# Arun Mishra v. State of U.P

- **Citation:** (2024) 8 ILRA 44
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-14
- **Case number:** Criminal Appeal No. 361 of 2021
- **Bench:** Ashwani Kumar Mishra, Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-mishra-v-state-of-u-p-52372
- **Pages:** 12

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 313 & 437-A - Indian
Penal Code,1860 - Sections 376 & 506 -
Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989 -
Sections 3(1)(XII) & 3(2)(5) - Appeal -
against conviction & sentence - accused
committed offence of rape and threats to the
informant's wife who belongs to a scheduled
caste member - FIR - offence committed on
12.09.2008 - FIR was lodged on 23.09.2008 -
victim was examined medically on 24.09.2008,
wherein no internal or external injury was found
on the private parts of the victim - in the
pathologist report of two slides of vaginal smear
show no signs of dead or live spermatozoa -
St.ments were recorded - charge-sheet -
charges were framed under section - 497 IPC &
3(1)(XII), 3(2)(v) of SC/ST Act - evaluation of
evidence - court finds that, (i) incident was
reported after 11 days which rising doubts
about
the
credibility
of
the
claims,
(ii)
inconsistencies in the victim's testimony, lack of
corroborative evidence, and no proof of rape
being committed due to caste identity, leading
to the conclusion that the prosecution failed to
establish its case beyond the reasonable doubt -
Held, - highlighting the lack of corroboration,
unexplained delay in reporting case and absence
of proof linking the crime to caste identity,
leading to the acquittal of the accused -
consequently, the conviction and sentence of
the accused appellant is reversed - Appeal is
allowed - conviction and sentence is set aside -
direction issued accordingly. (Para - 34, 35, 36,
37, 39, 40)

Appeal is allowed. (E-11)

List of Cases cited:

Patan Jamal Vali Vs the St. of Adhara Pradesh -
(2021 vil. 16 SCC 225).

## Text

_Characters 0–39,898 of 42,107. This is a partial read: ask again with offset=39898 for what follows._

44 INDIAN LAW REPORTS ALLAHABAD SERIES
quantifies Rs.10,000/- to be paid to Shri
Ashok Kumar Tripathi, Advocate towards
fee for the able assistance provided by him
in hearing of the instant criminal appeal.
The said payment shall be made to Shri
Ashok Kumar Tripathi, Advocate by the
Registry of this Court within one month
from today.
----------
(2024) 8 ILRA 44
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.08.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 361 of 2021

Arun Mishra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Aditya Yadav, Sri Mahendra Pratap, Sri
Sanjay Tripathi, Sri Shivang Tripathi, Sri
Sushil Kumar Dwivedi

Counsel for the Respondent:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 313 & 437-A - Indian
Penal Code,1860 - Sections 376 & 506 -
Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989 -
Sections 3(1)(XII) & 3(2)(5) - Appeal -
against conviction & sentence - accused
committed offence of rape and threats to the
informant's wife who belongs to a scheduled
caste member - FIR - offence committed on
12.09.2008 - FIR was lodged on 23.09.2008 -
victim was examined medically on 24.09.2008,
wherein no internal or external injury was found
on the private parts of the victim - in the
pathologist report of two slides of vaginal smear
show no signs of dead or live spermatozoa -
St.ments were recorded - charge-sheet -
charges were framed under section - 497 IPC &
3(1)(XII), 3(2)(v) of SC/ST Act - evaluation of
evidence - court finds that, (i) incident was
reported after 11 days which rising doubts
about
the
credibility
of
the
claims,
(ii)
inconsistencies in the victim's testimony, lack of
corroborative evidence, and no proof of rape
being committed due to caste identity, leading
to the conclusion that the prosecution failed to
establish its case beyond the reasonable doubt -
Held, - highlighting the lack of corroboration,
unexplained delay in reporting case and absence
of proof linking the crime to caste identity,
leading to the acquittal of the accused -
consequently, the conviction and sentence of
the accused appellant is reversed - Appeal is
allowed - conviction and sentence is set aside -
direction issued accordingly. (Para - 34, 35, 36,
37, 39, 40)

Appeal is allowed. (E-11)

List of Cases cited:

Patan Jamal Vali Vs the St. of Adhara Pradesh -
(2021 vil. 16 SCC 225).

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This appeal is directed against
judgment and order of conviction and
sentence dated 8.1.2021, passed by the
Additional Sessions Judge (Court No.2)/
Special Judge, SC/ST Act, Mahoba in
Special Case No.29 of 2009 (State Vs.
Arun Mishra), arising out of Case Crime
No.1596 of 2008, Police Station Kulpahar,
District Mahoba, whereby the accused
appellant Arun Mishra has been convicted
and
sentenced
to
rigorous
life
imprisonment
alongwith
fine
of
Rs.20,000/- under Section 376 IPC read
with Section 3(2)5 SC/ST Act and on
failure to deposit fine to undergo additional
simple imprisonment for two months.

2. Informant in the present case
belongs to scheduled caste and is a resident
8 All. Arun Mishra Vs. State of U.P.
45
of
Village
Rikhwaha,
Police
Station
Kulpahar,
District
Mahoba.
Accused
appellant was a Watcher in the forest and
had engaged several ladies and gents of the
village for afforestation work at Badarwara.
Informant and his wife (victim) were also
engaged in the project. On 12.9.2008 the
plantation work on one side got over but
some of the trees were still left to be
planted by the informant's wife for which
the accused detained the victim. Other
ladies were allowed to go. At about 12.00
in the afternoon when the victim was going
towards other ladies, she was grabbed by
the accused appellant, who laid her on the
ground and by extending threat subjected
her to sexual assault. Informant's wife
(victim) out of fear did not inform other
ladies, but on her way back to home she
told about the incident to her brother-in-law
(Jeth) namely, Ganpat (not produced). On
reaching home she informed of the incident
to informant but due to threats it was not
discussed.
Two
days
later
accused
threatened informant's wife to give him her
silver belly chain (half-peti) or else he
would kill the entire family. Under threat
the victim gave her silver belly chain to the
accused without telling it to her husband.
When the informant came to know of the
incident, he asked the accused to return the
silver belly chain or else he would report
the incident. On this the accused returned
the silver belly chain. The informant
accordingly has come to lodge the report.
The report was not lodged earlier due to
threat. The written report has been made on
23.9.2008 by the informant Pyarelal (PW1). The report was scribed by Dashrath
Kumar, Advocate (PW-5). On the basis of
the above information, in respect of the
offence committed on 12.9.2008 at 12.00 in
the afternoon, the FIR got lodged on
23.9.2008 at 20.30 hours, under Sections
376, 506 IPC read with Section 3(1)(XII)
of SC/ST Act, at Police Station Kulpahar,
District Mahoba.

3.

The
victim
was
medically
examined at 2.00 pm on 24.9.2008 at
District Hospital, Mahoba, wherein no
internal or external injury was found on any
part of her body. No injury was found on
the private parts of the victim, either. Two
slides of vaginal smear were prepared and
sent for pathological report. The report of
the Pathologist shows no signs of dead or
live spermatozoa. Statement of witnesses
were recorded in the matter, whereafter a
chargesheet came to be submitted against
the accused appellant on 6.10.2008 under
Section 497 IPC and 3(1)(XII) SC/ST Act.
Cognizance was taken in the matter and the
case was committed to the court of
Additional Sessions Judge (Court No.2),
Mahoba as Special Case No.29 of 2009
(State Vs. Arun Mishra). Charges were
framed on 27.9.2010 and also on 2.3.2020
under the aforesaid sections as also under
Section 3(2)(v) of SC/ST Act. The accused
denied the accusation and demanded trial.

4. During the course of trial,
documentary evidence have been adduced
by the prosecution in the form of FIR as
Ex.Ka-7; written report as Ex.Ka-1; injury
report as Ex.Ka-4, injury report as Ex.Ka-5;
supplementary
report
as
Ex.Ka-6;
chargesheet as Ex.Ka-3; and site plan with
Index as Ex.Ka-2.

5. In addition to above, during the
course of trial, informant has appeared as
PW-1 and has supported the prosecution
case. He has alleged that his wife was
sexually assaulted on account of threat
extended to her. None was present at the
place of occurrence. Informant did not
come out of house for two days as the
accused kept roaming nearby his house
46 INDIAN LAW REPORTS ALLAHABAD SERIES
armed with an axe. Two days later when
the informant had gone to Kulpahar the
accused extended threats and took his
wife's
silver
belly
chain
(Half-peti).
Accused was a Watcher in the Forest
Department. On return when the informant
came to know of it, he asked the accused to
return the silver belly chain (Half-peti) or
else he would report the matter. The
accused then returned the silver belly chain
(Half-peti). The informant alleges that he
kept visiting the police station for lodging
the report regarding rape but the same was
not lodged. Informant then took Ashok
Baudh and Dashrath, Advocate with him
only whereafter the report was lodged after
it was scribed by Dashrath, Advocate, on
his dictation. The witness has proved the
written report (PW-1). The victim was
medically examined at Mahoba.

6. In the cross-examination, PW-1 has
stated that he does not know the value of
the silver belly chain, and that the victim
had not worn the ornament while going to
work. When the ornament was not returned
by the accused, he came to Dashrath
Vakeel. By the time he came to Dashrath,
Advocate, the silver ornament was already
returned. PW-1 claimed that the silver belly
chain was given to the accused without
informing him. Accused had not taken the
silver belly chain from his house. It (silver
belly chain) was also not given to the
accused at the Jungle rather it was given
near the well. No body was present when
the ornament was given to the accused.
PW-1 has admitted that he felt extremely
annoyed when he came to know that
accused has taken his wife's silver belly
chain. His report was not lodged initially
by the police and only when he came with
Advocate Dashrath and Ashok Baudh to
the police station that his report was
lodged. Informant was not aware that
Ashok Baudh was the District President of
the Ruling Party. Ashok Baudh is also a
relative of the witness. His signatures were
obtained on the written report. On coming
out of Police Station, Dashrath, Advocate
had not informed him that accused will be
arrested or sent to jail. The silver ornament
was not produced in court. Accused is a
Government Servant working in the Forest
Department.

7. PW-1 during cross examination
admitted that on the asking of accused he
had gone for work alongwith his wife to the
forest. Accused never withheld the wages
of informant or his wife. Informant and his
wife were never thrown out of work by the
accused. Rape was not committed in his
presence. None, except his wife, was
present at the place of occurrence.
Informant was told about the incident of
rape prior to taking of silver belly chain by
the accused appellant. Though it is alleged
that
the
informant
had
visited
the
concerned authorities on the next day but
his report was not lodged. The complaint
typed for the purpose, however, was not
produced. It was also not given to the
Investigating Officer. He has denied the
suggestion that due to non-providing of
work a false police report was lodged
alongwith Dashrath, Advocate and Ashok
Baudh. On the date of incident Maan Singh
was working with the victim in the garden.
PW-1 was working in the garden for the
last 5-6 days. He was not having his meal
with his wife. On the fateful day also, he
told his wife that he shall work only up-till
lunch, and that he did so. He had his meal
separately while his wife had her meal
separately. He left without informing his
wife that he is leaving for home. PW-1 had
informed the scribe of report that silver
ornament was returned two days earlier and
he cannot explain why this fact was not
8 All. Arun Mishra Vs. State of U.P.
47
mentioned in the written report. He also
stated that such statement was made by him
to the Investigating Officer also and he
cannot explain why such facts are not
mentioned in his statement under Section
161 Cr.P.C.

8. Victim was produced during trial as
PW-2. She has supported the prosecution
case. It was 12.00 O'clock in the afternoon
when she was planting trees in the nursery.
Two trees were left to be planted. Accused
appellant instructed her to plant remaining
two trees and sent all the other ladies
working in the nursery. Worker Maan
Singh remained at the nursery. PW-2
informed that she is going to deliver meal
(breads) to her husband. After delivering
meals she returned for work. By the time
she returned, Maan Singh had also left.
Victim thereafter was also going towards
other ladies when accused grabbed her near
Purwaria, and pushed her. She tried to
escape but she was again grabbed by the
accused, who committed sexual assault
upon her. Accused had put clothe in her
mouth, so she could not scream. Nobody
was present there. On return she informed
about the incident to her brother-in-law
(Jeth) Ganpat and later told about the
incident to her husband. Two days
thereafter the accused took her silver belly
chain. The report was lodged by her
husband two days later.

9. In the cross-examination, PW-2
stated that her husband was the only male
member working there. Prior to plantation
in the nursery she had not gone for work
anywhere else. On the date of incident her
husband was not present. She had given
meal to her husband 10 minutes prior to the
interval. As soon as PW-2 gave the meal to
her husband he told her that he was not
having his meal there, although prior to the
incident he used to have his meal with her.
She used to go for work with her husband
and return together. She had seen her
husband leaving from the place of work.
She did not inform accused appellant that
her husband would not return for work after
12.00 O'clock. She asserted that accused
was with him for half an hour and
committed rape once.

10. In her further cross-examination,
PW-2 stated that while returning on the
date of incident she met Ganpat and told
him about the incident. PW-2 has denied
the suggestion that she was seen with the
accused by Ganpat. Two days later her
silver ornament had been taken by the
accused. She used to obey the accused as
he would threaten her with an axe. Accused
never threatened her in presence of her
husband. Silver belly chain was taken by
the accused by threatening her with axe.
She told her husband about giving of silver
ornament two days later. Her husband told
that he would now have to go to Dashrath,
Advocate.
When
she
informed
the
Advocate about taking of silver belly chain
then the Advocate said that he would lodge
such report against the accused that he
would have to go to jail. The silver
ornament was returned after lodging of the
report. The silver ornament has now been
sold by her husband and the same is not
with her now.

11. PW-3, Brijmohan Singh was the
Investigating Officer of the case and has
proved the police papers. He recorded the
statement of various person and had filed
the chargesheet. The victim had not
disclosed him about receiving of threat by
showing
axe.
He had
recorded
the
statement of Ganpat, who did not tell him
that the incident was disclosed to him by
the victim, rather he came to know of it
48 INDIAN LAW REPORTS ALLAHABAD SERIES
after lodging of case from uncle Mukundi.
Upon investigation he did not find any
evidence of rape upon the victim.

12. PW-4 is Dr. Rashmi Sharma. She
medically
examined
the
victim
on
24.9.2008 at 2.00 pm. She has proved the
pathology report, wherein no semen has
been found. She found no signs of physical
assault or coercion.

13. PW-5 is Advocate Dashrath
Kumar who has scribed the written report.
He has stated that informant came to him
and told him about rape on his wife by the
accused, as well as threats by the accused
to the victim. He has stated that written
report has been prepared by him. In the
cross-examination PW-5 has stated that he
is working as Advocate from prior to 2008.
He has admitted that the written report was
lodged after deliberation and consultation.
He has denied the suggestion that report
has been written on his own and not on the
instructions of the informant.

14. PW-6 is Kalka Prasad Richhariya,
who was working as Helper in the forest
department. He has denied the prosecution
case and has been declared hostile.
Constable Roop Singh has been produced
as PW-7 and has proved the chick FIR and
GD entry.

15.

The
above
evidence
of
prosecution has been confronted to the
accused for recording his statement under
Section 313 Cr.P.C. The accused has
alleged the evidence to be false. He has
stated that the FIR contents are false and
have been prepared by an Advocate
purposively. The defence has produced
Maan Singh as DW-1, who has stated that
on 12.9.2008 he was working with the
victim and the informant, and that no such
incident of rape was committed by the
accused. In the cross-examination, DW-1
has admitted that he has been asked to give
evidence by the accused. He has denied
having given any statement to police that
the accused and the victim were having
close terms and used to crack jokes etc., or
that physical relations were performed by
them.

16. On the basis of above evidence
led by the parties, during the trial, the court
of sessions has convicted and sentenced the
accused appellant for the offence under
Section 376 IPC read with Section 3(2)(5)
SC/ST Act. The accused, however, has
been acquitted of the charges levelled
under Section 497 IPC read with Section
3(1)(XII) SC/ST Act. Aggrieved by the
said judgment of conviction and sentence
the accused appellant has preferred the
present appeal.

17. Learned counsel for the appellant
argues that the accused appellant has been
falsely implicated in the present case on the
persuasion of PW-5, who scribed a false
written report, on his own, just to secure
return of silver belly chain. He submits that
FIR has been lodged after consultation and
deliberation.
Learned
counsel
further
argues that the reason of discord between
the parties was giving of silver belly chain
to the accused, by the victim, for its safe
custody. It is also highlighted that in fact
the husband of victim later sold it to
someone and the victim has thus lost it for
all times to come. Argument is that since
silver belly chain was given to the accused
for its safe custody, without the knowledge
of the husband and as soon as he came to
know of it a false report has been lodged in
order to secure its return. The FIR has been
lodged with false allegation of rape,
whereas no such offence was actually
8 All. Arun Mishra Vs. State of U.P.
49
committed. It is submitted that weight of
evidence has been completely discarded
and misconstrued by the court of sessions
while
convicting
and
sentencing
the
accused appellant. Learned counsel also
argues that there is no corroboration of the
testimony of victim and the very statement
of victim clearly shows that the incident
was something else but has rather been
made out a case of rape for ulterior reasons.

18. Sri Sanjay Tripathi, learned
counsel for the informant and learned AGA
appearing for the State, however, submit
that the evidence on record clearly proves
the commissioning of offence and in such
circumstances, the finding returned by the
court of sessions merits no interference and
the appeal merits rejection.

19. We have heard Sri Sushil Kumar
Dwivedi, learned counsel for the appellant,
Sri Sanjay Tripathi, learned counsel for the
informant and Ms. Archana Singh, learned
AGA for the State and have perused the
materials brought on record.

20. The prosecution case emanates on
the written report of the informant, which
has been scribed by PW-5. The written
report is dated 23.9.2008 in respect of the
incident of 12.9.2008 at 12.00 in the
afternoon. The report is thus lodged after
eleven days of the incident. The written
report is essentially in two parts. The first
part relates to committing of rape by the
accused on the informant's wife at around
12.00 in the afternoon, which fact was
allegedly disclosed by the victim to her
brother-in-law Ganpat on the date of
incident itself. However, on account of
threats extended by the accused, no FIR
was lodged on that day. The second part of
the written report relates to threats being
extended by the accused for taking silver
belly chain from the informant's wife and
taking such ornament from the victim
without the knowledge of the informant;
demand for return of silver ornament by the
informant and the actual return of the
ornament by the accused to the informant.
Delay in filing of the FIR is sought to be
explained by contending that out of fear the
report was not lodged earlier.

21. So far as the first part of the
incident is concerned, it is admitted on
record that there is no independent eyewitness account of it. As such offences are
otherwise done in seclusion it is hard to
find an independent witness of the crime. It
is from surrounding circumstances, medical
evidence and the version of victim that the
offence can be proved. Testimony of PW-1
and PW-2 would go to show that the
informant and the victim, both, were
working in the plantation work undertaken
by the forest department. They used to come
together for work and would go back together.
However, on the date of incident i.e.
12.9.2008, the informant returned from work
at around 12.00 O'clock and did not return for
work in the later half of the day. The victim
claims that she gave meal to her husband
around lunch time but instead of having it
there, the informant returned taking his meal
with him. Other workers engaged at the
plantation also left. The victim, nevertheless,
was detained at the plantation nursery since
few trees were yet to be planted by her. Maan
Singh was the only person left behind, who
also left a little later. It is the prosecution case
that while victim was leaving towards other
ladies she was grabbed by the accused and
raped on the strength of threats. This part of
the prosecution case is based entirely upon the
statement of victim herself.

22. What transpires from the record is
that while the incident of rape was
50 INDIAN LAW REPORTS ALLAHABAD SERIES
committed by the accused appellant on the
victim, yet the victim did not report the
incident to anyone. According to the
prosecution the victim informed of the
incident of rape to Ganpat (victim's jeth)
while returning from work. Ganpat is not
produced in evidence. No reasons are
explained as to why Ganpat was not
produced. Ganpat is not even shown a
witness in the chargesheet. In this regard
the testimony of the Investigating Officer
assumes significance. He has stated that
during the investigation statement of
Ganpat was recorded, who clearly stated
that the victim never informed him about
rape, and that such fact came to his notice
on the disclosure of Mukundi uncle. This
part of the testimony of the Investigating
Officer is reproduced hereinafter:-

"मैने साक्षी गनपत जो पीड़िता का चचेरा जेठ है का
ब्यान अंडकत डकया था। उसने पीड़िता द्वारा घटना के बारे में कोई
बात बताने का बयान नहीं डिया था, बडकक यह बयान डिया था डक
बलात्कार की घटना के बारे में मुकिमा डलखाने के बाि मुकुन्िी
चाचा ने मुझे बताया था।"

23. Informant moreover has alleged
that prior to the incident of taking silver
belly chain by the accused appellant from
his wife, he was already informed of the
offence of rape. He claims that an
application was got prepared to report the
incident and he had also gone to the police
station to lodge it but the report was not
lodged. PW-1 has specifically stated that he
came to the police station on the very next
day when his wife told him about the
incident of rape. However, neither any
written report has been produced, nor its
copy
has
been
furnished
to
the
investigating
officer.
It
is
somewhat
surprising that the act of rape was not
reported by the victim to anyone including
her own husband on the date of incident or
soon thereafter. This is so as the incident
was not reported. Though it is the case of
PW-1 that the incident was informed to him
by the victim but out of fear he did not
report it to anyone. The fact that for more
than ten days no report was lodged of rape
creates doubt on the prosecution case when
no plausible explanation is offered for the
long delay.

24. As already noticed, the specific
case of the prosecution is that the incident
was reported on the date of incident itself
by the victim to Ganpat, but there is no
evidence on record to prove it, inasmuch
as, Ganpat is not produced. We have
already noticed the statement of I.O., as per
which, no such statement was given by
Ganpat to the I.O. We, therefore, find that
the prosecution evidence is lacking on the
point of disclosure of incident of rape upon
the victim to Ganpat. It is also not clear as
to when the incident of rape was reported
by the victim to her husband. The victim is
a married lady and if an act of rape is
committed upon her the natural conduct of
the victim would be to report it either to the
police or at least to some member of the
family or in whom she reposes confidence.
No evidence is led on this count.

25. The second part of the prosecution
story with regard to giving of silver belly
chain to the accused by the victim remains
shrouded in mystery. We are at a loss to
understand as to why the lady gave her
silver belly chain to the accused two days
after she was raped by him. This silver
belly chain is neither produced, nor
exhibited during trial.

26. It is admitted to PW-2 (victim)
that she did not give silver belly chain to
the accused in the forest. She also says that
the silver belly chain was not given by her
to the accused at her house, rather case of
8 All. Arun Mishra Vs. State of U.P.
51
the victim is that she gave it to the accused
near the well. Statement of victim, in this
regard, reads as under:-

"घटना वाले डिन के िो डिन बाि अपनी चााँिी
की पेटी अडि० को िे िी थी मैने स्वयं नहीं िी थी बडकक उसने
धमकी िेकर ले ली थी। अडियुक्त मुझे डजस बात के डलये
धमकी िेता था मैं उसकी वह बात कर िेती थी क्योंडक
कुकहा़िी डिखाता था। अडियुक्त मुझे इस तरह की धमकी
अकेले में िेता था पडत के सामने नहीं िेता था। अडियुक्त मुझे
केवल कुकहा़िी डिखाता रहता था मारता नहीं था। अडियुक्त ने
मुझे कुकहा़िी डिखाकर कमर की पेटी ले ली थी।"

27. So far as the accused threatening
the victim with axe is concerned, the
Investigating Officer in his statement has
clearly stated that the victim made no such
disclosure to him about accused having
extended threats of axe. This part of the
testimony of PW-2 is a clear improvement
over what was disclosed by her to the I.O.
during investigation.

28. We also find from the testimony
of PW-2 that threats were extended to her
by the accused only when she was alone.
We find this part of the version of PW-2 to
be somewhat strange inasmuch as the
consistent prosecution case is that large
number of ladies were employed for
plantation at the nursery wherein the
husband of the victim was also employed.
It is not clear as to when and how the
victim was alone with the accused at other
times such that the accused could threaten
her when such large number of workers
were engaged at the place of occurrence.
The incident of 12.09.2008 is otherwise
reported to be an isolated incident when the
victim was alone with the accused. There is
no evidence of the prosecution that on other
occasions also the victim was alone with
the accused. In such circumstances the
version of the victim of having received
threats from the accused appellant and on
account of such threats silver belly chain
being given to the accused remains
unexplained.

29. The evidence on record is
primarily on the second part of the
allegation contained in the written report
i.e. giving of silver belly chain by the
victim to the accused. PW-1 has clearly
stated that his wife gave silver belly chain
to the accused without his knowledge. He
got enraged on coming to know of it and
had even gone to lodge a report which was
not registered. It was thereafter that the
informant had gone to the Dashrath vakeel
and Ashok Bouddha. Ashok Boudhha was
the District President of the Ruling Party.
The version of PW-1, in that regard, is
relevant and is reproduced hereinafter:-

"जब अडियुक्त ने मेरी पत्नी की चांिी को पेटी
नहीं लोटाई तो मैं िशरथ वकील के पास आया था। और उनसे
यह बताया था डक अरुण डमश्रा ने मेरी पत्नी की पेटी ले ली थी
और वापस कर िी थी। िशरथ वकील साहब के पास जब
डशकायत करने गया था तब मेरी चााँिी की हाफ पेटी वापस हो
चुकी थी। पत्नी ने मुझे डबना बताये पेटी अरुण डमश्रा को िे िी
थी। इसके पहले मेरी पत्नी ने मुझे डवना बताये डकसी अन्य को
कोई जेवर नहीं डिया। अरुण डमश्रा ने मेरी पत्नी से घर आकर
पेटी नहीं ली थी। मेरी पत्नी ने पेटी जंगल में नहीं िी थी बडकक
हमारे कुआाँ पर िी थी। पेटी िेते समय गांव का कोई आिमी
मौजूि नहीं था। यह सही है डक जब मेरी पत्नी से अरुण डमश्रा
ने पेटी ले ली है तो मुझे बहुत तेज गुस्सा आ गया था। मैं पेटी
की डशकायत करने थाने नहीं गया था ररपोटट करने गया था।
िरोगा जी मेरी थाने में कई बार जाने के बाि िी ररपोटट नहीं
डलखी। डफर मैं परेशान होकर िशरथ वकील व अशोक बौद्ध
को लेकर थाने आया था। मुझे नहीं मालूम डक जब पाटी सत्ता
में थी तब वह पाटी के डजलाध्यक्ष थे। आशोक वौद्ध हमारे िूर
के ररश्तेिार है। अशोक बौद्ध व िशरथ वकील जब थाने पहुंचे
तब मेरी ररपोटट डलखी गई।"

30. Version of PW-2 is on similar
lines and is reproduced as under:-
52 INDIAN LAW REPORTS ALLAHABAD SERIES

"मैने अपने पडत को कमर की पेटी िेने के िो
तीन बाि यह बताया था डक मैने अडियुक्त को अपने कमर की
पेटी िे िी है। इस पर मेरे पडत ने कहा डक अब श्री िशरथ
वकील साहब के यहााँ चलना प़िेगा। इस पर जब मैने वकील
साहब को बताया डक अडि० हमारी चााँिी की पेटी ले गया है
तो उन्होने कहा डक अब हम ऐसी ररपोटट डलखायेंगे डक
अडियुक्त को जेल जाना प़िेगा। वकील साहब ने यह नहीं कहा
था डक तुम्हे पुडलस के सामने यह कहना प़िेगा डक अडियुक्त ने
मेरे साथ बुरा काम डकया है बडकक सही बात यह है डक
अडियुक्त ने मेरे साथ बुरा काम डकया है। मेरे द्वारा अडियुक्त के
ऊपर उक्त कायटवाही करने पर चााँिी की पेटी लौटा िी है।"

31. The Investigating Officer in his
cross-examination had admitted that he
found no proof of any rape having been
committed on the victim by the accused.
This specific statement of the Investigating
Officer reads as under:-

"सिी गवाहो के बयानात व घटनास्थल के
डनरीक्षण आडि के उपरान्त तमामी डववेचना से मैनें पीड़िता के
साथ बलात्कार होने का तथ्य मैने नहीं पाया था।"

32. We have already noticed that PW5, who is the scribe of the written report
has clearly admitted that the written report
to lodge the FIR was prepared after due
deliberation and consultation.

33. Upon evaluation of the evidence on
record, we do find substance in the argument
of the defence that in fact the victim had
given silver belly chain to the accused
appellant for its safe custody, without the
knowledge and consent of her husband.
When this fact came to the knowledge of the
informant-husband, he got annoyed and with
the intent of securing return of the silver belly
chain a written report was prepared under the
advise of an advocate so as to compel the
accused appellant to return the silver belly
chain. The statement of the victim is
categorical in this regard. In her deposition
she has clearly stated that when the advocate
was informed that accused has taken her
silver belly chain, he assured that he would
lodge such report in the matter that the
accused will have to go to Jail. She has stated
that after the proceedings were initiated
against the accused appellant, the silver belly
chain has been returned by the accused to the
victim. In the further deposition the victim
says that the ornament has been sold by her
husband. Her version, in that regard, is
extracted hereinafter:-

"मैने जब अडियुक्त को चााँिी की पेटी िी तो मुझे
डकसी िी व्यडक्त ने यह पेटी िेते नहीं िेखा था। उसने धमकी िेकर
पेटी ली थी। इस घटना के बाि अब मेरा पडत कहीं मजिूरी करने
नहीं जाने िेता है। मेरी उक्त चांिी की पेटी अब मेरे पास नहीं है मेरे
पडत ने बेच डाली है। यह कहना गलत है डक मेरे साथ अडियुक्त ने
कोई घटना न की हो। मैने लालच वश यह झूठा मुकिमा िजट करा
डिया हो।"

34. Upon analysis of the evidence
brought on record in the present case, we are
persuaded to accept the defence argument
that prosecution has not succeeded in
establishing the allegation of rape against the
accused appellant and the accused appellant
is entitled to benefit of doubt, inasmuch as,
various aspects relating to prosecution case
remains unexplained. For the sake of
convenience these aspects are reiterated as
under:-

"(i) there is no independent
corroboration of the version of victim
regarding rape and her testimony is
inconsistent with the weight of evidence on
record. Though rape was alleged on
12.9.2008 at about 12.00 in the afternoon,
but the report has been lodged after 11 days
without any explanation of the unusual
delay;

(ii) the prosecution case that
victim informed of rape to Ganpat is not
8 All. Arun Mishra Vs. State of U.P.
53
proved as Ganpat is not produced in
evidence,
moreover
the
Investigation
Officer states that Ganpat made no such
disclosure to him during investigation,
rather Ganpat came to know of the incident
after the report was lodged;

(iii) there is no disclosure as to
when the victim informed of the incident of
rape to her husband. The version of PW-1
that such fact was disclosed to him by the
victim is inconsistent with the version of
victim (PW-2), who specifically asserts that
the incident of rape was disclosed by her to
Ganpat and it was later only that the
husband was informed;

(iv)
medical
report
shows
existence of no injuries or even scratch
marks, etc., on the body of the deceased;

(v) the version of victim that she
was threatened with an axe is a clear
improvement from her previous version as
per the Investigating Officer;

(vi) the allegation of rape is made
only after the second incident of giving
silver belly chain to the accused appellant
by the victim;

(vii) statement of PW-2 and PW5 clearly reveals that the report was lodged
on the basis of advise of the lawyer who
assured that accused would now have to go
to Jail."

35. On a cumulative assessment of the
evidence on record it cannot be ruled out
that the allegation of rape was introduced in
the written report, on the basis of
deliberation and consultation with the
advocate, only with the intent to secure the
return of silver belly chain to the victim.
This is particularly so, as the informant
admits that incident of rape was reported to
him earlier but the report was lodged with
the police only after the victim gave silver
belly chain to the accused. In the absence
of any credible explanation of delay in
reporting of the incident coupled with the
inherent contradiction in the prosecution
case, as noticed above, we are inclined to
hold that the defence is entitled to benefit
of doubt in the matter.

36. We have also perused the
judgment of trial court in which the aspects
relating to contradictory and inconsistent
version of the victim and informant have
been clearly overlooked. The fact that there
was no corroboration of the victim's
allegation regarding rape coupled with the
fact that rape was not reported and it was
only later that such incident was alleged in
order to secure the return of silver belly
chain has been overlooked.

37. We further find that though the
Court of Sessions has convicted and
sentenced the accused appellant under
Section 3(2)(v) of the SC/ST Act, but there
is absolutely no evidence on record to show
that the offence of rape was committed on
the victim on account of her caste identity.
Not a single word is uttered by any of the
prosecution
witnesses
nor
any
other
evidence is adduced by the prosecution to
establish that the offence was committed
upon the victim, by the accused appellant
on account of her caste identity. In the
absence of any evidence worth the name
the offence under Section 3(2)(v) SC/ST
Act is clearly not made out against the
accused-appellant. Even otherwise, once
we come to the conclusion that offence of
rape itself is not established beyond
reasonable doubt the conviction and
sentence of the accused appellant under
Section 3(2)(v) of the SC/ST Act becomes
impermissible.

38. In what manner an offence under
Section
3(2)(v)
SC/ST
Act
can
be
established has been dealt with by the
54 INDIAN LAW REPORTS ALLAHABAD SERIES
Hon'ble Supreme Court in Patan Jamal
Vali Vs. The State of Andhra Pradesh,
reported in (2021) 16 SCC 225. In para 62
to 64 of the report, the Supreme Court has
clearly laid down that the prosecution must
prove that the offence was committed on
account of caste identity of the victim by
the
accused
appellant,
which
are
reproduced hereinafter:-

"62. The issue as to whether the
offence was committed against a person on
the ground that such person is a member of
an SC or ST or such property belongs to such
member is to be established by the
prosecution on the basis of the evidence at the
trial. We agree with the Sessions Judge that
the prosecution's case would not fail merely
because PW 1 did not mention in her
statement to the police that the offence was
committed against her daughter because she
was a Scheduled Caste woman. However,
there is no separate evidence led by the
prosecution to show that the accused
committed the offence on the basis of the
caste identity of PW 2. While it would be
reasonable to presume that the accused knew
the caste of PW 2 since village communities
are tightly knit and the accused was also an
acquaintance
of
PW
2's
family,
the
knowledge by itself cannot be said to be the
basis of the commission of offence, having
regard to the language of Section 3(2)(v) as it
stood at the time when the offence in the
present case was committed. As we have
discussed above, due to the intersectional
nature of oppression PW 2 faces, it becomes
difficult to establish what led to the
commission of offence - whether it was her
caste, gender or disability. This highlights the
limitation of a provision where causation of a
wrongful act arises from a single ground or
what we refer to as the single axis model.

63. It is pertinent to mention that
Section 3(2)(v) was amended by the
Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Amendment Act,
2015, which came into effect on 26-1-2016.
The words "on the ground of" under
Section 3(2)(v) have been substituted with
"knowing that such person is a member of
a Scheduled Caste or Scheduled Tribe".
This has decreased the threshold of proving
that a crime was committed on the basis of
the caste identity to a threshold where mere
knowledge is sufficient to sustain a
conviction. Section 8 which deals with
presumptions as to offences was also
amended to include clause (c) to provide
that if the accused was acquainted with the
victim or his family, the court shall
presume that the accused was aware of the
caste or tribal identity of the victim unless
proved otherwise. The amended Section 8
reads as follows:

"8. Presumption as to offences.-
In a prosecution for an offence under this
Chapter, if it is proved that-

(a) the accused rendered any
financial assistance in relation to the
offences committed by a person accused of,
or reasonably suspected of, committing, an
offence under this Chapter, the Special
Court shall presume, unless the contrary is
proved, that such person had abetted the
offence;

(b) a group of persons committed
an offence under this Chapter and if it is
proved that the offence committed was a
sequel to any existing dispute regarding
land or any other matter, it shall be
presumed that the offence was committed
in furtherance of the common intention or
in prosecution of the common object.

(c) the accused was having
personal knowledge of the victim or his
family, the Court shall presume that the
accused was aware of the caste or tribal
identity of the victim, unless the contrary is
proved."
8 All. Lakhan & Anr. Vs. State of U.P.
55

64. The Parliament Standing
Committee Report on Atrocities Against
Women and Children has observed that,
"high acquittal rate motivates and boosts
the confidence of dominant and powerful
communities for continued perpetration"
and recommends inclusion of provisions of
the SC & ST Act while registering cases of
gendered violence against women from the
SC & ST communities. However, as we
have noted, one of the ways in which
offences against SC & ST women fall
through the cracks is due to the evidentiary
burden that becomes almost impossible to
meet in cases of intersectional oppression.
This is especially the case when courts tend
to read the requirement of "on the ground"
under Section 3(2)(v) as "only on the
ground of". The current regime under the
SC & ST Act, post the amendment, has
facilitated the conduct of an intersectional
analysis under the Act by replacing the
causation
requirement
under
Section
3(2)(v) of the Act with a knowledge
requirement making the regime sensitive to
the kind of evidence that is likely to be
generated in cases such as these."

39.