HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 11.02.2020
Delivered on 18.02.2020
CRIMINAL APPEAL No. 1590 of 2012
2. Jabar Singh
State of Uttar Pradesh —– Respondent
_For Appellants : Shri Amit Tripathi for appellant No.1 Shri Ashutosh Yadav, Amicus for appellant No.2
For Respondent/State: Shri Amit Sinha, AGA
Hon’ble Pritinker Diwaker, J.
Hon’ble Shekhar Kumar Yadav, J.
Per: Pritinker Diwaker, J.
1. This appeal arises out of the impugned judgment and order dated 6/9.4.2012 passed by Special Judge, SC/ST Act, Farrukhabad in S.C.S.T. No. 42 of 2005 (State Vs. Bhallu another), convicting accused-appellants under Section 376 (2) (N½ of IPC and Section 3 (2) (v) of Scheduled Castes and Tribes (Prevention of Atrocities) Act 1989 (hereinafter referred to as ‘the SC/ST Act’) and sentencing them to undergo imprisonment of ten years for the offence under Section 376 (2) (N½ of IPC with a fine of Rs. 5,000/- each, in default thereof one year additional imprisonment and life imprisonment for the offence under Section 3 (2) (v) of the SC/ST Act with a fine of Rs. 5,000/- each, in default thereof, one year additional imprisonment, with a direction that both the sentences to run concurrently.
2. Brief facts of the case are that on 9.3.2005, a written report (Ex. Ka.-1) was lodged by PW-1 Ram Sanehi, father of the prosecutrix, alleging in it that on 7.3.2005, when his daughter aged 17 years, had gone to attend nature’s call in tobacco field of one Jawahar Kori, accused appellants reached there, caught hold her and committed sexual intercourse with her one after another. He has further alleged that after hearing the cries of prosecutrix, his wife Sudama Davi (PW-2) reached to the place of occurrence and on seeing her, accused persons fled away from the spot. Based on this report, F.I.R. (Ex. Ka.-4) was registered against the accused appellants under Section 376 of IPC read with Section 3 (1) (xii) of SC/ST Act. Prosecutrix was medically examined on 10.3.2005, vide Ex.Ka.-2, and on 12.03.2005, vide Ex.Ka.-3, by PW-4 Dr. Neelam Rani, however, no external or internal injury was found on her body and her age was found to be about 18 years.
3. While framing charge, the trial Judge has framed charge against the accused appellants under Section 376 of IPC and Section 3 (1) (xii) of the SC/ST Act.
4. So as to hold accused appellants guilty, prosecution has examined six witnesses. Statements of the accused appellants were recorded under Section 313 Cr.P.C., in which they pleaded their innocence and false implication.
5. By the impugned judgment, the trial Judge has convicted and sentenced the accused appellants as mentioned in paragraph No.1 of this judgment. Hence this appeal.
6. Learned counsel for the appellants submits:-
(i) that there is two days delay in lodging the F.I.R.
(ii) that the medical report of the prosecutrix does not support the prosecution case, as no internal or external injury has been found on her body.
(iii) that present appears to be a case of false implication.
(iv) that prosecutrix, in her court statement, though has stated that she was subjected to ‘badwork’ by the accused persons, but she has clarified that ‘bad work’ means “the appellants caught hold her from back”. Learned counsel submits that considering this allegation of the prosecutrix, at best, the appellants are liable to be convicted under Section 354 of IPC.
(v) that the accused appellants are in jail since 5.4.2012, thereby they have served more than maximum sentence, which can be imposed on them under Section 354 of IPC.
(vi) that provisions of SC/ST Act would not attract against the accused appellants, because it is not the case of the prosecutrix that because the prosecutrix belongs to a particular caste, the offence has been committed by the accused appellants.
7. On the other hand, supporting the impugned judgment, it has been argued by the State Counsel that conviction of the accused appellants is in accordance with law and there is no infirmity in the same.
8. We have heard the parties and perused the record.
9. On 12.12.2006, examination-in-chief of the prosecutrix was recorded, wherein she has stated that about two years back, she had gone to attend the nature’s call and, thereafter, her examination-in-chief was deferred on the ground of her illness. On 19.3.2007, when her statement was again recorded, she has stated that when she had gone to attend the nature’s call, accused appellants caught hold her from her back. Examination-in-chief was again deferred and on 6.10.2009, she has stated that when she had gone to attend the nature’s call in tobacco field, accused appellants committed ‘bad work’ one after another. When the court had put a question to the prosecutrix as to what was done by the accused persons, she kept quite by saying that she has already told the act of the accused appellants. She, however, stated that there was no oozing of blood. In the cross examination, she has stated that accused appellants caught hold her and when she raised her cries, they fled away from the spot. Though a request was made by the Public Prosecutor for re-examination of the prosecutrix to clarify the word ‘bad work’, but considering the demeanor of the prosecutrix and the objection raised by the defence, the same was refused and the court has recorded a finding that the ‘bad work’ has already been defined by the prosecutrix. As informed, this order of the Sessions Judge was never challenged before the High Court.
10. PW-1 Ram Sanehi, is the father of the prosecutrix. He has stated that on the date of occurrence, his daughter had gone to attend the nature’s call, where she was subjected to rape by the accused persons and when her mother Sudama Devi (PW-2) reached there, the accused appellants fled away from the spot. He states that due to regard for public opinion (yksd yTtk ds dkj.k), her wife does not disclose the incident to any one for about two days.
11. In the cross examination, he states that on the second day, his wife had informed him about the incident and then he had gone to Police Station along with his wife and prosecutrix, to lodge the report. He has denied the fact that he received any amount after lodging the FIR.
12. PW-2 Sudama Devi, is the mother of the prosecutrix. She states that on the date of the occurrence, prosecutrix had gone to the tobacco field to attend the nature’s call and upon hearing her cries, when she reached there, she saw the accused persons committing the offence and after seeing her, the accused appellants fled away from the spot. She states that thereafter the prosecutrix had informed her about the entire occurrence. She further states that on the second day, she narrated the incident to her husband and this was not done on the same day because of regard for public opinion (yksd yTtk ds dkj.k). She has clarified that the height of tobacco plants were up to her vests.
13. PW-4 Dr. Neelam Rani, who medically examined the prosecutrix, has stated that initially prosecutrix has refused for her medical examination and that she was very tense. She states that the prosecutrix was kept under observation for about 50 minutes, but she did not agree for her medical examination. She states that after two days on 12.3.2005, the prosecutrix was again brought in the hospital by her father and upon examining her, no internal or external injury was found on her body; old torn healed up hymen was present; vagina admits two finger; and she noticed redness on her hymen. As per pathological report, no spermatozoa was found on her smear slice. According to her, the age of the prosecutrix was about 18 years. Thereafter, she has stated that there was injury on her hymen, which could be by hard and blunt object.
14. PW-5 Arvind Kumar, has proved the chik F.I.R. PW-6 Rishi Kumar Katiyar has proved the investigating report.
15. Close scrutiny of the evidence makes it clear that though as per FIR lodged by PW-1 Ram Sanehi, the prosecutrix was subjected to forcible sexual intercourse by the accused appellants, medical reports of the prosecutrix also partially indicate about injury on her private part, but the prosecutrix has not fully supported the prosecution case. According to her, she was subjected to ‘bad work’ by the accused persons but then she has clarified that ‘bad work’ means she was caught hold by the appellants from behind her back. She has nowhere stated that she was subjected to forcible sexual intercourse by the accused persons. Likewise, she has nowhere stated that she was subjected to sexual intercourse because she belongs to a particular caste. Even the caste of the prosecutrix has not been proved by the prosecution as required under the law. Though PW- 1 Ram Sanehi and PW-2 Sudama states that the prosecutrix was subjected to rape by the accused persons, but in absence of any positive statement by the prosecutrix, it is difficult for us to hold that prosecutrix was subjected to sexual intercourse by the accused persons. Unfortunately, prosecutrix has been examined in a very casual manner by the court below, where on 12.12.2006 only four lines of her examination-in-chief was recorded and thereafter the case was deferred and on 19.3.2007 also, only three lines of her statement has been recorded and then on 6.10.2009, her cross examination has been concluded. The court below appears to have acted merely as a mute spectator rather participating actively, in the trial. It is difficult to understand as to in what manner the prosecutrix was examined/cross examined in the court below on the basis of evidence. We find it difficult to hold that the prosecutrix was subjected to forcible intercourse by the accused appellants.
16. The only conclusion which can be drawn by this Court, is that the accused appellants are liable to be convicted under Section 354 of IPC. Accordingly, we convict them under Section 354 of I.P.C. So far as sentence part is concerned, considering the evidence available on record, the maximum sentence, which has been provided under Section 354 IPC i.e of five years can be imposed upon the appellants. Order accordingly. The appellants are in jail since about eight years and, therefore, they are sentenced for the period already under gone by them. As the basic ingredients of the provisions of SC/ST Act has not been proved by the prosecution, their conviction under Section 3 (2) (5) of the SC/ST Act, is set aside.
17. The appeal is partly allowed. The appellants are in jail. They be set free forthwith, if not required in any other case.
18. We appreciate the assistance rendered by Shri Ashutosh Yadav as Amicus. We direct the State Government to pay Rs. 7000/- to him as his remuneration.
Order Date :- 18.02.2020
(Shekhar Kumar Yadav,J) (Pritinker Diwaker, J)