Allahabad High Court

Suresh vs State Of U.P. on 24 November, 2021

Bench: Kaushal Jayendra Thaker, Ajai Tyagi




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

[A.F.R.]
 
Reserved on :09.11.2021 
 
Delivered on :24.11.2021 
 
Court No. -45
 

 
Case :- CRIMINAL APPEAL No. - 3248 of 2014
 

 
Appellant :- Suresh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Piyush Dubey,Dinesh Tiwari,Virendra Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per Hon'ble Dr. Kaushal Jayendra Thaker, J.)

1. By way of this appeal, the appellant-Suresh has challenged the Judgment and order dated 23.7.2014 passed by court of Special Judge SC/ST Act, Agra in Sessions Trial No.150 of 2002, State Vs. Suresh arising out of Case Crime No.378 of 2000, under Sections 376, 506 of Indian Penal Code (for short 'IPC') and read with Section 3(2)(v) of Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 ( hereinafter refeerred to as 'S.C./S.T.Act, 1989'), Police Station Malpura, District Agra, whereby the accused-appellant was convicted under Section 376 IPC and sentenced to life imprisonment with fine of Rs.1,000/-, and in case of default of payment of fine, to undergo further imprisonment for six months; he was further convicted under Section 3(2)(v) of Scheduled Casts and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 and sentenced to imprisonment for life with fine of Rs.1,000/- and in case of default of payment of fine, to undergo further simple imprisonment for six months.

2. Brief facts of the present case are that on 13.12.2000 at about 15.10 p.m., Hakim Singh, son of Madho Singh Jatav, gave a written complainant that on 12.12.2020 when his daughter, namely, prosecutrix who was 16 years of age ( who is disabled ) had gone for grazing the cattle and when she was in the field of Gutti, accused Suresh son of Mohan Singh Thakur forcefully took her to the field of Gutti and had committed forcible sexual intercourse with her. When the prosecutrix shouted, Navvar and Jayanti son of Bhagwan Singh Jatav and Mukesh son of Faguni Ram Jatav came there and saw the offence being committed but at that time Suresh ran away from there. When the complainant returned back from Agra, his daughter conveyed the entire incident to him namely, her father. The accused was serving with Gutti Thakur. When the complainant went to Gutti Thakur to complain, his son threatened him and, therefore, on the next date, complainant along with his daughter lodged the compliant.

3. The accused-appellant being, prima facie, found to have committed the offence by the Investigating Authority. Investigating Authority laid the charge-sheet before the learned Magistrate.

4. As the offences with which the accused was charged were triable by the court of session. The case was committed to the court of session.

5. The trial was initiated against the accused and the accused was summoned. The accused pleaded not guilty and wanted to be tried. The learned Judge framed the charge and the accused pleaded not guilty

6. The prosecution so as to bring home the charges, framed against the accused, examined the following witnesses:

Prosecutrix

PW-1

Hakim Singh

PW-2

Dr. Meetu Agarwal

PW-3

Mukesh

PW-4

Constable Netrapal

PW-5

Jayanti Prasad

PW-6

S.I. Madhu Sudan Mishra

PW-7

Constable Satyarai

PW-8

Munni Devi

PW-9

10.

Rajendra Kumar

PW-10

7. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:

Written report

Ex.Ka-1

Medical Report

Ex.Ka-2

Supplementary Report

Ex.Ka-3

FIR

Ex.Ka-4

G.D.

Ex.Ka-5

Site-plan

Ex.Ka-6

Charge-sheet

Ex.Ka-7

Charge-sheet

Ex.Ka-8

8. The prosecution after leading ocular and documentary evidence decided that no further evidence was necessary. The accused thereafter was examined under Section 313 of the Cr.P.C. Learned Additional Sessions Judge convicted the accused and sentenced him as herein above mentioned.

9. Heard Shri Virendra Singh, learned counsel for the appellant and Shri N.K. Srivastava, learned AGA appearing on behalf of the State.

10. In view of the latest decision of the Apex Court while hearing an appeal against conviction, the Appellate Court is bound to sift the evidence of all witness who have been examined.

11. Learned counsel for the appellant has contended that the impugned order and judgment is based on surmises and conjuncture. It is further submitted that the appellant has been falsely implicated which fact has been totally ignored by the learned Judge. While returning the finding of guilt, it is further submitted that though the prosecutrix witness did not even convey or depose that the act was committed because of the caste of the prosecutrix or her parent. It is submitted that the Court below failed to consider the fact that no act of rape has been proved by medical evidence either ocular or documentary.

12. Learned counsel for the appellant has placed reliance on the decisions of the Apex Court in Hitesh Verma Vs. The State of Uttarakhand and another, 2020 0 Supreme (SC) 653, Ramawatar Vs. State of Madhya Pradesh, 2021 0 Supreme (SC) 625 and a reported judgment of this Court in Criminal Appeal No.204 of 2011 [Vishnu vs. State of UP] dated 28.1.2021 penned by one of us (Dr.Kaushal Jayendra Thaker, J.) contending that no case under Section 3 (2) (v) of SC/ST Act is made out and the conviction under the said section requires to be upturned.

13. It is submitted by learned counsel for the State that prosecutrix belongs to Scheduled Caste community and the judgment of learned trial Judge cannot be found fault with just because there is silence about caste on the part of the prosecutrix. It is submitted that the incident occurred because of the caste of the prosecutrix. It is further submitted that any incident on person belonging to a particular caste would be an offence.

14. Learned AGA appearing on behalf of State contends that the victim belongs to the community mentioned in the SC/ST Act, any act done would itself with such knowledge be sufficient for convicting the accused and upholding the conviction under Section Section 3 (2) (v) of the SC/ST Act.

15. The provisions of Section 3 (2) (v) of the SC/ST Act provides as under:

"(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"

16. Before we go through the provisions of the Act, it would be relevant for us to discuss threadbare the evidence of the prosecution so as to concur with the judgment and/or reverse the finding of learned Sessions Court as far as Section 3 (2) (v) of the SC/ST Act are concerned.

17. Learned counsel for the appellant has also relied on the judgment in Patan Jamal Vali vs The State Of Andhra Pradesh, AIR 2021 SC 2190 and contends that as the prosecutrix has not laid any evidence to prove that the offence was committed knowing that the victim belongs to scheduled caste category within a meaning of Section 3(2)(v) of S.C./S.T.Act.

18. Learned Trial Judge has returned the finding holding the accused guilty without even evidence being laid for commission of the said offence the said will also inure the benefit of the accused as ingredients of offence under Section 3(2)(v) of SC./ST Act were not established.

19. In a recent judgment in State of Gujarat Vs. Bhalchandra Laxmishankar Dave, the Apex Court has held that the High Court should also consder the evidence of the witness threadbare before it takes a different view then that taken by the Sessions Judge, in appeal preferred against the order of acquittal/conviction.

20. While going through the record, neither the prosecutrix nor the father of the prosecutrix has mentioned that the accused was having knowledge about their community and the act was perpetrated because of the fact that prosecutrix belonged to a particular community. There are several contradictions and variations. Sallu (PW4) is the maternal uncle of the prosecutrix, who has also not alleged that accused was in knowledge of caste of prosecutrix. The prosecution witness PW4, PW5 and PW6 are not eyewitness rather that they are hearsay witness who were examined after a period of one month of the incident. Even before the doctor, the prosecutrix has never stated that the act was committed in furtherance of harassment based on castism. The ocular version of PW2, who had lodged the FIR, does not speak that the act was perpetrated because of the caste of the prosecutrix.

21. In view of the evidence adduced, it transpires that there is no evidence whatsoever to prove the commission of offence under Section 3 (2) (v) of the SC/ST Act. The mere fact that the victim happened to be a girl belonging to the scheduled caste does not attract the provisions of the Act, 1989, the sine qua non is that the victim should be a person, who belongs to the scheduled caste or the scheduled tribe and that the offence under the Indian Penal Code is committed against him/her on the basis that such a person belongs to the scheduled caste or the scheduled tribe, and that accused had knowledge of her/his caste before he committed the offence. In the absence of such ingredients, no conviction under Section 3 (2) (v) of the Act, 1989, can be sustained.

22. Hence, we are of the considered view that no case is made out under Section 3 (2) (v) of the SC/ST Act, 1989, and learned trial-court could not have convicted and sentenced the appellant for the aforesaid offence.

23. Learned counsel for the appellant argued the matter for lesser sentence under Section 376 after we conveyed that we were not inclined to interfere looking to the medical report and the version of prosecution. He has taken us to the fact in the evidence no injury on the private part of the prosecutrix was found. The prosecutrix was 16 years of age at time of incident. Hymen was intact. Vaginal smear was sent for examination and according to supplementary medical report, no spermatozoa was found.

24. As far as Section 3 (2) (v) of the SC/ST Act is concerned, we upturn the finding of the learned Sessions Judge for the reasons mentioned.

25. Since the learned counsel for the appellant has not pressed the appeal on merit as far as other offences, the punishment period which already undergone by the accused.

26. This case pertains to the offence of 'rape', defined under Section 375 IPC, which is quoted as under:

[375. Rape.- A man is said to commit "rape" if he-

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions :-

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind of intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.- With or without her consent, when she is under eighteen years of age.

Seventhly.- When she is unable to communicate consent.

Explanation 1.- For the purposes of this section, "vagina" shall also include labia majora.

Explnation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.- A medical procedure or intervention shall not constitute rape.

Excpetion 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.]

27. In Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926], explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:

"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."

28. 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP [(2004) 7 SCC 257] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the 'principle of proportionality'. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.

29. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP [(2010) 12 SCC 532], Guru Basavraj vs State of Karnatak, [(2012) 8 SCC 734], Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323], State of Punjab vs Bawa Singh, [(2015) 3 SCC 441], and Raj Bala vs State of Haryana, [(2016) 1 SCC 463] and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective.At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.

30. A very recent judgment of Hon'ble Supreme Court titled as Manoj Mishra @ Chhotkau Vs. The State of Uttar Pradesh ( Criminal Appeal No.1167 of 2021) decided on 8th October, 2021 is also considered by us. The facts were similar and, therefore, we cannot disagree with the finding of facts of the Court below but at the same time considering the factual scenario and sentencing the policy will permit us to reduce the life imprisonment to lesser punishment of incarceration as far as Section 376 IPC is concerned. In Patan Jamal Vali vs The State Of Andhra Pradesh (supra) the conviction under Section 3(2)(v) SC/ST Act cannot be sustained and is set aside. As far as punishment the punishment under Section 506 is concerned, he has already been exonerated. In section 506 IPC read with 3(1)(x) of the Atrocities Act, there is no appeal preferred by the State. The provision of Section 3(2)(v) of SC/ST Act are not attracted as opined by us on the factual data and the judgment applicable.

31. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.

32. Since the learned counsel for the appellant has not pressed the appeal on its merit, however, after perusal of entire evidence on record and judgment of the trial court, we consider that the appeal is devoid of merit and is liable to be dismissed. Hence, the conviction of the appellant is upheld.

33. As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.

34. Learned AGA also admitted the fact that the appellant is in jail for more than nine years. Perusal of the record also shows that appellant is in jail for past nine years.

35. The incident occurred before the amendment provision of Indian Penal Code. The incident occurred before the amendment and incident occurred in the year 2000 which culminated into the charge sheet and sessions case was registered in the year 2002. The accused is in jail since 23.7.2014 and might have been in custody as under trial the prisoner also, the minimum sentence in those days was seven years which would be just and proper.

36. We are aware of the disadvantage faced by the prosecutrix who is a disabled girl. Minimum sentence for Section 376 IPC was seven years and, therefore, in our case, it is not that heinous crime with life sentence should be substituted.

37. In such view of the matter, the conviction and sentence awarded to the appellant for the offence under Section 3 (2) (v) of the SC/ST Act, 1989, is hereby set aside.

38. Accordingly, the appeal is partly-allowed with the modification of sentence, as above.

Order Date :-24.11.2021

Mukesh