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Ram Pal . vs State Of U.P. on 22 May, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on 09.05.2019

Delivered on 22.05.2019

Court No. – 34

Case :- JAIL APPEAL No. – 5683 of 2010

Appellant :- Ram Pal

Respondent :- State Of U.P.

Counsel for Appellant :- A.G.A.,Pushpendra Singh, Vimlendu Tripathi

Counsel for Respondent :- From Jail

Hon’ble Sudhir Agarwal,J.

Hon’ble Raj Beer Singh,J.

(Delivered by Hon’ble Raj Beer Singh, J.)

1. The present appeal has been preferred against the judgment dated 01.07.2010 and order dated 03.07.2010 passed by learned Special Judge, (Schedule Caste SectionSchedule Tribe Prevention of Atrocities Act), Bulandshahar, in Session Trial No. 1181/2004 under Sections 376, Section506 of Indian Penal Code (hereinafter referred to as SectionIPC) and Section 3(2)(v) of Schedule Castes SectionSchedule Tribes Prevention of Atrocities Act, 1989 (hereinafter referred as SC/SectionST Act, 1989), whereby appellant Ram Pal has been convicted under Sections 376, Section506 of IPC and 3(2)(v) of SC/SectionST Act, 1989. He is sentenced to ten years rigorous imprisonment along with fine of Rs. 25,000/- under Section 376 of IPC, one year imprisonment under Section 506 of IPC and imprisonment for life under Section 3(2)(v) SC/SectionST Act, 1989. In default of payment of fine of Rs. 25,000/-, appellant has to undergo two years additional imprisonment. All the sentences are to run concurrently.

2. The case of prosecution is that the complainant’s seven years old son was suffering from illness one Prem, Occultist (Tantrik) of his village suggested complainant Dalchandra that the accused-appellant Ram Pal, who is residing at his sister’s house at village Majara, is a occultist, (Tantrik) and he would get rid of illness of his son. On the next day, alleged Prem brought Ram Pal at the house of complainant and on their asking material worth of Rs. 850 was brought for worship in the night. The worship (puja) was performed and on the next day morning Ram Pal asked complainant that he has to come along with his wife and son on 12.02.2004 at his village Majara, Khanpur for disposal of hawan ash at a particular Chauraha. He also stated that his sister would accompany the wife of complainant to that Chauraha. Accordingly, on 12.02.2004, complainant along with his wife reached the house of sister of accused Ram Pal at Majara village. Accused-appellant Ram Pal assured the complainant that his sister would accompany his wife to that particular Chauraha for disposal of ash and thereafter complainant left his wife and son thereat and returned to his home. On 13.02.2004 complainant’s wife / prosecutrix Smt. Maya Devi who is being described in this judgment as X, came at her house and told complainant that accused Ram Pal did not send his sister with her and rather at 9:00 PM, himself took her in the forest (jungle) of Abhaypur and Majara and at the threat of Farsa and knife, committed rape on her.

3. It appears that when the case was not registered, complainant sent complaints to several authorities and thereafter on the intervention of Human Right Commission, case was registered against appellant-accused Ram Pal on 27.07.2004 at 8:30 AM under Sections 376 and Section506 of IPC on the basis of tahreer, Ex. Ka-1 submitted by the complainant.

4. The case was investigated by PW-6 S.I Amrit Singh and thereafter further investigation was conducted by PW-5 Circle Officer R.S. Gautam. After completion of investigation, appellant-accused was charge-sheeted for the offences under Sections 376, Section506 of IPC and 3(2)(v) S.C./SectionS.T. Act, 1989 vide Ex. Ka-4.

5. Learned Trial Court framed following charges under Sections 376 and Section506 of IPC and Section 3(2)(v) S.C./SectionS.T. Act, 1989 as under:

**eSa] oh-ds- R;kxh] fo’ks”k U;k;k/kh’k] ,[email protected],l-Vh- ,DV] cqyUn’kgj ,rn~}kjk vki jkeiky ij fuEu vkjksi yxkrk gaw %

izFke % ;g fd fnukad [email protected] dks jkf esa le; jkf yxHkx 9-00 cts taxy xzke vHk;iqj ls ektjk ds chp Fkkuk [kkuiqj ftyk cqyUn’kgj ds vUrxZr vkius oknh MkyPkUn dh iRuh ek;k nsoh ds lkFk mldh bPNk ds fo:) cykr lEHkksx fd;k] bl izdkj vkius Hkk0na0la0 dh /kkjk 376 ds vUrxZr n.Muh; vijk/k dkfjr fd;k] tks bl U;k;ky; ds izlaKku esa gSA

f}rh; % ;g fd mijksDr fnukad] le; ,oa LFkku ij vkius oknh dh iRuh Jherh ek;k nsoh dks Qjlk o pkdw fn[kkdj tku ls ekjus dh /kedh nh bl izdkj vkius Hkk0na0la0 dh /kkjk 506 ds vUrxZr n.Muh; vijk/k dkfjr fd;k] tks bl U;k;ky; ds izlaKku esa gSA

r`rh; % ;g fd mijksDr fnukad] le; ,oa LFkku ij vkius oknh dh iRuh ek;k nsoh tks vuqlwfpr tkfr dh lnL;k gS] dks tku ls ekjus dh /kedh nsdj mlds lkFk cykRdkj fd;k] bl izdkj vkius ,[email protected],l-Vh- ,DV dh /kkjk 3¼2½5 ds vUrxZr n.Muh; vijk/k fd;k] tks 10 o”kZ dh ltk dk gS vkSj bl U;k;ky; ds izlaKku esa gSA

,rn~ }kjk vkidks funsZ’k fn;k tkrk gS fd vkidk fopkj.k mDr vkjksi ij bl U;k;ky; }kjk fd;k tk;sA**

“I, V. K. Tyagi, Special Judge, Schedule Caste and SectionSchedule Tribe (Prevention of Atrocities) Act, Bulandshahar, do hereby charge you Rampal as under:

Firstly, That on the night of 12/13.02.2004 at 09.00 PM in the jungle between village Abhaipur and Majra, PS Khanpur, District Bulandshahar, you forcibly committed rape on Smt. Maya Devi wife of complainant Dalchandra against her will and thereby you committed an offence punishable u/s 376 SectionIPC, within the cognizance of this court.

Secondly, That on the above stated date, time and place you threatened Smt. Maya Devi wife of the complainant by showing ‘farsa’ and knife to kill her and thereby committed an offence punishable u/s 506 SectionIPC, within the cognizance of this court.

Thirdly, that on the above stated date, time and place you threatened and committed rape upon Maya Devi, wife of the complainant by threatening to kill her, who was a member of scheduled caste and thereby committed an offence punishable u/s 3(2)(v) of SC/SectionST Act, with the imprisonment of ten years and within the cognizance of this court.

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

(English Translation by Court)

6. Accused-appellant pleaded not guilty and claimed to be tried.

7. To substantiate the charges against accused-appellant, prosecution has examined seven witnesses. Accused was examined under Section 313 of Cr.P.C. wherein, he denied prosecution evidence and claimed that he was working at dairy of Prem and some amount of Prem was due on complainant Dalchandra and on that account an altercation had taken place between them. He alleged that it was due to this reason that he has been falsely implicated in this case. Appellant-accused has examined alleged Prem as D.W-1.

8. After hearing and analyzing evidence on record, Trial Court convicted appellant-accused Ram Pal u/s 376, 506 SectionIPC and 3(2)(5) SC/SectionST Act, 1989 vide impugned judgment and sentenced him as stated in paragraph no.1 of the judgment.

9. Being aggrieved by the impugned judgment and order, appellant has preferred present appeal.

10. Heard Sri Vimlendu Tripathi, learned Amicus Curiae for the appellant and Sri M.C. Joshi, learned A.G.A. for the State.

11. Learned Amicus Curiae has argued that there is long and undue delay in lodging FIR, which was not explained properly; there are material contradictions in the statements of witnesses; the plea of accused-appellant that he was falsely implicated on account of some payment dispute between Prem and complainant Dalchandra, is supported by the statements of DW-1, and negates the prosecution version; prosecutrix X was not medically examined; and there was no evidence that she has sustained any injury; and that there is absolutely nothing to indicate that alleged rape on the prosecutrix X was committed on the ground that she is a member of Scheduled Caste nor that the appellant has taken any undue advantage of being a member of upper caste. It was pointed out that PW-1 has stated that after incident he informed police while PW-2, prosecutrix X, has stated otherwise that no complaint was filed at police station. PW-2, prosecutrix X, also stated that the accused has threatened her by showing farsa and knife at the house of his sister while version in the complaint is that she was threatened by the alleged weapons after taking her in the jungle. It was argued that prosecution version is not reliable and conviction of the appellant-accused is not sustainable.

12. Refuting contentions of learned Amicus Curiae, it was argued by learned State Counsel that statement of PW-2 X is cogent and reliable; she has made a consistent version of the entire incident and her testimony cannot be disbelieved merely on the ground that she was not medically examined; her version is consistent with the statement of PW-2 and that Trial Court has appreciated evidence in correct perspective and conviction of appellant-accused is based on evidence.

13. We have considered rival contentions and perused the record.

14. A perusal of evidence shows that PW-1 Dal Chand, who is complainant of the case, has stated that his 7-8 years old son Bhupender was suffering from illness and Prem of his village suggested him that the accused-appellant Ram Pal of village Majara is a Tantrik and he would get him free from any ghost. Thereafter, Prem brought Tantrik Ram Pal at the house of complainant and a puja was performed in the night at the house of complainant. On the next day morning, Ram Pal asked PW-1 to come along with his wife and son on 12.02.2004 at his village Majara with ash of havan which has to be put on a particular Chauraha in night and he assured PW-1 that his sister would accompany the wife of PW-1 to that Chauraha. Accordingly, on 12.02.2004 PW-1 along with his wife and son reached the house of the Rewati, sister of accused Ram Pal, at Majara village. Accused-appellant Ram Pal assured PW 1 that his sister Rewati would accompany his wife to that particular Chauraha for disposal of ash. On this assurance, PW-1 left his wife and son there and he returned to his home. On 13.02.2004 wife and son of PW-1 came back weeping and told PW-1 that in the night at 09.00 PM accused-appellant Ram Pal did not send his sister with her and rather accused-appellant took her in jungle and at the point of ‘Farsa’ and knife, committed rape on her. On 13.02.04, PW 1 reported matter to police but due to lack of knowledge, he could not get his wife medically examined. PW 1 further stated that complaints were sent to SSP and Human Right Commission and thereafter case was registered against appellant-accused Ram Pal. PW-1 has proved his tahreer as Ex. Ka-1.

15. Prosecutrix X has been examined as PW 2. She stated that her seven years old son Bhupender was suffering from illness since long and one Prem Tantrik of her village suggested her husband Dalchnadra that one Ram Pal, who is residing at his sister’s house at village Majara, is a Tantrik and would get rid of the illness of her son. On the next day, alleged Prem brought Ram Pal at her house and ‘puja’ was performed at her house. On the next day morning Ram Pal asked her to come at her sister’s house at village Khanpur Majra as the ash of havan had to be kept at the chauraha and told that for that purpose his sister Rewati would accompany her to the jungle. Prosecutrix along with her husband Dalchandra and son went at the house of Rewati. There, accused-appellant Rampal asked her husband to return back to his home and his sister Rewati would accompany prosecutrix to jungle for putting the ash there. On this assurance, her husband returned back. In the night Rewati did not accompany her to jungle and instead accused-appellant Rampal, having a ‘farsa’ and knife went with her, while son was left at the house of Rewati. Accused-appellant took her inside jungle and asked her put the ash on the boundary of a field and asked her to take off her clothes. Accused-appellant threatened her by brandishing her with ‘farsa’ and knife and caught her. He forcibly laid her on the ground and committed rape upon her. The prosecutrix raised alarm but there was no one in the jungle to hear the same. Accused-appellant threatened her that if she disclosed this incident to any one, he would kill her. On the next day, she returned back to her home and told her husband about the incident. They went to police but it did not register report.

16. PW-3 Bhupender has stated that for about five years, he was ill and his parents were disturbed on that account. One Prem of his village told that one Ram Pal of village Majara would get rid of his illness. On the next day, alleged Prem brought Ram Pal at his house and ‘puja’ was performed. Thereafter, his father and mother took him to village Majra at the house of sister of Rampal, who told that his sister would accompany them and thereafter his father returned back to his home. In the night, accused-appellant Rampal took his mother to the jungle. After some time, his mother returned back, weeping and told that accused-appellant Rampal did wrong act with her. They returned to home and told the incident to PW-1.

17. PW-4 HCP Satyapal Singh has recorded FIR while PW-5 CO, R.S. Gautam and PW-6, SI, Amrit Singh, have investigated the case. PW 7 is a formal witness.

18. DW-1 Prem has stated that he is running a milk dairy. He has given Rs 20,000/- to Dalchandra for purchasing a buffalo but he returned only Rs. 5000/ and remaining amount was not returned. Accused Rampal was also working at his dairy, and is not a Tantrik. Rampal demanded remaining amount from Dalchandra and on that issue an altercation took place between them. On that issue Dalchandra threatened him to send jail. Rampal has never visited the home of complainant Dalchandra, nor conducted any ‘puja’.

19. The scrutiny of evidence shows that prosecutrix X has made a clear, cogent and consistent statement. No major contradictions or inconsistencies could emerge in her cross-examination. Her version is consistent with her previous statement recorded during investigation. It is correct that her medical examination was not conducted but here we have to keep in mind that prosecutrix and her husband are persons of rural background and the fact that they believed in such Tantrik activities goes to show that they might not be aware of requirement of medical examination. PW 1 has stated that due to lack of knowledge, prosecutrix could not be medically examined. Further, it is consistent version of PW 1 and PW-2 that police did not register their FIR and it was on the intervention of National Human Right Commission that the case was registered. Thus, they could not be apprised by police of the requirement of medical examination of prosecutrix.

20. It is well-settled that conviction for an offence of rape can be based on the testimony of prosecutrix even if she was not medically examined, if her testimony is found to be natural, cogent, trustworthy and worth being relied on. If the evidence of prosecutrix inspires confidence, it may be relied upon without seeking corroboration of her statement. Thus, testimony of PW-1 can not be doubted merely on the ground that she was not medically examined, particularly when her testimony appears cogent and trustworthy. Further, PW 2 and PW 3 have also made clear and cogent statements about the entire sequence of events. The version of PW 1 has been amply supported by PW 2 and PW 3. They have also been subjected to cross-examination, but no such material infirmity or inconsistency could be shown so as to affect evidence adversely.

21. So far as the question of delay in lodging FIR is concerned, it is well settled that if delay in lodging FIR has been explained from the evidence on record, no adverse inference can be drawn against prosecution, merely on the ground that FIR was lodged with delay. There is no hard and fast rule that delay in lodging FIR would automatically render prosecution version doubtful. In “Ravinder Kumar Anr. Vs. State of Punjab”, (2001) 7SCC 690, Court has held that :

“The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly FIR is not an unreserved guarantee for the genuineness of the version incorporated therein. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquility of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.”

(Emphasis added)

22. In “Amar Singh Vs. Balwinder Singh Ors.” (2003) 2 SCC 518, Apex Court held that :

“In our opinion, the period which elapsed in lodging the FIR of the incident has been fully explained from the evidence on record and no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged at 9.20 p.m. on the next day. There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR.”

(Emphasis added)

23. In this connection it will also be useful to take note of the following observation made in SectionTara Singh V. State of Punjab 3 SCC p.541, (para 4):

“The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstance of each case.”

24. In Sahebrao Anr. Vs. State of Maharashtra (2006) 9 SCC 794, Court has held:

“The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory.”..

25. From the above exposition of law it is manifest that the case of prosecution cannot be rejected solely on the ground of delay in lodging FIR. The court has to examine the explanation furnished by prosecution for explaining delay. There may be various circumstances particularly the number of victims, atmosphere prevailing at the scene of incidence, the complainant may be scared and fearing the action against him in pursuance of the incident that has taken place. If prosecution explains delay, court should not reject the case of prosecution solely on this ground. Therefore, entire incident as narrated by witnesses has to be construed and examined to decide whether there was an unreasonable and unexplained delay which goes to the root of case of prosecution and even if there is some unexplained delay, court has to take into consideration whether it can be termed as abnormal. Recently in Palani V State of Tamilnadu, Criminal Appeal No. 1100 of 2009, decided on 27.11.2018, it was observed by Supreme Court that in some cases delay in registration of FIR is inevitable and same has to be considered. Even a long delay can be condoned if witness has no motive for falsely implicating the accused.

26. In the present case it is correct that alleged incident took place on 13.02.04 at about 09.00 PM while FIR was registered on 27.07.2004. However it is the consistent case of prosecution that after alleged incident, Prosecutrix came to her home on the next day and narrated the incident to her husband. They both approached police to register report but the incident was not registered by police. The complainant sent various complaints to higher officials and Human Rights Commission and thereafter on the intervention of Human Right Commission, case was registered against appellant-accused Ram Pal on 27.07.2004 at 8:30 AM. The version of complainant is supported by PW 2. The prosecution has proved the complaint made to Human Rights commission as exhibit ka-7. This complaint was forwarded by Commission to SSP, Bulandshahar vide letter dated 15.05.04 and the same has been proved as exhibit ka-6. Thereafter, FIR was registered. It is apparent that the delay in lodging FIR is attributable to the negligence on the part of police and not on the part of complainant. The prosecution has explained the delay in lodging FIR by satisfactory evidence and thus, no adverse inference can be drawn against prosecution case on the ground of delay in lodging the FIR.

27. The testimony of the victim of sexual assault has to be considered in view of all attending facts and circumstances of the matter. It is well-settled that conviction for an offence of rape can be based on sole testimony of prosecutrix, if the same is found to be natural, trustworthy and worth being relied on. If the evidence of the prosecutrix inspires confidence, it may be relied upon without seeking corroboration of her statement. If for some reasons court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of case and Trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. [Vide:State of Punjab Vs. Gurmit Singh Ors. (1996) 2 SCC 384; [State of Rajasthan Vs. N.K., (2000) 5 SCC 30, State of Himachal Pradesh Vs. Lekh Raj Anr. – (2000) 1 SCC 247, Madan Gopal Kakkad Vs. Naval Dubey and Anr. – (1992) 3 SCC 204].

28. Regarding appreciation of evidence of a rape victim, in case of Rajoo Ors. V State of M.P., (2008) 15 SCC 133, the Apex Court observed as under:

“The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”

29. Keeping in view the above stated pronouncements, in the present case so far as these inconsistencies are concerned that PW-1 has stated that after the incident he informed police while PW-2 prosecutrix X has stated no complaint was filed at police station or that PW-2, prosecutrix X stated that the accused has threatened her by showing farsa and knife at the house of his sister while the version in complaint is that she was threatened with the alleged weapons after taking her in the jungle, we have analysed entire evidence in consonance with the submissions raised by learned counsel and find that the same do not go to the root of case and do not affect the substance of testimony of Prosecutrix X. It may be pointed out that minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. Mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution’s case, render the testimony of witness liable to be discredited. Minor contradictions are bound to appear in the statements of truthful witnesses but the same do not affect the substance of testiony of such witnesses.

30. So far prosecution case regarding rape and criminal intimidation is concerned, the testimony of PW-2 appears cogent and trustworthy. Her version has been amply corroborated by PW-1 and PW 3. We do not find any force in defence version that accused-appellant was working at dairy of Prem and some amount of Prem was due on complainant Dalchandra and on that account an altercation had taken place between them and for that reason, he has been falsely implicated in this case. This version is absolutely not convincing. If there was some amount of Prem allegedly due on the complainant, why complainant would implicate the accused-appellant, is not clear. The defence version prima facie appears concocted and statement of DW-1 is not reliable.

31. As stated earlier, the statement of Prosecutrix X is cogent and credible. She has consistently stated the entire sequence of the incident and no major contradiction or infirmity could be shown in her statement. Her version has been amply corroborated by her husband, PW-1, as well as by her son, PW-3. There are no reasons as to why entire family would make such false allegations against accused-appellant, which involve the honour of their family. So far as the charges u/s 376 and 506 SectionIPC are concerned, conviction of accused-appellant is based on reliable and trustworthy evidence and calls for no interference.

32. However, so for as conviction of accused-appellant u/s 3(2)(V) SC ST, 1989 Act is concerned, neither of material witness has stated that they are members of scheduled caste or scheduled tribe. Even if they belong to such category, there is absolutely no evidence that the crime in question was committed on the ground that prosecutrix belong to scheduled caste or scheduled tribes. SectionIn Ramdas and Ors. V. State of Maharashtra, (2007) 2 SCC 170 (para 11) Court has held as under :

“11. At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Castes and SectionScheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and SectionScheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Castes and SectionScheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside.”

(Emphasis added)

33. The gravamen of Section 3(2)(v) of SC/SectionST Act, 1989 is that any offence, envisaged under SectionI.P.C, punishable with imprisonment for a term of ten years or more, against a person belong to Scheduled Caste/Scheduled Tribe, should have been committed on the ground that “such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member”. Prior to SectionAmendment Act 1 of 2016, the words used in Section 3(2)(v) of the SC/SectionST Act, 1989 are “……on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe”.

34. Section 3(2)(v) of SC/SectionST Act, 1989 has now been amended by virtue of SectionAmendment Act 1 of 2016. By way of this amendment, the words “…….on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe” have been substituted with the words “……..knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”.

35. Therefore, if subsequent to 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under SectionIPC which is punishable with imprisonment for a term of ten years or more, is committed upon a victim who belongs to SC/ST community and accused person has knowledge that such victim belongs to SC/ST community, then the charge of Section 3(2)(v) of SC/SectionST Act, 1989 is attracted. Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed, belongs to SC/ST community, suffices to bring home the charge under Section 3(2)(v) of SC/SectionST Act, 1989. In the present case, unamended Section 3(2)(v) of the SC/ST Prevention of Atrocities Act is applicable as the incident occurred on the night of 13.02.2004. From unamended Section 3(2) (v) of SC/SectionST Act 1989, it is clear that the statute laid stress on the intention of the accused in committing such offence in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community.

36. The evidence and materials on record do not show that appellant had committed rape on the victim on the ground that she belonged to Scheduled Caste. Section 3(2)(v) of SC/SectionST Act, 1989 can be pressed into service only if it is proved that rape has been committed on the ground that PW-1, belong to Scheduled Caste community. In the absence of evidence proving intention of appellant in committing the offence upon PW-1 only because she belongs to Scheduled Caste community, the conviction of accused-appellant under Section 3(2)(v) of Act, 1989 cannot be sustained. In view of these facts, conviction of appellant under Section 3(2)(v) of SC/SectionST Act, 1989 and sentence of life imprisonment imposed upon him thereunder, are not sustainable and liable to be set aside.

37. So far as conviction of appellant under Section 376 and Section506 IPC, there is reliable evidence on record that Prosecutrix X was threatened and subjected to rape by accused-appellant. In this regard, the case of prosecution is quite consistent and evidence of witnesses including that of Prosecutrix X is reliable and trustworthy. In the entirety of the facts and circumstances and legal preposition discussed herein before, we are satisfied that prosecution has successfully proved its case beyond reasonable doubt against accused-appellant and has rightly convicted him for having committed an offence under Section 376 and Section506 IPC.

38. So far as sentence of accused-appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should ‘respond to the society’s cry for justice against the criminal’. [Vide: SectionSumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, SectionSham Sunder vs. Puran, (1990) 4 SCC 731, SectionM.P. v. Saleem, (2005) 5 SCC 554, SectionRavji v. State of Rajasthan, (1996) 2 SCC 175].

39. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellant Rampal by Trial Court vide impugned judgment and order is not excessive and it appears fit and proper and no question arises to interfere in the matter on the point of punishment imposed upon him.

40. In view of above discussion, the appeal is partly allowed. The conviction and sentence u/s 3(2)(v) of SC/SectionST Act, 1989 and sentence of life imprisonment imposed upon him are set aside. Conviction under Sections 376 and Sectionsection 506 IPC and sentence awarded vide impugned judgement and order passed by Trial Court in Session Trial No. 1181/2004 (SectionState v. Rampal) is maintained and confirmed.

41. In the instant case the accused-appellant was sentenced to ten years rigorous imprisonment along with fine of Rs. 25,000/- under Section 376 and one year imprisonment under Section 506 of IPC. It is informed that accused-appellant had already undergone for about 9 years and 9 months. Considering the relevant facts, the accused-appellant is sentenced to the period already undergone along with fine of Rs. 25,000/-, in default of payment of fine he shall undergo one year additional imprisonment. Accused-appellant is granted two months time from today to deposit amount of fine. Therefore appellant is entitled to be released forthwith unless he is required in any other case.

42. Lower Court record along with the copy of this judgment be sent back immediately to Court concerned for necessary compliance. A Copy of this judgment be also sent to accused-appellant through Jail Superintendent concerned for intimation forthwith. Compliance report be also submitted to this Court.

43. Before parting, we find it appropriate to place on record our commendation to learned counsel who has argued this appeal as Amicus Curiae with ability and actually assisted the Court effectively. 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 Vimlendu Tripathi, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.

Order Date :- 22.05.2019

A.Tripathi

 

 

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