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2023 DIGILAW 1209 (ALL)

Puttu Lal v. State of U. P.

2023-05-01

ASHWANI KUMAR MISHRA, VINOD DIWAKAR

body2023
JUDGMENT : 1. This appeal is by the accused Puttu Lal challenging his conviction and sentence vide order dated 27.01.2014, passed by the Additional Sessions Judge/Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, Pilibhit in Sessions Trial No. 213 of 2012 arising out of Case Crime No. 111 of 2012, under Sections 376, 352 IPC and Section 3(2)(v) SC/ST Act, Police Station Neoriya, District Pilibhit; whereby he has been sentenced to life imprisonment alongwith fine of Rs. 10,000/- coupled with a default sentence of one year rigorous imprisonment under Section 376 IPC read with Section 3(2)(v) SC/ST Act and under Section 352 three months rigorous imprisonment alongwith fine of Rs. 500/- coupled with a default sentence of fifteen days. 2. Prosecution case in brief is that father of the victim namely, Kalicharan made a written report stating that he belongs to scheduled caste and his 14 year old daughter (victim) was going to pluck garlic at about 2.00 in the afternoon on 10.3.2012 and when she was crossing the house of the accused Puttu Lal, he forcibly dragged the victim to his house and subjected her to sexual assault. The victim on return informed such facts to the parents who complained to the accused who hurled abuses and were adamant to physically assault them. Request was thus made to register the case and take necessary steps in the matter, as per law. Taking note of such contention in the written report, contents whereof incorporated in the General Diary, Case Crime No. 111 of 2012 came to be registered under Sections 376, 352, 504, 506 IPC and Section 3(2) (v) SC/ST Act at Police Station Neoriya, District Pilibhit against the accused appellant. 3. The statement of the victim was recorded under Section 164 Cr.P.C. wherein she supported the prosecution case, as per which, the accused dragged her inside the house and took-off her clothes and sexually assaulted her. On return the victim informed the incident to her aunt and parents. The victim was medically examined at 3.05 PM on 12th March, 2012, wherein no signs of external injury was found on the victim. No injury on the private parts of the victim was found either. Slides of vaginal smears were prepared of the victim and sent for pathological report. The victim was medically examined at 3.05 PM on 12th March, 2012, wherein no signs of external injury was found on the victim. No injury on the private parts of the victim was found either. Slides of vaginal smears were prepared of the victim and sent for pathological report. A supplementary medical report has been given by the doctor on 14.3.2012, as per which, the vaginal smear was negative for spermatozoa (alive or dead) and the victim was found not to be above 18 years of age. The report has also been placed on record, as per which, no dead or alive spermatozoa was found in the vaginal smear. Statement of witnesses were recorded whereafter a charge-sheet came to be filed against the accused Puttu Lal, under Sections 376, 352, 504, 506 IPC read with Section 3(2)(v) SC/ST Act. 4. The Magistrate took cognizance upon the charge-sheet and committed the case to the Court of Sessions wherein charges were framed against the accused appellant under Sections 337, 352, 504, 506 IPC and Section 3(2)(v) SC/ST Act. The accused appellant was explained the charges levelled against him, who denied the accusations and demanded trial. The trial accordingly commenced in which prosecution has adduced following documentary evidence: 1. FIR dated 12.3.2012 Ex.Ka.9 2. Written Report dated 12.3.2012 Ex.Ka.1 3. Statement U/s 164 Cr.P.C. dated 23.04.2012 Ex.Ka.2 4. Injury Report dated 12.3.2012 Ex.Ka.4 5. Supplementary Report dated 14.03.2012 Ex.Ka.5 6. Medical Report dated 13.3.2012 Ex.Ka.6 7. X-Ray Report dated 13.3.2012 Ex.Ka.3 8. Charge Sheet dated 25.4.2012 Ex.Ka.12 5. Two witnesses of fact have also been adduced, namely Kalicharan (PW-1), who happens to be the father of the victim and the victim (PW-2). 6. PW-1 in his examination-in-chief has supported the prosecution case. He has stated that accused is a rowdy element and due to his fear the FIR could be lodged the next day. However, in the cross-examination, this witness has stated that he had asked the scribe of the written report to prepare the best written report and accordingly scribe has prepared the written FIR. He further stated that the FIR was lodged on the basis of disclosure made by villagers and the contents of FIR were not read out to him. However, in the cross-examination, this witness has stated that he had asked the scribe of the written report to prepare the best written report and accordingly scribe has prepared the written FIR. He further stated that the FIR was lodged on the basis of disclosure made by villagers and the contents of FIR were not read out to him. He has further stated that agricultural field of the accused adjoins his land and there was a dispute between them on account of which enmity is going on between the families. A suggestion has been given to this witness that his daughter had relations with one Vijay Pal and Ghanshyam and since accused had spotted them in compromising position, therefore, he has been falsely implicated. This witness has also stated that in his agricultural field garlic, onion, etc., has been sown which is at a distance of 200 meter from his house. He has also stated that house of accused Puttu Lal is in different locality, on the east of the village. He has further stated that exit of his house is not in front of the house of Puttu Lal. 7. Victim has appeared as PW-2 and has clearly stated that nothing wrong was done with her. PW-2 has further stated that her clothes got torn but she had not given such clothes to the Investigating Officer. She has further stated that no alarm was raised by her when she was dragged by accused Puttu Lal since her mouth was gagged. She stated that she was lying on the floor and she had pain and difficulty in the internal parts of her body. Everything had swollen, however, there was no bleeding. No blood or semen was present on her apparel. She has further stated that the police had taken her to the Government Hospital. The police had read out the statement to be given by the witness in Court before the Magistrate. 8. PW-3 is Dr. Udaiveer Singh, Senior Consultant, District Hospital, Pilibhit, who had conducted the X-Ray on the victim. Not much is discernible from the testimony of PW-3. PW-4 is Dr. Vijay Laxmi, who has stated that there was no external injuries on the victim nor there were any injury on her private part. The victim was going through the menses. PW-3 is Dr. Udaiveer Singh, Senior Consultant, District Hospital, Pilibhit, who had conducted the X-Ray on the victim. Not much is discernible from the testimony of PW-3. PW-4 is Dr. Vijay Laxmi, who has stated that there was no external injuries on the victim nor there were any injury on her private part. The victim was going through the menses. She has stated that no definite opinion of rape could be given and that victim was 18 years of age. In a further cross examination she has stated that the age of the victim could not be above 18 years, but could be above 17 years. PW-5 is Raj Kumari Verma, Headmaster of the Primary School, who has proved the age of the victim on the basis of her date of birth recorded as 7th January, 1995. As per the admission register of the school the age of the victim would work out to above 17 years. PW-6 is the Constable, who has proved the chik FIR. PW-7 is Deputy Superintendent of Police, who was the Investigating Officer in the case and has supported the prosecution case and also explained steps taken during the course of investigation. He has also proved the charge-sheet submitted in the matter. 9. The incriminating materials collected during the investigation and trial have been confronted to the accused for recording his statement under Section 313 Cr.P.C. Accused has stated that the informant belongs to Pasi Community; whereas he belongs to Lodha caste and the allegation levelled against him is false. He has also stated that the report has been lodged in consultation with the police. 10. The trial court on the basis of oral and documentary evidence placed on record by the prosecution has proceeded to return a finding of guilt against the accused relying upon the testimony of prosecution witnesses PW-1 and PW-2 as also the testimony of the doctor. 11. Sri Rahul Saxena, learned counsel appearing for the appellant submits that the judgment of conviction and sentence is not sustainable in view of the evidence on record, inasmuch as, the two prosecution witnesses have not fully supported the case of sexual assault upon the victim. With reference to the statement made by PW-2, it is urged that the victim has clearly admitted that no wrong was done to her. With reference to the statement made by PW-2, it is urged that the victim has clearly admitted that no wrong was done to her. It is also urged that the medical report otherwise does not corroborate the allegation of rape. Submission is that the accused appellant has been falsely implicated and since the allegation of sexual assault is not substantiated by the victim in her testimony, therefore, the finding of guilt attributed to the accused appellant is unsustainable. It is further argued that except to state that the victim belongs to Pasi Community, there is no allegation anywhere in the evidence of witnesses stating that the offending act was committed on account of caste identity of the accused appellant. It is further submitted that accused appellant has already undergone incarceration of more than 10 years, in such circumstances, the conviction of the accused appellant be set aside. 12. Learned AGA on the other hand submits that the statement of victim, taking cumulatively, clearly supports the commission of offence of rape upon her and as the victim was a minor, therefore, the conviction and sentence of accused appellant is wholly justified. 13. Heard learned counsel for the parties and perused the materials on record including the lower court record. 14. The prosecution case is that while victim was going to the fields to pluck garlic, she was dragged inside the house by the accused when she was moving towards the filed in front of the house of the accused. The victim in her statement under Section 164 Cr.P.C. has also come out with similar statement. The primary evidence in the facts of the present case is the testimony of PW-2, particularly, as the informant admits that he had not seen the incident. 15. Testimony of PW-2 has been examined by us carefully. The victim is stated to be aged 14 years and has clearly admitted having given her statement to the Magistrate under Section 164 Cr.P.C. She admitted not being educated and does not understand the meaning of ‘bura kaam’. It is in that context that she has stated that “nothing wrong was done to her.” This part of the statement of PW-2 has been relied upon by the counsel for the appellant to suggest that in fact no rape was committed upon the victim. It is in that context that she has stated that “nothing wrong was done to her.” This part of the statement of PW-2 has been relied upon by the counsel for the appellant to suggest that in fact no rape was committed upon the victim. Though taken in isolation the aforesaid expression does support the inference that no untoward act was done upon the victim, but the testimony of PW-2 will have to be read in its entirety and cannot be taken in isolation from what has been stated in the subsequent part of her statement. 16. In her further cross-examination, PW-2 has stated that her apparels (salwar-kurta) got damaged. She also stated that when accused Puttu Lal dragged her inside the house, she could not raise alarm as her mouth was gagged. She has stated that she could do nothing to save herself as her mouth was gagged. She has then stated that she kept lying on the floor and she had difficulty in her internal part of the body. She has stated that everything got swollen. There was, however, no bleeding and there were no signs of semen or bleeding on her clothes. The exact expression used by the victim in the cross-examination reads as under: ^^esjk lyokj dqrkZ QV x;k FkkA og QVs diM+s gesa Fkkusnkj dks ugha fn;sA D;ksafd diM+s nsuk t:jh ugha le>kA diM+s fn[kk;s Fks iqfyl dksA esjk gkFk idM+dj tc iqRrwyky us [khapk rc eSaus 'kksj ugha epk;k D;ksafd esjk eqag nck FkkA eSaus mlls cpus ds fy, dqN ugha fd;kA eSa cksy ugha ldh D;ksafd esjk eaqg nck FkkA eSa 'kkUr jghA eSa /kjrh ij iM+h FkhA dksbZ Q'kZ ugha FkkA esjh vUn:uh ftLe esa cgqr rdyhQ gqbZA lc lwt x;k vUn:uh ftLeA [kwu ugha cgkA lyokj esa fdlh Ádkj ds oh;Z ;k [kwu ds /kCcs ugha FksA** 17. In the facts of the case, it is found that the victim is below 18 years of age. She is not educated. She has clearly stated that her mouth was gagged by the accused, who dragged her inside the house. In the facts of the case, it is found that the victim is below 18 years of age. She is not educated. She has clearly stated that her mouth was gagged by the accused, who dragged her inside the house. Her statement that she could not raise a protest as the accused had gagged her mouth; she was laid on the floor and she had lot of difficulty and that everything got swollen clearly supports the prosecution case that the victim was dragged inside the house by the accused; laid on the floor and the accused did acts which caused pain to the victim and it also resulted in swelling, etc. Though the expression rape has not been used by the victim but the manner in which the entire incident has been narrated by the victim clearly supports the prosecution case about sexual assault on the victim. It cannot be lost sight of that acts of this kind are highly insulting and injures not just the body but the soul of the victim. It would be extremely distressing to narrate the ordeal faced by the victim. The victim’s attempt to explain the offending acts by stating that she was laid on the floor and had pain and everything got swollen clearly conveys the act of sexual assault upon the victim. 18. Considering the fact that the victim had limited education and she did not understand the meaning of word ‘rape’, we are inclined to concur with the reasoning adopted by the court below of commissioning of the offence of rape upon the victim. So far as the medical evidence is concerned, though no external or internal injuries have been found by the doctor, but the medical examination of the victim has been conducted after two days of the incident. The fact that no external injuries were found, therefore, would not be of much help to appellant’s cause because of the delay in conduct of medical examination. 19. The conviction of accused appellant has been recorded under Section 376 IPC read with Section 3(2)(v) SC/ST Act. So far as the offence under Section 3(2)(v) of SC/ST Act is concerned, we find the informant disclosed his caste as Pasi, which is a scheduled caste. 19. The conviction of accused appellant has been recorded under Section 376 IPC read with Section 3(2)(v) SC/ST Act. So far as the offence under Section 3(2)(v) of SC/ST Act is concerned, we find the informant disclosed his caste as Pasi, which is a scheduled caste. Except it, there is no accusation in the statement of any of the witnesses suggesting that the offence herein has been committed upon the victim on account of her caste identity. The mere fact that the parties were known to each other or that the caste of the victim was known to the accused would not constitute an offence in terms of Section 3(2)(v) of SC/ST Act, unless it is shown that the offence itself has been committed on account of caste identity of the victim. There is not even faint suggestion in the evidence of PW-1 or PW-2 to support the implication of accused appellant under Section 3(2)(v) SC/ST Act. 20. Law with regard to ingredient of offence under Section 3(2)(v) of SC/ST Act has been settled by the Supreme Court in the case of Patan Jamal Vali vs. State of Andhra Pradesh, 2021 SCC Online SC 343 wherein the Court observed as under: “55. Section 3(2)(v) of the S.C. and S.T. Act as it stood at the material time read as follows: “3. Whoever not being a member of a Scheduled Caste or Scheduled Tribe. (v) commits any offence under the Penal Code, 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.” 56. Under Section 3(2)(v), an enhanced punishment of imprisonment for life with fine is provided where: (i) The offence is committed by a person who is not a member of a Scheduled Caste or Scheduled Tribe. (ii) The offence arises under the Penal Code and is against a person or property and is punishable with imprisonment for a term of ten years or more. (iii) The offence is committed “on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe” or such property belongs to such a person. 57. (ii) The offence arises under the Penal Code and is against a person or property and is punishable with imprisonment for a term of ten years or more. (iii) The offence is committed “on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe” or such property belongs to such a person. 57. The key words are “on the ground that such person is a member of a S.C. or S.T..” The expression “on the ground” means “for the reason” or “on the basis of.” The above provision (as it stood at the material time prior to its amendment, which will be noticed later) is an example of a statute recognising only a single-axis model of oppression. As we have discussed above, such single-axis models require a person to prove a discrete experience of oppression suffered on account of a given social characteristic. However, when oppression operates in an intersectional fashion, it becomes difficult to identify, in a disjunctive fashion, which ground was the basis of oppression because often multiple grounds operate in tandem. Larrisa Behrendt, an aboriginal legal scholar from Australia, has poignantly stated the difficulty experienced by women facing sexual assault, who are marginalised on different counts, to identify the source of their oppression: “When an Aboriginal woman is the victim of a sexual assault, how, as a black woman, does she know whether it is because she is hated as a woman and is perceived as inferior or if she is hated because she is Aboriginal, considered inferior and promiscuous by nature?” 58. Being cognizant of the limitation of Section 3 (2)(v) -as it stood earlier - in dealing with matters of intersectionality, we are, however bound to apply the standard that has been laid down in the law. The expression “on the ground” was considered in a two-judge Bench judgment of this Court in Dinesh Alias Buddha v. State of Rajasthan48, where the court speaking through Justice Arijit Pasayat held: “15. 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. 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 a case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste.” 59. The Court held that in the absence of evidence to that effect, the offence under Section 3(2)(v) would not stand established. This principle was subsequently followed in a two judge Bench judgment of this Court in Ramdas vs. State of Maharashtra where it was held that merely because a woman belongs to the SC&ST community, the provisions of the SC&ST Act would not be attracted in a case of sexual assault. This court observed that there was no evidence to prove the commission of an offence under Section 3(2)(v) of the SC&ST Act. 60. The contours of the terms “on the ground of” have been explicated by this court in the following cases. In Ashrafi vs. State of Uttar Pradesh, a two judge Bench of this Court held that conviction under Section 3(2)(v) of the SC&ST Act cannot be sustained because the prosecution could not prove that the rape was committed only on the ground that the woman belonged to the SC&ST community. This court speaking through Justice R Banumathi, held: “9. 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 the Scheduled Caste community. In the absence of evidence proving the intention of the Appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to the Scheduled Caste community, the conviction of the Appellant Under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained.” (Emphasis added) 61. In the absence of evidence proving the intention of the Appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to the Scheduled Caste community, the conviction of the Appellant Under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained.” (Emphasis added) 61. In another judgment of this Court in Khuman Singh vs. State of M.P. Justice R. Banumathi speaking for this court held: “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 belonged 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.” 21. Upon evaluation of the evidence on record, we find that the accused has not been confronted with any evidence relating to the offence under Section 3(2)(v) of SC/ST Act for recording his statement under Section 313 Cr.P.C. and, therefore, no evidence or circumstances, otherwise, can be relied upon against the accused appellant to prove an offence under Section 3(2)(v) SC/ST Act. In the absence of any evidence referable to offence committed under Section 3(2)(v) SC/ST Act, the conviction and sentence of accused appellant under Section 3(2)(v) SC/ST Act cannot be sustained. The conviction and sentence of accused appellant under Section 3(2)(v) of SC/ST Act is set aside. 22. Adverting to the offence proved under Section 376 IPC, we find that the punishment contemplated for such offence in law is rigorous imprisonment for a period which shall not be less than 10 years, but which may extend to life alongwith fine. 23. In the facts of the present case, we are of the view that the conviction of the accused appellant for 10 years would adequately meet the ends of justice. 23. In the facts of the present case, we are of the view that the conviction of the accused appellant for 10 years would adequately meet the ends of justice. Since accused appellant has already undergone incarceration for more than 10 years, as such, we modify the sentence awarded to him under the impugned judgment and order and direct his release on the sentence already undergone by him. The judgment and order of the court below dated 27.1.2014 is modified accordingly. Since appellant is already on bail, his bail bonds shall be discharged. The appellant Puttu Lal shall be set to liberty, forthwith, unless he is wanted in any other case, subject to compliance of Section 437A Cr.P.C. 24. The appeal is, accordingly, partly allowed.