HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Case :- CRIMINAL APPEAL No. – 1368 of 2008

Appellant :- Ratan Lal And Another

Respondent :- State Of U.P.

Counsel for Appellant :- Akhilesh Srivastava,A.K. Singh,Noor Mohammad,R.P.S. Chauhan,S.S. Rajput,Satyendra Narayan Singh,Tripathi B.G.Bhai

Counsel for Respondent :- Govt.Advocate

Hon’ble Rajesh Dayal Khare,J.

Hon’ble Mahboob Ali,J.

(Delivered by Hon’ble Mahboob Ali,J.)

Heard Sri Noor Mohammad learned counsel for the appellants and the learned A.G.A for the State.

2. Present appeal has been filed against the judgment and order dated 28.02.2008, passed by Additional District and Sessions Judge/Special Judge (SC/ST Act), F.T.C. No. 4 Aligarh in Sessions Trial No. 1179 of 1996 arising out of case crime No. 90 of 1996 under Sections 376(2)(g) IPC and Section 3(2)(v) SC and ST Act, police station Lodha, district Aligarh, whereby the appellants have been convicted and sentenced to undergo imprisonment for life and to pay fine of Rs. 25,000/- for the offence under Section 376(2)(g) IPC and in case of default in payment of fine to further undergo imprisonment of two years and to undergo imprisonment for life and to pay fine of Rs. 25,000/- for the offence under Section 3(2)(v) SC and ST Act and in case of default in payment of fine to further undergo imprisonment of two years.

3. It is contended by learned counsel for the appellants that the judgment and order of conviction impugned was recorded against the appellants as well as against Mahaveer @ Manavdas, for whom separate Criminal Appeal No. 1366 of 2008 was filed. However, this Court had called for a report vide order dated 06.09.2016, in the aforesaid appeal of Mahaveer @ Manavdas as it was intimated by the counsel for the said appellant that he had expired and the Chief Judicial Magistrate, Hathras had submitted his report on 12.07.2016, reporting that Mahaveer @ Manadas has since expired in Central Jail, Agra, therefore, the aforesaid appeal of Mahaveer @ Manavdas being Crimianl Appeal No. 1366 of 2008, was abated vide order of this Court dated 05.10.2017.

4. The FIR of the incident has been lodged by Smt. Shanti Devi at Police Station Lodha on 05.07.1996, at 1700 hours with respect to the incident that took place on 05.07.1996, at 1200 hours.

5. As per the FIR version, the complainant Smt. Shanti Devi wife of Resham Pal resident of Bajheda, Police Station Lodha, District- Aligarh, belongs to Harijan Jatav caste. On 04.07.1996, Satya Narayan Das and Mahaveer Singh alias Manavdas (babas) came to his village to the house of Raju son of Mahaveer, since the younger brother-in-law (devar) of the complainant had gone missing and had not returned home, she asked the above two as to whether her devar could possibly come back home, responding to this both of them told that for this purpose some ritual needs to be performed and asked the complainant to come the next day with a virgin girl after giving her a bath. Following the directions of the aforesaid accused persons, the complainant on 05.07.1996, took her daughter Pushpa aged 15 years and along with her mother-in-law Champa Devi, reached the house of Raju son of Mahaveer where the accused persons (both Babas) were present. It was about 12 in the day as they asked her daughter Pushpa to put some water in the plant of Tulsi and when it was done they asked the complainant and her mother-in-law to stay back outside the kothari and they began to chant some mantras and after a while they closed the door, on being suspicious the complainant opened the door only to witness that both the accused persons were raping her daughter one by one and a cloth was gagged in the mouth of her daughter and both of her hands were tied, seeing this the complainant raised alarm, hearing which her husband Resham Pal, Narendra Pal Singh and Moti Ram came there, seeing this the accused persons tried to flee but they were caught and brought to the police station.

6. After lodging of the FIR with the police, the investigation proceeded in accordance with law. The victim was referred for her medical examination which was conducted on 05.07.1996, at Mohan Lal Ganj Women Hospital at 2145 hours. In her external examination, no mark of any injury on external aspect of the body was found, axillary and pubic hair were developed, and breast mildly developed. On her internal examination, vagina admitted one finger easily, hymen was old torn, vaginal smear slides were prepared and X-ray was advised for age determination. On the aforesaid tests, age of the victim was reported to be about 17 years and no definite opinion about rape was given by the Doctor, however, spermatozoa were seen in the vaginal smear. The place of occurrence was inspected by the Investigation Officer and site plan was prepared. The investigation culminated into filing of police report in the shape of charge sheet.

7. After filing of charge sheet, necessary statutory compliance was ensured by the court of first instance and since the offence against the accused was exclusively triable by the court of Sessions, the case was committed to the Court of Sessions.

8. The learned Trial Court after hearing the parties and perusing the evidence, framed charge against appellants for the offences under Section 376 and 120-B IPC and section 3 (2)(v) of the SC and ST Act, who abjured the charges and claimed trial.

9. To substantiate the charge, the prosecution has examined as many as five witnesses, out of which PW-1 Smt. Shanti Devi, the first informant and PW-2 Pushpa Devi, the victim are the witnesses of fact and remaining three witnesses namely Dr. Gyanendra Kumar, Senior Radiologist (PW-3), Dr. S. Laturia (PW-4), and Virendra Kumar Mishra, CO the Investigation Officer (PW-5) have been examined as formal witnesses.

10. PW-3 Dr. Gyanendra Kumar, Senior Radiologist has proved X-ray report regarding the determination of age of the victim as (Ext. Ka-2). PW-4 Dr. S. Laturia has proved medical report and supplementary medical report as (Ext. Ka-3 and 4) respectively regarding the medical examination of the victim, she has stated that according to the report of laboratory spermatozoa were seen in the vaginal smear of the victim and she has further proceeded to state that no definite opinion about the rape can be given. PW-5 Virendra Kumar Mishra, CO who started the investigation of the case has stated that after inspection of the spot, he prepared the site plan (Ext. Ka-5) and after his transfer, the investigation was carried out by Sri Virendra Kumar Singh, Circle Officer, who had filed charge sheet (Ext. Ka-6).

11. All the incriminating material was placed before the appellants under Section 313 Cr.P.C. so as to afford them an opportunity for rendering appropriate explanation who have discarded the prosecution version as being wrong and they have also proceeded to state that the evidence of witnesses and their complicity in the case is due to enmity.

12. Defence has examined no witness.

13. Learned Trial Court after conclusion of the trial, convicted the appellants under Section 376 (2)(g) IPC and Section 3(2)(v) SC and ST Act, and awarded them the aforesaid sentences.

14. Hence this appeal.

15. Learned counsel for the appellants has limited his argument only to the quantum of sentence and not on merits and has argued that the appellants in the present case are not named in the FIR and their names came into light only during investigation. It has been further argued on behalf of the appellants that they have not been charged with the offence of rape but the allegation against them is that of catching hold of the victim and of putting cloth in her mouth and reference in this regard has been drawn to the statement of PW-1 complainant-mother of the victim and PW-2 victim herself. It has been further argued that there is no evidence against the appellants for the offence under Section 376(2)(g) IPC or Section 3(2)(v) SC and ST Act, therefore, the extreme sentence which has been awarded to the appellants cannot be sustained in the eye of law and learned counsel for the appellants has relied upon the judgment of Hon’ble Apex Court reported in (2006) 6 SCC 18 in the case of State of M.P. Versus Jaleel Khan and another and also the judgment of this Court passed in Criminal Appeal No. 342 of 2007, in the matter of Rajesh Singh and another versus State of U.P. in support of his contention.

16. Per contra, learned Additional Government Advocate, has submitted that the learned Trial Court has rightly convicted the appellants as the evidence of the victim of the offence and other evidence adduced by the prosecution was wholly reliable and appropriate sentence is the discretion of the Court .

17. Though the finding of fact has not been challenged, but being the court of first appeal, we have carefully scrutinized the evidence of the victim (PW-2) and other evidence adduced by the prosecution during trial

In this case two witnesses of fact were examined by the Prosecution which are PW-1 Shanti Devi complainant (mother of the victim) and PW-2 victim of the offence. We have examined the statement of victim (PW-2), she has specifically stated that at the time of incident accused-appellants have committed rape with her when she had gone to Raju’s house with her mother and grand mother to know from Mahatmas (accused persons) whether her uncle who had gone somewhere and was untraceable, could come back home, these Mahatmas/ accused persons made her mother and grand mother sit outside while taking her inside the room and after closing the door raped her and when her mother opened the door of the room and came inside, she raised alarm on which villagers came there and some accused fled away but accused Satya Narayan and Mahaveer were caught there. She has further proceeded to state that thereafter she went to the police station with her mother and other people wherefrom she was taken for medical examination.

PW-1 Smt. Shanti Devi mother of the victim has corroborated the evidence of victim (PW-2), she has clearly stated that accused persons (babas) made her sit outside and after taking her daughter inside the room, closed the door and on being suspicious she opened the door only to witness that her daughter was lying unconscious, half nacked from lower part with her hands and feet tied and mouth gagged with cloth, seeing her accused persons came out, accused Mahaveer and Satya Narayan were caught on the spot, thereafter report was lodged at the police station and then she took her daughter for medical examination. No material discrepancy could be pointed out or established in the cross-examination of victim (PW-2) or her mother (PW-1), their evidence has all through been consistent.

PW-4 Dr. S. Laturia who examined the victim has stated that spermatozoa were seen in the vaginal smear. In the supplementary support it is also mentioned that as per pathological report, the victim seems to have undergone recent intercourse. The finding recorded by the learned Court below are justified on the basis of material available on record. The Court below has rightly appreciated the evidence.

18. The findings have been scrutinised by this Court being a Court of Ist Appeal by way of abundant caution and we agree with the findings recorded by the learned court below.

19. It has been submitted on behalf of the accused appellants that the charge has wrongly been framed by the learned trial court against the accused/appellants for the offence under section 3 (2)(v) of SC ST (Prevention of Atrocities) Act because of the fact that the prosecutrix was not sexually assaulted for being a member of a Scheduled Caste or a Scheduled Tribe community.

20. Under the facts and circumstances of the case we feel it proper to see whether the provisions of section 3(2)(v) of the SC ST (Prevention of Atrocities) Act are attracted in this case ?

21. Section 3 (2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 reads as under :-

“3(2) whoever, not being a member of Scheduled Caste or Schedule Tribe-

(v) 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 on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine”

22. For applicability of Section 3 (2) (v) SC ST Act, it would be appropriate to have a glance over the decision in Dinesh @ Buddha v. State of Rajasthan, AIR 2006 SC 1267 (para 15, 16). The observations of the Hon’ble Apex Court are extracted here below :

“15. Sin qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.

16. In view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the sentence provided in Section 376(2)(f), IPC does not per se become life sentence”.

23. Hon’ble Supreme Court in Ramdas and Ors. V. State of Maharashtra, (2007) 2 SCC 170 (para 11) 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 Scheduled 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 Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was prehaps 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 Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside.”

24. Nowhere it has been mentioned in the F.I.R. that the prosecutrix was subjected to sexual assault for the purpose of insulting or humiliating her because of the fact that she belonged to a Scheduled Caste or Scheduled Tribe community and more so, it has not been stated by the prosecutrix (PW-2) in her statement that she was subjected to sexual assault because of being member of SC ST community. PW-1 has also not stated that her daughter was victimised for the reason of her being a member of SC ST community. Hence Section 3 (2) (v) of The Scheduled Castes And The Scheduled Tribes (Prevention of Atrocities Act, 1989) has no application. This Section SC/ST Act does not provide for any substantive offence. It only provides for enhanced punishment when an offence is committed under the conditions enumerated in this section. If any offence is found to have been committed under the conditions mentioned in Section 3(2) (v) of the SC ST Act then only accused/appellants would be liable for enhanced punishment of imprisonment of life. This is pertinent to mention that Section 3(2)(v) of SC ST Act is not a substantive offence nor it is an independent offence.

25. In view of the facts, we are of the considered opinion that finding recorded by the court below for offence charged under section 3(2)(v) of the SC and ST Act against the appellants, can not be sustained.

26. In view of the facts and circumstances of the case, we are of the considered view that in absence of direct and cogent evidence that the offence of gang rape was committed with the prosecutrix for the simple reason that she belonged to Scheduled Caste or Scheduled Tribe community, as such the imprisonment for life awarded with the assistance of section 3(2) (v) of the SC and ST Act, can not be sustained and the quantum of sentence awarded appears to be exorbitant and warrants reconsideration.

27. Learned counsel has submitted on behalf of the appellants that appellants are old persons, appellant Ratan Lal being about 65 years of age and appellant Vishambhar Dayal about 50 years of age and they have been incarcerating in jail for many years and they have responsibility of maintaining their families.

28. It is settled proposition of law that the punishment awarded to the accused appellants should neither be lenient nor it should be harsh one. It is always the duty of the court to weigh and evaluate aggravating and mitigating circumstances and then appropriate sentence should be awarded for the offence which should meet the ends of justice. The legislature has provided minimum sentence of ten years which is extendable to imprisonment for life.

The legislature has also provided a safeguard that adequate and special reasons should be mentioned in the judgment to impose sentence less than ten years in appropriate cases. In view of the legislative provisions, we are of the considered opinion that in the facts and circumstances of the instant case, sentence of rigorous imprisonment of ten years would satisfy the ends of justice and would be appropriate sentence.

29. In view of the aforesaid discussion, we are of the considered opinion that the finding of conviction recorded by the learned trial court for the offence under section 376 I.P.C. does not require interference.

30. Accordingly, this criminal appeal is partly allowed. Conviction of the appellants under section 376 (2) (g) I.P.C. read with section 3(2)(v) SC ST Act is hereby modified under section 376 (2)(g) I.P.C. and sentence of imprisonment for life is hereby modified and reduced to rigorous imprisonment for a period of ten years. No interference is made with respect to the sentence of fine. The accused appellants shall be entitled for commutation of sentence as per provisions of law.

31. The copy of this judgment and order alongwith record of the lower court be transmitted forthwith to the learned trial court for compliance.

(Mahboob Ali,J.) (Rajesh Dayal Khare,J.)

Order date : 06.02.2018

Ujjawal