HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 46 Case :- CRIMINAL APPEAL No. - 4479 of 2008 Appellant :- Santosh Kumar Mishra Respondent :-State Of U.P. Counsel for Appellant :- K.K. Tripathi,Aman Khan, M.K. Tripathi, Mohd. Aman Khan, T.K. Mishra Counsel for Respondent :- Govt. Advocate. Hon'ble Arvind Kumar Tripathi, J.
Hon'ble Pramod Kumar Srivastava, J.
(Delivered by Hon'ble Pramod Kumar Srivastava, J.)
1.This appeal has been preferred against the judgment of conviction and punishment dated 16.07.2008 passed by Special Judge SC/ST Act, Kanpur Dehat in Special S.T. No. 80 of 2002 (arising out of crime no. 40 of 2001) State v. Santosh Mishra under sections 323, 376, 504, 506 IPC and section 3(2)(v) of the Scheduled Castes or Schedule Tribes (Prevention of Atrocities) Act, 1989 [hereinafter referred to as "SC/ST Act"].
2.Prosecution case in brief is that complainant Shyam Narayan (PW-2) and his wife Smt. Meera Devi (PW-1) belong to chamar caste and are resident of village Indalpur, p.s. Shivrajpur, district Kanpur Dehat. On 03.04.2001 at about 05:00 p.m. in evening complainant's wife Meera Devi was cutting grass near the field of Raman Shukla of his village, then accused Santosh Mishra came from behind, grabbed her neck, closed her mouth and forcibly dragged in the field of Raman Shukla where he raped Meera Devi. When she raised alarm the complainant reached there and saw that Santosh Mishra was lying over the body of Meera Devi in necked condition. When complainant raised alarm then Santosh Mishra had scuffle with him, due to which neck of complainant was wounded by nails of accused Santosh Mishra. During this episode Sri Krishna, Awadhesh, and other villagers came there and saw that Santosh Kumar Mishra was abusing and threatening them. Complainant went directly to police station Shivrajpur for lodging report, but his report was not lodged, then he approached senior officers of police and thereafter he again moved application dated 07.04.2001 to S.S.P. Kanpur Dehat on which case crime no. 40 of 2001 under Section 323, 354, 376, 504 and 506 IPC and Section 3(1)(X) SC/ST Act was registered.
3.After completion of investigation, police had submitted charge-sheet for offences punishable under Section 323,376, 504 and 506 SIPC and Section 3(2)(v) SC/ST Act. On the basis of said charge-sheet, special session trial no. 80 of 2012 (State Vs. Santosh Mishra) was registered.
4.Special Judge (SCST Act) / Addl. Sessions Judge, Kanpur Dehat had framed charge of offences on 11.12.2002 against accused for several offences to which accused pleaded not guilty and claimed his trial. Thereafter charges were amended and replaced by fresh charges on 06.04.2005 for offences under Section 323, 354, 376, 504 and 506 IPC read with Section 3(2)(v) SC/ST Act . Accused again pleaded not guilty and claimed to be tried.
5.In oral evidences prosecution side had examined PW-1 Meera Devi (victim), PW-2 Shyam Narayan (complainant), PW-3 C.O. J.P. Tiwari, PW-4 Dr. Pushpa Gurnani, PW-5 lady constable Anju Shukla and PW-6 Dr. R.B Gautam. They proved documentary evidences of prosecution side.
6.After closure of prosecution evidence statement of accused under Section 313 CrPC was recorded in which he had denied the prosecution case and stated that on 2.4.2001 Meera Devi was damaging wheat crop in the garb of grazing grass when he objected then Meera Devi had started abusing after that on 05.04.2001 Meera Devi , Lalita and Shyam Narayan had put their cow and goat in the field of wheat, on which they had quarreled, due to this enmity complainant had lodged wrong report and false case was registered. As per defence evidence, accused had examined DW-1 Santosh Kumar, DW-2 Ram Nath and DW-3 Ram Swaroop.
7.After affording opportunity of hearing prosecution of defence side Special Judge SC/ST Act / Additional Sessions Judge, Kanpur Dehat had passed judgment dated 16.07.2008 by which accused Santosh Mishra was convicted for the charges of Section 323, 376, 504, 506 IPC and Section 3(2)(v) SC/ST Act. Accused was acquitted from the charge of Section 354 IPC. Thereafter trial court had afforded opportunity of hearing to accused on quantum of sentence and passed the order of punishment and sentenced on 16.07.2008, by which accused was convicted six months rigorous imprisonment for charge under Section 323 IPC, 10 years rigorous imprisonment and Rs. 2,000/- fine (in default of payment of three months additional imprisonment), for charge under Section 376 IPC, six months rigorous imprisonment, for charge under Section 504 IPC, six months rigorous imprisonment for offence under Section 506 IPC and imprisonment for life and Rs. 2,000/- (in default of payment of three months imprisonment), for the charge of Section 3(2)(v) SC/ST Act. The trial court had also directed that all sentences would run concurrently. Aggrieved by this judgment of conviction and sentence dated 16.07.2008 accused had preferred present appeal
8.The argument of learned counsel for the appellant was that there was contradiction in evidences of prosecution witnesses, therefore, they should be treated as believable. Since prosecution side had failed to prove the charges against appellant, therefore impugned judgment based on false evidences should be set aside. Learned AGA had confronted the argument of appellant side and contended that two witnesses of fact, namely, PW-1 Meera Devi (victim) and PW-2 Shyam Narayan (complainant) had proved the charges framed against accused appellant therefore appeal should be dismissed.
9.The alternative argument of learned counsel for the appellant was that event if chargse of offences of Indian Penal Code are accepted to be proved in that case also charge of offence under Section 3(2)(v) SC/ST Act is not proved. His argument was that prosecution side had not proved that alleged offencse of rape etc. were committed because the victim belong to SC/ST community; therefore the conviction under Section 3(2)(v) SC/ST Act is erroneous and should be set aside. His contention was that in any case sentence of 10 years imprisonment for offence under Section 376 IPC in present case is excessive which should be mitigated.
10.We have considered the rival contentions and perused the records.
11.It is admitted case that medico-legal examination of victim was performed very late on 08.04.2001 in which no evidence regarding rape was found, and PW-4 Dr. Pushpa Gurnani had stated that no opinion about rape can be given. She had also stated that victim was habitual to sexual intercourse and also stated that sperms can be found within 72 hours of the incident. In the present case medico-legal examination performed after about 5 days so the absence of medical evidence about commission of intercourse or rape is not unlikely. But in this case two witnesses of facts were examined by prosecution side which are PW-1 Meera Devi (victim) and PW-2 Shyam Narayan (complainant).
12.We have examined the statement of PW-1 (victim) who had specifically stated that at the time of incident appellant had committed rape with her when she was mowing the grass in the field. At that time accused appellant had used forced and shut her mouth, dragged her by neck and raped her in the field of Pramod Shukla by inserting his private part in her vagina. She had tried resist and cut his hand, then his hand was removed from her mouth and she raised alarm. Then her husband came there with other persons, who had tried to catch the accused but he escaped from the spot. In this incident her blouse was torn. That day report by her husband could not be lodged. Her medical examination was conducted after a few days. Police had come after 5-6 days and taken her blouse and dhoti in custody. During cross-examination the victim stated that she had not suffered any injury but her husband had got some scratches on his neck. PW-2 complainant Shyam Narayan had stated that on 03.04.2001 at about 05:00 p.m. he was watering crop of wheat in the field and his wife was cutting grass at the boundary of field of Ramesh Shukla, then accused Santosh Mishra had forcibly taken his wife in the field of Raman Shukla and raped. On alarm of his wife, he alongwith Sri Krishna, Awadhesh and Naresh came on spot and saw that incident and shouted, then accused fled away after abusing and threatening them. His report was not lodged same day in police station, then he had approached S.S.P., D.I.G and other police officers, thereafter his report was lodged. During cross-examination PW-2 stated that at the time of incident accused had pushed him and ran away. At that time he had seen that accused was committed rape with his wife in naked state.
13.The evidences of two witnesses of facts, namely, PW-1 Meera Devi (victim) and PW-2 Shyam Narayan (complainant) supported each other and appear to be credible which are also supported by other formal evidences. The findings of facts regarding proving of charges against accused were recorded by learned Sessions Judge in impugned judgment holding that rape of Meera Devi was committed by accused-appellant. The findings of trial Court to this effect are based on proper appreciation of evidence which are plausible and convincing. Though defence side had examined three defence witnesses, namely, DW-1 Santosh Kumar, DW-2 Ram Nath and DW-3 Ram Swaroop, but these witnesses had given evidence regarding incident of scuffle and manhandling happened between accused and complainant on 05.04.2001. They had also given evidence of fact regarding altercation between accused and complainant on other dates, but they had not given any evidence regarding incident of 03.04.2001 for which charges were framed against accused appellant. For the incident of 03.04.2001, the evidence of defence witnesses are useless and have no value because admittedly they had not given any credible evidence regarding incident of 03.04.2001 as mentioned in the charge.
14.On the basis of above discussion we are of the considered opinion that prosecution side had proved the charges leveled against the accused-appellant regarding allegation of rape and trial Court had rightly passed the judgment in this regard. The evidences of complainant and of victim are convincing, therefore judgment of trial court regarding conviction of accused for offences punishable under sections 376, 323, 504 and 506 IPC is found correct. The findings of trial court and judgment of conviction for those charges are hereby confirmed.
15.Section 3(2)(v) of the Scheduled Castes or Schedule Tribes (Prevention and Atrocities) Act, 1989 reads as under:
"3(2) whoever, not being a member of Scheduled Caste or Schedule Tribe-
(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"
16.The provision of Section 3(2)(v) of the SC/ST Act, as noted above provides that a person can be punished under this provision only when he commit such offence against person of SC/ST community on the ground that such a person/victim is a member of SC/ST. From the evidence, it appears that alleged act of rape had been committed by accused-appellant for satisfying his lust and not for any other reason. It was not the prosecution case that rape was committed because victim belongs to scheduled caste community. At least there is no evidence in this regard. Therefore, we are of well thought-out opinion that accused-appellant cannot be punished for offence punishable under Section 3(2)(v) of SC/ST Act. Hon'ble Supreme Court in Dinesh @ Buddha v. State of Rajasthan, AIR 2006 SC 1267 has held as under:
"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. 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.
16. In view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the sentence provided in Section 376(2)(f), IPC does not per se become life sentence."
17.Hon'ble Supreme Court in Ramdas v. State of Maharashtra, (2007) 2 SCC 170 has held as under:
"11. 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 Castes 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 Castes 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 Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside."
18.On the basis of above discussion it is explicitly clear that charged offence of rape had not been committed because victim-complainant was a member of SC/ST community. This offence appears to had been committed only for satisfying the lusty desire of appellant. In such a case offence punishable under section 3(2)(v) of Scheduled Castes or Schedule Tribes Act has not been committed. Therefore the finding of of trial Court holding the appellant guilty for the offence under SC/ST Act is erroneous and is hereby set aside.
19.Accordingly this appeal is partly allowed. The punishment awarded to appellant, in in Special S.T. No. 80 of 2002 (arising out of crime no. 40 of 2001) State v. Santosh Mishra, p.s. Shivrajpur, Kanpur Dehat passed by the Court of Addl. Sessions Judge/ Spl. Judge (SCST Act), Kanpur Dehat is amended. The appeal is confirmed for the conviction and punishment of charge u/ss 323, 376, 504, 506 IPC. But the conviction and punishment for the charge u/s 376 IPC read with section 3(2)(v) of Scheduled Castes or Schedule Tribes Act is set aside and accused-appellant is acquitted of the said charge. All sentences would run concurrently and the period already undergone in jail by accused-appellant in this case will be adjusted in his punishment.
20.The copy of this judgment be sent to concerned Superintendent Jail Superintendent and also to Sessions Judge, Kanpur Dehat for ensuring compliance.
Date :- 06.05.2015 Sanjeev