Allahabad High Court

Shyamveer vs State Of U.P. And Another on 1 May, 2024

Author: Ashwani Kumar Mishra

Bench: Ashwani Kumar Mishra





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
AFR
 
Neutral Citation No. - 2024:AHC:77384-DB
 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL No. - 4378 of 2019
 

 
Appellant :- Shyamveer
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Suresh Dhar Dwivedi,Bishram Tiwari,Ritesh Singh,Suresh Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Mohd. Azhar Husain Idrisi,J.

(Per: Hon'ble Ashwani Kumar Mishra, J.)

1. This appeal is directed against judgment and order of conviction and sentence dated 25.5.2019, passed by the Special Judge (SC/ST Act), Shahjahanpur in Sessions Trial No. 1936 of 2003 (State Vs. Shyamveer), arising out of Case Crime No. 75 of 2000, Police Station Madanapur, District Shahjahanpur, whereby the accused appellant Shyamveer has been convicted and sentenced to life imprisonment alongwith fine of Rs.50,000/- under Section 376 IPC read with Section 3(2)(v) SC/ST Act and on failure to deposit fine to undergo additional simple imprisonment for one year; five years rigorous imprisonment alongwith fine of Rs.10,000/- under Section 452 IPC and on failure to deposit the fine to undergo additional simple imprisonment for two months; and six months rigorous imprisonment alongwith fine of Rs.500/- under Section 323 IPC and on failure to deposit fine to undergo additional simple imprisonment for fifteen days. Sentences are to run concurrently.

2. Informant in the present case is the husband of the victim, who has reported that on 21.5.2000 he had gone for work and his wife and children were at home. At about 8.00 in the evening accused Shyamveer, a resident of the same village, entered the house; assaulted his wife and ultimately dragged her inside a Kothari (small room) and subjected her to sexual assault. On raising of alam by the victim Udaiveer and informant's son came; challenged the accused; saved the victim; whereafter the accused fled. This written report is dated 23.5.2000 in respect of incident of 21.5.2000. First information report was lodged at 12.20 afternoon on 23.5.2000, as Case Crime No.75 of 2000, under Section 452, 376, 323 IPC & Section 3(1)12 SC/ST Act, at Police Station Madanapur, District Shahjahanpur. The victim was medically examined at 3.25 pm on 23.5.2000. No external or internal injuries were found. The victim herself reported that she was carrying pregnancy of 20 weeks. Supplementary medical report has also been submitted, wherein no cardiac activity was seen in the fetus. The doctor opined that the pregnancy was of 8 weeks 6 days but the fetus was not alive. Doctor in his cross-examination has stated that though pregnancy was disclosed as of 20 weeks but in fact the pregnancy was of 8 weeks 6 days. Statement of witnesses were recorded, and thereafter a chargesheet was submitted under Section 452, 323, 376 IPC & Section 3(2)(v) SC/ST Act on 26.7.2000 by the Investigating Officer. The Magistrate took cognizance of the chargesheet and committed the case to the court of sessions, where accused was charged of offences under Section 452, 323, 376 IPC and Section 3(2)(v) SC/ST Act.

3. During the course of trial, documentary evidence have been adduced by the prosecution in the form of FIR as Ex.Ka-6; written report as Ex.Ka-1; medical examination report as Ex.Ka-2; supplementary report as Ex.Ka-3; chargesheet as Ex.Ka-4; and site plan with Index as Ex.Ka-5.

4. In addition to above, the informant has been produced in evidence as PW-1 by the prosecution. He has supported the prosecution case and has also proved the written report. Accused Shyamveer lived at a distance of about 100 Kilometre (wrongly recorded, as the accused is of same village and 100 meters appears to have mentioned as 100 kms). Ompal, Ramanpal sons of Rampal and Sadhu Singh are residents of village against whom various cases of Dacoity, loot etc. are pending. In his further cross-examination he has stated that report was got scribed by the Investigating Officer Pramod Kumar and he had merely affixed his thumb impression. He has denied the suggestion that only for receiving Rs.50,000/- compensation from the State that a false report has been lodged.

5. PW-2 is the victim and wife of the informant. She is Khatik, which is a scheduled caste. She has supported the prosecution case and has alleged that while she was dragged inside a small room and pushed on the floor to commit rape, she sustained injuries and her bangles got broken. Accused also carried a firearm by which she was threatened. She has stated that the written report was got scribed by Pramod Kumar. In her cross-examination PW-2 has stated that Shyamveer is a resident of same village and had taken a house close by. At the time of incident she was cooking food and her elder son was playing on the roof along with her other four children. The door was open. Accused came abruptly and gagged her, so that she could not raise an alarm. She did not remember as to for how long the accused continued to gag her. Victim claims to have been physically assaulted by the accused. The accused was also drunk. Accused was naked. Prior to this incident accused has never come to her house. She has denied the suggestion that on account of enmity with Ompal, Ramanpal and Sadhu Singh, they have got the accused implicated under Section 376 IPC.

6. Mukesh is the son of victim, aged about 14 years, and has been produced as PW-3. He has supported the prosecution case, as per which his mother was dragged inside the room and subjected to sexual assault. The witness himself has seen the incident alongwith Udaiveer. In the cross-examination he has stated that he was playing on the roof. Accused was naked. On raising of alarm by his mother, PW-3 came downstairs by when Udaiveer also arrived, whereafter accused fled.

7. Dr. Deepa Dixit (PW-4) was posted at Women Hospital at Shahjahanpur and had conducted the medical examination of the victim. She had certified that there were no external or internal injuries on the victim. In the pathological report, no dead or live spermatozoa was found. As per ultrasound the victim was pregnant by 8 weeks 6 days but the fetus had no cardiac activity. No definite opinion with regard to rape has been expressed. She has stated that initially on the disclosure of the victim pregnancy was assessed of 20 weeks but on examination the pregnancy was of only 8 weeks 6 days.

8. PW-5 is the Circle Officer M.M.Verma, who was the Investigating Officer of the present case. He has proved the police papers as also the chargesheet. Head Constable Ram Sewak was produced as PW-6 who has proved the GD.

9. Udaiveer, who is stated to be the only independent eye-witness, has been produced as PW-7. This witness has not supported the prosecution case and has been declared hostile.

10. It is on the basis of above evidence that statement of accused has been recorded under Section 313 Cr.P.C. The accused has stated that he has been falsely implicated on account of enmity.

11. Court of sessions on the basis of evidence led in the matter has ultimately concluded that prosecution has established its case beyond reasonable doubt relying upon the testimony of victim as well as other witness of fact namely PW-3.

12. On behalf of appellant, it is submitted that the accused appellant has been falsely implicated on account of village enmity, and that the incident is imaginary. Learned counsel for the appellant further submits that the implication of accused appellant is for the purposes of securing compensation from the State. Submission is that at the instigation of villagers Ramanpal, Ompal and Sadhu, who were implicated in various serious offences of dacoity, loot, murder etc., the appellant is falsely implicated. Learned counsel further submits that the medical evidence does not support the commissioning of rape. It is also stated that the prosecution story is otherwise wholly improbable.

13. Learned AGA, on the other hand, has supported the judgment of the court of sessions, under challenge, whereby accused appellant has been convicted and sentenced as per above.

14. We have heard Sri Ritesh Singh, learned counsel for the appellant and Sri Surendra Singh, learned AGA for the State and have perused the material placed on record including the original record of the Trial Court. Mrs. Abhilasha Singh has also appeared for High Court Legal Services Authority.

15. As per the prosecution case, the incident occurred on 21.5.2000 at about 8.00 in the evening. According to the victim she was cooking food in her house and her five children were playing on the roof of the house. The accused was living nearby and he entered the house and subjected her to sexual assault. This incident is sought to be proved with the aid of oral and documentary evidence, which has already been referred to above.

16. The evidence on record has been examined by us. Victim has explained before the court the manner in which the accused entered the house; dragged her inside the room and subjected her to sexual assault. She has been consistent in implicating the accused appellant of committing rape upon her during investigation under Section 161 Cr.P.C. also. Her testimony is supported by the version of PW-3, who is the son of the informant. According to PW-2 (victim), she raised an alarm whereafter PW-3 and Udaiveer rushed to the rescue of the victim. PW-3 has also been consistent in implicating the accused, since the stage of investigation.

17. On behalf of appellant, it is submitted that the medical evidence does not support the prosecution case, inasmuch as there are no external or internal injuries found on the victim. It is also argued that no spermatozoa etc. has been found in the pathological report. The doctor has also not given any definite opinion with regard to rape on the victim.

18. So far as the medical evidence is concerned, we find that though the incident occurred on 21.5.2000 but the FIR was lodged on the third day i.e. 23.5.2000. By the time medical examination was conducted, almost 40 hours had expired. In a case of rape, any force used by the perpetrator to drag the victim or push her on the ground to commit rape necessarily need not cause such serious injury that it would leave a scar even after two days. The trial judge has opined that possibility of victim having taken Bath or changing her clothes etc. within those 40 hours would be natural, particularly when it was peak of summer. Traces of crime may not be available in the medical evidence due to lapse of time.

19. The victim otherwise is a mother of five children and unless any specific reason of false implication is established during the trial, this Court would be inclined to rely upon the testimony of victim, who has been consistent during the investigation and trial. No lady would otherwise make a false accusation against her own dignity merely for getting some money as compensation. The son of the victim i.e. PW-3 has also been consistent in implicating the accused appellant of committing the offence. So far as PW-7 is concerned, we find that though he had supported the prosecution case at the stage of investigation but has turned hostile during trial. Since PW-7 is a resident of same village, the possibility of him being influenced by the accused party cannot be ruled out. The mere fact that PW-7 has not supported the prosecution case would not be of much importance.

20. In the facts of the case, we find that the victim has clearly narrated the manner in which the accused entered in her house and subjected her to sexual assault while she was cooking food and her husband was away. She has been consistent in her version. Her deposition is also supported by PW-3. In the absence of any reason of false implication, we do not find any good ground to disagree with what has been held by the trial court. The finding that prosecution has succeeded in proving the offence under Section 376 IPC by the accused against the victim is thus sustained.

21. So far as the allegation under Section 452 IPC is concerned, also we find that the witnesses have been consistent in stating that the accused entered the house of the victim against her wishes and subjected her to sexual assault. Offence under Section 452 IPC is thus sustained.

22. Coming to the offence under Section 3(2)(v) SC/ST Act, we find that the only evidence on record is the disclosure by the victim that she is Khatik by caste. Khatik is a scheduled caste. Apart from establishing the identity of victim, as being scheduled caste, there is no other evidence that offence upon the victim was committed on account of her caste identity. Neither the victim nor PW-3 has at any stage of their deposition has supported the prosecution case about commissioning of offence under Section 3(2)(v) SC/ST Act.

23. In what manner an offence under Section 3(2)(v) SC/ST Act can be established has been dealt with extensively by the Supreme Court in Patan Jamal Vali Vs. The State of Andhra Pradesh, reported in (2021) 16 SCC 225. In para 62 to 64 of the report, the Supreme Court has clearly laid down that the prosecution must prove that the offence was committed on account of caste identity by the accused appellant, which are reproduced hereinafter:-

"62. The issue as to whether the offence was committed against a person on the ground that such person is a member of an SC or ST or such property belongs to such member is to be established by the prosecution on the basis of the evidence at the trial. We agree with the Sessions Judge that the prosecution's case would not fail merely because PW 1 did not mention in her statement to the police that the offence was committed against her daughter because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW 2. While it would be reasonable to presume that the accused knew the caste of PW 2 since village communities are tightly knit and the accused was also an acquaintance of PW 2's family, the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the intersectional nature of oppression PW 2 faces, it becomes difficult to establish what led to the commission of offence -- whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single axis model.

63. It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26-1-2016. The words "on the ground of" under Section 3(2)(v) have been substituted with "knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". This has decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction. Section 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise. The amended Section 8 reads as follows:

"8. Presumption as to offences.--In a prosecution for an offence under this Chapter, if it is proved that--

(a) the accused rendered any financial assistance in relation to the offences committed by a person accused of, or reasonably suspected of, committing, an offence under this Chapter, the Special Court shall presume, unless the contrary is proved, that such person had abetted the offence;

(b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or in prosecution of the common object.

(c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved."

64. The Parliament Standing Committee Report on Atrocities Against Women and Children has observed that, "high acquittal rate motivates and boosts the confidence of dominant and powerful communities for continued perpetration" and recommends inclusion of provisions of the SC & ST Act while registering cases of gendered violence against women from the SC & ST communities. However, as we have noted, one of the ways in which offences against SC & ST women fall through the cracks is due to the evidentiary burden that becomes almost impossible to meet in cases of intersectional oppression. This is especially the case when courts tend to read the requirement of "on the ground" under Section 3(2)(v) as "only on the ground of". The current regime under the SC & ST Act, post the amendment, has facilitated the conduct of an intersectional analysis under the Act by replacing the causation requirement under Section 3(2)(v) of the Act with a knowledge requirement making the regime sensitive to the kind of evidence that is likely to be generated in cases such as these."

24. There is no evidence on record to show that the offence of rape was committed by the accused appellant on account of the caste identity of the victim. In the absence of any evidence in that regard, we are persuaded to accept the appellant's contention that the offence under Section 3(2)(v) SC/ST Act is not established against the accused appellant. The conviction and sentence of the accused appellant under Section 3(2)(v) SC/ST Act is, therefore, reversed.

25. So far as the offence under Section 323 IPC is concerned, we find that evidence on record do not justify implication of the accused appellant under Section 323 IPC, inasmuch as no injury of any kind has been found on the victim. The conviction and sentence against the accused appellant under Section 323 IPC is, therefore, reversed.

26. Coming to the question of sentence, we find that the trial court has awarded life sentence to the accused appellant under Section 376 IPC. Punishment under Section 376 IPC varies from 7 years to life. When the court proceeds to award maximum permissible sentence for an offence, it is the cardinal principle of law that reasons have to be given for awarding such maximum punishment. We do not find any such reasons to have been disclosed by the trial court. We otherwise find that there are no circumstances, which may justify awarding of extreme punishment to the accused appellant in the facts of the present case. It is admitted that accused appellant is the first offender and no such incident has been reported against him earlier. The possibility of reformation of the accused cannot be ruled out. On the aspect of sentence, we may refer to a recent judgment of the Division Bench of this Court in Babu Vs. State of U.P., passed in Criminal Appeal No.2878 of 2013, decided on 15.7.2022. Relevant portion of the judgment is reproduced hereinafter:-

"14. While coming to the conclusion that the accused is the perpetrator of the offence, whether sentence of life imprisonment and fine is adequate or the sentence requires to be modified in the facts and circumstances of this case and in the light of certain judicial pronouncements and precedents applicable in such matters. This Court would refer to the following precedents, namely, 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."

15. '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.

16. 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.

17. 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.

18. .......

19. .......

20. 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. "

27. Considering the evidence in its entirety, we are of the view that punishment of life under Section 376 IPC to the accused appellant is not warranted, and ends of justice would be met if the minimum punishment of 7 years is awarded to the accused appellant under Section 376 IPC. To that extent we modify the judgment and order of the court below.

28. For the reasons and discussions held above, this appeal succeeds in part. While conviction of accused appellant under Section 376 and 452 IPC is sustained, his conviction under Section 3(2)(v) SC/ST Act and 323 IPC is set aside. The punishment imposed upon accused appellant under Section 452 is maintained, while under Section 376 IPC is modified to 7 years rigorous imprisonment alongwith fine of Rs.50,000/-. On failure to pay fine, the accused appellant shall undergo default sentence of 6 months. Punishments shall run concurrently.