Amir Ahmad vs State
2017 Latest Caselaw 1550 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40 
 

 
Case :- JAIL APPEAL No. - 2813 of 2008
 

 
Appellant :- Amir Ahmad
 
Respondent :- State
 
Counsel for Appellant :- From Jail, Arun K. Singh Deshwal, Dinesh Chandra, S.K.Mishra, Sikandar B.Kochar, A.C.
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Krishna Pratap Singh,J.

( Delivered by Hon'ble Krishna Pratap Singh, J)

The argument of this case was concluded on 01.6.2017. We then passed the following order:

"Heard Sri Arun Kumar Singh, learned counsel for the appellant, Sri Rajeev Gupta, Smt. Manju Thakur, Kumari Meena, learned AGAs for the State.

We will give reasons later. But we are making the operative order here and now.

We have been informed that the appellant is in jail for the last more than 12 years.

While maintaining the conviction of the appellant under Section 376 (2)(g) IPC, his conviction under Section 3(2)(5) SC/ST Act is set aside and the life sentence awarded to him is modified to the period of imprisonment already undergone by the appellant.

The impugned judgment and order stands modified to the aforesaid extent.

The appeal is allowed in part.

Appellant, Amir Ahmad shall be released forthwith unless he is wanted in some other criminal case.

Sri Arun Kumar Singh, amicus curiae, shall be paid a sum of Rs. 10,000/- towards his remuneration."

Here are the reasons: The instant criminal jail appeal is directed against a judgement and order dated 5.3.2008 passed by the Additional Sessions Judge, Fast Track Court No. 2, Budaun in ST No. 26 of 2005 arising out of Case Crime No. 269 of 2005 (State Vs. Amir Ahmad), under sections 363, 366, 376, 376 (2)(g) IPC and 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, Police Station Bisauli, district Budaun. By the impugned judgement and order the learned trial court has convicted and sentenced the accused-appellant to three years RI and a fine of Rs. 500/-under section 363 IPC, seven years RI and a fine of Rs. 1000/- under section 366 IPC, ten years RI and a fine of Rs. 1500/- under section 376 IPC , ten years RI and a fine of Rs. 1500/- under section 376(2)(g) IPC and life imprisonment and a fine of Rs. 1500/- under section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 . In case of default in payment of fine, the appellant was further directed to undergo RI for one year. Learned trial court has further directed that all the aforesaid sentences of the accused-appellant shall run concurrently.

In short compass, the facts of the case are that a written report was given by the informant Ram Swaroop on 17.5.2005 at the police station Bisauli, district Budaun to the effect that Amir Ahmad, son of Jaimal Khan, Mohalla Miya Ka Qila, village and police station Chharra Haal used to come to his house. He claimed himself to be conjuror (Tantrik). On 15.4.2005 Amir Ahmad on the strength of his conjuring power (Tantrik Vidya) enticed away his daughter aged 15-16 years. Shyam Veer and Tej Veer have seen his daughter going along with Amir Ahmad at Railway Station village Davtori and told me about this. I kept on searching my daughter, but she could not be traced out.

On the basis of the aforesaid report, a case was registered against Amir Ahmad at Case Crime No. 269 of 2005, under sections 363/366 IPC and investigation of the case was entrusted to SI Dilip Kumar Singh, PW-5, who recovered the victim from Davtori bus stand on the pointing out of the informant. Thereafter the investigating officer arrested the accused. Statement of the victim under section 164 Cr.P.C. was recorded. The investigating officer thereafter inspected the spot from where the victim was recovered and prepared site plan, which he proved as (Ext. Ka-8). On the basis of the statement of the victim, section 376 IPC and 3(1)12 of SC and ST Act were added.

Since, section 3(1)12 of SC and ST Act was also added, the case was entrusted to C.O., Bisauli Shri Ram Yash Singh, PW-6, who recorded the statement of earlier investigating officer SI Dilip Kumar Singh on 24.5.2005. He copied the medical report, x-ray report, pathology report and supplementary report of the victim in the case diary. He also recorded the statements of Shyam Veer and Tej Veer on 25.5.2005. The statement of the victim under section 164 Cr.P.C. was also got recorded. He prepared the site plan of the place of incident, which he proved as Ext. Ka-9. After completion of the investigation, he submitted the charge sheet bearing No. 88 of 2005 dated 16.6.2005 against the accused Amir Ahmad under sections 363, 366, 376 IPC and 3(1)12 of the SC and ST Act, which he proved as Ext. Ka-10. Supplementary charge sheet No. 88-A under section 363, 366, 376 IPC and 3(1)12 SC and ST Act was submitted against accused Nanhey, which he proved as Ext. Ka-11.

To bring home the guilt of the appellant, the prosecution as examined as many as 7 witnesses.

PW-1 is the victim of the case. She deposed that she knew the accused Nanhey and Amir Khan from before. On the date of occurrence when she was alone in the house, her mother had died before the occurrence and her father had gone out side, at about 6.00 PM accused Nanhey came to her and asked her that let us go to meet your brother. She left with accused Nanhey for Davtori from where he took her to Asafpur. In Asafpur, he took her to a tea shop where accused Amir Ahmad was standing. From where both of them took her towards Jungle. In jungle both of them committed rape on her against her wishes. In jungle Nanhey took Rs. 3000/- from Amir Ahmad and left for his house. Thereafter, accused Amir Ahmad took her to several places and committed rape on her against her wishes.

PW 2, Dr. Anita Dhamsana deposed that on 18.5.2005 she was posted as Medical Officer in District Hospital. On that date she has medically examined the victim, who was brought by Constable Suraj Pal Singh. She proved her report as (Ext. Ka. 2).

PW-3, Ram Charan is the scriber of the first information report. He deposed that he has written the report on the dictation of the first informant, Ram Swaroop father of the victim, which he proved as (Ext. Ka-4 ).

PW 4, Raj Rishi Sharma is Constable Clerk posted at police station Bisauli. He deposed that on 17.5.2005 at 1.00 PM, on the basis of the written report of Ram Swaroop he prepared chik No. 72 of 2005 on the basis of which the FIR was registered at Case Crime No. 269 of 2005, under section 363, 366 IPC, which he proved as Ext. Ka 5. He proved the GD entry as Ext. Ka. 6.

The evidence of PW-5 SI Dilip Kumar Singh and PW-6 Shri Ram Yash Singh has already been discussed above.

PW 7 Har Pal Singh deposed that on 19.5.2005 he was posted as Medical Officer in the District Hospital, Budaun. He further deposed that no spermatozoa was found in the smear slide. He prepared the report, which he proved as Ext. Ka-10.

Shri Ram Swaroop, the first informant of the case died during the pendency of the trial, hence his evidence could not be recorded.

After the close of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded in which he denied the charges levelled against him and claimed to be tried.

Heard Sri Arun Kumar Singh, learned counsel for the appellant, Sri Rajeev Gupta, Smt. Manju Thakur and Kumari Meena, learned Additional Government Advocate for the State and perused the judgement and order as well as record of the present case.

It has been submitted on behalf of the accused-appellant that offfence under Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as " SC and ST Act" ) is not made out from the evidence available on record. So, the conviction recorded by the learned trial court is not justified in law.

Learned counsel, however, does not challenge the findings recorded by the learned trial court with respect to the sexual abuse committed by the accused-appellant. He also submitted that accused-appellant is in jail for about 12 years. He has prayed for mercy of Court and prayed for release of the accused-appellant.

On the other hand, learned Additional Government Advocate submits that the learned trial court has recorded findings of conviction, which are well reasoned and substantiated from the evidence available on record and hence, the present criminal appeal is liable to be dismissed.

This case is based on the sole testimony of victim girl, PW 1. The principle for appreciation of the testimony of the victim of rape has been enunciated by Hon'ble Apex Court from time to time.

In the case of State of Punjab Vs. Gurmit Singh, AIR 1996 SC 1393, Hon'ble Apex Court observed as under:

"Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspirers confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The Court, therefore, should not sit as a silent spectator while the victim of crime i being cross-examined by the defence. It must effectively control the recording of evidence in the Court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as "discrepancies and contradictions" in her evidence."

In Bodhisattwa Gautam Vs Miss Subhra Chakraborty, AIR 1996 SC 922, dealing with sociological and philosophical aspect of the matter, the Hon'ble Apex Court has observed:

"Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men with whom they, fortunately, under the Constitution enjoy equal status. Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. Women, in them, have many personalities combined. They are Mother, Daughter, Sister and Wife and not play things for centre spreads in various magazines, periodicals or newspapers nor can they be exploited for obscene purposes. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world.

Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects."

In view of the proposition of law discussed above, it is clear that there is no legal impediment in placing reliance upon the testimony of victim of rape, even without corroboration, if the testimony is found to be credible and wholly reliable and inspires confidence.

In the present case, in her statement the victim, PW 1 deposed that accused-appellant Amir Ahmad is the resident of Bisauli. She does not know him from before. Accused-appellant Amir Ahmad is a conjuror (Tantrik). Nanhey, brother-in-law (devar) of my cousin sister Maya brought me to Asifpur on the pretext of meeting her brother. In Asifpur, Amir Ahmad was sitting outside station. From the station both Amir Ahmad and Nanhey took her to jungle. In the jungle, they broke the waist band of her Salwar and both of them committed rape on her. From where Amir Ahmad took her to Ajmer. Nanhey took Rs. 3000/- from Amir Ahmad in jungle. She further deposed that they stayed in Ajmer from about 4-5 days. Thereafter Amir took her to several places which she did not know. He kept on travelling with her here and there for about a month. He continued to indulge in misdeed (rape) with her. On her asking, her cousin brother informed the police only then she could be released.

Victim, PW-1 was put to lengthy cross-examination, but she has not made any admission in her cross-examination which may create doubt upon the veracity of the statement, which has been made before the Court. Nothing could be elicited from the statement of victim, PW 1, which can be termed as material contradiction. There is a complete consistency and coherence in her examination-in-chief and cross examination. Nothing has been admitted by the victim in her examination-in-chief, which may create doubt upon her veracity. No irregularity during the course of investigation or trial has been brought to our notice by the accused-appellant.

In view of the credible and reliable evidence of the victim, PW-1, we are convinced that the victim was enticed away and also was subjected to sexual abuse on the date, time and places as stated by her.

Though the findings recorded by the trial court with respect to sexual abuse committed by the accused-appellant have not been challenged, but by way of abundant precaution being a Court of first appeal , we have critically appraised the evidence available on record with respect to the offence of abduction and sexual abuse and we are convinced that the findings recorded by the trial court with respect to the commission of offence under sections, 363, 366, 376, 376(2)(g) IPC, do not require any interference. The trial with respect to the offence under sections, 363, 366, 376, 376(2)(g) IPC has sentenced the appellant to maximum ten years.

Now, we proceed to consider whether section 3(2)(V) of SC and ST Act is attracted in the facts of the present case?

It would be appropriate to discuss the legal and judicial position in this regard. The expression 'atrocities' is defined in Section 2 of the Act to mean an offence punishable under section 3. The said provision so far relevant reads as follows:

"3(2)(v): Punishments for offences of atrocities (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe .

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(v) commits any offence under the Indian Penal Code 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.

In Dinesh alias Buddha Vs. State of Rajasthan, 2006 (55) ACC 314 (SC), Hon'ble Apex Court has held as under:

"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 evidnece 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."

In the case of Ramdas and others vs State of Maharashtra, 2007 (57) ACC 47 (SC) has observed in paragraph as under:

"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 prosecutrix 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."

We have gone through the allegations mentioned in the FIR. In the FIR, it has not been mentioned that the prosecutrix/victim was subjected to sexual abuse for the purpose of insulting or humiliating her because of the fact that she belongs to scheduled castes and scheduled tribes community. Victim girl, PW-1 has also not stated on oath that she was subjected to sexual abuse because of being a member of the scheduled castes and scheduled tribes community. Ram Charan, PW 3, who was the scriber of the FIR, Dileep Kumar Singh, PW-5, who recovered the victim, PW-1 and the investigating officer, Ram Yash Singh, PW-6 have also not stated that the prosecutrix was victimised of the offence since she belongs to scheduled castes and scheduled tribes community and, therefore, section 3(2)(v) of the SC and ST Act has no application. Section 3(2)(v) of the SC and ST Act does not provide for any substantive punishment. 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 conditions mentioned in Section 3(2)(v) of the SC and ST Act, then the accused would only be liable for enhanced punishment of imprisonment of life. As Section 3(2)(v) of SC and ST Act does not provide any substantive offence, hence no sentence can be awarded under this section. Section 3(2)(V) of the Act is not an independent offence. It always read with substantive offence under the Indian Penal Code and it is for the purpose of imposing higher quantum of punishment.

In view of the facts and circumstances of the present case, we are of the considered opinion that the findings recorded by the trial court for the commission of offence under section 3(2)(v) of SC and ST Act against the accused-appellant cannot be sustained. The conviction recorded against the accused-appellant under section 3(2)(v) of SC and ST Act deserves to be set aside. Appeal deserves to be partly allowed.

Accordingly this appeal is partly allowed. The conviction recorded by the trial court for the offence under sections 363, 366, 376 and 376(2)(g) is hereby confirmed and the conviction and sentence awarded by the trial court against the accused-appellant under section 3(2)(v) of SC and ST is hereby set aside. It is stated that the accused-appellant is in jail since 18.5.2005. This fact has not been disputed by the learned AGA. The accused-appellant has already undergone a period of more than 10 years. Hence, sentence of the accused-appellant Amir Ahmad is hereby modified to the period already undergone by him for the offence under sections 363, 366, 376 and 376(2)(g) IPC (which is more than ten years). The appellant Amir Ahmad be set at liberty forthwith if he is not wanted in any other case.

Office is directed to send a copy of this order along with record of this case to the court concerned/learned Sessions Judge, Budaun forthwith for immediate compliance and compliance report be submitted to this Court also.

These are the reasons upon which we allowed the appeal is part.

Dated: 01.6.2017

Ishrat