Kartar Yadav vs State Of U.P.
2015 Latest Caselaw 11 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 46
 
AFR
 
Case :- CRIMINAL APPEAL No. - 7915 of 2009		
 

 
Appellant :- Kartar Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Lav Srivastava, M.P. Yadav, V.P. Srivastava
 
Counsel for Respondent :- Govt. Advocate,  D.N.Singh
 

 
Hon'ble Arvind Kumar Tripathi, J.

Hon'ble Pramod Kumar Srivastava, J.

1.This appeal has been preferred against the judgment of conviction and punishment dated 10-12-2009 passed by Addl. Sessions Judge/ F.T.C.-1, Jaunpur in S.T. No. 14/ 2004 State v. Kartar Yadav, crime no.- 242/ 2006, sections 376, 506 IPC and section 3(2)(v) The Scheduled Castes or Schedule Tribes (Prevention of Atrocities) Act, 1989 [hereinafter referred to as "SC/ST Act"].

2.Sri M.P. Yadav, Advocate appeared on behalf of appellant. Sri Chadrajeet Yadav, AGA appeared on behalf of the State.

3.The prosecution case in brief is that complainant Mamta Devi (PW-1) belong to 'chamar' caste and is resident of village Lakhraiya, p.s. Sarpataha, Jaunpur with her mother-in-law. Accused Kartar Yadav also belong to same village. On 05/06-09-2006 at about 2:00 a.m. in the night, complainant Mamta Devi (PW-1) was sleeping in courtyard of her house, then accused Kartar Yadav entered her house and raped her. Then complainant raised alarm, due to which her mother-in-law Savitri Devi (PW-2) and many other person of the village came on the spot and had seen that Kartar Yadav had raped the complainant and fled away. Since accused Kartar Yadav was flashing knife and therefore he could not caught on spot. Complainant went to police station but her report was not lodged. Then complainant got herself medically examined by doctors and moved application under Section 156(3) Cr.P.C. The Magistrate Court had allowed the said application, therefore case crime no. 242 of 2006 u/ss 376, 506 IPC and section 3(1)(x) SC/ST Act was registered in police station Sarpatha, Jaunpur. After investigation the police has submitted charge-sheet for offence under sections 376, 506 IPC and section 3(2)(V) SC/ST Act, for which accused-appellant was charged. In trial accused pleaded no guilty and claimed to be trial.

4.In trial Court the prosecution side had examined PW-1 Mamta Devi (complainant-victim), PW-2 Savitri Devi, PW-3 Dr. Daya Shankar, PW-4 C.O. Anil Kumar Singh (Investigating Officer), PW-5 Dr. Rita Dubey, PW-6 constable Uma Shankar Mishra and PW-7 Dy. S.SP. Om Prakash Singh (Investigating Officer). These witnesses had proved prosecution documents.

5.In his statement under Section 313 Cr.P.C, accused-appellant had stated that false evidence had been adduced against him and he was falsely implicated in this case. The defence side had examined DW-1 Hira Lal Maurya, Chief Pharmacist, who had proved three documents, which were exhibited.

6.After affording opportunity of hearing to prosecution and defence side, the Addl. Sessions Judge/ Fast Track Court-I, Jaunpur had convicted the accused Kartar Yadav for offence under Section 376 IPC read with 3(2)(v) SC/ST Act and Section 506 IPC. After that trial Court had afforded opportunity of hearing to appellant on the point of quantum of sentence, and thereafter convicted the accused Kartar Yadav with punishment of life imprisonment and Rs. 10,000/- as fine (in default of payment three months additional imprisonment), and sentence of one year's rigorous imprisonment for the charge under Section 506 IPC. Learned trial court had directed that both punishment would run concurrently. Aggrieved by this judgment of conviction and punishment dated 10.12.2009 accused Kartar Yadav had preferred present appeal.

7.The argument of learned counsel for the apellant was that there is contradiction in evidence of witnesses, therefore they should not be treated believable; and the impugned judgment based on such evidence should be quashed.

8.In this case two witnesses of facts were examined by prosecution side which are PW-1 Mamta Devi complainant-victim and PW-2 Savitri Devi who is complainant's mother-in-law. We have examined the statement of victim (PW-1), she has specifically stated that at the time of incident appellant had committed rape with her when she was sleeping in her courtyard. At that time accused inserted cloth in her mouth so she could not shout, but during course of rape that piece of cloth came out of her mouth and she cried. Then her mother-in-law (PW-2) and other witnesses rushed at the spot and seen the accused raping her. They have recognized the accused, but accused fled away after flashing knife and threatening them. Thereafter she went to police station, but when her report was not lodged. Then she visited doctor who had medically examined her. The testimony of victim also finds support from the statement of Savitri Devi (PW-2) who has reached on the spot and after hearing alarm raised by the victim and saw the accused committing rape and running away.

9.The testimony of victim is also supported by the medical evidence and evidence of PW-3 Dr. Daya Shankar who had examined the victim on 06.09.2006 in the afternoon and finding following injuries on her body:

1. A small contusion swelling on right arm of ant aspect. Size 5x3 c.m. Red in colour.

2. A contused swelling on back of right eliac. Size 4x 2 c.m. Colour reddish.

3. Complain of pain in lower abdominal region and bleedings in private part.

This doctor PW-3 had referred the victim to District Female Hospital, Jaunpur; where she was again examined by PW-5 Dr. Rita Dubey who had examined her and submitted report as under internal examined:

1. Swelling and tenderness present on private part.

2. Private part examined from vagina admits two finger with pain due to old laceration. Bleedings present.

This Dr. PW-5 had opined that these injuries were caused due to forcible rape with the victim Smt. Mamta.

10.The evidences of two witnesses of facts, namely PW-1 and PW-2 supported each other and appears to be believable, which are also supported by medical evidence. These findings of fact recorded by learned Sessions Judge that rape was committed with victim by appellant Kartar Yadav is based on proper appreciation of evidence and does not require any interference by this Court. Thus the charges for section 376 IPC as well as for section 506 IPC are proved against the appellant beyond reasonable doubt and does not require any interference.

11.Alternative argument of the learned counsel for the appellant was that even it is accepted for the sake of the argument that appellant has committed offence of rape and criminal intimidation to victim-complainant and has to be punished for those offences, in that event also there is no evidence or finding that appellant is not a member of Scheduled Castes or Scheduled Tribes [hereinafter referred to as "SC/ST"] community. Therefore, he cannot be punished for any offence punishable under the SC/ST Act.

12.His another alternative argument was that even if it is taken for the sake of argument that appellant does not belong to Scheduled Castes or Schedule Tribes community, in that case also charged offence under SC/ST Act had not been committed because the victim-complainant was a member of Scheduled Castes or Schedule Tribes community. Therefore punishment for offence punishable under Section 3(2)(v) of SC/ST Act is erroneous and is liable to be set aside. In light of these arguments we have considered the available evidences. There is no evidence on record that may prove that accused-appellant is not a member of SC/ST community. In fact neither any investigation was made before submission of the charge sheet nor any evidence was adduced after framing of the charge. No witness of fact or any formal witness had told about the caste of the accused during his evidence, neither any documentary evidence was furnished. Thus, there is no evidence at all that may implicate the accused-appellant for any offence punishable under the SC/ST Act.

13.During trial, the appellant was charged for offence under Section 3(2)(v) of the Scheduled Castes or Schedule Tribes (Prevention and Atrocities) Act, 1989, which 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"

14.There is maximum punishment for the offence of rape punishable under section 376 IPC is imprisonment for life, therefore if a person not being a member of SC/ST community commits the offence of rape punishable u/s 376 IPC with a member of SC/ST community, then he shall be punished with imprisonment for life and with fine. But since in present case, it is not proved that accused-appellant is not a member of Scheduled Castes or Schedule Tribes community, therefore charge under section 3(2)(V) SC/ST Act is not proved against him.

15.Learned counsel for the complaint and learned AGA had drawn our attention towards surname of accused and pleaded that he should be treated as member of "Ahir" community. This contention was refuted by appellant side who contended that the surnames cannot determine the real caste of any person. We are in total agreement with this contention of the appellant side. The caste or category of any person cannot be determined on the basis of his name or surname. The surname generally used at a particular community or person of a particular caste may also be used by other person, who do not belong to such community or caste. For determination of caste the investigation had to be made and evidence had to be adduced in such matter. Neither any evidence was adduced on behalf of prosecution-respondent side to prove that appellant belongs to non-SC/ST community nor any investigation had been conducted before submission of the charge. As discussed earlier there is no evidence about the community or the caste of appellant. Therefore no finding can be given in this regard. This cannot be held that the appellant does not belong to any particular caste or community. This fact was not considered by the trial Court at the time of passing of the impugned judgment, who had not given any finding that why accused can be treated as a person not belonging to SC/ST community. So portion of impugned judgment on this point treating appellant a non- SC/ST person is erroneous unacceptable.

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. In the present case, there is no evidence to prove that accused had committed the charged offence of rape with PW-1 Mamta- complainant because she was a member of SC/ST community.

17.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 belong to scheduled caste community. At least there is no evidence in this regard. Therefore, we are of considered opinion that even if it is accepted for the sake of argument that appellant is a non SC/ST person, in that event also he cannot be punished for offence punishable under Section 3(2)(v) of SC/ST Act. In ruling Dinesh @ Buddha v. State of Rajasthan, AIR 2006 SC 1267 Hon'ble Supreme Court 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."

18.In ruling Ramdas v. State of Maharashtra, (2007) 2 SCC 170 Hon'ble Supreme Court 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."

19.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. This offence appears to have been committed only for satisfying the lust 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 guilty the appellant for the offence under SC/ST is erroneous and is liable to set aside.

20.The trial Court had awarded joint punishment for offences punishable u/s 376 IPC and section 3(2)(v) of Scheduled Castes or Schedule Tribes Act. Since conviction and punishment for offence u/s 3(2)(v) under SC/ST Act is being quashed, therefore separate punishment for offence u/s 376 IPC has to be awarded. Appellant side had placed its arguments on quantum of punishment for charged offence u/s 376 IPC. Learned counsel for the appellant contended that appellant is an old man of 63 years of age. He is in jail since date of conviction by trial Court. His 27 years' daughter has to be married soon. He had no earlier criminal antecedent. These facts were not contradicted by respondent's counsels. Considering the facts and circumstances of the case, especially appellant's family background, absence of any criminal history and present age of senior citizenship we are of the opinion that a minimum sentence of seven years' rigorous imprisonment to appellant as punishment for the charge of section 376 IPC would meet the ends of justice.

21.Accordingly this appeal is partly allowed. The punishment awarded to appellant, in S.T. no.- 14/2004, State v. Kartar Yadav, crime no.- C-342, section 376, 506 IPC & section 3(2)(v) SC/ST Act, p.s.- Sarpataha, Jaunpur passed by the Court of Addl. Sessions Judge/ F.T.C.-1, Jaunpur is amended. The appeal is confirmed for the conviction and punishment of charge u/s 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 appellant- accused Kartar Yadav is convicted for charge under section 376 IPC and awarded sentence of 7 years rigorous imprisonment with a fine of Rs.10,000/- and in default to undergo further imprisonment of three months. All sentences would run concurrently and the period already undergone in jail by accused-appellant in this case will be adjusted in his punishment.

22.The copy of this judgment be sent to concerned Superintendent, Central Jail, Varanasi and also to Sessions Judge, Jaunpur for ensuring compliance.

Order Date :- 18. 04.2015

Sanjeev