Pappu Gupta vs State Of U.P.
2015 Latest Caselaw 24 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Case :- CRIMINAL APPEAL No. - 2230 of 2005
 
Appellant :- Pappu Gupta
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajendra Tiwari,M.P. Yadav
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Tripathi,J.

Hon'ble Pramod Kumar Srivastava, J.

(Delivered by Hon'ble Arvind K. Tripathi, J.)

1. Mr. M. P. Yadav, learned Advocate appeared for the appellant, learned AGA Mr. A.N. Mulla appeared on behalf of the State.

2. The appeal was heard and judgement was reserved on 2.4.2015.

3. The present criminal appeal has been preferred assailing the judgement and order of conviction and sentence dated 31.3.2005 passed by Special Judge (S.C./S.T. Act), Varanasi in S.T. No.456 of 2004 arising out of Case Crime No.11 of 2004, under section 376 IPC, Police Station Jaitpura, District Varanasi.

4. By the impugned judgment of conviction and sentence the accused appellant was convicted and sentenced under section 376 IPC for 10 years rigorous imprisonment with fine of Rs.10,000/- in default of payment of fine further undergo simple imprisonment for one year, for an offence under section 3(i)XII of SC/ST (P.A.) Act to undergo a sentence of 3 years rigorous imprisonment with fine of Rs.3,000/- and in default of payment of fine further undergo simple imprisonment for three months and in respect of offence under section 3(2)V SC/ST (P.A.) Act to undergo life imprisonment with a fine of Rs.10,000/- and in default of payment of fine, to undergo further simple imprisonment for one year. All the sentence would run concurrently and the period already undergone in jail during trial should be adjusted as period undergone punishment by the accused appellant.

5. The prosecution case in brief is that informant Om Prakash Gaud son of Kedar Gaud, R/o Mohalla Shailputri Crossing (Chauraha), Jalalipura, Police Station Jaitpura, District Varanasi lodged first information report on 5.1.2004 at 2.30 A.M. with the allegation that on 4.1.2004 in evening at 7.30 P.M. when his daughter Km. Arti aged about 7 years had gone to purchase egg from the shop and when she was returning, in the lane leading to his house, a person met, enticed away and took her in a compound and committed bad thing with her. When landlord of the compound open the door he found that his daughter was weeping then nearby ladies and persons were called, information was given regarding the occurrence. She was brought to home and there was profuse bleeding from her sexual organ. The FIR was scribed by informant himself and that written report is exhibit -Ka-1 dated 5.1.2004. The distance of the police station was about 2 km. north from the place of occurrence. The case was registered against unknown persons under section 376 IPC at case crime no.11/04.

6. Victim Km. Arti was medically examined at 3.30 A.M. on 5.1.2004, who was brought by constable Shyamraj in womens hospital, Varnasi. The emergency medical officer Dr. Manju Singh examined her and the medical examination report is Ext Ka-3. She was referred at 4.15 A.M. to examine injuries on body of Km. Arti, who was medically examined by Dr. S. K. Verma, Emergency Medical Officer, S.S.P.G. Hospital, Varanasi and injury report is Ext. Ka-5. Vaginal smear was taken and supplementary report was prepared and submitted.

7. The Investigating Officer collected frock, underwear of the victim and taken into custody on 7.1.2004 and memo Ext. Ka-2 was prepared. He also took in his custody pant of accused appellant on 7.1.2004 and prepared memo Ext. Ka-7. The sealed bundle of blood stained frock and underwear of victim Arti, and Chaddi (underwear) and paint of accused appellant were sent in a container to Chemical Examiner, U.P., Lucknow through constable Mohd. Zameel Khan. The medical examination report dated 1.5.2004 was submitted by Joint Director, Forensic Laboratory, U.P., Lucknow as paper no.16-A/2. The statement of prosecutrix was recorded under section 164 Cr.P.C. on 22.1.2004 by the Magistrate, concerned, and the same was placed on the committal record. The Investigating Officer recorded the statement of witnesses and after investigation submitted charge-sheet. Since victim was member of schedule caste and as such charge-sheet was submitted under section 376 and 3(1)XII SC/ST Act and after advice section 3(2)V was added and supplementary charge-sheet was submitted. The cognizance was taken. The case was committed to the court of sessions on 7.7.2004. The charges were framed after hearing the parties under section 376 IPC and section 3(2)XII and 3(2)V of the SC/ST Act. The accused appellant denied the charges and claimed to be trial.

8. Prosecution to prove his case examined P.W. 1, Om Prakash informant, P.W. 2 Arti Victim, P.W. 3 Dr. Manju Singh to prove medical examination report and supplementary report, P.W. 4 Doctor Sudhir Kumar Verma, P.W. 5 Dharm Nath Singh, Sub Inspector as first Investigating Officer, P.W. 6 Sri Santosh Kumar Singh, C.O., Cantt. Varanasi, as 2nd Investigating Officer, P.W. 7 Sita Ram, Head Constable to prove chik FIR G.D. Entry, P.W. 8 Constable Moharrir Jameel Khan to prove sending docket as to case material blood stained frock and underwear of prosecutrix and paint and underwear of accused appellant. The statement of accused appellant was recorded under section 313 Cr.P.C. on 12.1.2015. He admitted that prosecutrix was member of schedule caste and appellant was not member of schedule caste and scheduled tribes. He further denied the allegation and prosecution evidence regarding occurrence dated 4.1.2004, however, inspite of opportunity he did not adduced any evidence in his defence.

9. Learned counsel for the appellant submitted that there was some contradiction in the statement and firstly FIR was against unknown persons and subsequently applicant was implicated though he could not be identified by the prosecutrix due to darkness in the lane. However, in view of the chemical analyst report instead of pressing on merit since he has already completed more than 11 year of sentence, he submitted that appellant is entitled to be released forthwith even if conviction is confirmed because the sentence awarded under section 3(2)V SC/ST Act is illegal merely on the presumption without any evidence on record. Hence if the conviction and sentence under section 3(2)V SC/ST Act is illegal against the evidence on record then he is entitled for relief forthwith as he has served out more than sentence awarded in above noted sections. He relied judgement of this Court supported by the Judgment of the Apex Court reported in 2006(2) JIC 896 SC Dinesh @ Buddha Vs. State of Rajasthan, Para 15 and 16 of which are quoted herein below.

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. Though learned counsel for the State submitted that even in a case covered under Section 376(2)(f) IPC, imprisonment for life can be awarded, it is to be noted that minimum sentence of 10 years has been statutorily provided and considering the attendant circumstances the imprisonment for life in a given case is permissible. Neither the Trial Court nor the High Court has indicated any such factor. Only by applying Section 3(2)(v) of the Atrocities Act the life sentence was awarded. Therefore, the sentence is reduced to 10 years. The other question is legality of the compensation awarded. Since the State has not challenged the award of compensation, it is not open to it to question the legality of the award in the present appeal filed by the accused. Therefore, State's challenge to the legality and/or quantum of compensation awarded is without merit. The amount shall be paid to the victim if not already paid within a period of eight weeks.

10. He further relied the judgement of the Apex Court reported in 2007(1)SCC (Crl.) 546 Ram Das and another Vs. State of Maharastra, para 11 of which is quoted herein below:-

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 prsecutrix 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.

11. Learned AGA opposed aforesaid prayer and submitted that admittedly prosecutrix was member of scheduled caste, who was aged about 7 years at the time of occurrence. The prosecution has proved the guilt of the appellant beyond reasonable doubt. It is also supported with the medical report and chemical examination report hence there is no illegality in the impugned judgment of conviction and sentence awarded against the appellant and as such he is not entitled for relief.

12. Considered the submission of learned counsel for the parties and perused the record. There is sole eye witness of the occurrence, who is prosecutrix, Km. Arti aged about 7 years and she has clearly stated in examination-in-chief that offence was committed by the appellant Pappu Gupta. There was some minor contradiction that name was told by her father, however, subsequently it was further clarified that she had not told the name of the appellant on direction and information of his father. There is no departure from her statement recorded under section 164 Cr.P.C. in her examination-in-chief and cross examination. The medical report and statement of doctor clearly proves that the rape was committed with the prosecutrix. Apart from that according to chemical examination report with regard to the underwear, frock of the prosecutrix and underwear, paint of the accused appellant on the clothes contains human blood and on both the clothes semen of same person was found, which clearly support the statement of victim Arti that the rape was committed by accused appellant. There is no reason to falsely implicated him by the victim or her father informant. Hence rightly the appellant was convicted.

13. As far as sentence of the appellant under section 376 IPC, 3(1)XII and 3(2)V SC/ST Act and different sections are concerned, the appellant has already served out the sentence awarded under section 376 IPC and 3(1)XII SC/ST Act, which was 10 years rigorous imprisonment and three years rigorous imprisonment respectively with fine.

14. In respect of offence and sentence under section 3(2)V SC/ST Act before expressing any opinion the provision is required to be considered. The section 3(2)V SC/ST Act is quoted hereinbelow:-

3(2) (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;

15. The punishment for offence of atrocities (2), who were not being a part of schedule caste or a schedule tribe (V) commits any offence under the IPC punishable with imprisonment for a term of 10 years or more than against a person or property on the ground that such person is a member of schedule caste or schedule tribes or such property belongs to such member shall be punishable with imprisonment for life and with fine. So requirement of the punishment for offence under section 3(2)V SC/ST Act is that offence was committed against a person on the ground that such person was a member of schedule caste and scheduled tribes.

16. This is not the case of the prosecution that there was some dispute in between the two families and with ulterior motive rape was committed with prosecutrix aged about 7 years to commit attrocities against her. So merely because she was member of the schedule caste no punishment can be awarded under the section 3(2)V SC/ST Act, further without considering the cost, and creed, the socio economic status religion and race. The sentence has to be awarded considering the fact and circumstances, and gravity of offence, in accordance with law. As far as the offence of rape specially with a girl aged about 7 years is concerned, it is a inhuman, and a serious offence not only against the person but against the society which shakes our judicial conscience. Hence even under section 376(2) IPC stringent punishment can be awarded. In the present case offence is under section 376(2) IPC, as the girl was below 12 years of age hence the sentence may extent to life imprisonment and also with fine. But appeal has been filed for enhancement of sentence.

17. Hence in view of the aforesaid discussion the conviction and sentence awarded against the accused appellant under section 376 IPC and 3(1)XII SC/ST Act are affirmed. However, the conviction and sentence in respect of section 3(2)V SC/ST Act is hereby set-aside. Accordingly, the present criminal appeal is hereby partly allowed.

18. The appellant has already served out the sentence awarded in said sections hence he has to be released forthwith if he is not wanted in any other case.

19. Office to communicate this order to the concerned Superintendent of Jail.

Order Date :- 20.4.2015

Pramod