Rajesh Kumar Kurmi vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Shri Dinesh Kumar Sharma, learned counsel for the appellant, and Shri Chandra Shekhar Pandey, learned AGA for the State, were heard at length.

Under challenge in the instant criminal appeal is the judgment and order dated 11.04.2007 passed by Additional Sessions Judge, Court No. 2, Sitapur, in Sessions Trial No. 323 of 2000 arising out of Case Crime No. 341 of 1999 whereby the present appellant Rajesh Kumar Kurmi was convicted and sentenced as under:--

"(i) Under Section 363 IPC- Five years'' rigorous imprisonment and fine of Rs. 2000/- with default stipulation of four months'' additional imprisonment.

(ii) Under Section 366 IPC- Eight years'' rigorous imprisonment and fine of Rs. 3000/- with default stipulation of six months'' additional imprisonment.

(iii) Under Section 376 IPC- Ten years'' rigorous imprisonment and fine of Rs. 4000/- with default stipulation of eight months'' additional imprisonment.

(iv) Under Section 3 (2) (v) of the SC/ST Act - Imprisonment for life and fine of Rs. 4000/- with default stipulation of eight months'' additional imprisonment."

All the sentences were directed to run concurrently.

In brief, the case of the prosecution was that the complainant Mathura Prasad lodged a first information report at police station Kamlapur, District Sitapur on 26.12.1999 at 08.10 AM alleging therein that his minor daughter aged about 14 years (hereinafter referred to as ''victim'') was missing from 15.11.1999 from 08.00 PM. He searched for his daughter but when her whereabouts could not be traced out then on 20.11.1999, he gave an information of missing of the victim at police station Kamlapur and also continued the search of the victim. By his efforts, he came to know that the victim has been enticed away by Rajesh Kumar Kurmi, who was servant of his cousin Ishwardeen.

On the basis of this information, the first information report was lodged and investigation proceeded. The victim was recovered on 11.02.2000 and she was medically examined on the same day at 01.25 PM. According to the medical examination report, her height was 148 cm, weight was 40 kg, axillary and pubic hairs were present. On internal examination, no mark of injury on private parts was seen. On PV examination, vagina admitted two fingers easily. Hymen was torn, old and healed. Uterus was small in size. Vaginal smear slides were prepared and sent for pathological test and the victim was referred for X-ray examination for determination of her age. On the basis of the aforesaid tests, the age of the victim was reported to be about 17 years and no definite opinion regarding sexual assault could be given.

After completing the investigation, charge sheet was filed against the appellant.

The case of the defence was of his false implication and that the complainant Mathura Prasad used to ask him to plough his field in the night which was refused by him, therefore, he has been falsely implicated.

In order to prove its case, the prosecution has examined PW-1 Mathura Prasad - the complainant, PW-2 the victim, PW-3 Dr. O.P. Pandey, Radiologist, who has prepared the X- ray plate of the victim, PW-4 Head Constable Rajendra Prasad Verma, who has prepared Chik Report and GD of this case, PW-5 Dr. Deepa Sharma, who has medically examined the victim.

No evidence in defence was adduced on behalf of the appellant.

After appreciating the evidence on record, learned trial court has convicted the appellants, as above, hence, the aforesaid criminal appeals.

Learned counsel for the appellant has submitted that he does not want to challenge the conviction of the appellant and has restricted his argument on the point that according to the admitted case of the prosecution, the offence would not fall within the purview of Section 3(2)(v) of the SC/ST Act and the learned trial court has committed error of fact and law in convicting the appellant separately under Section 3(2)(v) of the SC/ST Act and also inflicted imprisonment for life and fine for the said offence. He has submitted that the offence does not come within the ambit of Section 3(2)(v) of the SC/ST Act because the offence is not alleged to have been committed as the victim was a member of scheduled caste. So he has only restricted his argument on the point of sentence.

Learned AGA has submitted that the learned trial court by a reasoned judgment has convicted the appellant and the impugned judgment needs no interference.

It is true that PW-1 Mathura Prasad was not a witness of any fact. He lodged the first information report with a considerable delay. But in such nature of cases, it is the evidence of the victim that assumes highest importance. Her evidence stands on higher pedestal than the evidence of an injured witness. If the sole testimony of the victim is found reliable then the same may be made basis for conviction. It is true that no positive finding in the medical examination of the victim was recorded. Though learned counsel for the appellant has not challenged the conviction but in spite of that, being the Court of first appeal, we have gone through the entire evidence of all the witnesses and also the impugned judgment. After careful perusal of the same, we are of the considered opinion that the conviction recorded by the learned trial court was in accordance with law and by no stretch of imagination it can be said to be a wrong conviction. The victim in her evidence has stated that the appellant on the pretext of getting her marriage settled with some suitable match had taken her away from her house. On a tractor, she was taken to Lucknow. On the next day, she was taken on a jeep. She has also stated that rape was committed by the appellant with her. She was also threatened that in case she will disclose this incident to anyone then she shall face dire consequences. At every place of stay the appellant committed rape with her. Because of the pressure of the police, the appellant left her at a crossing near Mandiyaon police station. The victim was cross examined but nothing material could be elicited in her evidence to create doubt regarding reliability of her evidence. However there is absolutely no allegation in the evidence of the victim that the offence was committed by the appellant because of the caste discrimination or to insult the victim for the reason that she was a member of the scheduled caste. So we are satisfied on this point that the offence of taking away of the victim and committing rape by the appellant stand proved and the learned trial court has not committed any illegality in the same. But as regards the conviction of the appellant under Section 3(2)(v) of the SC/ST Act is concerned, we are of the view that the conviction for the said offence was absolutely uncalled for. Apart from it, learned trial court has separately convicted the appellant for the offence under Section 3(2)(v) of the SC/ST Act. Section 3(2)(v) of the SC/ST Act does not provide any substantive offence but it only provides for an enhanced punishment whenever an offence is committed and the conditions mentioned in the aforesaid section are fulfilled. At this juncture, we would like to go through Section 3(2)(v) of the SC/ST Act, which 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 appreciation of the commission of the offence under Section 3(2)(v) SC/ST Act, it would be appropriate to have a glance over the Dinesh @ Buddha v. State of Rajasthan, , AIR 2006 SC 1267. 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 Ors. v. State of Maharashtra, , (2007) 2 SCC 170 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 perusal of above proposition of law, it is clear that for the application of Section 3(2)(v) of the SC/ST Act, it is essential that the offence should have committed because the victim belongs to a SC/ST community with the intention to denigrate her position as being the member of the SC/ST community. Nowhere the evidence to this effect has been led that the prosecutrix was victimized because she belonged to the SC/ST community. On the contrary, appellant wanted to marry her. In absence of such evidence we are of the considered opinion that the conviction of the appellant under Section 3(2)(v) of the SC/ST Act was against law.

No documentary evidence on the point of age of the victim was filed and radiological age of the victim was reported to be 17 years. If the variation of one year is taken then her age comes about 18 years. So, in our considered opinion, a sentence of eight years would be adequate for the offence under Section 376 IPC. The conviction for other offences also deserves to be confirmed but we are of the view that in default of payment of entire fine amount imposed for different offences, the appellant should be directed to suffer three months'' additional imprisonment in place of what has been imposed by the learned trial court.

Thus, this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of the appellant under Section 3(2)(v) of the SC/ST Act is hereby set-aside. The sentence for the offence under Section 376 IPC is hereby reduced to eight years from 10 years. The conviction and sentence for the other offences is also hereby confirmed but the imprisonment which the appellant has to undergo in default of payment of entire fine amount is hereby reduced to three months in place of what has been inflicted by the learned trial court for different counts. All the sentences shall run concurrently. The appellant is in custody. He shall serve out the sentence as modified by this Court.

Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.