Shahid vs State of U. P. - 2023 Supreme(All) 479

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 479

IN THE HIGH COURT OF ALLAHABAD
KAUSHAL JAYENDRA THAKER, AJIT SINGH, JJ.
Shahid - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 5303 of 2008
Decided On : 14-02-2023

Advocates:
Advocate Appeared:
For the Appellant : S.K. Gupta, Ambrish Kumar Kashyap, Hafeez Khan, S.K. Vidyarthi, S.R. Verma.

Headnote:
Indian Penal Code, 1860 - Sections 376,375 and 363 - Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3 (2) (v) – Criminal Procedure Code,1973 - Sections 313 and 433 – Held, Court further said that courts must not only keep in view the right of victim of crime but also society at large - While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced - Judicial trend in country has been towards striking a balance between reform and punishment - Protection of society and stamping out criminal proclivity must be object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers - Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence - case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream - Court refuse sentence to that already undergone in the Jail under Section 376 of the IPC - appellant has filed listing application as the accused is in jail for more than 14 years - His case has not been considered for remission by the jail authorities though 14 years of incarceration is over and there are directions of Apex Court and this Court. Even if there is no direction of the Courts, under Section 433 of Cr.P.C – Ordered Accordingly

JUDGMENT :

1. Heard Sri Amrish Kashyap, learned counsel for the accused-appellant and learned A.G.A. for the State.

2. This appeal challenges the judgment and order dated 04.12.2007 passed by Special Judge (SC/ST Act), Kanpur Nagar in Special Sessions Trial No.670 of 2007 (State vs. Shahid) wherein the learned Special Judge has convicted & sentenced accused-appellant, Shahid, under Section 376 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') for life imprisonment and fine of Rs.10,000, further convicting under Section 363 of IPC for imprisonment 5 years rigorous imprisonment & fine of Rs.5000/- and read with Section 3 (2) (v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as SC/ST Act) and sentenced him to imprisonment for life with fine of Rs.10,000/- and, in case of default in payment of fine, further to under go one year's simple imprisonment.

3. Brief facts as culled out from the record are that Vijay Kumar, the father of prosecutrix, made a complaint to Police Station Cantt Kanpur Nagar stating that on 03.12.2006, at about 4.00 p.m., when the prosecutrix was playing outside the house, the accused-appellant, Shahid, caught her from behind, Shahid allured him into his house and started committing rape on her. On raising alarm by the prosecutrix, the informant along with his neighbours reached at the place of incident where they saw that accused was committing rape on her, accused ran away from there. It was alleged that the prosecutrix sustained injuries and the informant brought her to the Police Station.

4. After lodging of the F.I.R, the investigation was moved into motion. The prosecutrix was got medically examined. The Investigating Officer, after taking statements of witnesses, submitted charge-sheet against the accused-appellant under Section 376 of IPC and under Section 3 (2) (v) of SC/ST Act.

5. The accused was committed to the Court of Sessions as the case was triable by the Court of Session. The learned Sessions Judge framed charges on the accused. The accused pleaded not guilty and wanted to be tried.

6. So as to bring home the charge, the prosecution has examined 12 witnesses who are as under :

1.	Vijay Kumar @ Vijjan	PW1
2.	Niketa @ Annu	PW2
3.	Dr. Avnish Kumar	PW3
4.	Ajayveer Singh	PW4
5.	Jyotsna Kumari	PW5
6.	Ranveer Singh	PW6
7.	Akhlal Ahmad Khan	PW7
8.	Ajay Kumar Trivedi	PW8
9.	R.P. Gupta	PW9
10.	Vikas Ram	PW10
11.	A.M. Khan	PW11
12.	S.B. Mishra	PW12

7. In support of ocular version following documents were filed :

1.	F.I.R.	Ex.Ka.3
2.	Written Report	Ex.Ka.1
3.	Recovery memo of underwear	Ex. Ka. 9
4.	X-ray Report	Ex. Ka.10
5.	Discharge - slip	Ex. Ka. 2
6.	Injury report	Ex. Ka.5
7.	Supplementary report	Ex. Ka.6
8.	Medico Legal examination report	Ex. Ka.12
9.	Charge sheet	Ex. Ka.7
10.	Report of Forensic Science Lab.	Ex. Ka. 11
11.	Site Plan With Index	Ex. Ka.8

8. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Special Judge convicted the appellant as mentioned aforesaid.

9. As far as commission of offence under Section 3 (2) (v) of SC/ST Act is concerned, it is submitted by learned counsel that the F.I.R. nowhere states that the injured belongs to a particular community. No documentary evidence so as to prove that the injured belongs to Scheduled Caste or Scheduled Tribe was produced either before Investigating Officer or Sessions Court. No independent witness has been examined by the prosecution. It is stated by prosecutrix that she did not know the accused. P.W.1 had