the judgment and order dated 21.5.2004, passed by the Special Judge Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Basti, District Basti in Special Sessions Trial No. 14 of 2003, State vs. Maniram Chaudhary; whereby the appellant has been convicted under sections 376 IPC and Section 3(2)(v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and consequently sentenced to rigorous life imprisonment along with fine of Rs. 20,000/- for the offence under Section 376 IPC and rigorous life imprisonment for the offence under Section 3(2)(v) SC/ST Act along with fine of Rs. 20,000/- and on failure to deposit the fine appellant is to undergo two years additional rigorous imprisonment. Both the sentences are to run concurrently. 2. As per the prosecution case a written report (Ext.A-1) was given to the Police Station Kaptanganj, District Basti by Shanti Devi (PW-1) stating that she belongs to scheduled caste and her daughter is a student of Class Vth in the Primary School, Bheeta. On 9th December, 2002, at about 1.00 p.m. the informant’s daughter was returning from her school to have lunch. On her way situated the house of accused appellant. Accused appellant on spotting the victim alone dragged her inside his house and raped her. The victim somehow reached her house and informed her mother, who has filed the written report (Ex.A.1). 3. The scribe of the written report is one Sitaram (PW-3), the President of Bahujan Samaj Party, Kaptanganj. On the basis of written report a first information report (Ex.Ka.5) was lodged as Case Crime No. 254 of 2002, under Section 376 IPC read with Section 3(1) XII of the SC/ST Act, 1989. 4. The victim was thereafter medically examined by Dr. Seema Chaudhary, Emergency Medical Officer, Woman Hospital, Basti (PW- 5) on 9.12.2002, at 7.15 p.m. Injury report of victim is Exhibit Ka-3. As per the report the victim was 4’ 6” tall and weighed 24 Kg. No external injury was seen but blood stains were seen on victim’s Vulva Perineum and Thigh. Hymen was found torn in midline alongwith bleeding. Bleeding was also seen in vagina. Vaginal semen was taken and sent for pathological examination. As per the report the victim was 4’ 6” tall and weighed 24 Kg. No external injury was seen but blood stains were seen on victim’s Vulva Perineum and Thigh. Hymen was found torn in midline alongwith bleeding. Bleeding was also seen in vagina. Vaginal semen was taken and sent for pathological examination. The patient was examined under general anesthesia and lateral vaginal laceration near left fornix was seen bleeding and she was advised admission; vaginal pulsing was done and she was kept under observation. The victim was also sent to radiologist for x-ray and determination of her age. 5. The radio-logical x-ray was done on 10th December, 2002 by Dr. Sudhakar Mishra (PW-7). X-ray of victim’s right elbow and right knee was held by Dr. Sudhakar Mishra on 10.12.2002 and his report is Exhibit Ka-7. The victim was also examined by Dr. Jagdish Singh, Dental Surgeon (PW-8), who determined victim’s age to be 12 years. 6. The victim was kept in the hospital from 9.12.2002 to 13.12.2002. The investigation proceeded thereafter and statement was recorded of PW-1, PW-2, PW-4 under Section 161 Cr.P.C. and the site plan was also prepared. Upon conclusion of investigation a charge-sheet came to be submitted against the accused appellant under Section 376 IPC read with Section 3(1)XII SC/St Act on which the Magistrate took cognizance and committed the case to Sessions. Charges were accordingly framed by the Court of Sessions against the accused appellant who denied the same and demanded trial. 7. On behalf of the prosecution documentary evidence in the form of FIR (Ext.Ka-5); Written report (Ext.A-1); Injury reports (Exts.Ka-3, 4, 7, 8) and Recovery memo (Ext. Ka-2) was proved and was duly exhibited. Oral deposition was made by Shanti Devi (PW-1), Victim (PW-2), Sita Ram (PW-3), Kashi Ram (PW-4), Dr. Seema Chaudhary (PW-5), Vishwanath Yadav (PW-6), Dr. Sudhakar Mishra (PW-7), Dr. Jagdish Singh (PW-8) and Om Prakash (PW-8). 8. The accused appellant was confronted with the incriminating material which has surfaced against him during trial under Section 313 Cr.P.C. He denied the accusations that while victim was returning home to have her lunch the accused appellant grabbed and dragged her inside the house and raped her. About lodging of report the accused appellant termed it to be false. Other accusations made against the accused appellant were also denied. In reply to question no. About lodging of report the accused appellant termed it to be false. Other accusations made against the accused appellant were also denied. In reply to question no. 6 he has stated that on account of enmity with Sita Ram (PW-3), the accused has been falsely implicated in collusion with the investigating officer. 9. It is worth noticing that after the trial proceeded in the matter and hearing was concluded the Court of Sessions before delivering the judgment altered the charge under Section 3(1) XII SC/ST Act to Section 3(2)(v) SC/ST Act. The prosecuting officer made statement that the prosecution does not intend to produce any additional evidence in respect of the charge. Counsel for the accused appellant also made a statement that the accused appellant does not intend to submit any further evidence in the matter. 10. On the basis of aforesaid material the Court of Sessions has found the charge of rape under Section 376 IPC proved against the accused appellant. The court below also found the charge under Section 3(2)(v) of SC/ST Act to be proved beyond reasonable doubt. 11. Feeling aggrieved by aforementioned judgment and order the accused appellant has filed the present appeal. We have heard Sri Rajesh Kumar Chaudhary for the appellant and Mrs. Archana Singh, learned AGA for the State and carefully perused the records. 12. It is urged on behalf of the accused appellant that he has been falsely implicated in the present case at the instant of PW-3 with whom he had political rivalry. It is argued that the offence under Section 376 IPC has not been established on the basis of evidence led by the prosecution. 13. Learned counsel for the appellant further submits that the charge under Section 3(2)(v) SC/ST Act has not been substantiated by the prosecution, inasmuch as, it is neither shown that accused appellant was aware about the caste of the victim, nor is it shown that the offence itself was committed upon the victim on the ground of her being a member of the scheduled caste. It is also contended that the accused appellant has not been confronted under Section 313 Cr.P.C. with the charge under Section 3(2)(v) SC/ST Act and in its absence the conviction and sentence of appellant under Section 3(2)(v) SC/ST Act would be impermissible. 14. It is also contended that the accused appellant has not been confronted under Section 313 Cr.P.C. with the charge under Section 3(2)(v) SC/ST Act and in its absence the conviction and sentence of appellant under Section 3(2)(v) SC/ST Act would be impermissible. 14. Learned counsel for the appellant has produced the custody certificate dated 12.6.2022 of accused appellant to submit that he has undergone sentence with remission of over 25 years and his continued incarceration in jail is unwarranted. 15. Learned AGA, on the other hand, submits that the offence of rape is proved against the accused appellant beyond reasonable doubt since the victim and her mother have clearly deposed in support of the charge which is otherwise supported with medical evidence. It is further argued that the victim being a member of scheduled caste had been subjected to rape and, therefore, the charge under Section 3(2)(v) SC/ST Act is also made out. Submission is that deposition of prosecutrix with regard to commissioning of offence of rape upon her is clearly corroborated with the medical evidence and the appeal lacks merit. 16. The accused appellant has primarily been charged of offence under Section 376 IPC and Section 3(2)(v) SC/ST Act. The trial Court has found both the charges to be proved against the accused appellant beyond doubt. So far as the first charge under Section 376 IPC is concerned, we find from the evidence on record that the victim was a Class Vth student and while returning from her school for lunch had to cross the house of the accused appellant. The site plan is on record which shows existence of paved road from east to west. Towards east of the road there existed a dirt track to the school. The house of accused appellant was on the junction of paved road and dirt track. After the house of the accused appellant there existed two temples of goddess Kali and Durga, whereafter one could reach the school. The victim while was returning from the school was grabbed by the accused appellant who dragged her inside and she was raped. The offence itself was committed at 1.00 pm and a prompt report was lodged in respect of the offence at 16.45 p.m. The distance between the police station and place of occurrence is about 10 kms. 17. The victim while was returning from the school was grabbed by the accused appellant who dragged her inside and she was raped. The offence itself was committed at 1.00 pm and a prompt report was lodged in respect of the offence at 16.45 p.m. The distance between the police station and place of occurrence is about 10 kms. 17. It appears that the first informant is an illiterate lady and she took services of PW-3 for writing the written report on the basis of which the FIR was registered. The victim has been examined by Emergency Medical Officer at Woman Hospital Basti at 7.15 p.m. on the same day. The injury report of victim is on record in which blood stains are seen on vulva perineum and thigh and her hymen was torn in midline. She was also bleeding. The victim had to be examined by administering general anesthesia and lateral vaginal laceration near left fornix was seen bleeding. The victim was hospitalized and later discharged on 13.12.2002. 18. PW-1, who is the first informant and PW-2, who is the victim have deposed in court. PW-1 in her statement has elaborately explained that once victim having home she immediately informed her mother about the crime got a written report scribed from an unknown person in an office having blue flag. She has denied the suggestion that on account of enmity between accused appellant and PW-3 she has falsely implicated the accused appellant or to receive compensation. 19. PW-2 has also been examined by the Presiding Officer found that the victim is mature and sensible and her statement can be relied upon. She has clearly stated that while returning from the school she had to cross the house of accused appellant and when she reached the house of the accused appellant he grabbed her and brought her inside the Ghaari and raped her. She has stated that the accused appellant had covered her mouth so that she may not shout and after committing rape the accused appellant left her. She was bleeding and immediately informed it to her mother. She has deposed that she did not know the accused appellant from before and his name was disclosed to her by her mother at the police station. She was bleeding and immediately informed it to her mother. She has deposed that she did not know the accused appellant from before and his name was disclosed to her by her mother at the police station. She has also stated that other students returning with her were ten paces ahead of her and that nobody could see her being grabbed by the accused appellant. 20. Although on behalf of accused appellant it is argued that he has been falsely implicated on account of political rivalry between him and PW-3, but the Court below has found such defence to be wholly baseless in view of the evidence adduced by the victim and her mother. Having considered the injury report, the statement of doctor and the fact that victim was admitted to a hospital for nearly four days on account of injuries on her private part, we are in agreement with the conclusion drawn by the court below that the guilt of accused appellant of committing rape is clearly established. The statement of victim has been found credible and reliable by the court below and she has specifically identified the accused appellant and has supported the prosecution version. 21. Plea of rivalry between PW-3 and the accused appellant is pressed in order to submit that written report was scribed by PW-3, who had falsely implicated the accused appellant. This explanation does not appear to be convincing since it is apparent from the evidence that house of the accused appellant fell on the way of the victim returning from her school to her house. She has clearly identified the place of occurrence and it remains undisputed that the house of accused appellant situates there. The accused appellant has also been identified by the victim. The medical report clearly supports the ocular testimony. In such circumstances, merely because written report was scribed by the PW-3, the evidentiary value of prosecution case would not suffer. The injury report, etc. are otherwise, clearly proved and duly exhibited by the prosecution. In that view of the matter, we find no infirmity in the judgment and order of the court below holding the accused appellant guilty of the offence under Section 376 IPC beyond reasonable doubt. 22. This takes us to the next aspect of the present appeal which is with regard to the conviction of accused appellant under Section 3(2) (v) of the SC/ST Act. 22. This takes us to the next aspect of the present appeal which is with regard to the conviction of accused appellant under Section 3(2) (v) of the SC/ST Act. Section 3(2)(v) of the SC/ST Act reads as under: “(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.” 23. In order to establish an offence under Section 3(2)(v) SC/ST Act, the prosecution is required to prove that the offence is committed on the ground that such person is a member of scheduled caste or scheduled tribe. 24. In Dinesh @ Buddha vs. State of Rajasthan, (2006) 3 SCC 771 , the above provision fell for consideration before the Supreme Court, wherein the Court observed as under: “At this juncture it is necessary to take note of Section 3 of the Atrocities Act. As the Preamble to the Act provides ‘the Act has been enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. The expression ‘atrocities’ is defined in Section 2 of the Atrocities Act to mean an offence punishable under Section 3. The said provision so far relevant reads as follows: “3(2)(v): Punishments for offences of atrocities: (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe: xxx xxx xxx (v) commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. xxx xxx xxx Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.” 25. The aforesaid provision has again been considered by the Supreme Court in Ramdas and Others vs. State of Maharashtra, 2006 (8) SCC 635, wherein the Court observed as under: “At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a scheduled caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside.” 26. In Asharfi vs. State of U.P. (2018) 1 SCC 742 , the Supreme Court again observed as under: “The evidence and materials on record do not show that the appellant had committed rape on the victim on the ground that she belonged to Scheduled Caste. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act can be pressed into service only if it is proved that the rape has been committed on the ground that PW-3 Phoola Devi belonged to Scheduled Caste community. In the absence of evidence proving intention of the appellant in committing the offence upon PW-3 Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the appellant under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained.” 27. In the absence of evidence proving intention of the appellant in committing the offence upon PW-3 Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the appellant under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained.” 27. In Khuman Singh vs. State of Madhya Pradesh, Criminal Appeal No. 1283 of 2019, decided on 27.8.2019 also the Supreme Court held as under: “As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to “Khangar” Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.” 28. In Patan Jamal Vali vs. State of Andhra Pradesh, AIR 2021 SC 2190 , the provision was again considered exclusively so as to determine the scope of Section 3(2)(v) of SC/ST Act after taking note of earlier judgment on the issue. The Supreme Court observed as under in paragraph 55: “55..............A true reading of Section 3(2)(v) would entail that conviction under this provision can be sustained as long as caste identity is one of the grounds for the occurrence of the offence.” 29. A Division Bench of this Court in Dharmendra vs. State of U.P. 2011 Cri. L.J. 204 also had an occasion to consider Section 3(2)(v) of SC/ST Act, wherein this Court observed as under: “It is apparent from the above provision that Section 3 (2) (v) SC/ST Act shall apply only if the offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more is committed by a person of upper caste against a person of scheduled caste or scheduled tribe on the ground that such person is a member of scheduled caste or scheduled tribe. It is not sufficient that if the accused belongs to upper caste and the victim belongs to scheduled caste. It is not sufficient that if the accused belongs to upper caste and the victim belongs to scheduled caste. It is also necessary to prove that the offence was committed on the ground of the victim being of scheduled caste. No such allegation has been made in the FIR that the offence was committed because of victim belonged to scheduled caste nor there is any such evidence of record. Thus the conviction of appellant under Section 3 (2) (v) SC/ST Act cannot be sustained.” 30. When we examine the facts of the case in light of the law settled on the point we find that the only evidence available on record is that the victim belongs to scheduled caste while accused appellant is from Kurmi Community (OBC). PW-1 has stated so in her deposition, relevant portion whereof is extracted hereinafter: ^^eSa tkfr ds pekj rFkk eqfYte tkfr ds dqehZ gSA xjhc rFkk pekj tkfr dk gksus ds dkj.k eqfYte us ?kVuk fd;kA** 31. There is nothing on record to show that the accused appellant knew the caste of the deceased or that the offence of rape was committed on the ground that victim is a member of scheduled caste or due to victim’s caste identity. The victim herein is 11-12 year old minor girl who was alone and grabbed by the accused appellant. At the time when the victim was grabbed by the accused appellant there was none else available. The evidence otherwise does not show that the victim was known to accused appellant from before or that the accused appellant was aware of the caste of victim and was a ground for the crime. 32. PW-2 in fact has stated that she did not known even the name of accused appellant and his name has been disclosed to her at the police station by her mother. The prosecution has not brought on record any evidence which may demonstrate that the minor victim was raped on the ground of her being a scheduled caste. Merely because minor victim is a scheduled caste would not attract the offence under Section 3(2)(v) of the SC/ST Act. In light of the deliberations held above, we have no hesitation in coming to the conclusion that the prosecution has failed to establish existence of necessary ingredients to attract commissioning of offence under Section 3(2)(v) of the SC/ST Act against the accused appellant. 33. In light of the deliberations held above, we have no hesitation in coming to the conclusion that the prosecution has failed to establish existence of necessary ingredients to attract commissioning of offence under Section 3(2)(v) of the SC/ST Act against the accused appellant. 33. We further find that the prosecution while putting incriminating material collected against the accused appellant during the course of trial has not confronted him with regard to the charge levelled under Section 3(2)(v) of the SC/ST Act. The statement under Section 313 Cr.P.C. has been carefully examined by us in which there is no reference of offence committed upon the victim on the ground that she belongs to scheduled caste or on account of her caste identity. Unless the accused appellant is confronted on such accusation the right of the accused appellant to submit his defence is clearly breached and, therefore, we are of the view that the accused appellant otherwise cannot be convicted under Section 3(2(v) of SC/ST Act. 34. For the above reasons, we set aside the judgment and order of the court below dated 21.5.2004 convicting the accused appellant under Section 3(2(v) of the SC/ST Act. 35. This takes us to the last question which is with regard to the punishment to be imposed upon the accused appellant. The charge against the accused appellant is of committing offence under Section 376 IPC upon a minor 12 year girl who was returning from her school. The charge against the accused appellant is extremely serious. The accused appellant was a person of nearly 45 years of age on the date of commissioning of the offence and, therefore, he was expected to be aware of his actions and its consequences. 36. Learned counsel for the accused appellant submits that the maximum punishment under Section 376 IPC ought not to exceed above 10 years in the facts of the case. 37. Learned AGA on the other hand submits that the punishment of life is appropriate in the facts of the case. 38. Considering the fact that minor victim was only 11-12 year of age at the time of commissioning of the offence, we are of the view that the accused appellant does not deserve any leniency and sentence of ten years would clearly be inadequate. 38. Considering the fact that minor victim was only 11-12 year of age at the time of commissioning of the offence, we are of the view that the accused appellant does not deserve any leniency and sentence of ten years would clearly be inadequate. However, in the facts of the case we find that the accused appellant has already suffered incarceration with remission of more than 25 years. In our view, this would be sufficient punishment for the accused appellant who otherwise by now would be a person of 65-70 years and has spent major part of his life in imprisonment. In such circumstances, we substitute the punishment for life awarded to the accused appellant under section 376 IPC with the sentence already undergone by the appellant. The fine is reduced to Rs. 10,000/- and on its failure to pay the accused appellant shall undergo further imprisonment of three months. 39. This Criminal Appeal, accordingly, is partly allowed. 40. A copy of this order shall be communicated to the accused appellant in Jail through Chief Judicial Magistrate/Jail Superintendent concerned, forthwith. 41. The accused appellant shall be released from Jail, forthwith, unless he is wanted in any other case, subject to compliance of Section 437A Cr.P.C.