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Jhhau vs State on 18 December, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on: 26.11.2018

Delivered on: 18.12.2018

Court No. – 34

Case :- JAIL APPEAL No. – 4024 of 2009

Appellant :- Jhhau

Respondent :- State

Counsel for Appellant :- From Jail,Santosh Kumar

Counsel for Respondent :- A.G.A.

Hon’ble Sudhir Agarwal,J.

Hon’ble Ram Krishna Gautam,J.

(Delivered by Hon’ble Ram Krishna Gautam, J.)

1. This criminal appeal, under Section 374 (2) of Code of Criminal Procedure 1973 (hereinafter referred to as ‘Cr.P.C.), has been presented by accused-appellant sent through Senior Superintendent of Jail, Central Jail, Bareilly, under Section 383 Cr.P.C., against the judgment of conviction and sentence made therein, by Additional Sessions Judge, Court No. 2, Shahjahanpur in Sessions Trial No. 475 of 2005, related with Case Crime No. C/13/2004 under Sections 363, 366 and 376 IPC read with Section 3 (2) (V) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘Act 1989’), Police Station Kanth, dated 26.02.2008, wherein convict appellant Jhhau has been sentenced to imprisonment of three years rigorous punishment with fine of Rs. one thousand, and in default, additional imprisonment of one year for offence punishable under Section 363 IPC; rigorous imprisonment of five years with a fine of Rs. two thousand and in default another imprisonment of two months for offence under Section 366 IPC; rigorous imprisonment of ten years with a fine of Rs. five thousands and in default additional imprisonment of three months for offence under Section 376 IPC, and life imprisonment with a fine of Rs. five thousand and in default, additional imprisonment of three months for offence punishable under Section 3 (2) (V) of SC/ST Act, 1986 with a direction for concurrent running of the sentences and adjustment of previous imprisonment, if any, in this case crime number.

2. In brief, record of Trial Court reveals that an application under Section 156 (3) of Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’) was filed by Sri Krishna, son of Ram Dulare, resident of village Ladpur, Police Station Kanth District Shahjahanpur, against Jhhau son of Bhoop Singh and Umesh son of Swaran Singh resident of village Ladpur, Police Station Kanth District Shahjahanpur, in the Court of Chief Judicial Magistrate, Shahjahanpur, on 25.12.2004, alleging that complainant’s daughter Ramgita, aged about thirteen years, was a student of Junior High School, Kamalnainpur. On 24th November, at about 9:00 a.m., she had gone to her school, but it was found to be closed on that date. While she was on way to her home, Jhhau son of Bhoop Singh and Umesh Singh son of Swaran Singh, resident of same village Ladpur, met with her, just before the village. They enticed her and took away with them. She was being searched by complainant and an application for registering a case was presented before police station. Police, however, only assured of her recovery but no report was registered. An application dated 07.12.2004 was presented before Superintendent of Police, Shahjahanpur but in vain. The complainant is Scheduled Caste ‘Harijan’ whereas those named accused persons are upper class ‘Thakurs’ enjoying muscle power. Om Prakash son of Mohan Lal, resident of village Kamalnainpur and Guddu son of Majid, resident of Town and Police Station Kanth, witnessed the accused persons while taking Ramgita with them. Hence, it was prayed in the application that a case be registered for offences punishable under Sections 363/366 of IPC read with offences under SC/ST Act, 1986 and investigation be made.

3. Chief Judicial Magistrate, Shahjahanpur vide order dated 16.12.2004, directed S.O. Kanth for registration of case and investigation thereof. In compliance, Case Crime No. C/13/2004 under Section 3 (1) (XII) of SC/ST of Act, 1986 was registered at P.S. Kanth on 25.12.2004 at 19:10 p.m. against accused-Jhhau and Umesh. After investigation, charge-sheet dated 28.01.2018 against accused-Jhhau and Umesh was filed in Court for offences punishable under Section 363/366 and 376 IPC read with Section 3 (2) (V) and 3 (1) (XII) of SC/ST Act, 1986. Chief Judicial Magistrate took cognizance on 03.03.2005. Vide order dated 18.01.2005, accused-Umesh had been held juvenile hence his case was separated and sent to Juvenile Justice Board for trial.

4. As the case under aforesaid sections was exclusively triable by Court of Sessions and Special Court designated for trying offences scheduled under SC/ST Act, 1986, hence Chief Judicial Magistrate Shahjahanpur, vide order dated 27.04.2005, committed trial to Sessions Court.

5. Additional Sessions Judge, Court No. 2, Shahjahanpur, vide order dated 23.7.2005, framed charges against Jhhau for offences under Sections 363, 366, 376 IPC and 3 (2) (V) of SC/ST Act, 1989 as under:

I, Mohd, Tahir, Addl. Sess. Judge, (Court No. 2), Shahjahanpur, do, hereby, charge you:

1. Jhaoo

as under:-

Firstly: that you, on 24.11.04, at about 9 a.m. in village Ladpur, within the circle of P.S. Kanth, Distt. Shahjahanpur, kidnapped Km. Ramgita, a female minor under thirteen years of age, from the lawful guardianship of Sri Krishan, father, and that you, thereby, committed an offence punishable under Section 363 IPC and within the cognizance of this Court;

Secondly: that you, on the said, date, time and place, kidnapped a woman to wit, Km. Ramgita, with intent that she may be forced or seduced to illicit intercourse against her will and you, thereby, committed an offence punishable under sec. 366 IPC, and within the cognizance of this Court:

Thirdly: That you, during 24.11.04 to 14.1.05 within the jurisdiction of Distt. Shahjahanpur as well as, within the district of Delhi, you, did commit rape with Km. Ramgita, against her will and without her consent, and you, thereby, committed an offence punishable under sec. 376 IPC and within the cognizance of this Court:

Fourthly : That you, not being a member of SC/ST on the said, date, time and place, did commit rape with Ramgita, on the ground that she was a member of S.C. Communit and you committed an offence punishable under sec. 3 (2) (5), SCST ACT and within the cognizance of this Court:

And, I, hereby, direct that you be tried by this Court on the said charge.

6. The charges were read over and explained to accused, who pleaded not guilty and claimed for trial.

7. Prosecution examined PW-1 complainant-Krishna, PW-2 victim Ramgita, as witnesses of fact. PW-3, Head Constable-109 Kripal Singh, PW-4 Investigating Officer (Deputy S.P.) Prahlad Yadav, PW-5 Dr. Anita Jain, PW-6 Dr. S.K. Dhruv-Senior Pathologist and PW-7 Dr. K.C. Singh Senior Consultant were examined as formal witnesses.

8. The accused has been examined under Section 313 of Cr.P.C. He denied the charge and stated about false registration of case and submission of charge-sheet based on false statement of prosecution witnesses. The reason assigned for his implication in crime is enmity but no evidence in defence has been adduced.

9. Trial Court heard counsels for both sides and passed the judgment of conviction and sentence which is under appeal.

10. We have heard Amicus Curiae for appellant and learned AGA for respondent and have perused the record carefully.

11. The offences punishable under SC/ST Act, 1986 are exclusively triable by Special Court of Sessions Judge, designated for the said purpose but the impugned judgment is passed by Court No. 2 of Additional Sessions Judge, Shahjahanpur as is apparent from the top of the judgment as well as designation, below the signature of Presiding Judge in the judgment. Nowhere it is mentioned that Court is designated for making trial of offences under SC/ST Act, 1986. However, this Court takes judicial notice of the fact that vide a general notification, Court No. 2 of Additional District and Sessions Judge has been generally given jurisdiction for trial of cases under SC/ST Act, 1986 hence this is a clerical omission. But Presiding Sessions Judges are advised to be cautious while mentioning their designation in judgments.

12. Learned counsel for appellant contended that appellant has wrongly been convicted, though prosecution has miserably failed to prove its case beyond reasonable doubt. Incident is said to have taken place on 24.11.2004 but report was lodged on 25.12.2004. The allegation of rape was not found true and it shows that PW-2 made a false allegation against appellant. Charges of Sections 363 and 366 I.P.C., both have been leveled together though Section 363 I.P.C. could not have been leveled when it was already charged under Section 366 I.P.C.

13. On the contrary, learned A.G.A. submitted that prosecutrix PW-2, the victim, Ramgita herself had deposed and proved the case against appellant and no contradictory material to affect the prosecution case otherwise could be found, hence, appellant has rightly been convicted and sentenced and no interference is called for.

14. In the present case, informant is PW-1 but the real star witness is the victim Ramgita who has been examined as PW-2. In her statement on oath she has said that while coming back to her home from her school, situated at Kamalnainpur, where she was student of class 8th, on 24.11.2004, she met with Jhhau and Umesh, residents of same village and Jhhau asked her to accompany with him. When she refused, they extended threat of dire consequences and forcibly took her to Kanth, from where she was taken to Shahjahanpur and then to Punjab via Delhi by a bus. She was kept under captivity in a locked room while Jhhau and Umesh were on their job. The doors were used to open in the evening and she had been subjected to rape against her wishes by both of them. She requested for her release but they did not hear. She was taken back to Moradabad by train where she was left at Railway Station. She came to Shahjahanpur by bus and from there to Kanth and while on her way to her home at Kanth, she was apprehended by the police at about 10:00 p.m. in the night. A document paper 7-Ka/1 was prepared by police and her thumb impression was taken over it. She was apprised about registration of criminal case at the instance of his father against Jhhau. She has proved her thumb impression on recovery memo Paper No. 7 Ka/1 (Exhibit Ka-2). She was medically examined and then handed over to her father. Statement of PW-2 shows that Defence counsel refused to cross-examine her. Thus testimony of prosecutrix remains uncontroverted.

15. This Court made a query to learned Government Advocate as to why this crucial witness was neither cross-examined by learned counsel for defence nor amicus curiae was appointed for this purpose, nor Court itself cross-examined her and judgment of conviction and sentence has been recorded. Learned Additional Government Advocate for State drew attention of Court towards order-sheet of Trial Court dated 13.06.2006, which reveals that victim was present on repeated adjourned dates for recording her statement but counsel for accused kept on taking adjournments on his personal ground of not being prepared for cross-examination and ultimately a last date was given, which too was not availed. Witness’s expenses were also imposed to be paid to the witness for her appearance. In spite of repeated directions by Presiding Judge, she could not be cross-examined, on 22.11.2005, 02.12.2005, 16.1.2006, 30.1.2006, when she was present in Court. Though accused was in jail but his counsel was not assisting Court in concluding trial and ultimately evidence of PW-2 Kumari Ramgita was got closed with respect to cross-examination.

16. Law with respect to cross examination of a witness propounded Court in Mohd. Husain Vs. State (Government of NCT of Delhi) (2012) 2 SCC 584 at Para 42 reads as under:

” the fate of the criminal trial depends upon the truthfulness or otherwise all the witnesses and, therefore, it is a paramount importance to arrive at the truth, its veracity should be judged and for that purpose cross-examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination-in-chief”.

17. In State of Kerala vs. K.T. Shaduli Grocery Dealer, (1977) 2 SCC 777, at Para 5 Court has said as under:

“…cross examination is one of the most efficacious methods to establish truth and exposing falsehood”.

18. In Subhash Chander vs State (Chandigarh Admn.) Ors (1980) 2 SCC 155 at Para 4 Court has propounded as under:

“When a crime is committed, the assessment of guilt and the award of punishment or, alternatively, the discharge or acquittal of the accused are part of the criminal justice process administered by the courts of the land”.

19. Criminal Procedure Code and Indian Penal Code are supplementary to each other and they are in support to each other as has been propounded in Kamalpati Trivedi vs. State of West Bengal (1980) 2 SCC 91 at Para 45 which reads as under:

“It may be noted that the Code and the Indian Penal Code are the main statutes operating in India in relation to the dispensation of criminal justice and may in a sense be regarded as supplementary to each other,the Code forming the procedural link of the same chain of which the Indian Penal Code constitutes the link of substantive law.”

20. In the present case, when several opportunities given for cross-examination were not availed by defence counsel, apparently with a view to harass victim prosecutrix, a minor girl, who visited Court six times and was compelled to return back without being cross-examined, hence Trial Judge recorded reasons for closing evidence of PW-2, after giving last opportunity for cross-examination which too was not availed, hence, we find no illegality or perversity on the part of Trial Court in closure of evidence of PW-2.

21. The offshoot is that cross-examination was not made even after grant of sufficient opportunities hence, evidence of PW-2 was an unrebutted testimony, fully proving the case of prosecution.

22. PW-1 complainant Sri Krishna, in his testimony has said in his examination-in-chief that he is of ‘Jatao caste’ and accused Jhhau, present in the docket is ‘Thakur’. This witness has neither been cross-examined nor his statement has been disputed by accused. Hence the fact that complainant is a member of Scheduled Caste and accused a member of other than SC and ST of Uttar Pradesh is an undisputed fact. Two daughters Sunita and Ramgita and two sons Ram Nivas and Pradeep are offsprings of complainant Sri Krishna. Before one year and two months from the date of evidence recorded on 30.01.2006, Ramgita, aged about 13 years, was student of class 8th and had gone to her School, situated at Kamalnainpur, at about 9:00 a.m. She found closure of school on that day. While she was on her way back to home, Jhhau and his accomplice Umesh, resident of same village, met outside village Kamalnainpur. They enticed her and under threat took her away with them. When she did not come back, complainant searched her and in the course of search, Omprakash son of Mohanlal and Guddu son of Majid apprised him that they have seen Umesh and Jhhau while taking Ramgita with them. Complainant went at police station Kanth for getting his case registered, but of no avail, rather a direction to complainant for searching the girl was made. After seven days, he applied before Superintendent of Police, but of no avail. Then he came to Court and apprised his counsel, who filed application under Section 156(3) Cr.P.C. before Court and got a case registered. The said application moved was read over to this witness and he proved the same which is exhibited as Exhibit-Ka (1). His daughter Ramgita was recovered by police from Ladpur Tiraha. Subsequently Ramgita apprised him that she was taken by Umesh and Jhhau under threat. She was kept at Kanth fromwhere she was taken to Shahjahanpur, and then to Punjab via Delhi by bus. She was kept under captivity in a room and subjected to rape several times against her wishes and consent. She was brought back via Delhi to Moradabad Railway Station where she was left. While she was coming to her home from Moradabad, she was apprehended by police from Ladpur Tiraha. There was no enmity from Jhhau. In cross-examination, no question was asked by the defence about missing of Ramgita and registration of above case crime number, pursuant to application u/s 156 (3) Cr.P.C. by complainant. Instead, a question has been asked regarding compensation being awarded by State in case of registration of case against atrocities on Harijan community. He is not a witness of kidnapping or rape committed by accused, rather he is the witness of only this fact that his daughter Ramgita, aged about 13 years, was on her way to home from her school and was missing, he searched for her, when two persons Om Prakash and Guddu, residents of same locality, apprised him about taking away of Ramgita by two accused persons; therefore he tried to get case lodged at police station as well as before Superintendent of Police, but of no avail; hence he filed application Ex. Ka-1 under Section 156 (3) Cr.P.C. before Magistrate, who directed for registration and investigation of case. On this aspect also there is no cross-examination.

23. PW-3 Constable Kripal Singh has proved registration of case. On 25.12.2004, while he was posted as Constable at Police Station Kanth, in compliance of order of Chief Judicial Magistrate Shahjahanpur, on the instruction of Officer-in-charge Harpal Singh, being Case Crime No. C/13/2004 under Section 363, 366 IPC read with Section 3 (1) (XII) of SC/ST Act at Chik No. 272/04 in the handwriting and signature of this witness. An entry to this effect was made in G.D. at Entry 29 at 19:10 p.m. on 25.12.2004. At the time of statement before the Court G.D. Entry, copy of which is Ex. Ka-3 has been proved by this witness. He has also proved copy of Chik FIR, Exhibit Ka-4. In spite of time granted to counsel for defence, this witness was not cross-examined. Hence his testimony being uncontroverted, registration of case crime number Exhibit Ka-2 and the relevant documents Exhibit Ka-3 stand fully proved.

24. PW-5, Dr. Anita Jain is Medical Officer, who conducted medico legal examination of prosecutrix Kumari Ramgita. In her statement-in-chief she has said, while being posted as Emergency Medical Officer, Shahjahanpur on 8.1.2005, she medically examined Kumari Ramgita daughter of Sri Krishna PW-1, brought by constable 828 Sunil Kumar at about 3:00 p.m. She had a black mole near the tip of nose as a mark of identification, her weight was 32 kg, with a height of 133 cm; she had teeth of 14/14; hairs of armpit and genital were brown in color and breast was not fully developed. Upon general examination, no external mark of injury was found. Hymen was old torn, admitting two fingers in it. The vaginal smear slide was prepared and sent for pathological examination. She was referred for age determination by ossification test. Uterus was non gravid. Medico legal report Ex. Ka-9 was prepared under handwriting and signature of this witness. Supplementary report Ex. Ka-10 was prepared by this witness on 14.1.2005 on the basis of pathology report of vaginal smear slide, X-ray report of Ossification Test and ultrasound reports prepared by Dr. K.C. Mishra. According to this witness, prosecutrix Ramgita was between of 13 and 14 years of age with no definite opinion of rape. PW-5 has proved Ex Ka-9 and Ka-10. In cross-examination PW-5 has admitted variations of two years on either side in determination of age of prosecutrix. She was habitual to sexual intercourse and there was no injury over her private part nor any spermatozoa was found in vaginal smear, hence, no definite opinion about commission of rape could be given. According to Doctor, it appears that no force or pressure was exerted on her. This witness has cogently proved the age of Ramgita to be about 13 to 14 years i.e., she being minor.

25. PW-6 Dr. S.K. Dhruv is the pathologist who conducted pathological examination of slide of vaginal smear of prosecutrix in which no spermatozoa was found. He has proved his report Exhibit Ka-11.

26. PW-7 Dr. K.C. Mishra, Senior Radiologist at District Hospital Shahjahanpur had conducted ultrasound examination twice and found no pregnancy of Kumari Ramgita. He has proved ultrasound reports Ex. Ka-12 and Ex. Ka-13, X-ray report Exhibit Ka-14 and the material Exhibit-1, i.e. X-Ray plate and on the basis of these reports age of prosecutrix has been determined by this witness.

27. We find that the prosecutrix Ramgita PW-2 by her unimpeachable and uncontroverted evidence has proved her forceful kidnapping by convict-appellant from the guardianship of her parents and kept her under threat at Kanth, Punjab and frequently committed rape on her. She has also proved herself to belong to community of Scheduled Caste and accused to be of non-Scheduled Caste.

28. In Lallu Manjhi vs. State of Jharkhand AIR 2003 Supreme Court 854 Court has held that conviction can rest on evidence of solitary witness, if it is clear, cogent and unimpeachable. Similar view has also been taken in Major Singh Vs. State of Punjab (2006) 10 SCC 499 as well as in Kunju @ Bal Chandra Vs. State of Tamil Nadu (2008) 1 SCC Criminal 331.

29. In our opinion, Trial Judge has rightly and appropriately appreciated the facts and law and passed the order of conviction for the charges leveled against the appellant.

30. So far as quantum of sentence is concerned, apparently Section 363 of IPC provides a punishment for kidnapping, i.e. whoever kidnaps any person (from India) or from lawful guardianship shall be punished with imprisonment for either description for a term which may extend to seven years, and shall also be liable to fine. Kidnapping has been defined under Section 359 IPC, as of two kinds: kidnapping (from India) and kidnapping from lawful guardianship. Section 360 IPC provides for kidnapping from India and Section 361 provides for kidnapping from lawful guardianship. This Section provides that whoever takes or entices any one (under 16 years of age if female or under 18 years of age if male) or any person of unsound mind, out of keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. This is with one explanation that the word lawful guardianship in this Section includes any person lawfully entrusted with the guardianship and custody of such minor or other person. Hence, under Section 363 IPC, this kidnapping of a minor girl from lawful guardianship, as provided under Section 361 IPC is punishable. Whereas Section 366 IPC is the aggravated form of this offence of kidnapping, which provides that whoever kidnaps or abducts any women with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may be extend to ten years and shall also be liable to fine and whoever by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any women to go for any place with intent that she may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.

31. From the above it is apparent that offence punishable under Section 366 IPC though based on same ingredients of kidnapping punishable under Section 363 IPC but with additional aggravated form for heinous offence with severe sentence and once the offence punishable under Section 366 IPC has been proved and sentence has been awarded, then there remains no need for sentencing under Section 363 IPC separately. Whereas the trial Judge has sentenced under both of the above Sections, i.e. u/s 363 and 366 IPC which is apparently faulty.

32. Section 3 (2) (V) of SC/ST Prevention of Atrocities Act 1989 provides:

“whoever, not being a member of a Scheduled Caste or a Scheduled Tribe 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, knowing that such person is a member of a Scheduled Caste or a Schedule Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.”

33. In the instant case, the trial Judge has convicted the accused-appellant for the offence of rape punishable under Section 376 IPC which is punishable with rigorous imprisonment of either description for a term which shall not be less than seven years and may extend to imprisonment for life and shall also be liable to fine. Meaning thereby the sentence for the offence punishable u/s 366 and 376 IPC committed by a member not belonging to the Scheduled Caste and Scheduled Tribe towards victim belonging to SC or ST, shall be of life imprisonment and with fine. In other words, sentence may not be less than life imprisonment and fine. Meaning thereby this Section 3 (2) (V) is not with a substantive provision under this Act No. 33 of 1989, rather it is an enabling provision for awarding the sentence to be awarded for an offence under Code of that category given in this provision. But the learned Trial Judge has awarded sentence of rigorous imprisonment of ten years with a fine of Rs. 5,000/- for offence punishable under Section 376 (2) and separate punishment of life imprisonment with fine under Section 3(2) (V) of SC/ ST Act separately, which is apparently erroneous. Hence, the appeal merits to be allowed in part for above irregularity in sentencing. It merits its dismissal for judgment of conviction.

34. The appeal is dismissed so far as conviction of convict-appellant is concerned except conviction under Section 363 I.P.C. which is set aside. It is allowed partly regarding sentence awarded to appellant. Convict-appellant, Jhhau is sentenced to rigorous imprisonment of five years and a fine of Rs. 2,000/- for offence under Section 366 IPC and in case of default in making payment of fine, he shall further undergo simple imprisonment of two months. He is sentenced with life imprisonment and a fine of Rs. 5,000/- under Section 376 IPC read with Section 3 (2) (V) of the SC/ST Prevention of Atrocities Act, 1986. In case of default in making payment of fine, he will have to undergo a further simple imprisonment of three months. Both the sentences shall run concurrently and imprisonment, if any, during the course of inquiry and trial in this very case crime number shall be adjusted towards sentence of imprisonment.

35. Lower Court record alongwith a copy of this judgment be sent back to District Court concerned for compliance and further necessary action.

36. Sri Santosh Kumar, learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel’s fee as Rs. 11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri Santosh Kumar, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.

37. Let a copy of the judgment be circulated amongst all Judicial Officers in the State to comply the direction regarding mentioning of correct designation of Court on the top and below signature of Presiding Officer.

Order Date :- 18.12.2018

Kamarjahan

 

 

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