Kamlesh @ Gabbar Singh vs State Of U.P.
2022 Latest Caselaw 8799 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                               Reserved on 26.07.2022
 
                                                               Delivered on 02.08.2022
 

 

 

 
Court No. - 46
 

 
Case :- CRIMINAL APPEAL No. - 3462 of 2013
 

 
Appellant :- Kamlesh @ Gabbar Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Govind Saran Hajela,Jay Singh Yadav,Raj Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Deepak Verma,J.

(Per Deepak Verma,J.)

The present criminal appeal has been preferred against the judgment and order dated 29.06.2013 passed by learned Additional Sessions Judge, Court no. 2, Shahjahanpur in S.T. No. 705 of 1999 arising out of Case Crime No.21 of 1994 convicting and sentencing the appellant under section 376 I.P.C. to undergo ten years rigorous imprisonment with fine of Rs.5,000/-, in case of default in payment of fine, the appellant to undergo further six months additional imprisonment; convicting and sentencing the appellant also under section 3 (2) (v) The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short S.C. S.T. Act) to undergo life imprisonment and fine of Rs.5,000/-, in default of payment of fine, the appellant to undergo further six months additional imprisonment; also convicting and sentencing the appellant under section 323 I.P.C to undergo six months imprisonment; convicting and sentencing also the appellant under Section 506 I.P.C. to undergo further three years of rigorous imprisonment with fine of Rs.1000/-, in case of default in payment of fine, the appellant to undergo further three months additional imprisonment. All the sentences to run concurrently.

Prosecution story in brief is that the informant, Laxmi Devi (mother of the victim) lodged the first information report on 07.02.1994 at 18:15 pm. against the appellant alleging that informant is Jatav by caste. On 03.02.1994 at 5 p.m. when her daughter, (victim), aged about 14 years went to ease herself in toor (arhar dal) field of Pyarelal, the appellant Kamlesh @ Gabbar Singh of the same village arrived there; grabbed her daughter and committed rape upon her by stuffing cloth in her mouth. The informant followed her daughter in the field and rushed on the spot. The informant took her daughter out from the clutches of appellant. On her protest, the appellant assaulted the informant by fist and kick and butt of Tamancha and threatened her that if she made a complaint to anyone, the appellant would not leave her alive. On raising the alarm, Vijay Pal, mason and all the nearby villagers reached at the place of incident and saved her daughter. The husband of the informant was not at home. Moreover due to fear of the accused, she could not lodge the report in time.

On the basis of written information, F.I.R. was registered against the appellant as Case Crime No. 21 of 1994, under Sections 376, 323, 506 I.P.C. and 3(2) 5 S.C.S.T. Act. The investigating officer, after conducting investigation submitted charge sheet against the appellant.

To bring home the guilt of the appellant beyond the hilt, the prosecution has examined and produced as many as nine witnesses, namely, P.W. 1 Smt. Laxmi Devi (informant); P.W. 2 alleged (Victim); P.W. 3 Dr. Akash Srivastava; P.W. 4 Dr. Anil Sood; P.W. 5 Dr. Gayatri Dixit; P.W. 6 constable 110 Arjun Singh; P.W. 7 S.I. Iksha Ram Gangwar; P.W. 8 S.I. Rajan Lal Arya; P.W. 9 S.I. Prakash Narayan Yadav (Retd.). As a documentary evidence, prosecution produced written F.I.R. Ext. Ka-1, medical report Ext. Ka- 2 to 6, Chik report Ext. Ka-7, Carbon Copy of G.D. Ext. Ka-8, memo of recovery of cloths Ext. Ka-9, site plan Ext. Ka-10 and charge sheet Ext. Ka-11.

Medical examination of Laxmi Devi, informant has been marked as Ext. Ka-2. Following injury was received by Laxmi Devi:

(i) An abrasion is present on right knee joint on upper part of Patella region size 2.5 cm x 1.0 cm in size.

(ii) A Traumatic swelling is present on left side back on lateral side on left arm.

(iii) complaint of pain left waist region.

Opinion: injuries are caused by sore hard blunt object.

Medical examination of appellant has been marked as Ext. Ka-3. Following injury was found on the body of appellant:

(i) Contusion 6 x 2 cm. Left side of leg. Complaint of pain and near gluteal region. No mark of any injury seen; no mark of injury over penis is seen; sample sent for sic of vaginal cell, if any.

(ii) Contusion 8 x 2 cm. Right forearm, mark of sic and right knee injury may cause by blunt object.

Medical examination of victim has been marked as Ext. ka-4 which is quoted below:

Breast well developed axillary and pubic hair present. No mark of injury present on her back.

On internal examination- Hymen torn with fresh healed up edges vagina admits two fingers. Vaginal smear taken and sent to pathology for presence of sperms. No sic mark of injury present on her body on private parts.

Opinion- Injury over hymen caused by blunt object about four days old.

Supplementary examination report of Victim:

Elbow- all epiphysis around elbow joint are fused.

Knee- epiphysis lower and femur and upper end tibia are fused and epiphysis heal of fibula is almost fused.

Writ- epiphysis fuses ulna is fused and epiphysis femur and radiation not completely fused, vaginal smear 11/94 dated 08.02.1994, no spermatozoa seen.

Opinion- She is about seventeen (17) years old. No definite opinion regarding rape can be given."

Learned Additional District and Sessions Judge, Court No. 2, Shahjahanpur vide order dated 23.10.2001 framed charges against the appellant under Sections 376, 323, 506 I.P.C. and 3(2) 5 S.C.S.T. Act. which were read over and explained to the accused, who pleaded not guilty of the charges and claimed to be tried.

P.W. 1 Smt. Laxmi Devi is the first informant of the case. She reiterated the versions mentioned in the F.I.R. She deposed that twelve years and eight months ago at 5 pm. when her daughter (Victim) went to toor field to ease herself, she was also following her daughter, accused appellant forcibly committed rape upon her daughter. She stated that on her request, appellant leave her daughter and assaulted her with kick and the butt of gun (Tamancha). The appellant also threatened her that in case she reported the matter to police, she will be eliminated. She averred that Mason, Vijay Pal also rushed on the spot. She belongs to scheduled caste and accused belongs to gupta caste. She further deposed that her husband was out of station and he returned after three days of the incident then the instant F.I.R. was lodged. She admitted the version of the F.I.R.

In defence, informant/P.W.1 admitted that accused beaten her by butt of tamancha and if it is not written in her statement, she cannot give reason. She states that at the time of incident, her daughter was fourteen years of age. Her daughter is illiterate and five years back, she got her daughter married when she was eighteen. Her daughter (victim) was left by her husband after hearing this incident. Informant/P.W. 1 in her defence stated that she and her daughter did not go together for natural call. She reached there after half an hour and saw that the accused grabbed her daughter. She further stated that it was dark at the time of incident and the face was not clear. Cloth was put in the mouth of her daughter, therefore she could not make noise. The height of toor plant was equal to the man's height where this incident occurred and some plants were broken. She further stated that she removed her daughter from the clutch of the appellant but she could not see whether any person was present at the spot. P.W. 1 deposed that she never met the appellant before this incident. Her husband returned home after three days of incident, thereafter, she went to police station for registration of F.I.R. She further deposed that after this incident she and her family left the village and started to live near quarter. In her cross examination she deposed that it is wrong to say that at the time of incident, the victim was about 17 to 18 years. It is also wrong to say that on the date of incident dispute arose between the appellant and her family and accused appellant received injury and due to enmity appellant has been falsely implicated in this case.

P.W. 2 is the victim of the case. She deposed in her examination-in-chief that twelve years ago at about 5 pm. when she went to ease herself in toor field of Pyarelal, appellant forcibly caught her and committed rape by stuffing cloth in her mouth. She further deposed that her mother rushed on the spot and relieved her. The appellant assaulted her mother with kick and butt of tamancha and also threatened her mother. Due to fear, her mother could not lodge the report on the same day. The report was lodged after 3 to 4 days by her mother. She further averred that medical examination was conducted after lodging the report.

In cross examination, P.W. 2 deposed that she went toor field to ease herself thereafter her mother came. The appellant caught her and committed rape. She received scratches on her back side and her mother saved her. She further deposed that at the time of incident blood was oozing and she wore salwar and suit. She admitted that dispute arose between the wife of accused and her mother on the date of incident. It is wrong to say that her age was eighteen years at the time of incident and no rape was committed by the appellant and on account of enmity, present F.I.R. was lodged.

P.W.3 Dr. Aakash Srivastava, who conducted medical examination of informant Laxmi Devi, has deposed that he was posted at District Hospital Shahjahanpur as E.M.O. On that day, he conducted medical examination of P.W. 1 Laxmi Devi, who was brought by constable1004 Atar Singh of P.S. Roja and opined that injuries are simple in nature which can be caused by any blunt object and injuries are old about 4 to 5 days. Nature of injury can be caused by fist and kick and butt of gun. In suggestion he stated that there is a possibility of bleeding when struck with the butt of a gun and both injuries can be caused on account of abrasion.

P.W. 4 Dr. Anil Sood, who conducted medical examination of appellant, Kamlesh Kumar Gupta, has deposed that he was posted at District Hospital Shahjahanpur as E.M.O. On that day, he conducted medication examination of appellant, who was brought by constable 1053 and opined that injury received by injured is simple and can be caused by blunt object. Injuries are five days old and it could be caused on 03.02.1994 at 5 pm.

P.W. 5 Dr. Gayatri Dixit, who conducted medical examination of victim, has deposed that she was posted at Jhalkaribai Women Hospital, Hazratganj, Lucknow. She conducted internal medical examination of victim on 07.02.1994 at 9:15 pm. who was brought by Constable 1004 Atar Singh, P.S. Roza. and opined that hymen was ruptured. There was sign of fresh healing. Her vagina admits two finger easily. She deposed that she prepared slides of vaginal smear and sent it for examination. There was no sign of mark on her body and on private part. Doctor opined that by blunt object, hymen has been ruptured and injuries are four days old. She proved the report as Ext. Ka-4. She further deposed that injury on private part of victim could be caused by male genital and it might be on 3.02.1994 at 5 pm. She further deposed that on examination of slides, no dead or alive spermatozoa was found. Doctor opined that no definite opinion about rape can be given. The age of the victim was found 17 years. She prepared supplementary report and proved it as Ext. Ka-5.

In cross examination, Dr. Dixit, P.W.5 averred that no blood was coming out from vagina. Vagina admits two fingers and oldness of the edges of hymen healed, can be ascertained within a period of six days.

P.W. 6 constable 110 Arjun Singh stated that on 07.02.1994 he was posted as constable clerk to P.S. Roza and on written information, present F.I.R. has been lodged and he has proved the F.I.R. He also proved G.D. as Ext. Ka-8.

In cross P.W. 6 deposed that that on the same day F.I.R. was registered and investigating officer proved the chik on 07.02.1994. No earlier information regarding this incident has been received by him by informant and her daughter. It is wrong to say that on account of higher authority, chik was prepared.

P.W. 7. S.I. Iksha Ram Gangwar has deposed that on 08.02.1994 he was posted as Pradhan Lekhak and collected the cloth (inner wear) of appellant and prepared memo and proved Ext. Ka-9.

In cross examination, P.W.7 has stated that it is wrong to say that a forged memo of inner wear of accused has been prepared after purchasing new one.

P.W. 8 S.I. Rajan Lal Arya stated that on the date of incident he was posted as S.I. at P.S. Roza, District Shahjahanpur and investigation was entrusted to him. P.W. 8 recorded the statement of Laxmi Devi and Rajendra Jatav, informant and victim and made entry in G.D. and proved Ext. Ka-10.

In cross examination, P.W. 8 deposed that informant did not disclose that she was beaten by butt of tamancha. The victim has not shown her cloth (salwar) and injury. He did not find any broken toor plants on the place of occurrence and no blood was found on the spot. He deposed that statement of Laxmi Devi P.W. 1 has been recorded and he did not see any injury. It is wrong to say that he did not go to the spot and no incident occurred on that day.

P.W. 9 Prakash Narayan Yadav, who is retired police inspector, has deposed that on 08.02.1994 he was posted as S.H.O. at P.S. Roza, district Shahjahanpur. He took over charge from inspector Rajan Lal Arya and arrested the accused appellant and submitted charge sheet against appellant on 06.02.1994 and he also proved it as Ext. Ka-11.

After the closure of prosecution evidence, statement of accused-appellant was recorded under section 313 Cr.P.C. who denied the incident and has stated that prosecution has wrongly implicated the applicant on account of false testimony of the witnesses produced by her. He stated that informant took money from him for medical treatment of her husband. At that time the demand from the informant was Rs.2,000/- but he had only Rs.1700/- and he gave Rs.1650/- to informant. The informant promised that she would return the same amount but lodged the F.I.R. The appellant produced witness as D.W. 1 Suresh Kumar Singh.

D.W. 1 Suresh Kumar Singh in his examination deposed that he is neighbour of appellant and informant Laxmi Devi and is well aware of them. In the year 1994 at about 5 pm. a quarrel arose between the appellant and the informant on demand of borrowed money and in this quarrel both have received injury. He further deposed that at that time he was Pradhan of Village and appellant has not committed rape upon the daughter of informant. False allegation has been levelled against the appellant.

learned Additional Sessions Judge, Court no. 2, Shahjahanpur after hearing learned counsel for the parties and after scrutinizing and assessing the evidence on record, convicted and sentenced the appellant as stated in the first paragraph of the judgement.

Hence, this appeal.

Heard Sri Raj Kumar Singh, learned counsel for the appellant; learned A.G.A. on behalf of State and perused the material placed on record.

Learned counsel for the appellant submitted that there is inordinate delay in lodging the FIR as the FIR of the incident, which took place at 05.00 PM on 03.02.1994, has been lodged on 07.02.1994 for which no plausible explanation has been rendered by the prosecution. Learned counsel for the appellant further submits the appellant has been falsely implicated in this case due enmity. Learned counsel also submitted that the prosecution story seems to be improbable. Learned counsel contended that absence of any injury on the person of victim as opined by Dr. Gayatri Dixit, who was examined as PW-5, has falsified the prosecution story as cooked up against the appellant. The appellant is in jail since 1994 and the sentence of life imprisonment awarded by the learned Trial Court is too harsh, hence he deserves to be released.

On the contrary, learned Additional Government Advocate has supported the findings of the learned trial court and submitted that the judgement is well reasoned and based upon appreciation of evidence. He further submits that the findings recorded by the learned trial court do not call for any interference by this Court.

We have considered the submissions made by learned counsel for the parties and perused the record.

The contention of learned counsel for the appellant is that there are lots of discrepancies in the oral testimony of PW-1, the first informant and the alleged victim, PW-2.

PW-1 has deposed that she followed the victim almost immediately after she left to ease herself while on the other hand, the victim has stated that her mother, PW-1 arrived almost half and hour later. This discrepancies by itself  casts a serious doubt on the prosecution case.

It is next contended that PW-2 has admitted in her oral testimony that a fight took place between the first informant and the wife of the accused earlier in time on the day the alleged incident took place and that this is the motive for false implication of the appellant.

It is  next contended that the first information report itself is belated by 4 days as the incident is alleged to have taken place on 03.02.1994 at 5 p.m. while first information report has been lodged on 07.02.1994 at 18.15 p.m. Apart from the above, the alleged eye witnesses, namely, Vijay Pal has never been produced by the prosecution. In any case, the medical evidence does not support the prosecution case of rape.

The next contention of learned counsel for the appellant is that the conviction and sentence for life imprisonment is for the offences under Section 3(2) (v) of the Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989. This provision provides that a person, who commits an offence under IPC punishable with imprisonment for 10 years or more, knowing that a person or property against whom, the offence is committed belongs to the Scheduled Caste or Scheduled Tribes or the property belongs to such person will be punishable for punishment of life or fine. The provision aforesaid as it exists in the statute book. Today means that mere knowledge that the victim belongs to the Scheduled Caste or Scheduled Tribes is enough to order conviction. However, this amendment regarding more knowledge was incorporated by Act No.1 of 2016. By this amendment, the words "on the ground that such person is a member of the Scheduled Caste or a Scheduled Tribes or such property belongs to such member" has been replaced by the words "knowing that such person is a member of a Scheduled Caste or Scheduled Tribes or such property belongs to such member" with effect from 26.01.2016. The incident is of 03.02.1994. The case at hand would therefore be governed by the un-amended provision and not by the amendment incorporated in the year 2016. The conviction under the said provision is therefore, bad in the law.

Elaborating further, it has been submitted that it has been merely alleged in the first information report that the victim belongs to the Scheduled Caste. No evidence has been led, neither has it been proved that the appellant was aware of this fact and therefore, even if, the amended provision is held to be applicable, the same has not been proved and therefore, also the conviction under Section 3(2) (v) of the Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot be sustained.

In any case, the appellant has already undergone more than 10 years of incarceration, which is the maximum sentence, which can be imposed for an offence under Section 376 IPC. The other sections, namely, 326 & 506 IPC carry much shorter sentences.

In so far as the discrepancies and the differences in the testimony of the first informant and the alleged victim are concerned, in our considered opinion, they are not such major discrepancies, which would render the prosecution case unbelievable. In this regard, the another important aspect, which requires requires to be mentioned is the fact that the witnesses have deposed 10 years after the alleged incident. Therefore, on account of such a long period of time having elapsed, some minor discrepancies in the oral testimony are bound to occur. Therefore, the first submission of counsel for the appellant is repelled.

The second submission that a fight had taken place between the wife of the appellant and the first informant on the date of alleged occurrence and that the said fight was the reason for the false implication of the appellant, also cannot stand scrutiny. Nothing of this regard has been stated by the accused in his statement under Section 313 Cr.P.C. The statement contains bald denials. When asked, if he had any further to add that he has not stated anything in defence.

The statement of DW-1, who has also deposed that a fight had taken place between the first informant and the wife of the appellant is again not convincing because he has not stated that he was in fact an eye witness to the alleged fight and in our considered opinion, in the absence of such assertion, the evidence would fall within the category of hearsay evidence, at best.

Apart from the above, the medical evidence reveals that the hymen of the victim was torn and was freshly healed. The medical examination took place on 07.02.1994. The Doctor, who has conducted the medical examination has also deposed and proved the medical report prepared by her, wherein torn hymen was found to be freshly healed. The Doctor in her testimony, has deposed that this indicates the tear to be within 6 days old. This period of 5-6 days corroborates with the date of the incident as the medication examination took place on 07.02.1994 while the incident was of the evening of 03.02.1994.

Yet another circumstance, which may be noticed is that the IO in his testimony has deposed that the appellant had admitted his guilt and therefore, intimation was sent to the Magistrate for recorded his statement under Section 164 Cr.P.C. We have examined the lower Court record to see whether any statement of the accused was in fact recording under Section 164 Cr.P.C. but we find that the lower Court record does not contain the case diary and therefore, it is not possible to take a definitive stand in this regard. It has however been submitted that even the judgement of conviction does not refer to any statement of the accused under Section 164 Cr.P.C.

However, looking into the totality of the circumstances and the evidence brought on record as also the defence taken, as discussed above, we do not find any justification to interfere with the conviction of the appellant under Section 376 IPC. Moreover, the question has, in any case, being rendered redundant on account of the fact that the appellant has already undergone more than 10 years of incarceration. The maximum sentence for the offence under Section 376 IPC as provided under the Act is 10 years. The appellant has therefore, already served out his sentence, in so far as, the offence under Section 376 IPC is concerned.

The only other point which survives for consideration is as regards that the conviction of the appellant under Section 3(2) (v) of the Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989. We find substance in the submission of learned counsel for the appellant that no direct evidence has been brought on record to show that the appellant was aware that the alleged victim belongs to the Scheduled Caste. This fact, even if held to be proved, it is so only by implication and not by direct evidence.

In any case, conviction under the said provision on mere knowledge that the victim belongs to the Scheduled Caste  would be justified only after the said amendment was incorporated w.e.f. 26.01.2016. The amended provision did not exist in the statute book on the date of the incident, namely, 03.02.1994.

Under the circumstances, we are constrained to hold that the conviction of the appellant under Section 3(2) (v) of the Scheduled Caste / Scheduled Tribes is not sustainable and is liable to be set aside.

Accordingly and in view of the foregoing discussion, we allow the appeal in part and set aside the conviction of the appellant under Section 3(2) (v) of the Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989. The rest of the judgement is affirmed. 

Since, the appellant has already served out more than 10 years of incarceration and the maximum sentence that could be awarded to him for the remaining offences is subject to a maximum of 10 years, which sentence has already served out, the appellant is liable to be released, forthwith.

We order accordingly.

Let the lower Court record along with copy of the judgement be remitted back to the Court below, forthwith, for necessary compliance.

Order Date :- 02.08.2022

Meenu