Babloo vs State Of U.P.
2023 Latest Caselaw 13072 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 47
 

 
Case :- CRIMINAL APPEAL No. - 847 of 2013
 
Appellant :- Babloo
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Jitendra Kumar Yadav,Ajendra Kumar,Noor Mohammad,Sanjay Rajpoot,Satendra Kumar Sharma
 
Counsel for Respondent :- Govt. Advocate
 

 
	Connected with
 

 
Case :- CRIMINAL APPEAL No. - 4677 of 2018
 
Appellant :- Munne Babu
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Suneel Kumar,Jay Singh Yadav,Jitendra Pal Singh,Kuldeep Johri,Raja Ram Kushwaha
 
Counsel for Respondent :- Govt. Advocate,Rahul Saxena
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Vinod Diwakar,J.

1. These two appeals are directed against the judgment and order of conviction and sentence dated 4.6.2012, passed by Additional Sessions Judge/Special Judge (SC/ST Act), Pilibhit, in Sessions Trial No.487 of 2010 (State Vs. Munne Babu and another), arising out of Case Crime No.295 of 2010, Police Station Deoriya Kalan, District Pilibhit, whereby the accused appellants Babloo and Munne Babu have been convicted and sentenced to life imprisonment alongwith fine of Rs.10,000/- each under Section 376(2)(g) IPC read with Section 3(2)(v) of SC/ST Act, and on failure to deposit the fine to undergo additional rigorous imprisonment for a year.

2. As per the prosecution case, the informant is a resident of of Village and Police Station Deoriya Kalan, District Pilibhit. On 30.6.2010 at about 7.30 in the evening the informant was returning after attending to nature's call and when she reached the primary school building, the two accused came out of the school and dragged her inside the school and by placing a countrymade pistol and knife on her committed the offence of rape one by one. On hearing scream of the victim Ashok Kumar son of Dayaram and Vineet Kumar son of Baburam challenged the accused, who fled from the place of occurrence carrying the Tamancha and Knife by hurling abuses and extending threats. On the basis of such report, the first information report got registered as Case Crime No.295 of 2010, under Sections 376, 504, 506 IPC & Section 3(2)(v) of SC/ST Act, Police Station Deoriya Kalan, District Pilibhit, at 8.40 in the morning on 1.7.2010. The investigation proceeded in the matter and the clothes worn by the victim were recovered and sealed vide Ex.Ka-2. The Torch in the light of which the incident had been seen has also been recovered vide Ex.Ka-8.

3. The victim was medically examined by Dr. Vinita Chaturvedi, who has appeared as PW-5. The doctor found the victim to be above 19 years of age. There are two injury reports on record of the victim. The first injury report is Ex.Ka-4, as per which there was no mark of any injury on the private parts of the victim. Hymen contained old tear. The victim was also referred for her external examination to the Community Health Centre, Bisalpur, where the doctor found following three injuries, in addition to complaint of pain in front of neck and over left shoulder and head:-

"(1) abraded contusion 5 cm X 3 cm on posterior aspect of right elbow joint.

(2) abrasion ....... 1 cm x 1 cm on posterior aspect of pinna lower point.

(3) abraded contusion 3 cm x 2 cm on middle of right side back."

4. Vaginal smear was also prepared and sent for pathology report. The records also show existence of a forensic lab report dated 31.12.2010, as per which semen and spermatozoa was found on the clothes worn by the victim. The investigation proceeded in the matter and ultimately resulted in submission of a chargesheet under Section 376, 504, 506 IPC & 3(2)(v) of SC/ST Act, against the accused appellants. The magistrate on taking cognizance referred the matter to the court of sessions, where Sessions Trial No. 487 of 2010 was registered. The accused appellants have been charged of offences under Section 3(2)(g), 504, 506 IPC & Section 3(2)(v) of SC/ST Act, vide order dated 14.12.2010. The charges were read out to the accused appellants, who denied the accusations made against them and demanded trial.

5. The prosecution in order to prove its case has adduced documentary evidence in the form of written report (Ex.Ka-1), FIR (Ex.Ka-3), recovery memo of clothes etc. (Ex.Ka-2), memo of inspection and supurdaginama of Torch (Ex.Ka-8), Medical report (Ex.Ka-4), M.L.P.C. (Ex.Ka-3), X-Ray report (Ex.Ka-6), supplementary report (Ex.Ka-5), FLS Report (Ex.Ka.-10), chargesheet (Ex.Ka-9) and site plan with index (Ex.Ka-7).

6. In addition to above, the prosecution has produced the victim as PW-1, who has supported the prosecution, as per which she was returning after attending the nature's call at about 7.30 in the evening when the two accused dragged her inside the primary school building and on the strength of a Tamancha and a knife subjected her to sexual assault. The victim also claimed that she was physically beaten by the two accused. She has also proved the written report and has stated that she was medically examined by the two doctors and X-Ray was also conducted. She has also proved the recovery of clothes worn by her. This witness has been cross-examined and various questions have been posed to her on different dates, but this witness has stayed firm.

7. PW-2 is Sarvesh Kumar, who belongs to Scheduled Caste and is the husband of the victim. He too has supported the prosecution case. In the cross-examination he has stated that about 14 years have passed since his marriage with the victim. His eldest child is 11 years of age, who was born 2-3 years after the marriage. The victim is also 30 years of age. The incident has not occurred in his presence. He has stated that there is no toilet in his house. He has further stated that after lodging the report he has received compensation of Rs.25,000/-. This witness has also denied the suggestion that only for receiving compensation from the State a false incident has been made.

8. PW-3 is Brajlal, Chief Pharmacist, who has proved the injury report prepared by Dr. Prabhat Mishra, who had conducted the external examination of the victim. He has proved the signatures of the doctor, who by then had died. PW-4 is Bhoop Singh, who was posted as Clerk in Police Station Kairana and has proved the chik FIR. PW-5 is Dr. Vinita Chaturvedi, who had conducted internal examination of the victim and has proved the report, as per which there were no injuries on the private parts of the victim. PW-6 is Vinod Kumar Sharma, who had conducted investigation in the matter. He has proved the police papers and has stated that the Torch used by the witnesses to recognize the accused has been recovered by him and has also been produced. He has also proved the arrest memo of the accused.

9. The evidence, which has been produced by the prosecution during trial, has been confronted to the accused for recording their statement under Section 313 Cr.P.C. Both the accused have stated that they have been falsely implicated and that the investigation is manipulated.

10. In addition to above, the defence has also produced Iqbal Ahmad Khan as DW-1, who is the Pradhan of the village. He has stated that there is a toilet constructed in the house of the informant about 10 years back, and that it is being used by the family members. A certificate in that regard has also been issued. In the cross-examination he has admitted that if one person is in the toilet and someone else has to attend the nature's call he has no option but to go out in the fields. The defence has also produced Om Prakash Gautam as DW-2, who was the Officiating Headmaster of the primary school, in the premises of which the offence is alleged to have been committed. He has stated that on a holiday all rooms and the school premises are locked and the keys are with the employees of the school. The defence has also produced the testimony of Vijeta, who was an Assistant Teacher in the institution. She has stated that between 21.5.2010 to 30.6.2010 there was summer vacation in the school, on account of which all rooms in the primary school were locked and it was only 1st July that the school reopened and also the doors of class rooms. In reply to a specific question posed by the court below, this witness has admitted that the room in which the offence allegedly was committed could be opened if someone was to kick the door.

11. The trial court on the basis of evidence so led in the matter has come to the conclusion that the prosecution has established the guilt of accused appellants beyond reasonable doubts.

12. Learned counsel for the appellants submits that the accused appellants have been falsely implicated in the present case, and that the room where incident itself is said to have occurred was locked, as it was summer vacation and the school was closed. It is submitted that there were no injuries on the private parts of the victim and the testimony of PW-1 and PW-2 are not reliable. It is also argued that only because the victim wanted to receive compensation from the State that a false case has been set up. Learned counsel also submits that there was no evidence on record to show that offence was committed by the accused on the victim on account of her caste identity, and therefore, the offence under Section 3(2)(v) of SC/ST Act is not made out. Learned counsel further submits that the injuries on the victim apparently were caused for some other reasons and the accused appellants have been falsely implicated in the matter. It is also urged that the pathological report does not show existence of any spermatozoa or semen on the vaginal smear prepared on the victim.

13. Learned AGA as well as Sri Rahul Saxena for the informant have strongly opposed the appeal on the ground that the FSL report clearly shows existence of semen and spermatozoa on the clothes worn by the victim. On behalf of the informant, it is also urged that accused appellants are the residents of same village and are aware of the caste identity of the victim, and therefore the finding with regard to guilt proved under Section 3(2)(v) of SC/ST Act is clearly borne out from the materials on record.

14. We have heard Sri Sanjay Rajpoot, learned counsel for the appellant Babloo, Sri Raja Ram Kushwaha, learned Amicus Curiae for the appellant Munne Babu, learned AGA for the State and Sri Rahul Saxena for the informant, and have perused the materials brought on record.

15. In the facts of the present case, we find that the specific case of the informant is that she had gone to attend nature's call, and while she was returning home the two accused apprehended her and took her inside the room in the primary school building, where she was subjected to sexual assault by the two accused on the strength of threat extended by placing a Tamancha and a knife upon her. The statement of PW-1 is specific in that regard. Her testimony is also supported by the husband of the victim, who has also come out with similar version. It is alleged by the prosecution that on raising of alarm by the victim two persons namely Ashok Kumar and Vineet Kumar arrived at the place of occurrence, who challenged the accused and saw them in the Torch light. These two persons namely Ashok Kumar and Vineet Kumar, however, have not been produced during trial. The accused, nevertheless, are the residents of the same village and the possibility of their identity having been known to the victim cannot be doubted. There is otherwise no question posed to the prosecution with regard to identity of the accused having not been established during the course of trial. The two witnesses of fact namely PW-1 and PW-2 have clearly identified the two accused at the stage of trial. Their details otherwise have been given in the first information report itself.

16. First and foremost, we find that the incident has occurred at about 7.30 pm and the FIR has been lodged at 8.40 on the next morning i.e. 1.7.2010. PW-2, who is the husband of the victim, has stated that it was raining on the date of incident and though the police station was not far, yet the report was lodged only on the next morning. There is not much delay in lodging of the FIR, and the fact that it was raining, as such the FIR was lodged on the next morning, clearly explains the conduct of the informant and her husband in lodging the report on the next morning. Slight delay in offences of this kind otherwise cannot be frowned upon. We thus find that there was no delay in reporting of the incident to the police station. The victim has clearly explained the manner in which the offence has been committed upon her. She has implicated the two accused, both of whom were armed with knife and a countrymade pistol. The offence of rape was committed one after the other by the two accused. The oral testimony of witness is also supported by the external injuries found on the victim by the doctor in the medical examination conducted on the very next day i.e. 1.7.2010.

17. There are three injuries on the victim, which clearly shows that there was some use of force applied upon the victim, on account of which such injuries were caused. This circumstance clearly lends support to the prosecution case that the victim was forcibly subjected to sexual assault. The statement of PW-1 also finds corroboration from the report of the scientific laboratory, wherein semen and spermatozoa are found on the clothes worn by the victim at the time of incident. The clothes worn by the victim had been recovered and sealed on the next day itself. The existence of semen and spermatozoa, therefore, also lends credence to the testimony of PW-1. The argument of counsel for the appellant that pathological report since does not show any semen or spermatozoa, therefore, the offence is not proved, cannot be accepted in view of the specific statement of PW-1, who has alleged the commissioning of sexual assault upon her, which fact is supported by the external injuries on the victim as also the report of the scientific laboratory. The trial court upon evaluation of evidence on record has, therefore, come to the conclusion that the offence of sexual assault upon the victim is clearly proved. We do not find any reason to disagree with such conclusion of the trial court. The specific statement of victim is corroborated by the external injuries and the scientific report of FSL. The version of victim specifically implicating the accused appellants is found to be trustworthy, as no major contradiction or infirmity in her testimony is shown by the defence.

18. The other circumstance with regard to school building lying locked due to summer vacations does not appeal much to us, inasmuch as DW-2, who is the Assistant Teacher, has clearly admitted that the room in which the offence allegedly was committed could be opened easily if someone was to kick of its door. In that view of the matter the prosecution case of sexual assault cannot be doubted only on the ground that the school building was lying closed due to summer vacation. Incidents of this kind are otherwise committed in a secluded place, which is not accessible or open to public. The fact that the school was closed due to vacations, thus, is a circumstance which supports the prosecution case as none could enter in the school premises. It was a secluded place and could have facilitated an activity of the kind, as has been done by the accused appellants herein. The finding of guilt of accused appellants with regard to commissioning of offence under Section 376 IPC is, therefore, affirmed.

19. We next take up the argument of the accused appellants with regard to offence under Section 3(2)(v) of SC/ST Act not being proved by the prosecution. It is also urged that there is nothing on record to show that offence of sexual assault has been committed upon the victim on account of her caste identity. We have been taken through the testimony of witnesses, but we do not find any evidence on record to demonstrate that the act of sexual assault upon the victim was committed on account of her caste identity. Law with regard to applicability of offence under Section 3(2)(v) of SC/ST Act has been examined by the Supreme Court in the case of Patan Jamal Vali Vs. State of Andhra Pradesh, 2021 SCC OnLine SC 343. The Supreme Court observed as under in following words:-

"55. Section 3(2)(v) of the S.C. and S.T. Act as it stood at the material time read as follows:

"3. Whoever not being a member of a Scheduled Caste or Scheduled Tribe.

(v) commits any offence under the Penal Code, 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;"

56. Under Section 3(2)(v), an enhanced punishment of imprisonment for life with fine is provided where

(i) The offence is committed by a person who is not a member of a Scheduled Caste or Scheduled Tribe;

(ii) The offence arises under the Penal Code and is against a person or property and is punishable with imprisonment for a term of ten years or more; and

(iii) The offence is committed "on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe" or such property belongs to such a person.

57. The key words are "on the ground that such person is a member of a S.C. or S.T.". The expression "on the ground" means "for the reason" or "on the basis of". The above provision (as it stood at the material time prior to its amendment, which will be noticed later) is an example of a statute recognising only a single-axis model of oppression. As we have discussed above, such single-axis models require a person to prove a discrete experience of oppression suffered on account of a given social characteristic. However, when oppression operates in an intersectional fashion, it becomes difficult to identify, in a disjunctive fashion, which ground was the basis of oppression because often multiple grounds operate in tandem. Larrisa Behrendt, an aboriginal legal scholar from Australia, has poignantly stated the difficulty experienced by women facing sexual assault, who are marginalised on different counts, to identify the source of their oppression:

"When an Aboriginal woman is the victim of a sexual assault, how, as a black woman, does she know whether it is because she is hated as a woman and is perceived as inferior or if she is hated because she is Aboriginal, considered inferior and promiscuous by nature?"

58. Being cognizant of the limitation of Section 3 (2)(v) - as it stood earlier - in dealing with matters of intersectionality, we are, however bound to apply the standard that has been laid down in the law. The expression "on the ground" was considered in a two-judge Bench judgment of this Court in Dinesh Alias Buddha v. State of Rajasthan48, where the court speaking through Justice Arijit Pasayat held:

"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 a case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste."

59. The Court held that in the absence of evidence to that effect, the offence under Section 3(2)(v) would not stand established. This principle was subsequently followed in a two judge Bench judgment of this Court in Ramdas v. State of Maharashtra49 where it was held that merely because a woman belongs to the S.C. & S.T. community, the provisions of the S.C. & S.T. Act would not be attracted in a case of sexual assault. This court observed that there was no evidence to prove the commission of an offence under Section 3(2)(v) of the S.C. & S.T. Act.

60. The contours of the terms "on the ground of" have been explicated by this court in the following cases. In Ashrafi v. State of Uttar Pradesh50, a two judge Bench of this Court held that conviction under Section 3(2)(v) of the S.C. & S.T. Act cannot be sustained because the prosecution could not prove that the rape was committed only on the ground that the woman belonged to the S.C. & S.T. community. This court speaking through Justice R Banumathi, held:

"9. The evidence and materials on record do not show that the Appellant had committed rape on the victim on the ground that she belonged to Scheduled Caste. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act can be pressed into service only if it is proved that the rape has been committed on the ground that PW-3 Phoola Devi belonged to the Scheduled Caste community. In the absence of evidence proving the intention of the Appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to the Scheduled Caste community, the conviction of the Appellant Under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained." (emphasis added)

61. In another judgment of this Court in Khuman Singh v. State of MP51, Justice R Banumathi speaking for this court held:

"As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased belonged to "Khangar"-Scheduled caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled caste, and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.""

20. The court of sessions while framing charge against the two accused specifically alleged that caste specific words were spoken by the accused to insult the victim and harass her and thereby committing the offence under Section 3(2)(v) of SC/ST Act. The only two witnesses to support such charge are PW-1 and PW-2, who have not alleged in their testimony about the offence having been committed on account of caste identity of the victim or that the victim was insulted or harassed by use of caste specific words by the accused. Necessary ingredients to attract an offence under Section 3(2)(v) of SC/ST Act is thus found to be missing. The finding of the court below with regard to commissioning of offence by the accused under Section 3(2)(v) of SC/ST Act is, therefore, found unsustainable, since there is no evidence on record to sustain it. The conviction and sentence of accused appellants under Section 3(2)(v) of SC/ST Act is, accordingly, reversed.

21. We now take up the issue with regard to sufficiency or otherwise of the sentence awarded to the accused appellants of the offence, which is found to be proved against him. Under Section 376(2)(g) IPC, the punishment for such offence provided in law is rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. In the facts of the present case we find that the accused appellants have already undergone 12 years 11 months actual incarceration and 14 years 10 months 17 days incarceration with remission as on 8.7.2022. The period of actual incarceration as on date would, therefore, be about 13 and a half years and with remission the period would be much above 15 years.

22. In the facts of the present case, we are of the view that the sentence of 15 years with remission already undergone would adequately meet the ends of justice. In such circumstances, we modify the sentence of life awarded to the accused appellants Babloo and Munne Babu under Section 376(2)(g) IPC and substitute it with the sentence already undergone by the accused appellants.

23. The appeals to such extent succeed and are allowed in part. The conviction of the accused appellants, vide judgment and order dated 4.6.2012, under Section 376(2)(g) IPC is sustained but the sentence of life stands substituted by the sentence already undergone by the accused appellants. The conviction and sentence of the accused appellants under Section 3(2)(v) of SC/ST Act is set aside. The accused appellants Babloo and Munne Babu shall be released from Jail, forthwith, unless they are wanted in any other case, subject to compliance of Section 437-A Cr.P.C.

24. A copy of this order shall be communicated to the accused appellant Munne Babu in Jail through Chief Judicial Magistrate/Jail Superintendent concerned, forthwith.

25. We record our appreciation for the valuable assistance rendered by learned Amicus Curiae Mr. Raja Ram Kushwaha. He shall be entitled to his fee from the High Court Legal Services Authority, as per rules.

 
Order Date :- 27.4.2023
 
Anil
 

 

 
		       (Vinod Diwakar,J.)    (Ashwani Kumar Mishra,J.)