Amzad VS State of U. P.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF ALLAHABAD
ASHWANI KUMAR MISHRA, SHIV SHANKER PRASAD, JJ.
Amzad – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No.5805 of 2010, Criminal Appeal No.5966 of 2010
Decided on : 22-09-2022

Advocates:
Advocate Appeared:
For the Appellant : Anurag Pathak, Amit Krishan, V.S. Parmar, Raghuraj Kishore

Headnote:
Rape - Criminal Law - Indian Penal Code, Sections 363, 366, 376 (2) (g) - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act - 3 (1) (xii), 3 (2) (V) - The judgment discusses the conviction and sentencing of the accused-appellants under various sections of the Indian Penal Code and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The court analyzed the evidence, including the victim's statement, medical examination reports, and witness testimonies, to establish the guilt of the accused-appellants. The court also addressed the addition of charges under Section 3 (2) (v) of the S.C./S.T. Act and the lack of confrontation of incriminating material to the accused-appellants, ultimately setting aside the conviction and sentence under this section.
Fact of the Case:
The case involved the kidnapping and rape of a minor girl belonging to a scheduled caste. The victim was enticed away by the accused-appellants and subjected to rape. The prosecution relied on the victim's statement, medical examination reports, and witness testimonies to establish the charges against the accused-appellants.
Finding of the Court:
The court found the accused-appellants guilty of the charges under Sections 363, 366, 376 (2) (g) I.P.C. and Section 3 (1) (xii) S.C./S.T. Act based on the evidence presented. However, the court set aside the conviction and sentence under Section 3 (2) (v) S.C./S.T. Act due to the lack of confrontation of incriminating material to the accused-appellants.
Issues: The key issues revolved around the commission of the offences of kidnapping and rape, as well as the application of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The court also addressed the addition of charges under Section 3 (2) (v) S.C./S.T. Act and the lack of confrontation of incriminating material to the accused-appellants.
Ratio Decidendi: The court relied on the victim's statement, medical examination reports, and witness testimonies to establish the guilt of the accused-appellants for the charges under Sections 363, 366, 376 (2) (g) I.P.C. and Section 3 (1) (xii) S.C./S.T. Act. However, the court set aside the conviction and sentence under Section 3 (2) (v) S.C./S.T. Act due to the lack of confrontation of incriminating material to the accused-appellants.
Final Decision: The court allowed the appeals in part, setting aside the conviction and sentence of the accused-appellants under Section 3 (1) (5) S.C./S.T. Act and Section 3 (2) (v) S.C./S.T. Act. The court sustained the conviction and sentence under Sections 363, 366, 376 (2) (g) I.P.C. and Section 3 (1) (xii) S.C./S.T. Act.

JUDGMENT :

1. Since these two appeals arise out of a common judgment and order dated 24th July, 2010 passed by the Special Judge/Additional Sessions Judge/Fast Track Court No.1, Saharanpur in Special Sessions Trial No.23 of 2006 (State Vs. Amjad) and Special Sessions Trial No. 23A of 2006 (State vs. Dalbeer), arising out of Crime No. 126 of 2005, under Sections 363, 366, 376 (2) (g) I.P.C. and Sections 3 (1) (xii) and 3 (2) (V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short “S.C./S.T. Act”), Police Station-Nangal, District Saharanpur, whereby both the accused-appellants have been convicted and sentenced them to undergo (i) four years rigorous imprisonment for the offence punishable under Section 363 I.P.C. with a fine of Rs. 3,000/- each, in default thereof, they have to further undergo six months additional imprisonment; (ii) seven years rigorous imprisonment for the offence punishable under Section 366 I.P.C. with fine of Rs. 6,000/- each, in default thereof, they have to further undergo one year additional imprisonment; (iii) 10 years rigorous imprisonment for the offence punishable under Section 376 (2) (g) I.P.C. with fine of Rs. 10,000/- each, in default thereof, they have to further undergo one year additional imprisonment; (iv) life imprisonment for the offence punishable under Sections 3 (1) v) S.C./S.T. Act with fine of Rs. 5,000/- each, in default thereof, they have to further undergo one year additional imprisonment; and (v) two years simple imprisonment for the offence punishable under Sections 3 (1) (xii) S.C./S.T. Act with fine of Rs. 2,000/- each, in default thereof, they have to further undergo three months additional imprisonment, with an observation that all the sentences are to run concurrently, both the appeal are being decided by this common Judgment.

2. We have heard Mr. Virendra Singh Parmar and Mr. Hariom Singh, learned counsel for the accused-appellants and Mrs. Archana Singh, learned A.G.A. for the State and have carefully perused the materials available on record.

3. On the basis of a written report given by the brother of the victim namely Mathuram (P.W.-2) stating that he belongs to schedule caste and his sister (victim) aged about 15 years had gone to attend natures call at about 7:00 p.m., on 23.08.2005 but has not returned and on inquiry P.W.-3 and one Vedu, son of Banarasi have informed him (P.W.-2) that the accused persons were following her and they are not available in their house and apparently have enticed the victim, who is a minor, first information report came to be lodged on 27.08.2005 at 4:10 P.M. The victim has been recovered on the same day i.e. 27.08.2006 vide recovery memo (Exh. K-1). As per the recovery memo the police party apprehended the accused-appellant Dalveer from the sugarcane field in the village itself and the victim was also found with him. The recovery has been made at 5:30 P.M. on the date of lodging of the FIR. After recovery of the victim, she was medically examined by the Doctor on the same day. The medical examination report of the victim is marked as Exhibit-Ka-8, wherein no injury has been noticed. It would be worthwhile to reproduce relevant portion of the medical examination report of the victim, which reads as follows:

“Sexual character well developed.

No mark of injury.

Vagina admits two fingers easily.

Hymen old healed torn.”

4. After medical examination of the victim, her statement has been recorded by the Investigating Officer under Section 161 Cr.P.C. alongwith other witnesses. After conclusion of the statutory investigation under Chapter XII Cr.P.C., charge-sheet came to be submitted against the accused-appellants under Sections 363, 366, 376 I.P.C. and Section 3 (1) (12) S.C./S.T. Act. The Magistrate concerned took cognizance of the charge-sheet and as the offence was triable by the court of Sessions, committed the case to it, where it was registered as Special Sessions Trial No.23 of 2006 (State Vs. Amjad) and Special Se