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2020 Supreme(All) 551
IN THE HIGH COURT OF ALLAHABAD
PANKAJ NAQVI, SAURABH SHYAM SHAMSHERY, JJ.
Imshad – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 3609 of 2009
Decided On : 05-06-2020
Advocate Appeared:
For the Appellants : M.P.S. Chauhan, Anil Kumar.
Point of Law:
The object of Section 3(2)(v) of the Act is to provide for enhanced punishment with regard to the offences under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property knowing that the victim is a member of a Scheduled Caste or a Scheduled Tribe.
Headnote:
Criminal Procedure Code – Section 374(2) – SC/ ST Act – Section 3 – Indian Penal Code, 1860 – Section 376 – Rape – This is an appeal under Section 374(2) Criminal Procedure Code preferred by accused/appellant, challenging judgment and order whereby he stands convicted under Section 376 IPC/Section 3(2)(V) of SC/ST Act and sentenced for life with fine and a default sentence of two years in Sessions Trial by Additional District and Sessions Judge/Special Judge/SC/ST Act, Fast Track Court – Held, No case is made out against the accused-appellant under Section 3(2)(V) of SC/ST Act, he is languishing in jail since 6.2.2008 (i.e. more than 12 years), further he was about 20 years at the time of occurrence and today he is about 34 years and no other criminal history is reported, Court, therefore, modify the sentence under Section 376 IPC to sentence already under gone – Prosecution has not brought any evidence on record which could even suggest that accused committed offence of rape, only for the reason that the victim was a member of Schedule Caste or Schedule Tribe as the accused had no prior acquaintance with the victim – Conviction under Section 3(2)(V) of SC/ST Act is not sustainable, liable to be set aside – Appeal Partly Allowed (Paras 25, 29, 30)
Facts of the Case:
First informant, Shiv Dhara (PW-2), mother of victim lodged a written report (Ex.Ka-1) at Police Station Saasni Gate, Aligarh on 17.1.2005 at about 9:40 AM against an unknown under Section 376 IPC, that she was a resident of Mohalla Sarai Rajaram, P.S. Saasni Gate, Aligarh. On 16.1.2005 (a day before), about 4 PM while her daughter (victim), aged about 9 years was playing in the mohalla, an unknown person allured her to first floor of a vacant and dilapidated house of one Karmesh Chand Maheshwari at Pathak Street of Mohalla Jayganj and committed rape. Victim told her about the mishap in the night of 16.1.2005
Finding of the Court:
No case is made out against the accused-appellant under Section 3(2)(V) of SC/ST Act, he is languishing in jail since 6.2.2008 (i.e. more than 12 years), further he was about 20 years at the time of occurrence and today he is about 34 years and no other criminal history is reported, Court, therefore, modify the sentence under Section 376 IPC to sentence already under gone – Prosecution has not brought any evidence on record which could even suggest that accused committed offence of rape, only for the reason that the victim was a member of Schedule Caste or Schedule Tribe as the accused had no prior acquaintance with the victim – Conviction under Section 3(2)(V) of SC/ST Act is not sustainable, liable to be set aside.
Result: Appeal Partly Allowed
JUDGMENT :
SAURABH SHYAM SHAMSHERY, J.
1. This is an appeal under Section 374(2) Criminal Procedure Code (Cr.P.C.) preferred by accused/appellant Imshad, challenging the judgment and order dated 15.4.2009 whereby he stands convicted under Section 376 IPC/Section 3(2)(V) of SC/ST Act and sentenced for life with fine of Rs. 50,000/- and a default sentence of two years in Sessions Trial No. 729/2005, by Additional District and Sessions Judge/Special Judge/SC/ST Act, Fast Track Court No. 4, Aligarh, Uttar Pradesh.
2. PROSECUTION CASE:
(i) First informant, Shiv Dhara (PW-2), mother of victim lodged a written report (Ex.Ka-1) at Police Station Saasni Gate, Aligarh on 17.1.2005 at about 9:40 AM against an unknown under Section 376 IPC, that she was a resident of Mohalla Sarai Rajaram, P.S. Saasni Gate, Aligarh. On 16.1.2005 (a day before), about 4 PM while her daughter (victim), aged about 9 years was playing in the mohalla, an unknown person allured her to first floor of a vacant and dilapidated house of one Karmesh Chand Maheshwari at Pathak Street of Mohalla Jayganj and committed rape. Victim told her about the mishap in the night of 16.1.2005.
(ii) Accordingly, an FIR (Ex.Ka-2) was lodged and investigation commenced. Investigation Officer inspected the place of occurrence on 17.1.2005, collected bed-sheet, blood stained pillow cover, three portion of cotton mattress and a torn white cloth having blood clots and also recovered blood stained green undergarment and one cream coloured pant. Recovery memos were prepared in presence of witnesses namely Dharmendra Kori and Satya Prakash.
(iii) Victim was medically examined on 17.1.2005 at about 2:45 PM at MIG-4, Government Hospital, Aligarh by Dr. Suneeta Sagar (PW-4). Details of medical examination are as follows:
“External Examination - Height 4' 1” Wt. 23 Kg, Teeth - 12/12, Breast do not developed. No mark on injury present on any part of body.”
“Internal Examination - There is an injury present on private part. Hymen fresh torn at 6'O clock position. There is perineal tear present at 6'O clock position, muscle deep, about 2 c.m. long. Vaginal swab taken for pathological examination for spermatozoa and for age, adv. X-Ray of right hand for Carpal bones.”
(iv) Medical Officer, MIG Government Hospital issued supplementary medical report dated 1.2.2005 of the victim. Details of which are as follows:
“X-Ray report - Done at M.S. Hospital, Aligarh, dated 18.1.2005.
X-Ray Rt. Hand - AP Lat - The centre of pisiform bone has not appeared.
Pathology report - Done at M.S. Hospital. Dead spermatozoa seen.
From above report the age of girl is about 8 years (Eight) and probability of rape is there.”
(v) On completion of investigation, the I.O. submitted a charge sheet dated 18.2.2005 against the accused/appellant under Sections 376 IPC and 3(2)(V) SC/ST Act, on which cognizance was taken, case committed to Sessions and charges framed under abovementioned Sections on 19.4.2005, to which the accused pleaded not guilty and claimed trial.
(vi) In support of its case, prosecution examined victim (PW-1), Smt. Shiv Dhara/mother of the victim (PW-2), Shri Kunwar Pal Singh/subsequent Investigating Officer (PW-3) and Dr. Suneeta Sagar (PW-4).
3. PROSECUTION WITNESSES:
(i) Victim (PW-1), aged 11 years (at the time of examination) was found to comprehend and possess competence to understand questions on the issue, examined by the trial court on 1.4.2008. She supported the prosecution case that she was allured by the accused for Rs. 20/- taken to a secluded place and was subjected to rape. She shouted but none came to rescue her. She narrated the incident to her mother, when she came back from work. She denied prior acquaintance with the accused. She recognized the accused when he came to hospital along with police for his medical examination while she was admitted in the hospital. She recognized the accused in the Court also. She was subjected to detail cross-examination but remained un-shattered and consistent to the case o
