Mukesh vs State of U.P.

The accused-Appellant Mukesh has filed this appeal against the judgment and order dated 28.11.2006, passed by Sri Subodh Kumar then Special Judge, S.C./S.T. Act, Meerut in, State v. Mukesh S.T. No. 1347 of 1995.

The prosecution case starts with a F.I.R. lodged by Smt. Durgesh wife of Preetam Singh Harizan resident of mohalla Rajiv Gandi Nagar, Meerut at Police Station, Medical, Meerut on 25.12.1994 at 9.40 a.m. It is stated therein that the accused-Appellant Mukesh son of Moolchand Rajpoot resident of Prabhat Nagar near Kali Mandir, P. S. Civil Lines, district Meerut used to visit her house, and on 24.12.1994 the accused kidnapped her daughter Mukesh alias Ladi aged about 14 years and Boby aged about 15 years who is daughter of her neighbour Mahesh Chauhan. He had kidnapped both these girls at about 5.00 p.m., and witnesses Shiv Singh and Peetam Singh had seen the accused Mukesh taking both these girls towards Victoria Park through Jail Chauraha.

The police on the basis of above report registered the case u/s 363/366, I.P.C. and 3(1)(xii) of the S.C./S.T. Act, against Mukesh. It is alleged that on 26.12.1994 the police, on receipt of a clue from an informer that the accused alongwith above noted two girls was coming towards Garhroad near Ambedkar School, reached that place and recovered both the girls from possession of the accused Mukesh.

Both the girls after their recovery stated that the accused Mukesh had ravished them against their will. They were medically examined but no injuries were found either on their body or on their private parts. They were found habitual of sexual intercourse. The age of both these girls was assessed to be 16 years on the basis of X-ray reports.

The police, after completion of investigation submitted a charge-sheet against the accused under Sections 363, 366 and 376, I.P.C. and u/s 3(1)(xii) of S.C./S.T. Act. The accused was charged under Sections 363, 366 and 376, I.P.C. and also u/s 3(2)(v), S.C./S.T. Act. The accused pleaded not guilty, and the trial court, after hearing of the case, reached the conclusion that the charges u/s 366/376, I.P.C. and Section 3(2)(v), S.C./S.T. Act were sufficiently proved against the accused. He therefore, convicted the accused for these offences and sentenced him to 8 years R.I. and to fine of Rs. 5,000 u/s 366, I.P.C. to a sentence of 10 years R.I. and fine of Rs. 5,000 u/s 376, I.P.C. and to life imprisonment and fine of Rs. 5,000 u/s 3(2)(v) of the S.C./S.T. Act. It was further provided that in case of default in payment of fine the accused shall have to undergo simple imprisonment of one year for each charge. It was further observed that the period already spent by the accused in jail shall be adjusted towards the sentence. Aggrieved with the above judgment and order the accused filed this appeal.

We have heard Sri T. K. Mishra, learned Counsel for the Appellant and learned A.G.A. for the State.

Learned Counsel for the Appellant first of all submitted before us that Section 3(2)(v) of the S.C./S.T. Act, does not constitute any substantive offence because whatever is provided in Sub-clause (v) of Section 3(2) of the S.C./S.T. Act is that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code 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 Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. He submitted that the above provision of Section 3(2)(v) of the Act does not constitute any separate offence as the only provision is that the person guilty of an offence punishable with imprisonment of 10 years or more under the Indian Penal Code shall be liable to enhanced sentence of life imprisonment u/s 3(2)(v) of the Act. In support of this contention he cited before us a Division Bench ruling of this Court in Ramesh v. State of U.P. LXIV (2009) ACC 868: 2009 (1) ACR 1019, in which the same view has been taken and it has been observed that the accused-Appellant could not be separately convicted u/s 3(2)(v) of the S.C./S.T. Act.

It was further argued by the learned Counsel for the Appellant that for attracting the provisions of Section 3(2)(v) of the S.C./S.T. Act, it is essential that the offence must have been committed with the victim on the ground that he was a member of a Scheduled Caste or a Scheduled Tribe as provided in the above section. He submitted that in the present case there is neither any allegation to this effect nor any evidence on record to show that the accused kidnapped or ravished the victim Mukesh alias Lade on this ground that she was a member of a Scheduled Caste or Scheduled Tribe. There is no allegation to this effect either in the F.I.R. or in the statements of the prosecutrix and other witnesses. Under these circumstances when there is no allegation to this effect that the accused committed offence of abduction and rape with the prosecutrix on this ground that she belonged to a Scheduled Caste or Scheduled Tribe, the provisions of Section 3(2)(v) of the S.C./S.T. Act are not attracted in the present case, and the accused could not be convicted u/s 3(2)(v) of the Act.

Now, we come to the charges u/s 366/376, I.P.C. It is sufficiently established from the statement of the prosecutrix Km. Mukesh alias Ladi as well as the statements of other witnesses of fact that the accused Mukesh had visited the house of the informant at the time of marriage of her elder sister as his service were taken as a Video photographer and thereafter he used to visit the house of the informant every month, and on the date of the incident when the prosecutrix had gone outside the house to take water from the pipe, the accused Mukesh met her and Boby there and enticed them, and took both of them to Delhi and ravished them. The informant, the prosecutrix Ladi and other witnesses of fact were cross-examined at length, but there is nothing in the cross-examination to disprove their testimony. Under these circumstances, we are of the view that the charges u/s 366/376, I.P.C. are sufficiently proved against the accused.

Learned Counsel for the Appellant submitted in the last that the sentence awarded to the accused is too severe and so it should be reduced.

It is to be seen that the offence u/s 376, I.P.C. is punishable with minimum imprisonment of seven years. The Appellant in the present case has been sentenced to 10 years R.I. u/s 376, I.P.C. Taking into consideration the facts and circumstances of the case, we are of the view that the sentence of 7 years R.I. u/s 376, I.P.C. would be sufficient to meet the ends of justice.

The accused has also been sentenced to 8 years R.I. u/s 366, I.P.C. Since the sentence u/s 376, I.P.C. has been reduced to 7 years R.I., we reduce this sentence also to 7 years R.I.

The trial court had provided in the concluding portion of the order that the period already undergone by the accused-Appellant shall be adjusted in the sentence awarded by the Court. It appears from perusal of the record that the accused remained confined in Jail from 26.12.1994 to 21.2.1997 and thereafter he remained in Jail from 24.4.2001 to 1.2.2002. He has been continuously in Jail from 28.11.2006 which is the date of the judgment of the trial court. The period undergone by him in the Jail shall be adjusted towards the sentence as directed by the trial court. The accused-Appellant was also sentenced to fine of Rs. 5,000 for each offence under Sections 366 and 376, I.P.C. This fine is maintained, but the period which he shall have to undergo in imprisonment in case of default in payment of fine is reduced, and the Appellant shall have to undergo six months'' simple imprisonment for each default.

The appeal is, therefore, partly allowed. The conviction of the Appellant u/s 3(2)(v) of the S.C./S.T. Act and the sentence of imprisonment and fine awarded against him for the above offence are hereby set aside and the accused is acquitted of the charge u/s 3(2)(v) of the S.C./S.T. Act. His conviction under Sections 366 and 376, I.P.C. is maintained but the period of sentence is reduced to 7 years R.I. for each of the offences. Both the sentences shall run concurrently and the period already undergone by the accused in jail during trial shall be adjusted towards the period of sentence. The order imposing fine of Rs. 5,000 for the each charge under Sections 366 and 376, I.P.C. is maintained with this modification that in case of default, the Appellant shall have to undergone six months'' simple imprisonment separately for each offence.

Let a copy of this order be certified to the lower court.