Rajesh Singh And Another vs State Of U.P.
2015 Latest Caselaw 2622 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 46                                                               RESERVED
 
                                                                                             AFR
 
Case :- CRIMINAL APPEAL No. - 342 of 2007
 

 
Appellant :- Rajesh Singh And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Manish Tiwary,Akash Mishra,Amit Kumar,Ashwini Kumar Awasthi,B.B. Paul,D.R.Azad,Radheyshyam Shukla
 
Counsel for Respondent :- Govt. Advocate
 

 
                 AND
 
Case :- CRIMINAL APPEAL No. - 326 of 2007
 

 
Appellant :- Sohrab @ Sanjay
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Manish Tiwary,Amit Kumar,Ashwani Kumar Awasthi
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Raghvendra Kumar,J.

(Per Raghvendra Kumar,J.)

1. Both these appeals are directed against the judgment and order dated 17.11.2006 passed by Special Judge, SC & S.T. (Prevention of Atrocities) Act, Etawah in S.T. No. 594 of 1997, State Vs. Ramesh and other under section 376 I.P.C. and section 3(2) (V) SC & ST (Prevention of Atrocities) Act, P.S. Bakewar, District Etawah and S.T. No. 660 of 1997, State Vs. Pramod Kumar, under section 376 I.P.C & section section 3(2) (V) SC & ST (Prevention of Atrocities) Act P.S. Bakewar, District Etawah. Both the Sessions Trial have been disposed of by a common judgement dated 17.11.2006 whereby the appellants, Sohrab alias Sanjay, Rajesh Singh and Pramod Kumar have been convicted for the offence under section 376 (2)(g) I.P.C. read with section 3(2) (V) SC & ST (Preventing of Atrocities) Act and sentenced to imprisonment for life with fine of Rs. 2000/- each with default stipulation for four months additional rigorous imprisonment.

2. Heard learned counsel for the appellants and learned A.G.A for the State of U.P.

3. The F.I.R of the incident has been lodged by Kaptan Singh at the police station Bakewar on 13.8.1997 at 1830 hrs with respect to the incident that took place on 13.8.1997 at 3.00 p.m.

4. As per the F.I.R version, the wife of the informant aged about 30 years had gone to the tube well of Shankar Maharaj brick-kiln for washing of the clothes. At about 3.30 p.m., the accused Pramod Kumar came to the prosecutrix in a Jeep accompanied by Ramesh Shorab alis Sanjay and Rajesh Singh who with illicit motive forcibly took away the prosecutrix towards the jungle where Pramod Kumar, Rajesh Singh and Sohrab alias Sanjay turn by turn committed rape with the prosecutrix and torn her blouse. The incident was witnessed by Shyam Singh and Barey. No one could dare to intervene when the accused persons took away the prosecutrix. The people on the road hide themselves. After hearing the incident, the shops of the locality were closed. After lodging of the F.I.R with the police, the investigation proceeded in accordance with law. During the course of investigation, the clothes of the victim were taken by the police and the recovery memo was prepared. The victim was medically examined. Pathological report was also submitted. The investigation culminated into filing of police report in the shape of charge sheet.

5. The accused appellants were charged for the offence under section 376 I.P.C. And 3 (2) (V) of SC & ST Act. The accused appellants denied the charge and claimed trial on merits.

6. To substantiate the charge the prosecution has examined P.W.1, Kaptan Singh informant, who has proved the execution of F.I.R. Ex. Ka.1,. P.W.2, Smt. Meena (named changed),P.W.3Dr. Smt. Sudha Goyal, Senior Medical Officer, Women Hospital, Etawah who has conducted the medical examination of the prosecutrix and proved the medical examination report Ex. Ka. 2 and pathological report Ex. Ka.3 On medical examination P.W.3 has made following observations in her report:

" As per vagina examination, her hymen was old torn. Vagina admits two figures easily. Vaginal smear was taken and sent for microscopic examination"

P.W.4, Barey who has been declared hostile, P.W.5, Shyam Singh, brother of the prosecutrix who has supported prosecution version, P.W.6, Ashok Kumar, Addl. S.P. Investigating Officer has proved the execution of site plan and the charge sheet, P.W.7,head constable Ram Autar has proved the recovery memo of the clothes taken by the police in the custody,P.W.8, Constable Ram Narayan has proved the chik F.I.R. and relevant G.D.

7. The incriminating circumstances has been put up to the appellants by way of their examination under section 313 Cr.P.C.

8.The accused appellants have examined Suresh Chandra as D.W.1.

9. After conclusion of the trial, learned court below recorded the finding of conviction against the accused appellants which resulted in the instant appeal.

10. It has been submitted on behalf of the accused appellants that the accused appellants are in jail since 17.11.2006.They have already put in more than nine years in jail. Learned counsel for the appellants has not assailed the finding of conviction on merits but has prayed that lenient view may be taken and the accused appellants be released on the basis of the period already undergone.

11. Learned A.G.A has opposed the prayer.

12. It is settled proposition of law that the testimony of the prosecutrix is at par with the testimony of an injured witness. The incident alleged has taken place at 3.30 p.m. The F.I.R of this case has been lodged with the police on the same at 1830 hrs. The distance of the place of occurrence from where the prosecutrix was taken away by the accused appellants and the P.S. is 3kms. As per prosecution version, the prosecutrix was taken to the forest where sexual assault was done by the appellants. Thereafter she returned to her home and narrated the incident of sexual assault to her husband where after the F.I.R has been lodged. In the circumstances, it is evident that no delay has been caused in lodging the F.I.R. The F.I.R is thus prompt one. The prompt F.I.R rules out the possibility of concoction, colouration and manipulation. P.W.1 has not seen the incident. He has simply lodged the F.I.R, P.W.2 is the prosecutrix. She has narrated the incident of sexual assault. She has fully supported the prosecution version i.e. story as disclosed in the F.I.R. She has been put to lengthy examination. She has not made any admission in her cross examination which may raise finger of doubt on the veracity of her statement. P.W.5, Shyam Singh has also corroborated the factum of sexual assault. The testimony of P.W.2 stands further corroborated and supported by the testimony of P.W.5 who is an eye witness. There is no material discrepancy or any inconsistency in the statement of P.W.2 recorded during the course of trial with her statement recorded under section 161 and 164 Cr.P.C. There has been uniformity, consistency and coherence in the testimony of P.W.2 right from the examination in chief to cross examination and the F.I.R. version as well. The finding recorded by the learned court below are justified on the basis of material available on record. The court below has rightly appreciated the evidence.

13. The findings have been scrutinised by this Court being a court of Ist Appeal by way of abundant precaution and we agree with the findings recorded by learned court below.

14. It has been submitted on behalf of the accused appellants that the charge has wrongly been framed by the learned trial court against the accused appellants for the offence under section 3 (2) V of SC & ST (Prevention of Atrocities) Act because of the fact that the prosecutrix was not sexually assaulted for being a member of ST & ST community.

15. Under the facts and circumstances of the case we feel it proper to see whether the provisions of section 3 (2) V of SC & ST (Prevention of Atrocities) Act are attracted in the facts and circumstances of the case ?

16. The Section 3 (2) V Scheduled Caste and Scheduled Tribe (Prevention of 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"

17. For applicability of Section 3 (2) (5) SC/ST Act, it would be appropriate to have a glance over the Dinesh @ Buddha v. State of Rajasthan, AIR 2006 SC 1267 (para 15, 16). The observation of the Hon'ble Apex Court are reproduced here 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.

18. Hon'ble Supreme Court in Ramdas and Ors. v. State of Maharashtra, (2007) 2 SCC 170 (para 11) 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. Nowhere it has been mentioned in the F.I.R. that the prosecutrix was subjected to sexual assault for the purpose of insulting or humiliating her because of the fact that she belonged to a SC/ST community and more so, it has not been stated by the prosecutrix (P.W.2) in her statement that she was subjected to sexual assault because of being member of SC & ST community. P.W.1 has also not stated that his wife (prosecutrix) was victimised for the reason of her being a member of SC& ST community. Hence Section 3 (2) V of SC/ST Act has no application. Section 3(2) V SC/ST Act does not provide for any substantive offence. It only provides for enhanced punishment when an offence is committed under the conditions enumerated in this section. If any offence is found to have been committed under the condition mentioned in Section 3(2) V of SC/ST Act then only accused appellants would be liable for enhanced punishment of imprisonment of life. Section 3(2) V of SC/ST Act is not a substantive offence and it is not an independent offence.

20. In view of the facts, we are of the considered opinion that finding recorded by the court below for offence charged under section 3(2) V of SC/ST act against the appellants can not be sustained.

21. In view of the facts and circumstances of the case, we are of the considered view that in absence of direct and cogent evidence that the offence of gang rape was committed with the prosecutrix for the simple reason that she belonged to SC/ST community, as such the imprisonment for life awarded with the assistance of section 3 (2) V of SC/ST Act can not be sustained and the quantum of sentence awarded appears to be exorbitant and warrants reconsideration.

22. It has been submitted on behalf of the appellants that the prosecutrix is a married lady of 33 years of age. She has children as well. Presently she is residing with her husband, the informant. Earlier she was married with one Pappu. The accused persons are of young age and are incarcerating in jail for more than nine years. The accused persons have responsibility of maintaining their family members. Since they are in incarceration, there is no source of income. They are incapable of maintaining their parents and family members.

23. It is settled proposition of law that the punishment awarded to the accused appellants should neither be lenient nor it should be harsh one. It is always duty of the court to weigh and evaluate aggravating and mitigating circumstances and then appropriate sentence should be awarded for the offence which should meet the ends of justice. The legislature has provided minimum sentence of ten years which is extendable to imprisonment for life. The legislature has also provided a safeguard that adequate and special reasons should be mentioned in the judgment to impose sentence less than ten years in appropriate cases. In view of the legislative provisions, we are of the considered opinion that in the facts and circumstances of the instant case, sentence of rigorous imprisonment of ten years would satisfy the ends of justice and would be appropriate sentence.

24. In view of the aforesaid discussion, we are of the considered opinion that the finding of conviction recorded by the learned trial court for the offence under section 376 I.P.C. does not require interference.

25. The Criminal Appeal No.342 of 2007 preferred by appellants Rajesh Singh and Prmaod Kumar and the Criminal Appeal No.326 of 2007 preferred by appellant Sohrab @ Sanjay are partly allowed. Conviction of the appellant under section 376 (2) (g) I.P.C. read with section 3(2) V SC/ST Act is hereby modified under section 376 (2)(g) I.P.C and sentence of imprisonment for life is hereby modified and reduced to rigorous imprisonment for a period of ten years. No interference is made with respect to the sentence of fine. The accused appellants shall be entitled for commutation of sentence as per provisions of law.

26. The copy of this judgment and order alongwith record of lower court be transmitted forthwith to learned trial court for compliance.

.

		               ( Raghvendra Kumar)    ( S.V.S. Rathore)
 
Order Date:24h Sept. 2015
 
R