Santosh vs State Of U.P.
2015 Latest Caselaw 1929 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 
Court No. - 36
 

 
Case :- CRIMINAL APPEAL No. - 5953 of 2004
 

 
Appellant :- 	Santosh
 
Respondent :- 	State Of U.P.
 
Counsel for Appellant :- 	 Krishna Capoor, D.K. Dewan, Noor Mohammed, R.D. Dauholia, Rajiv Kumar Singh, Yogesh Srivastava
 
Counsel for Respondent :-  Govt. Advocate
 

 
Hon'ble Amreshwar Pratap Sahi, J.

Hon'ble Pramod Kumar Srivastava, J.

(Delivered by Pramod Kumar Srivastava, J.)

1.This appeal has been preferred against the judgment of conviction and punishment dated 26-10-2004 passed by Special Judge (SC/ST Act), Agra in S.T. No. 16/ 2002, State v. Santosh, 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.Heard learned counsel for appellant and Addl. Government Advocate on behalf of the State, and perused the original records of the case.

3.The admitted case in brief is that informant Dharm Vir Singh (PW-1) belongs to ''jatav' caste (scheduled caste community) and accused Santosh is ''thakur' (a non-SC/ST community). They are residents of the same village. Prosecution case in brief is that on 25-11-2001 informant's 11 year old niece Shashi Kumari was allured by the accused who persuaded her to go in a lonely place, and then committed rape with her. This incident was reported by the informant on basis whereof a case was registered and after investigation charge-sheet for offences u/ss 376, 506, and section 3(2)(v) SC/ST Act was filed against accused Santosh on the basis whereof S.T. No. 16/ 200 State v. Santosh was registered. After conclusion of the trial accused was convicted for charge u/s 376 read with Section 506 and section 3(1) XII SC/ST Act and punished with imprisonment for life. Aggrieved by this judgment of conviction and punishment dated 26-10-2004 accused Santosh has preferred the present appeal.

4.Learned counsel for the appellant argued that he is not challenging the facts of charge of rape of the 11 year old victim girl by the accused appellant; but from the evidence and proved case of prosecution, appellant appears to have not committed the offence punishable u/s 3(2) (v) SC/ST Act. He contended that offences of 376 IPC and 3(2) (v) SC/ST Act are different, and in any case separate conviction and punishment should have been awarded, if these offences were proved. He also argued that the trial Court had erroneously convicted the appellant under the provisions of SC/ST Act merely only on the ground of his being a non-member of SC/ST community. From the admitted facts of the prosecution case no offence u/s 3(2) (v) SC/ST Act is made out, so appellant should have been convicted for the charge u/s 376 IPC only, for which he had not been given pre-punishment. In these conditions his rights u/s 235(2) CrPC were infringed because at the time of awarding minimum sentence u/s 3(2) (v) SC/ST Act learned Sessions Judge has not considered pleas advanced on point of quantum of sentence, as he was awarding minimum sentence for the said offence which is imprisonment for life. In fact this punishment is maximum for the offence u/s 376 IPC, so the plea u/s 235(2) CrPC on mitigating circumstances for the punishment should have been considered.

5.Learned counsel appearing for the appellant fairly states that he is not challenging the conviction u/s 376 IPC, but questioning the quantum of sentence only. According to him, taking note of various factors including the age of the young appellant-accused being about 25 years at the time of the incident, he is the only bread winner of his house, it is his first guilt and hailing from a poor family, the award of life imprisonment is excessive. He pointed out that these points were mentioned during the trial at the time of hearing on point of quantum of sentence, but were not considered at the time of awarding the punishment; and without assigning any reason maximum possible punishment for the said offence was awarded, which should be mitigated in the present case.

6.Learned A.G.A. appearing for the respondent State fairly submitted that the Court is at liberty to impose any appropriate sentence in terms of Section 376 IPC read with Section 235 (2) Cr.P.C.

7. We have perused the original records of the case and given our anxious consideration to the rival submissions on this issue.

8.From a perusal of evidence available on record it is clear that the charge of rape punishable u/s 376 IPC was rightly held to be proved by the trial Court. But it has to be considered that from proven facts of the prosecution case, whether commission of offence u/s 3(2) (v) SC/ST Act is made out or not.

9. 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"

10. 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 commits 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 in the present case, it appears that the alleged act of rape had been committed by the accused-appellant only for satisfying his lust and not for any other reason. He had physically abused the victim and thereafter left her. It was not the prosecution case that offence was committed because the victim belongs to the 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.

11. 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."

12. 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."

13.On the basis of above discussion it is explicitly clear that charged offence of abduction and rape had not been committed because victim was a member of SC/ST community. This offence appears to have been committed only for satisfying the lusty desire of the 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 liable to be set aside.

14.In view of the limited submission on behalf of the appellant on quantum of sentence, the only question to be considered is whether the sentence of life for charge u/s 376 IPC in the present case is reasonable or excessive?

15.Section 376 IPC speaks about the punishment for rape. Sub-section (1) provides for punishment of rape. Sub-section (2) is not applicable in present matter. Sub-section (1) reads as under :

"(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years."

16.It is clear from the above statutory provision that for the offence of rape on a woman, punishment shall not be less than 7 years but which may extend to life and also to fine shows that the legislature intended to adopt strictness in awarding sentence. No doubt, the proviso to Section 376(2) lays down that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years. It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. In the absence of any special and adequate reasons, recourse to the proviso mentioned above cannot be applied in a casual manner.

17. The Section 235 of the Criminal Procedure Code, 1973 reads :

"(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law".

18.In the present case after the verdict of conviction the accused-appellant had, at the time of hearing on point of quantum of sentence and all relevant factors available and presented, should have been well thought out for determining the appropriate amount of sentence. But the trial Court had not considered them because the Sessions Judge had erroneously connected the punishment of charge under section 376 IPC with that of section3(2)(v) SC/ST Act and awarded maximum prescribed punishment for said offence. Thus the Sessions Judge, in the instant case, had not complied with the obligation which Section 235(2) imposes. As discussed above, in this case the offence of section 3(2)(v) SC/ST Act is not made out, therefore punishment should have been for charge u/s 376 IPC only and that too after affording opportunity of pre-punishment hearing as discussed above. Such hearing has been made in the appeal.

19.The sentencing procedure is given in the Code of Criminal Procedure, which provides broad discretionary sentencing powers to judges. In the absence of an adequate sentencing policy or guidelines, it comes down to the judges to decide which factors to take into account and which to ignore. From various judgments of Hon'ble Apex Court it has been established that at the time of sentencing the Courts should consider the aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated.  Therefore there is no justification for the trial court while convicting accused for offence under Section 376 IPC to sentence him to life imprisonment only because Section 376 IPC provides the life imprisonment as the maximum sentence. It is erroneous for the court to mechanically proceed to impose the maximum sentence.

20.In Hem Chand v. State of Haryana, (1994) 6 SCC 727 Hon'ble Apex Court had held that :

"As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case."

21.In Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 Hon'ble Apex Court had held :

"While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attendant circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attendant circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced."

22.It lies in the discretion of the trial court to choose a particular sentence within the available range from minimum to maximum; and for the reasons discussed above the impugned judgment, on point of punishment for charge u/s 376 IPC as well, warrants interference in exercise of appellate jurisdiction.

23.Now the matter is limited to the sentence for the offence u/s 376 IPC, and we have to consider about the appropriate sentence for the appellant in this case. For it aggravating circumstances relating to the crime while mitigating circumstances relating to the criminal has to be considered. From facts and circumstances of the case before us, as regards aggravating circumstance is concerned it is clear that appellant had persuaded a girl of about 11 years of age to go at a lonely place, misused his position of trust, and then given in to his sexual desire, used criminal force to satisfy his lust, without considering the effect of his act on the poor helpless girl. So far as mitigating circumstances are concerned, taking note of various factors including the age of the young appellant-accused being a villager of about 25 years at the time of the incident which cannot be treated as very mature, he is the only bread winner of his house, it is his first guilt and hailing from a poor family, award of life imprisonment is excessive. These points were not considered at the time of awarding the punishment; and maximum possible punishment for the said offence was awarded, which should be mitigated. This contention of learned counsel for the appellant cannot be ignored that during trial and then after conviction appellant had suffered sufficient time in incarceration (about 11 years) which would have taught him appropriate lesson to refrain from such overt acts.

24.In Bavo v. State of Gujarat, (2012) 2 SCC 684 Hon'ble Apex Court had held as :

"14. Considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(2)(f) IPC, we feel that the ends of justice would be met by imposing RI for 10 years. The learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years.

15. Coming to the quantum of fine, in the case on hand, the learned trial Judge has imposed Rs 20,000, in default, to undergo RI for three years. The learned counsel for the appellant submitted that the accused hails from a poor family and was working as an agricultural labourer and is not in a position to pay such a huge amount as fine which is not disputed by the State. Taking note of all these aspects, we reduce the fine of Rs 20,000 to Rs 1000, in default, to further undergo RI for one month.

16. In view of the above discussion, the conviction imposed on the appellant herein is confirmed. However, the sentence of life imprisonment is modified to RI for 10 years with a fine of Rs 1000, in default, to further undergo RI for one month.

17. With the above modification of sentence, the appeal stands disposed of."

25. In aforesaid case the Supreme Court had, for the reasons presented by defence side, had mitigated the punishment for rape of a girl below 7 years to 10 years' imprisonment. In said case appellant was in incarceration for long time. In present case the circumstances appears slightly more dismaying. Appellant was aged about 25 years and was not too young.

26. While we see no reason to differ with the findings recorded by the trial court regarding charged offence of section 376 IPC, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the above mentioned aggravating and mitigating attendant circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court should take lenient view as far as the quantum of sentence is concerned. Keeping in view the attending circumstances, we are of the considered view that ends of justice would be met if the punishment awarded to the appellant is reduced. So, it appears appropriate that in present case the sentence should not exceed more than 12 years' imprisonment.

27. In view of above facts and discussion, the order of conviction u/s 3(2)(v) Schedule Tribes (Prevention of Atrocities) Act, 1989 is set aside; but the conviction u/s 376 IPC imposed on the appellant is hereby confirmed. For the charge u/s 376 IPC the punishment of sentence of imprisonment for life is modified to rigorous imprisonment of 12 years. With this modification of sentence, the appeal stands disposed off.

28. Let the copy of this judgment be sent to Sessions Judge, Aligarh of ensuring compliance.

Dated: 21.08.2015

SKS