# Bali Mohammad @ Munna Kasai (In Jail) v. State of U.P

- **Citation:** (2021) 2 ILRA 827
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-10
- **Case number:** Criminal Appeal No. 5453 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bali-mohammad-munna-kasai-in-jail-v-state-of-u-p-46819
- **Pages:** 7

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal
Code,1860-Section
376

&
Scheduled Castes and Scheduled Tribes
(Prevention
of
Atrocities)
Act,1989-
Section
3
(2)
(xii)-modification
of
828 INDIAN LAW REPORTS ALLAHABAD SERIES
quantum of punishment-testimony of P.W.
3 (doctor) shows that hymen was recently
badly raptured and on touching bleeding
was there while a single finger was
entering as the prosecutrix was medically
examined by the doctor on the very same
day-prosecutrix aged about 12 years -
there were six injuries on the body of
prosecutrix and these were only two days
back injuries- injuries No. 3 and 4 can be
there in case of dragging on floor after
considering the testimony of Dr. PW5 it is
clear that before rape she was assaulted
and
pressure
was
applied
on
hertestimony given by both the doctors has
supported the version of the prosecutrixno infirmity in the order of trial court,
however quantum of punishment may be
reduced
to
16
years
from
life
imprisonment.(Para 1 to 26)

The Appeal is partly allowed. (E-5)

List of Cases cited:-

## Text

2 All. Bali Mohammad @ Munna Kasai Vs. State of U.P.
827
learned Judge had convicted the accused on
the basis of the autopsy report that he had
done her to death by strangulation and he
has brought certain facts on record that
incident occurred on the spur of the
moment, which was not intentional.

19. Learned Trial Judge has relied on
the decision of the Apex court in the case of
Dev Narain Mandal Vs. State of U.P.,
Surjit vs. Nahar rai, State Vs. Vinod
Kumar and Heeralal, 2012 (6) SCC 770
and punished him for life imprisonment
under Section 304-B. But, totality of the
circumstances would not permit us to
inflict or concur so as to hold the accused
guilty of such gravity that he requires to be
punished with the maximum of sentence
awardable to him, i.e., life imprisonment.
We would substitute it to ten years'
incarceration under Section 304-B I.P.C.

20. We may deem it fit to rely on the
decisions and award sentence of ten years'
rigorous imprisonment with remissions as
awarded in the case of Hem Chand Vs.
State of Haryana and other Judgments
referred hereinabove as far as Section 498A
I.P.C. is concerned. The accused has already
been in jail. If he has not deposited fine, the
default sentence would begin after he has
completed three years of incarceration.

21. As far as conviction under Section 4
of Dowry Prohibition Act is concerned,
punishment was for one year which he has
already undergone. He is now not required to
undergo imprisonment further as we have
substituted the sentences awarded under
Sections 304-B and 498A I.P.C. We hold that
sentences shall not be one after the other but
would be simultaneous.

22. Period of punishment under
Section 4 of Dowry Prohibition act is
already over. If period of ten years'
incarceration is over and accused-appellant
is not required in any other case, he be
released from jail forthwith.

23. Lower court record be sent to the
court below forthwith.

24. Appeal is partly allowed in the
light of the observations made hereinabove.

25. Let a copy of this Judgment be
sent to the Jail Authorities concerned and
District Magistrate for compliance.
----------
(2021)02ILR A827
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER , J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 5453 of 2008

Bali Mohammad @ Munna Kasai
 ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Atul Kumar Tiwari, Sri Ambrish Kumar
Kashyap, Sri Narendra Kumar Singh, Sri
R.K. Singh, Sri Rajendra Kumar Dubey, Sri
Santosh Kumar Pandey

Counsel for the Opposite Party:
A.G.A., Sri Pravin Kumar

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal
Code,1860-Section
376

&
Scheduled Castes and Scheduled Tribes
(Prevention
of
Atrocities)
Act,1989-
Section
3
(2)
(xii)-modification
of
828 INDIAN LAW REPORTS ALLAHABAD SERIES
quantum of punishment-testimony of P.W.
3 (doctor) shows that hymen was recently
badly raptured and on touching bleeding
was there while a single finger was
entering as the prosecutrix was medically
examined by the doctor on the very same
day-prosecutrix aged about 12 years -
there were six injuries on the body of
prosecutrix and these were only two days
back injuries- injuries No. 3 and 4 can be
there in case of dragging on floor after
considering the testimony of Dr. PW5 it is
clear that before rape she was assaulted
and
pressure
was
applied
on
hertestimony given by both the doctors has
supported the version of the prosecutrixno infirmity in the order of trial court,
however quantum of punishment may be
reduced
to
16
years
from
life
imprisonment.(Para 1 to 26)

The Appeal is partly allowed. (E-5)

List of Cases cited:-

1. Arvind Kumar Vs St. of U.P. CRLA No.1880 of 2013

2. Ram Naresh @ Bhondu Vs St. of U.P. CRLA
No. 2599 of 2007

3. Jai Prakash @ Guddue Vs St. of U.P. CRLA
No. 582 of 2002

4. Bhagelu Harijan Vs St. of U.P. CRLA No. 1213
of 2002

5. Mataruwa @ Amar Vs St. of U.P. CRLA No.
4909 of 2009

6. G.V. Siddharamesh Vs St. of Karnataka (2020)
3 SCC 152

7. Maaru Ram Vs UOI (1980) AIR SC 14

8. Vikash Yadav Vs St. of U.P. (2016) 9 541

(Delivered by Hon'ble Gautam Chowdhary, J.)

1. Heard Sri Ambrish Kumar Kashyap,
learned counsel for the appellant and Sri
Roopak Chaubey, learned A.G.A. for the State.

2. This criminal appeal has been filed
against the order and judgement dated
6.12.2004 passed by (Additional Sessions
Judge,
Special
Court)
(S.C./S.T.
Act),
Farrukhabad in S.C./S.T. No. 30 of 2003 (State
of U.P. Vs. Bali Mohammad) convicting and
sentencing the appellant to undergo under
section 376 Indian Penal Code (hereinafter
referred as (IPC) life imprisonment and Rs.
10,000/- fine, in default of payment of fine he
shall further incarcerations for six month
rigorous imprisonment. Appellant was punished
and sentenced undergo under section 3(1)(XII)
Scheduled caste and Scheduled Tribes Act,
1989 (hereinafter referred as SC/ST Act) for the
five years R.I. and Rs. 1,000/- fine in default of
payment of fine he shall further undergo for six
month extra R.I. All the sentences will run
concurrently.

3. The brief facts of this case are that
F.I.R. has been lodged on 29.08.2020 at 18.45
by Dashrath Lal, resident of Shekhpur
Rustampur, police station Kamalganj, District
Farrukhabad stating therein that he is Jatav
belonging to scheduled caste community.
One resident of same village namely Munna
son of Lal Mohammad of muslim and not of
scheduled caste community has sent the
prosecutrix aged about 11 years to carry out
his bag from the school. On denial she was
threatened by Munna. Under the fear and
pressure when she went to the school, Munna
came from behind and raped her. The F.I.R.
culminated into recordings of statements by
police
and
medical
examination
of
prosecutrix.

4. The trial was to be conducted by
the court of Sessions as it was Sessions
triable case, hence the case was committed
to the court of sessions.

5. The court of sessions framed
charges against the sole appellant/ accused
2 All. Bali Mohammad @ Munna Kasai Vs. State of U.P.
829
who pleaded not guilty. The prosecution
examined the following witnesses :-

1. Prosecutrix
P.W.1
2. Dasrath Lal (Father) P.W.2
3. Dr.
Neelam
Rani
(Dr.)
P.W.3
4. Dr. Satendra Kumar
(Dr.)
P.W.4
5. Dr.
U.C.
Sachan
(Dr.)
P.W.5
6. Krishna
Kumar
Singh
P.W.6
7. R.B. Suman
P.W.7

6. In order to substantiate the oral
testimony of the witnesses and their
medical evidence, documentary evidence
were also produced which are as follows :-

1.
Written report
Ext. Ka-1
2.
Recovery of cloth Ext. Ka-2
3.
Injury report
Ext. Ka-3
4.
Supplementary
report

Ext. Ka-4
5.
X-ray report of
prosecutrix
Ext. Ka-5
6.
Injury report of
prosecutrix
Ext. Ka-6
7.
F.I.R.
Ext. Ka-7

7. The accused was examined under
section 313 Cr.P.C. also for evidences
against him led over.

8. The submissions of the counsels
were heard.

9. The arguments advanced by
learned counsel for the appellant before us
in nut shell are as follows:

(I) That the F.I.R. is delayed and
anti timed.

(II) That the accused has been
falsely implicated. The reason being father
of the prosecutrix is an advocate and due to
non payment of fees and other issues, he
falsely implicated the accused.

(III) That the peon of the school
where incident is said to have occurred has
not been examined as and when the
incident occurred in the school.

(IV) That the injuries of the
prosecutrix occurred on account of her
falling on the cut plants of maize field and
not because of any overt act on part of
occurrance.

(V) That the story narrated by the
prosecutrix does not corroborate with the
medical evidence.

(VI) No case under SC/ST act is
made out.

10. The counsel for the appellant
relied on the judgements of in (A) Arvind
Kumar Vs. State of U.P. in Criminal
Appeal No. 1880 of 2013; (B) Ram
Naresh @ Bhondu Vs. State of U.P. in
Criminal Appeal No. 2599 of 2007 ; (C)
Criminal Appeal No. 582 of 2002 Jai
Prakash @ Guddue Vs. State of U.P. (d)
in Criminal Appeal No. 1213 of 2002
Bhagelu Harijan Vs. State of U.P. In the
case of Arvind Kumar (Supra) , there was
no external injury at all whereas in the
present case external injuries are found and
830 INDIAN LAW REPORTS ALLAHABAD SERIES
the opinion of Dr. U.C. Sachan is also
corroborating this fact.

11. Learned A.G.A. for the State Sri
Roopak Chaubey has submitted that the life
punishment awarded to accused under the
facts and circumstances of the case was the
only punishment which can be awarded to
accused as it is very heinous crime against the
society. He was well aware that the girl is of
12 years age has been raped by the accused
and has also drawn our attention upon the
testimony of doctors and he argued that the
testimony of two doctors is highly reliable
and there is no inconformity the trial court's
judgement. The decision of the cases which
are heavenly relied by learned counsel for the
appellant in the case of Mataruwa @ Amar
Vs. State of U.P. decided on 15.12.2015 in
Criminal Appeal No. 4909 of 2009 will not
add him as in the same matter the evidence
was shaken. The matter was proceeded on the
basis that the prosecutrix was a consenting
party, after her mother saw the incident and
she never said that he not the accused. In the
case of Arvind Kumar (Supra) , there was no
external injury at all whereas in the present
case external injuries are found and the
opinion of Dr. U.C. Sachan is also
corroborating this fact. In that view of the
said decision I cannot apply here. The
decision relied by learned counsel for the
appellant titled Arvind Kumar Vs. State of
U.P. decided on 26.7.2019 passed in
Criminal Appeal No. 1880 of 2013 and
Ram Naresh @ Bhondu Vs. State of U.P.
decided on 20.07.2015 passed in Criminal
Appeal No. 2599 of 2007 cannot aid the
accused as facts are quite different.

12. We would discuss the argument
advanced by learned counsel for the appellant
but before that we would like to discuss the
evidence both ocular as well as medical and
the trial courts decision.

13. (I)That while considering the first
point, it is relevant to mention here that the
FIR was lodged on 29.08.2002 at 18.45.
The incident took place on the same day
i.e. 29.08.2002 approximately at about 4
P.M. There is only a gap of two hours and
forty five minutes, hence, it can not be said
that there was any delay of lodging the
F.I.R. rather it was well within the time and
prompt F.I.R. was lodged by father of the
prosecutrix, so the argument advanced by
learned counsel for the appellant is not
sustainable. Hence, the answer is in
negative.

14. (II)With regard to second point is
concerned, it is well established in the
evidence that the father of the prosecutrix
was not the counsel of the accused at all,
the father of the prosecutrix was junior to
the counsel of accused. Moreover, the
argument advanced by counsel of the
accused that he has been falsely implicated
with the malafide intention with regard to
non payment of fee, this argument is not
acceptable at all and it has been well
considered by the trial court and in the
circumstance, if argument is accepted why
a father of a minor girl will implicate the
accused on account of such a heinous
matter of his young daughter. The findings
given by the trial court in this regard is
affirmed as the story of accused has not
been supported by any evidence.

15. (III)So far as the third argument
advanced by learned counsel for the
appellant is concerned, has been well
considered by the trial court and from a
perusal of the trial court's judgment it
comes out that in the said school the peon
was not residing at the school. Therefore,
In the case of Arvind Kumar (Supra) ,
there was no external injury at all whereas
in the present case external injuries are
2 All. Bali Mohammad @ Munna Kasai Vs. State of U.P.
831
found and the opinion of Dr. U.C. Sachan is
also corroborating this fact.the argument
advanced by the counsel for the appellant is
not sustainable.

16. (IV)The argument advanced by
learned counsel for the appellant in respect
of point no. 4 is concerned, is also not
sustainable and it has been well discussed
by the court below that when the evidence
took place the crop of the maize was
standing, hence there is no reason at all to
believe this argument.

17. (V)Now the last and most
important argument advanced by learned
counsel for the appellant that the statement
of the girl/ prosecutrix is not corroborated
while considering this point, the lower
court highly relied upon the testimony of
P.W. 3 Dr. Neelam Rani who clearly stated
that while examining the internal injuries
she found that hymen was recently badly
raptured and on touching bleeding was
there while a single finger was entering as
the prosecutrix was medically examined by
the doctor on the very same day. Further,
she was of the opinion and has clearly
stated that the prosecutrix is aged about 12
years and she also specifically stated that
on 29.08.2002 at about 4.00 P.M. the rape
is possible. The testimony given by the Dr.
Neelam Rani is well proved and there is no
reason to dis-believe the testimony of P.W.
3, she clearly corroborates with the
statement of the girl.

18. Dr. Neelam Rani, P.W. 3 has very
vehemently stated that the age of the
prosecutrix is 12 years and in her
statement Doctor has clearly narrated that
the rape was committed with prosecutrix at
about 4 P.M. In her testimony Dr. Neelam
Rani has well proved, she had opined that
there is clear cut possibility of rape. After
discussing and perusing the evidence on
record given by the Doctor it can not be
dis-believed rather there is no reason to disbelieve the testimony of Dr. Neelam Rani
which is also supported by the Dr. U.C.
Sachan who also supported the version of
Dr. Neelam Rani. Dr. Sachan has very
confidently stated that the injuries of the
prosecutrix shows that she was assaulted
before rape and also she was dragged on
the ground.

19. Further more, the P.W. 5 Dr. U.C.
Sachan who was then the Medical Officer
at Dr. Ram Manohar Lohiya Hospital,
Farrukhabad clearly stated that there were
six injuries on the body of prosecutrix and
these were only two days back injuries. He
further stated that injuries No. 3 and 4 can
be there in case of dragging on floor and in
testimony Dr. U.C. Sachan has totally given
the opinion that the injuries can be occurred
in maize field, whereas he has specifically
stated that it can be caused by danda and
fists. So after considering the testimony of
Dr. Sachan it is clear that before rape she
was assaulted and pressure was applied on
her. There is no reason to dis-believe the
testimony of P.W. 3 and 5 respectively who
are Dr. Neelam Rani and Dr. U.C. Sachan.
Whereas testimony given by both the
doctors has supported the version of the
prosecutrix and there is no reason to disbelieve the testimony of the said two
doctors. From the ocular evidence it can be
said that the minor daughter of the
complainant was ravished. The prosecutrix
narrated the entire incident without any
blemish which is corroborated by the
medical evidence. The learned Judge has
satisfied himself that the deponent namely
P.W. 1 was a minor and understood what
she was deposing and where she was
deposing. He has categorically mentioned
that
after
the
incident
she
became
832 INDIAN LAW REPORTS ALLAHABAD SERIES
unconscious and she has shouted. She was
ravished in the school after the school time
when nobody was present. The school is
about 50-60 feet from her home. There are
people staying near the school is not in
dispute. She was returning back from
school and she was playing near her door
of the home. He has categorically denied
that the accused stayed at Aliganj. She has
stated that the accused belongs to her own
village. She has been shaken in her
testimony only regarding the accused given
her Rs. 500/-. Accused having dispute
regarding fees with her father. P.W. 2 also
took his daughter to the hospital for
medical check up. He is an advocate by
profession and on 29.08.2020 at about 4.00
P.M. incident had occurred, he has narrated
the antecedents of the accused and he was
senior of the advocate who was the
advocate for the accused. We thereafter turn
to the evidence of Dr. Neelam Rani which
is very important for our purpose, who has
categorically mentioned that there was
hymen was raped which started bleeding on
touching. On seeing the documentary
evidence she had opinion on oath that at
about 4.00 P.M. in the evening there was all
chances that the prosecutrix could have
been ravished. Dr. Satyendra Kumar has
done the ossification test which shows that
the girl was a minor. P.W. 5 has found all
kind of injuries on the body of the
prosecutrix.

20. All these will not permit us to
upturn the judgment of the trial court as far
as the offence under section 376 Indian
Penal Code is concerned.

21. As far as (point no. VI), the
offence
under
section
3(i)
(Xii)
of
Scheduled
Caste/Scheduled
Tribes
is
concerned the same cannot be sustained for
the following reasons, as recently decided
in Criminal Appeal No. 240 of 2011 we
have held that unless the prosecution
proves that the incident of a person
belonging to the scheduled caste/ scheduled
tribes was perpetuated with an intention to
insult, then the conviction would not
sustainable. In our case there is no such
allegation in the F.I.R. nor on the version of
P.W. 1 and 2, hence conviction under
section 3(1)(XII) of Scheduled Caste/
Scheduled Tribes Act, 1989 hereinafter
referred as SC/ST Act is not sustainable
and is quashed.

Quantum of Punishment

22. The learned counsel for the
appellant contends that the punishment of
life till the last breath in the factual date is
too harsh punishment and the same may be
re-considered. We are convinced that the
accused is a sole author and offence is not
so gruesome that life till the last breath
would be the only punishment which can
be accorded and after considering the
argument and perusing the record, it is very
clear that there is no infirmity in the order
passed by the trial court and the act of
appellant is confirmed as of rape. Further
the counsel for the appellant argued that
appellant is in jail for the last 17 years and
prayed for quantum of punishment may be
reduced and he relied upon the judgement
of G.V. Siddharamesh Vs. State of
Karnataka (2020)3 SCC 152 and Maaru
Ram Vs. Union of India AIR 1980 SC
(14) and Vikash Yadav Vs. State of U.P.
2016 (9) 541.

23. The impugned judgement and
order dated 6.12.2004 passed by Additional
Sessions Judge, (Special Court), (SC/ST
Act), Farrukhabad in Session Trial No. 30
of 2003 State of U.P. Vs. Bali Mohammad
is affirmed. As far as quantum of
2 All. Jaipal Batham Vs. State of U.P.
833
punishment is concerned, we are of the
view that the present case is not a case
where the maximum punishment of life
imprisonment ought to have been awarded
to the accused i.e. 16 years of R.I. as the
appellant is already in jail for the last 17
years, further the appellant shall deposit the
fine of Rs. 15,000/ under section 376 IPC
as per decision of trial court.

24. Let a copy of this judgment along
with the trial court record be sent to the
Court concerned and Jail Authorities
concerned and District Magistrate for
compliance.

25. We are thankful to the Advocates
of both the sides namely Ambrish Kumar
Kashyap, learned counsel for the appellant
and Sri Roopak Choubey for the State for
assisting the Court.

26. Accordingly, the appeal is partly
allowed.

27. Record and proceeding be sent
back to trial court.
----------
(2021)02ILR A833
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER , J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 6511 of 2011

Jaipal Batham. ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Shailendra Singh Rathore, Sri Ambrish
Kumar Kashyap, Sri Janmed Kumar, Sri S.K.
Tripathi

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal Code,1860-Sections 363, 366, 376
& Scheduled Castes and Scheduled Tribes
(Prevention
of
Atrocities)
Act,1989-
Section 3 (2) (v)-challenge to-conviction-
the medical evidence shows that doctor
did not find any sperm-no signs of forcible
sexual intercourse were found-no internal
injuries on the prosecutrix-statements of
PWs-1, 2 and 3, no commission of offence
was there-testimony of the prosecutrix
cannot be said to be that of a sterling
witness-statement u/s164 Cr.P.C. shows
that she has taken U-turn in her oral
testimony-For maintaining the conviction
under
Section
376
Cr.P.C.,
medical
evidence has to be in conformity with the
oral testimony- In this case. the girl was
kidnapped-the medical evidence does not
prove that the girl was below the age of
18 years-no certificate showing the age of
the girl was ever produced before the
Investigating Authority- finding of the
learned Judge is not in consonance with
the
medical
evidence
produced-The
panchayat certificate showed her age to
be 21 years, therefore, there is a doubt
between this fact and the oral testimonyThe oral testimony cannot be said to be so
sterling that conviction could be based on
the same.(Para 1 to 38)

The Appeal is allowed. (E-5)

List of Cases cited: -

1. Mataruwa @ Amar Vs St. of U.P. CRLA
No.4909 of 2009
2. Arvind Kumar Vs St. of U.P. CRLA No.1880 of
2013

3. Raj Kumar Kahar Vs St. of U.P. CRLA No.4200
of 2013