# Dharmmuni Joshi & Anr. (In Jail) v. State of U.P

- **Citation:** (2023) 3 ILRA 732
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-28
- **Case number:** Criminal Appeal No. 3212 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmmuni-joshi-anr-in-jail-v-state-of-u-p-49817
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 366, 368, 376 - Punishment for
Rape
-
Scheduled
Castes
and
the
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3 (2) (v) -
The Code of Criminal Procedure, 1973 -
Sections 156 (3), 313 - Appeal against
conviction - As per FIR - Prosecutrix was
given some toxic medicine - both the
brothers
committed
forcible
sexual
intercourse on her for one year - Sessions
Judge framed charges on the accused -
Prosecution has examined 7 witnesses -
Medical evidence does not support the
prosecution
version
as
no
internal/external injury was found. (Para
4, 6, 7, 11)

Appeal is allowed. (E-13)

Held: Evidence on record does not highlight the
theory of commission of rape on the ground
that the prosecutrix belong to a particular
community. Neither the FIR nor the oral
testimony have suggests the same. In the
medical report of the prosecutrix, no injury was
found on her private part. There was no forcible
sex by the appellants with the prosecutrix. The
fact that even after her marriage, she has
deserted her three children and she was staying
with the accused. Her evidence does not proved
that she was forced
into any
kind
of
relationship. The impugned judgment and order
is set aside. (Para 15, 16, 20, 21)

List of Cases cited:

## Text

732 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 16 was not done in accordance with
the Act, the provisions of Section 14, 15 &
17 was also not followed in accordance
with the Act, thus the entire proceeding
initiated in pursuance thereof is vitiated.

27. Accordingly, the present appeal is
allowed. The impugned judgment and
order dated 30-10-2021 passed by the court
of learned Special Judge, Gangster Act/
Additional Sessions Judge, Court No. 5,
Sitapur in Criminal Misc. Case No. 122 of
2021, Najmi Begum Vs. State, arising out
of Case Crime No. 0003 of 2021, under
Section 2/3 of the Gangster Act, Police
Station Kotwali, District Sitapur is hereby
quashed.

28. Consequently the order dated 2202-2021 passed by District Magistrate,
Sitapur is also quashed.

29. The District Magistrate, Sitapur is
directed to release the properties of the
appellant attached vide order dated 02-012021 in favour of appellant, forthwith.

30. No order as to costs.
----------
(2023) 3 ILRA 732
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 3212 of 2014

Dharmmuni Joshi & Anr.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ramesh Prasad, Sri Birendra Singh, Sri
Hafeez Khan, Sri Hans Pratap Singh, Sri
Syed Ali Imam

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 366, 368, 376 - Punishment for
Rape
-
Scheduled
Castes
and
the
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3 (2) (v) -
The Code of Criminal Procedure, 1973 -
Sections 156 (3), 313 - Appeal against
conviction - As per FIR - Prosecutrix was
given some toxic medicine - both the
brothers
committed
forcible
sexual
intercourse on her for one year - Sessions
Judge framed charges on the accused -
Prosecution has examined 7 witnesses -
Medical evidence does not support the
prosecution
version
as
no
internal/external injury was found. (Para
4, 6, 7, 11)

Appeal is allowed. (E-13)

Held: Evidence on record does not highlight the
theory of commission of rape on the ground
that the prosecutrix belong to a particular
community. Neither the FIR nor the oral
testimony have suggests the same. In the
medical report of the prosecutrix, no injury was
found on her private part. There was no forcible
sex by the appellants with the prosecutrix. The
fact that even after her marriage, she has
deserted her three children and she was staying
with the accused. Her evidence does not proved
that she was forced
into any
kind
of
relationship. The impugned judgment and order
is set aside. (Para 15, 16, 20, 21)

List of Cases cited:

1. Patan Jamal Vali Vs St. of Andhra Pradesh,
2021 (4) Supreme 16

2. Dinesh @ Buddha Vs St. of Rajasthan, 2006
(2) Supreme 363
3 All. Dharmmuni Joshi & Anr. Vs. State of U.P.
733
3. Kaini Rajan Vs St. Kerala, 2013 0 Supreme
(SC) 896

4. Vishnu Vs St. of U.P (Criminal Appeal No. 204
of 2021)

5. Pintu Gupta Vs St. of U.P (Criminal Appeal
No.4083 of 2017)

6. Patan Jamal Vali Vs St. of Andhra Pradesh,
2021 SCC OnLine SC 343

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajit Singh, J.)

1. Heard Sri Syed Ali Imam, learned
counsel for the accused-appellants and
learned A.G.A. for the State.

2. Most unfortunate aspect of this
litigation is that despite the fact that the
incident occurred in the year 2008, the
accused are in jail since 07.08.2014.

3. This appeal challenges the
judgment and order dated 07.08.2014
passed
by
Special
Judge
(SC/ST
Act)/Additional Sessions Judge, Banda in
Special Criminal Case No.77 & 107 of
2008, under Sections 366, 368, 376 I.P.C.
& 3(2)V SC/ST Act (State vs. Dharmmuni
Joshi & Balkhandi Giri) wherein the
learned Special Judge has convicted &
sentenced accused-appellants, Dharmmuni
Joshi and Balkhandi Giri, under Section
376
of
Indian
Penal
Code,
1860
(hereinafter referred to as 'IPC') read with
Section 3 (2) (v) of Scheduled Castes and
the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred
to as SC/ST Act) and sentenced them to
imprisonment
for
life
with
fine
of
Rs.10,000/- each (Default sentence one
year). Under Section 368, they were
sentenced
to
ten
years'
rigorous
imprisonment with fine of Rs.5,000/- and,
in case of default in payment of fine,
further to under go six months simple
imprisonment.
Accused-appellant,
Dharmmuni Joshi was also sentenced under
Section 366 of IPC for ten years' rigorous
imprisonment with fine of Rs.5,000/- and,
in case of default in payment of fine,
further to under go six months simple
imprisonment.

4. Brief facts as culled out from the
F.I.R. are that the prosecutrix was given
some medicine which have toxic effect in it
and that is how she was lured into
following the accused to their home and
thereafter, both the brothers committed
forcible sexual intercourse on her for one
year and after one year she filed an
application under Section 156 (3) Cr.P.C.
which culminated into investigation having
taken place.

5.

The
Investigating
Officer
investigated the matter after recording the
statements of about five witnesses and
prepared a site plan and enquired and filed
the supplementary report after collecting
the injury report returned the case of the
prosecutrix culminated into F.I.R. and the
charge sheet was laid against the accusedappellants.

6. The accused was committed to the
Court of Sessions as the case was triable by
the Court of Session. The learned Sessions
Judge framed charges on the accused. The
accused pleaded not guilty and wanted to
be tried.

7. So as to bring home the charge, the
prosecution has examined the following
witnesses who are as under :

1
Prosecutrix
PW1
734 INDIAN LAW REPORTS ALLAHABAD SERIES
2
Sankar Giri
PW2
3
Bharat Giri
PW3
4
Dr. Smt. Aneeta
Sagar
PW4
5
Lalman Verma
PW5
6
Kishan Lal
PW6
7
Vijay Tripathi
PW7

8. In support of ocular version
following documents were filed:

1
F.I.R.
Ex.Ka.5
2
Written Report
Ex.Ka.1
3
Injury Report
Ex. Ka.2
4
Supplementary
Report
Ex. Ka.3
5
Charge sheet
Ex. Ka. 7
6
Charge-sheet
Ex. Ka. 8
7
Site
Plan
with
Index
Ex. Ka.3A
8
Site
Plan
with
Index
Ex. Ka.4

9. At the end of the trial and after
recording the statement of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Special
Judge
convicted the appellant as mentioned
aforesaid.

10. As far as commission of offence
under Section 3 (2) (v) of SC/ST Act is
concerned, it is submitted by learned
counsel for the accused-appellants that the
offence would not fall within the purview
of 3(2) (v) of SC/ST Act as none of the
ingredients required for proving that the act
was committed because the prosecutrix
belong to the said community nor is it
proved by cogent evidence that the accused
committed the offence (if any) as she
belonged to the said community.

11. As far as commission of offence
under Section 376 of IPC is concerned, it is
submitted by learned counsel for the
appellant that the accused has been falsely
implicated in the present case. The medical
evidence does not support the prosecution
version as no internal/external injury was
found on person of the prosecutrix. It is
further submitted the finding of the Special
Judge is based on surmises and conjectures
and requires to be upturn. In support of his
argument,
learned
counsel
for
the
appellants has relied on the decisions in
Patan Jamal Vali vs. State of Andhra
Pradesh, 2021 (4) Supreme 16, Dinesh @
Buddha vs. State of Rajasthan, 2006 (2)
Supreme 363, Kaini Rajan vs. State
Kerala, 2013 0 Supreme (SC) 896 and
also on the decision of this Court in
Criminal Appeal No. 204 of 2021 (Vishnu
vs. State of U.P.) decided on 28.1.2021 &
in Criminal Appeal No.4083 of 2017
(Pintu Gupta vs. State of U.P.) decided on
28.7.2022 and has contended that no
ingredients of Section (3) (2) (v) of SC/ST
Act & Sections 366, 368 and 376 of IPC is
made out and, therefore, the conviction is
required to be set aside.

12. Per contra, learned A.G.A. for the
State has submitted that the conviction of
the accused is just and proper as ingredients
of offences alleged to have been committed
are very much there. It is further submitted
by learned A.G.A. the accused-appellants
were well aware of the caste of the
prosecutrix and only because of her caste
the above offence has been committed with
her and, therefore, finding of the learned
Special Judge is just and proper. The
learned A.G.A. has heavily relied on the
decision of the Apex Court in the case of
Patan Jamal Vali (Supra). The accused
has also relied on the said judgement.
3 All. Dharmmuni Joshi & Anr. Vs. State of U.P.
735

13. Before we venture upon to discuss
the evidence and the arguments advanced
by the learned counsel for the parties, it
would be pertinent to discuss Section 3 (2)
(v) of SC/ST Act and provisions of Section
366, 368 & 375 of IPC which read as under
:

"3. Punishments for offences of
atrocities.--

(1).....................xx...............xx.......

(2) Whoever, not being a member
of a Scheduled Caste or a Scheduled
Tribe,--

(i).....................xxx..........

(ii)....................xx...........

(iii)...............xxx...........

(iv)..............xxx...............

(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."

366. Kidnapping, abducting or
inducing woman to compel her mar-riage,
etc.--Whoever kidnaps or abducts any
woman with intent that she may be
compelled, or knowing it to be likely that
she will be compelled, to marry any person
against her will, or in order that she may
be forced or seduced to illicit intercourse,
or knowing it to be likely that she will be
forced or seduced to illicit intercourse,
shall be punished with imprisonment of
either description for a term which may
extend to ten years, and shall also be liable
to fine; 1[and whoever, by means of
criminal intimidation as defined in this
Code or of abuse of authority or any other
method of compulsion, induces any woman
to go from any place with intent that she
may be, or knowing that it is likely that she
will be, forced or seduced to illicit
intercourse with another person shall be
punishable as aforesaid].

368. Wrongfully concealing or
keeping in confinement, kidnapped or
abducted person.--Whoever, knowing that
any person has been kidnapped or has been
abducted, wrongfully conceals or confines
such person, shall be punished in the same
manner as if he had kidnapped or abducted
such person with the same intention or
knowledge, or for the same purpose as that
with or for which he conceals or detains
such person in confinement.

[375. Rape.--A man is said to
commit "rape" who, except in the case
hereinafter
excepted,
has
sexual
intercourse
with
a
woman
under
circumstances falling under any of the six
following de-scriptions:--

(First) -- Against her will.

(Secondly) --Without her consent.

(Thirdly) -- With her consent,
when her consent has been obtained by
putting her or any person in whom she is
interested in fear of death or of hurt.

(Fourthly) --With her consent,
when the man knows that he is not her
husband, and that her consent is given
because she believes that he is another man
to whom she is or believes herself to be
law-fully married.

(Fifthly) -- With her consent,
when, at the time of giving such consent, by
reason
of
unsoundness
of
mind
or
intoxication or the administration by him
personally or through another of any
stupe-fying or unwholesome substance, she
is unable to understand the nature and
consequences of that to which she gives
consent.

(Sixthly) -- With or without her
consent, when she is under sixteen years of
736 INDIAN LAW REPORTS ALLAHABAD SERIES
age. Explanation.--Penetration is sufficient
to
constitute
the
sexual
intercourse
necessary to the offence of rape.

(Exception) --Sexual intercourse
by a man with his own wife, the wife not
being under fifteen years of age, is not
rape.]

14. The aforesaid provisions of law
would now be seen in view of the ocular
version as well as the documentary
evidence of the prosecution witnesses.

15. The evidence on record does not
highlight the theory of commission of rape
on the ground that the prosecutrix belong to
a particular community. Neither the F.I.R.
nor the oral testimony have been remotely
suggests the same. So as to attract the
provisions of Section 375 read with Section
376 of IPC and Section 3 (2) (v) of SC/ST
Act, ingredients of the said offence has to
be proved.

16. In the medical report of the
prosecutrix, no injury was found on her
private part. Two slides were taken from
the discharge of vagina and sent for
examination. Pathology report received by
the doctor and supplementary report was
prepared. In supplementary report, no
living or dead spermatozoa was found
which shatters the prosecution case with
regard to commission of rape. Neither dead
nor live spermatozoa was found. She was
having fetus of five months.

17. This judgment shows that the
learned Sessions Judge has convicted the
accused-appellant where there was no
evidence for commission of offence under
Section 3 (2) (v) of The Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989. Neither the First
Information Report nor the oral testimony
of prosecution witnesses even remotely
suggest that the the above offence was
committed
on
the
ground
that
the
prosecutrix
belongs
to
a
particular
community.

18. The medical report does not show
presence of any spermatozoa. No injury
was found on her private part. The learned
judge,
unfortunately,
no
where
has
discussed about the ingredients of Section
375 of IPC. The learned Sessions Judge has
also gone on the assumption that as she was
married lady, there is no necessity of there
being any kind of injury sustained by her.
The learned Session Judge has considered
the fact that spermatozoa may or may not
be found. The important aspects are non
founding of spermatozoa and non finding
of any kind of injuries which would permit
us to upturn the judgment of learned
Sessions Judge. There is no finding as far
as commission of offence under Section 3
(2) (v) of SC/ST Act. Only on the ground
that the prosecutrix and her family
members belong to a particular community,
can it be said that the offence has been
committed? The answer is, No. We are also
fortified in our view by the decision of the
Apex Court in Patan Jamal Vali vs. State
of Andhra Pradesh, 2021 SCC OnLine
SC 343, wherein the Apex Court has held
as under :

"58. The issue as to whether the
offence was committed against a person on
the ground that such person is a member of
a 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 PW1 did not mention in her
statement to the police that the offence was
committed against her daughter because
3 All. Dharmmuni Joshi & Anr. Vs. State of U.P.
737
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 PW2. While it would be
reasonable to presume that the accused
knew the caste of PW2 since village
communities are tightly knit and the
accused was also an acquaintance of
PW2'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 PW2 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.

59 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 January
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.]"

60
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 SC &
ST Act while registering cases of gendered
violence against women from SC & ST
communities53. 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 inter-sectional analysis under
738 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 61 However,
since Section 3(2) (v) was amended and Clause
(c) of Section 8 was inserted by Act 1 of 2016
with effect from 26 January 2016 these
amendments would not be applicable to the case
at hand. The offence in the present case has
taken place before the amendment, on 31 March
2011. Therefore, we hold that the evidence in the
present case does not establish that the offence in
the present case was committed on the ground
that such person is a member of a SC or ST. The
conviction
under
Section
3(2)(v)
would
consequently have to be set aside."

19. Even if, we go by the evidence of PW-1
who was 35 years of age has nowhere in her oral
testimony even mentioned that the accused had
kept her captive in their house because she
belonged to a particular community and hence, the
charge itself having not been proved. The accused
could not have been convicted for the charges.
She does not have caste certificate, which would
be be necessary to see by the learned Sessions
Judge for invoking Section 3 (2) (v) of the SC/ST
Act which is also absent in the judgement. Just
because the parents belonged to a particular
community and she was earlier married with one
Ganga Ram Bajpayee, does not mean that it was
proved that the act was committed because she
belonged to a particular community. Thus, the
conviction under Section 3(2)(v) of SC/ST Act
cannot be upheld and is set aside.

20. There is no medical evidence to prove
that she was dragged by the accused when she
was taken to their home. The judgment cited by
the learned counsel for the appellants in Patan
Jamal Vali vs. State of Andhra Pradesh,
Dinesh @ Buddha vs. State of Rajasthan,
Kaini Rajan vs. State Kerala, and in Vishnu
(Supra) would inure for the benefit of the
accused. One more aspect is that PW-1, after
staying for one year, had gone to the
Commissionrate with an advocate, there also she
has not raised any hue and cry. It cannot be said
that she was confined against her wish. Neither
can it be said nor is it proved that there was
forcible sex by the appellants herein with the
prosecutrix. We are unable to accept the
submissions made by learned counsel for the
State that this was a case of rape. The ingredients
of Sections 366, 368 & 375 of IPC are not
proved. The fact that even after her marriage, she
has deserted her three children and she was
staying with the accused. Her evidence does not
proved that she was forced into any kind of
relationship.

21. In view of the above, this appeal is
allowed. The judgment and order impugned in
this appeal is set aside. The accused-appellants
are acquitted from the charges levelled against
them. The accused are on bail pursuant to the
order of this Court dated 10.2.2023. The need not
surrender.

22. Record and proceedings be sent back
to the Trial Court forthwith.
----------
(2023) 3 ILRA 738
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 5149 of 2012
Connected With
Jail Appeal No. 5203 of 2012

Mukesh @ Jeet Lal @ Jateye
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party