Babu Shah and Others vs State of U.P.

Raghvendra Kumar, J.—Heard learned counsel for the appellants and learned A.G.A. for the State of U.P. and perused the record.

Under assail in this appeal is the judgement and order dated 28.3.2006 passed by the Special Judge, S.C./S.T. (Prevention of Atrocities) Act, Pilibhit in S.T. No. 12 of 2004, under section 376 (2)(g) , 342 ,506 I.P.C. and section 3(2) V of SC/ST (Prevention of Atrocities) Act whereby the accused appellants, Babu Shah and Karamat have been convicted for the offence under section 341 I.P.C. and sentence to one month rigorous imprisonment and further convicted under section 506 I.P.C. and sentenced to R.I. for one year and further convicted for the offence under section 3(2) V of SC/ST (Prevention of Atrocities)Act and sentenced them to imprisonment for life and fine of Rs. 1000/- with default stipulation of additional R.I for two months.

The accused appellants, Maqbool and Sajjad alias Guddu Mistri have been acquitted for the offence under section 342 , 506 , 376 (2)(g) I.P.C. and section 3(2) V of SC/ST (Prevention of Atrocities) Act.

No appeal has been preferred on behalf of the State against the order of acquittal recorded in favour of the accused persons, Maqbool and Sajjad alias Guddu Mistri.

The brief facts leading to the institution of the case disclose that the F.I.R of the case has been lodged with the police on 20.8.2001 at 1345 hrs by Smt. Lalmati wife of Chheda Lal with respect to the incident that took place in the night (time unknown) of 19/20.8.2001.

As per the prosecution story the prosecutrix about four years back solemnised the court marriage with Chheda Lal Jatav resident of village Ajitpur Patpara, District Pilibhit. Since no issue could be born out of this wedlock, her husband used to force her to go her home, for which she went to Gajraula to lodge a report in this regard. Her return was delayed, therefore, she requested one Babu Shah of Gajraula to leave her at the residence of one Bundan Nai to whom she knew. She will pass the night there and go to her house in the morning. He took her to the house of Karamat. At about 9..0 p.m. Babu Shah and Karamat asked her to accompany them, so that she may be left at the residence of Bundan Nai. They took her to a bore well. They consumed liquor and forcibly asked her to take liquor and thereafter they terrified her and committed sexual assault. She raised alarm, then she was extended threat for life. Thereafter two other persons came there who also committed rape with her. After harassing the prosecutrix throughout night, Babu Shah left her on road on way to her village. After lodging of the F.I.R., she was medically examined. The Doctor has observed the following finding on the internal examination:

"1. There are no marks of violence or injury present on private parts of body.

Hymen old torn. Vagina admits two fingers easily.

No bleeding p/v present. No oedema, no congestion present. No tenderness present. Vagina smear was taken. Slide was prepared for histopathological examination. X-Ray was recommended. The Doctor has endorsed that no definite opinion can be given about the rape. The age of the victim is above 18 years. Clothes of the prosecutrix were taken by the police and recovery memo was prepared. The statements of the witnesses were recorded and the investigation culminated into filing of charge sheet."

The charge was framed against the accused appellants for the offence of gang rape under section 376(2)(g) , 342 , 506 I.P.C and under section 3(2) V of SC/ST(Prevention of Atrocities) Act. The appellants denied the charge and claimed the the trial on merits.

To substantiate the charge against the accused appellants, the prosecution has examined P.W.1, Phulmati prosecutrix. She has proved the execution of Tahriri report Ex. Ka.1. P.W.2 Chheda Lal who has proved the recovery memo of clothes. P.W.3, Dr. Kamla Mishra who has proved the medico legal examination report. P.W.4, Avdhesh Kumar, Investigating Officer who has proved the execution of the charge sheet. P.W.5, Sandeep Singh, S.I. who has proved the execution of Chik F.I.R and relevant entry in G.D.

The accused appellants alongwith other co-accused persons were examined under section 313 Cr.P.C.

After conclusion of trial, the trial court has recorded the finding of conviction against the accused appellants, Babu Shah and Karamat for the offence under section 341 , 506 I.P.C. And 3 (2) V;of SC/ST (Prevention of Atrocities) Act. Hence this appeal.

The accused persons, namely, Maqbool and Sajjad alias Guddu Mistri have been acquitted for the offence under section 342 , 506 , 376(2)(g) I.P.C. and section 3(2) V of SC/ST (Prevention of Atrocities) Act.

Being the court of first appeal we are obliged to scrutinise the finding recorded by the learned trial court against the accused appellants and to ensure whether the findings of conviction recorded by the trial court are substantiated from the material available on record.

Learned counsel for the accused appellants has submitted that the accused persons are in jail since the date of judgement.

Learned counsel for the accused appellants has submitted that he does not want to assail the findings of conviction recorded against the accused appellants but prayed for modification of the sentence and further prayed for leniency towards the accused appellants.

Learned A.G.A. has contended that it is an offence of gang rape committed by the accused appellants with a woman of scheduled caste/scheduled tribe and opposed the submission for modification of sentence.

It is settled proposition of law that the testimony of the prosecutrix is at par with the testimony of injured witness. She has fully supported the prosecution version. The witness has been put to lengthy cross examination. Nothing could be elicited by way of her cross examination which may be termed as material contradiction and which may affect the finding of conviction recorded by the trial court. Learned trial court has rightly recorded the finding of conviction against the accused appellants, Babu Shah and Karamat. The finding of conviction are well substantiated from the evidence available on record.

It has been submitted on behalf of the accused appellants that the offence under section 3(2) V of SC/ST (Prevention of Atrocities) Act is not made out from the material available on record.

To appreciate the submission, it would be appropriate to consider the provisions contained under section 3(2) V of SC/ST Act.

The Section 3(2) V 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"

For applicability of Section 3(2)(5) SC/ST Act, it would be appropriate to have a glance over the Dinesh @ Buddha Vs. State of Rajasthan, . The observation of the Hon''ble Apex Court are reproduced here below :

"15. Sine 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.

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."

Hon''ble Supreme Court in Ramdas and Others Vs. State of Maharashtra, 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 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 Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside."

From the above proposition of law, it is clear that for appreciation of the provisions of 3 (2) V of SC/ST (Prevention of Atrocities Act) Act it is essential that the offence should have been committed against the victim belonging to SC/ST community with intention to denigrate or insult her for being the member of SC/ST community. If the prosecutrix was not subjected to assault for the purpose of insulting, humiliating for being member of SC/ST community, then the offence under section 3(2)V of SC/ST (Prevention of Atrocities) Act would not be made out. In the instant case the prosecutrix has not made any allegation in the F.I.R. That she was subjected to sexual assault by the accused appellants or the other accused persons (who have been acquitted) because she belongs to a member of SC/ST community and she was sexually assaulted with a view to humiliate or to insult her for being member of a particular community. The prosecutrix has not stated in her statement that she was victimised for being a member of SC/ST community. In absence of direct and cogent evidence, the conviction for the offence under section 3(2) V of SC/ST Act can be recorded.

Before parting with the judgement, we think it necessary to observe that section 3(2)V of SC/ST Act is not a substantive offence but it only provide for enhanced punishment when the offence is committed under the conditions enumerated in the section. If any offence is found to have been committed under the condition mentioned in the section 3(2) V of SC/ST Act then only the accused appellants could be liable for the enhanced punishment of imprisonment for life. The offence under section 3(2) V of SC/ST Act is not substantive offence and is not an independent offence.

It has always been philosophy of sentencing that the punishment or sentence awarded should not be harsh one or it should not be lenient. The punishment should always be appropriate to the gravity of the offence. The Legislature has provided minimum sentence for a term which which shall not be less than ten years for the offence alleged in the case in hand. 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.

In view of above discussions, the appeal is partly allowed.

The conviction of the accused appellants, Babu Shah and Karamat for the offence under section 376(2)(g) ,341 ,506 I.P.C. is maintained.

The sentence of life imprisonment awarded against the accused appellants is modified and reduced to the period of ten years rigorous imprisonment for the offence under section 376 (2)(g) I.P.C. Rest of the sentence awarded against the accused appellants, Babu Shah and Karamat are maintained as awarded by the learned trial court.

The conviction and sentence passed against the accused appellants under section 3(2)V of SC/ST (Prevention of Atrocities) Act is hereby set-aside

The accused appellants are reported to be in jail. They shall be entitled to the benefit of section 428 Cr.P.C as per law.

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