# Gaurav Yadav @ Phadka v. State of U.P

- **Citation:** (2024) 5 ILRA 227
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-29
- **Case number:** Criminal Appeal No. 2590 of 2017
- **Bench:** Ashwani Kumar Mishra, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-yadav-phadka-v-state-of-u-p-52062
- **Pages:** 12

## Headnote

Criminal Law-Indian Penal Code-1860Section-376-The
Scheduled
Caste
and
Scheduled Tribe (Prevention of Atrocities)
Act, 1989-Section 3(2)(v)-Criminal appeal
against the judgment and order of conviction and
sentence of life imprisonment-Victim is minor girl
of five years, who has suffered brutally sexual
assault-Victim specifically recognized the accused
appellant as being the person who committed
sexual
assault
on
her-The
police
took
photographs of various persons and all such
photographs were shown to minor who identified
the accused-process of identification cannot be
said to be doubtful-Investigating Officer collected
bloodstained underwear of victim on which
semen was also found-If St.ment of rape victim
inspires confidence and is found trustworthy and
reliable no further corroboration is required-No
evidence on record to even remotely suggest that
the offence has been committed by the accused
appellant upon the victim on account of her caste
identity, therefore conviction and sentence under
Section 3(2)(v) SC/ST Act is reversed-sentence of
14
years
rigorous
imprisonment
would
adequately serve the purpose.

Appeal allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,808 of 41,728. This is a partial read: ask again with offset=39808 for what follows._

5 All. Gaurav Yadav @ Phadka Vs. State of U.P.
227
punishable u/s 304B I.P.C. or it is a case
of suicide punishable u/s 306 I.P.C. where
the woman died on account of any
abetment by her husband or in-laws.

The I.O. of the case must specify
in its report u/s 173(2) Cr.P.C. about the
material collected by him during wide
spectrum
investigation
against
the
accused persons that the said unnatural
death of the lady falls within the realm of
Section 302 I.P.C. or falls within the
ambit of Section 304B I.P.C. or comes
within the scope of Section 306 I.P.C.

[55]. Last but not the least, we sought
help from Shri Rajiv Lochan Shukla, learned
Amicus Curiae as well as Shri Ghanshyam
Kumar, A.G.A.-I and Shri Satendra Tewari,
learned A.G.A., who rendered their valuable
argument after doing lots of research work.
The Court records its word of appreciation
to all the Advocates, who assisted the Court
in reaching to its logical conclusion.

[56]. The aforesaid appeals are partly
allowed to the above extent.
----------
(2024) 5 ILRA 227
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.05.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 2590 of 2017

Gaurav Yadav @ Phadka ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Govind Saran Hajela

Counsel for the Respondent:
G.A.

Criminal Law-Indian Penal Code-1860Section-376-The
Scheduled
Caste
and
Scheduled Tribe (Prevention of Atrocities)
Act, 1989-Section 3(2)(v)-Criminal appeal
against the judgment and order of conviction and
sentence of life imprisonment-Victim is minor girl
of five years, who has suffered brutally sexual
assault-Victim specifically recognized the accused
appellant as being the person who committed
sexual
assault
on
her-The
police
took
photographs of various persons and all such
photographs were shown to minor who identified
the accused-process of identification cannot be
said to be doubtful-Investigating Officer collected
bloodstained underwear of victim on which
semen was also found-If St.ment of rape victim
inspires confidence and is found trustworthy and
reliable no further corroboration is required-No
evidence on record to even remotely suggest that
the offence has been committed by the accused
appellant upon the victim on account of her caste
identity, therefore conviction and sentence under
Section 3(2)(v) SC/ST Act is reversed-sentence of
14
years
rigorous
imprisonment
would
adequately serve the purpose.

Appeal allowed. (E-15)

List of Cases cited:

1. Ganga singh Vs St. of M. P. (2013) 7 SCC 278

2. Patan Jamal Vali Vs The St. of Andhra
Pradesh, reported in (2021) 16 SCC 225

3. Gopal Rana Vs St. of U.P. being Criminal
Appeal No.6934 of 2010

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

1. This appeal is by the accused
appellant
Gaurav
Yadav
@
Phadka
challenging the judgment and order of
conviction and sentence, dated 11.04.2017,
passed by the Special Judge, Scheduled
Caste/Scheduled
Tribe
(Prevention
of
228 INDIAN LAW REPORTS ALLAHABAD SERIES
Atrocities) Act, Agra in Special Session
Trial No. 44 of 2011 (State vs. Gaurav
Yadav @ Phadka) arising out of Case Crime
No. 94 of 2011, Police Station Chhatta,
District Agra, whereby he has been
convicted
and
sentenced
to
life
imprisonment under section 376 IPC read
with
section
3(2)(V)
of
Scheduled
Caste/Scheduled
Tribe
(Prevention
of
Atrocities) Act with fine of Rs.10,000/- and
in default of fine he is to undergo six
months' additional imprisonment.

2. The prosecution case proceeds on a
written report (Ex.Ka.1) given by the
informant Bhagwan Das (PW-1), scribed by
Deepak Khare, stating that on 3/4.5.2011 at
about 10.00 pm the informant was sleeping
outside his house alongwith his wife (PW-4)
and 8 years old daughter (victim). The
informant's wife woke up at about 02.00 in
the night and found that her daughter was
lying next her in a pool of blood. She (PW2) screamed as a result of which informant
and other family members woke up and
rushed to the victim, who informed that a
person took her while she was sleeping and
subjected her to sexual assault and thereafter
assaulted her with brickbat, so as to kill her
and thinking that victim has died left her
alone. Somehow the victim returned and lay
next to her mother. The victim thereafter
fainted. The victim was taken to emergency
wing for treatment after informing the
police. Her operation and treatment was
going on when request was made to take
appropriate action on the report.

3. On the basis of aforesaid written
report First Information Report (Ex.Ka.7)
got registered as Case Crime No.94 of 2011,
under Sections 376, 307 IPC, Police Station
Chhatta, District Agra on 04.05.2011 at
02.00 am. Investigation commenced in the
matter. Recovery of bloodstain and plain
earth was made from the spot vide Ex.Ka.2.
Recovery of underwear of victim was also
made vide Ex.Ka.3.

4. The victim was medically examined
on 04.05.2011 at 04.20 am by the Medical
Officer of Women Hospital wherein
following condition of victim has been
noticed:-

"For external injury referred to
ED,
SNMC,
Agra
for
medico-legal
examination if it has not been done and for
admission and management.

G.C.-
POOR,
Breast
not
developed.

Internal
Examination-
Examination done under anaesthesia given
by Dr. S. P. Singh. Pubic and axillary hair
absent. Hymen torn. Fresh bleeding present.
Swelling
present.
Tenderness
present.
Hymen and perineal tear present at 5 o'clock
and 7 o'clock position including the vaginal
mucosa, muscle and skin up to the anus. It is
about 3x3cm and about 1 cm deep. 1
abrasion present at 6 o'clock position.
Vaginal smear taken on glass slide and sent
for examination for spermatozoa. For age
she is referred to CMO, District Agra."

5. The letter by which the victim was
referred for treatment to the hospital is
Ex.Ka.5. Vaginal smear was also taken and
sent for pathological examination vide
Ex.Ka.6. Pathological report is also on
record wherein no spermatozoa was seen.
Supplementary report of the victim is also
on record as per which the injury on the
victim was caused by hard and blunt object.
The age of victim was determined as about
5 years.

6. The recovered articles were sent for
scientific analysis to the Forensic Science
Laboratory vide Ex.Ka.13. As per the report
5 All. Gaurav Yadav @ Phadka Vs. State of U.P.
229
of FSL human blood was found on the
recovered articles and semen was also found
on the underwear of the victim.

7. The victim on account of traumatic
experience suffered by her was not able to
explain the incident or specify the name of
accused. The Investigating Officer took
photograph of three suspected accused and
shown them to the victim who immediately
identified the accused as being the
perpetrator of crime. The victim identified
the accused as Gaurav Uncle (appellant).
Statement of victim (Ex.Ka.14) was also
recorded under Section 164 Cr.P.C. wherein
she identified the accused appellant as being
the person who had committed sexual
assault on her.

8. On the basis of evidence collected
during the course of investigation charge
sheet came to be submitted against the
accused appellant under Sections 376, 307
IPC read with section 3(2)(V) SC/ST Act.
The concerned Special Judge SC/ST Act
took cognizance and framed charges against
the accused appellant under aforesaid
sections on 16.08.2011. The charges were
explained to the accused appellant, who
denied the same and demanded trial. Trial
commended accordingly.

9. The informant (father of victim) has
appeared as PW-1 and has fully supported
the prosecution case. He has explained that
on coming to know of the incident he rushed
his daughter and admitted her in emergency
wing where she was operated and regained
her consciousness. She disclosed the name
of accused as Gaurav Yadav. PW-1 has
proved the written report. PW-1 has
disclosed that he is Dhobi by caste and thus
belongs to scheduled caste. In the crossexamination, PW-1 has stated that house of
accused Gaurav Yadav is around 20-25
paces from his house. He had normal
relations with him till the incident. They
used to visit each other on social occasions.
He woke up in the night hearing his wife's
cries. Victim's face was crushed and she
was bleeding. The Investigating Officer had
asked all relatives to leave and inform him
about the identify of accused, as is disclosed
by victim. Victim tried to tell something but
she was not clear and the Investigating
Officer could not follow her initially. After
2-3 days of the incident the victim could
disclose the name of accused. Three
photographs were shown to the victim out of
which the victim identified the accused
appellant. PW-1 has admitted that in the FIR
name of accused is not specified since it was
not known to him as to who has committed
the offence.

10. PW-2 is Satish, who is the
neighbour of PW-1. In his testimony, he has
stated that at around 02.00 in the night he
heard screams of PW-1. On coming he
found that the victim was lying in pool of
blood and calling the name of Gaurav and
later she fainted. They found bloodstains
near the hand-pump close to Tara Niwas.
Victim's underwear was also lying there. In
the cross-examination, PW-2 has stated that
there is a gap of only one house between the
house of informant and his own house. His
signatures
were
obtained
by
the
Investigating Officer on various papers. His
statement was recorded by police on the next
morning. He was with the informant when
the victim was taken to the hopsital.

11. The victim has been produced as
PW-3, who has identified the accused as
being Gaurav Yadav. He lives in her
neighbourhood.
She
has
specifically
disclosed that accused took her in the night
and when she resisted and asked the accused
to leave her the accused gagged her mouth.
230 INDIAN LAW REPORTS ALLAHABAD SERIES
She called accused as uncle since he lives in
the neighbourhood. Accused had taken the
victim to the corner of house of Babuji and
caused injuries by brickbat and committed
sexual assault upon the victim. She later
returned on her own. In the crossexamination, she disclosed that her mother
memorized her to speak clearly and state
that the accused Gaurav had committed rape
on her. She was also told to identify and
recognize the accused appellant. She alleged
that when accused assaulted her with
brickbat she screamed but none came to her
rescue. She had not woken up her parents.
She disclosed the name of accused to her
mother in the hospital. Her father had shown
the photograph of accused and told her to
recognize accused as being Gaurav Yadav.
At the time when Investigating Officer
enquired from the victim about the identity
of
accused
her
grandfather,
and
grandmother and father were present. She
was specifically told that on the asking she
must disclose the name of Gaurav as being
the person who committed rape on her. Her
grandmother and father also told her to take
the name of Gaurav Yadav. She has denied
the suggestion that on the asking of family
members she has falsely implicated the
accused. She has proved her statement under
Section 164 Cr.P.C.

12. The mother of victim has been
produced as PW-4. She has stated that her
daughter was sleeping next to her and when
she touched her at around 02.00 pm she
found her wet and felt cold. She woke up and
switched on the light and found blood on the
head of victim. The victim was semiconscious and saying "Gau Gau". She was
actually referring to accused. The accused
was identified by the victim from hi
photograph. Photograph was shown of 4-5
persons to the victim but she identified
accused Gaurav. She has denied the
suggestion that on the instigation of
corporator Deepak Khare she has falsely
implicated the accused Gaurav.

13. PW-5 is Dr. Chhaya Upadhyaya,
who has proved the injury report and other
medical papers of victim. She was examined
under anaesthesia and her hymen was torned
and fresh bleeding was present. Swelling
and tenderness was also present. Hymen was
torned in the position of 5 o'clock and 7
o'clock. There was tear stretch from vagina
mucosa upto anus. She has stated that
injuries on the victim could have been
caused by hard and blunt object. As per the
doctor these injuries could have come from
male organ. In the cross-examination, PW-5
has stated that injuries on private parts could
have been caused by blunt object also apart
from male organ. She denied the suggestion
that such injuries could not be caused by
male organ.

14. PW-6 is Ram Sewak Verma, who
was posted as Sub Inspector at the police
station and was the Investigating Officer of
the case. He has proved the document of
recovery. He had recorded the statement of
victim in the hospital on 06.05.2011. No
permission was taken from doctor to record
her statement. The victim was not in a
condition to speak on 04.05.2011. SHO
Rakesh Kumar was with him when he
visited the victim. The accused was
identified by the victim from photograph.
Photograph of accused was given by
victim's mother. On 06.05.2011 the victim
took the name of accused and has also
identified the accused. He has also proved
the
arrest
of
accused
appellant
on
06.05.2011.

15. PW-7 is S. I. Indrapal Singh, who
has proved the G.D. entries. PW-8
(Ravindra Kumar Singh) was posted as
5 All. Gaurav Yadav @ Phadka Vs. State of U.P.
231
Circle
Officer
and
conducted
the
investigation in the matter from 09.11.2011
onwards since allegation was also made
under SC/ST Act. He has proved the chargesheet. He, however, has not recorded the
statement of witnesses.

16. Upendra Singh has been produced
as Court Witness, who is the Principal of
school where Gaurav Yadav studied. He has
stated that accused's date of birth was
30.06.1995. He was admitted in the school
on 05.07.1999. Accused passed 5th class on
07.05.2004. His name is mentioned in the
scholar's register. In the cross-examination,
CW-1 has admitted that there are cuttings in
the date of birth. Transfer certificate was
issued on 27.05.2015.

17. On the basis of evidence led in the
matter the statement of accused appellant
has been recorded under Section 313 Cr.P.C.
wherein he has denied the accusations made
against him. He has stated that the
investigation is false and witnesses have
made false statement against him. He has
been falsely implicated due to enmity. In
reply to question no.14 he has stated that he
had differences with the local politician
Deepak Khare, who had illicit relations with
the victim's mother and that is why he has
been falsely implicated in the matter.

18. The defence has also produced
Kanta Yadav as DW-1, who has alleged that
only on the basis of suspicion the accused
appellant had been apprehended and later
released by the police. He has stated that the
accused appellant is innocent and has been
falsely implicated and that the accused is a
tempo driver and is a man of good character.
He has no criminal antecedents. He has
further stated that near the place of
occurrence there is famous Pt. Tea shop and
since transporters have their offices located
nearby it remains open till 1-2 in the night.
Truck drivers and conductors come to the
tea shop to have tea. He has alleged that no
incident was reported in the night. It was
after 4-5 days that the accused appellant has
been implicated under Section 376 IPC. In
the cross-examination, DW-1 has admitted
that she has been brought by the mother of
accused and he has good relations with the
family members of accused Gaurav.

19. Manish Bhardwaj has been
produced as DW-2. Accused appellant and
his father both are auto drivers with clean
antecedents. The concerned police station
had interrogated 13-14 persons including
father of accused appellant and later accused
was apprehended. There are offices of
transporters where accused appellant lives.
40-50 persons, engaged as labourers, keep
moving in the area as they work for the
transporters.

20. On the basis of evidence so led in
the matter the trial court has found the
complicity of accused appellant to be
established beyond reasonable doubt and
consequently, the accused appellant has
been
convicted
and
sentenced
vide
impugned judgment and order of conviction
and sentence.

21. Ms. Zia Naz Zaidi, learned counsel
for the accused appellant submits that
accused
appellant
has
been
falsely
implicated in the present case; evidence on
record has not been carefully scrutinized by
the trial court; the accused appellant has
been implicated merely on the strength of
suspicion and on account of enmity with the
scribe; victim in the facts of the present case
was tutored as is clearly reflected from her
testimony; the manner in which incident is
said to have occurred is wholly improbable,
inasmuch as in a densely populated area the
232 INDIAN LAW REPORTS ALLAHABAD SERIES
victim was thrashed with bricks and she
raised an alarm but none heard her screams.
This is highly improbable that no one would
respond or come to the rescue of victim in
such densely populated area. The fact that
the victim came back on her own, did not
wake up her mother and slept next to her
mother is most unnatural. It is also
submitted that the accused appellant in his
statement under Section 313 Cr.P.C. has
stated that he has been falsely implicated on
account of enmity with the scribe. Learned
counsel with reference to offence under
Section 3(2)(V) SC/ST Act submits that
there is no evidence on record to show that
offence of rape upon the victim has been
committed on account of her caste identity
and,
therefore,
accused
appellant's
conviction under SC/ST Act is wholly
without any evidence.

22. Shri R. P. Rajan, learned Amicus
Curiae for the informant and Shri G. P.
Singh, learned A.G.A. for the State have
strongly opposed the appeal on the ground
that the victim is five years old minor girl,
who has been brutally assaulted and the
nature of injuries caused to her has to be
viewed with utmost disdain. It is argued that
the victim had to suffer injuries beyond
imagination at such young age which has
virtually ruined her life and, therefore, the
accused
appellant
deserves
extreme
punishment.

23. We have heard learned counsel for
the parties and perused the material brought
on record, including the original records of
the trial court.

24. Five year old minor has been
subjected to brutal sexual assault in this case
while she was sleeping next to her parents.
The incident has occurred at about 02.00 in
the night. In sleep the mother touched the
victim lying next to her and felt wet. She got
up and switched on the light to find that
victim had sustained injuries on her head
and was bleeding both from her head and
also from her private parts. The incident has
been promptly reported to the police at about
02.30 in the night. At 02.30 itself a reference
letter was prepared for the victim to be sent
to the hospital. The victim has been medically
examined and is found to have serious injuries
on her private parts. There was tear stretch
from vagina mucosa upto victim's anus. The
victim had to be operated upon by the doctors.
The doctor who has examined the victim has
been produced as PW-5. She has fully
supported the prosecution case with regard to
sexual assault on the victim. Although the
doctor has stated that injuries could have been
caused by hard and blunt object but she has
also categorically stated that such injuries on
the victim could have been caused by male
organ. Although it is faintly suggested that the
incident could have occurred as a result of
accident but we are not impressed by such
argument. The injury report shows no injuries
on the outer private parts of the victim. It
would be difficult to conceive that an
accidental injury could be caused torning
hymen; fresh bleeding; hymen and perineal
tear present at 5 o'clock and 7 o'clock position
including vaginal mucosa, muscle and skin up
to the anus of size of 3x3cm and 1 cm deep,
without any visible marks of injury on the
outer parts of victim's private region. The
medical opinion clearly suggests that the
injury could be caused by male organ. The
plea of injury being accidentally caused is thus
rejected. Semen was also found on the
victim's underwear. The evidence on record,
therefore, clearly indicates it to be a case of
sexual assault on the minor.

25. In the facts of the case, the
witnesses have also claimed that the victim
was assaulted by brickbat and that she
5 All. Gaurav Yadav @ Phadka Vs. State of U.P.
233
sustained multiple injuries on head and she
fainted on account of it. The accused
appellant has been charge-sheeted also
under section 307 IPC since the prosecution
case is that the accused having committed
offence of sexual assault on the minor victim
also caused her injuries by brickbat so that
she may not depose against the accused. As
per the prosecution case the accused left her
under the belief that victim has died. The
prosecution witnesses are consistent on this
count. The medical evidence in this regard,
however, is absolutely lacking. There is
nothing on record to show that any injuries
were sustained by the victim on her face or
head/scalp. Although prosecution witnesses
have alleged that on account of such injuries
caused on her head the victim suffered great
pain but the medical report is conspicuously
silent on this count. There is no reason why
other injuries on the victim would not be
noticed by the doctor or indicated in any of
the reports. It is for this reason that the
accused appellant has been acquitted under
Section 307 IPC. This part of the
prosecution case has been disbelieved by the
trial court and we find no reason to doubt the
conclusions drawn by the trial judge.

26. The thrust of submission of Ms.
Zaidi on behalf of accused appellant is that
the accused appellant has been falsely
implicated and it is on the instigation of the
family members that she had identified the
accused appellant. This argument on behalf
of appellant is based on the testimony of
victim, who has admitted that her mother
had told her to speak clearly and disclose in
the court that the accused Gaurav committed
the offence with her. She was also told to
identify the accused appellant when he
appears in the dock. The accused appellant
was also got identified by the parents of the
victim. She has also stated that her parents
have told her to take the name of accused
Gaurav as being the person who committed
sexual assault on her.

27. In the facts of the case, we find that
the victim is minor girl of five years, who
has suffered brutally sexual assault. The tear
of her private part extended right upto her
anus. She was not only hospitalized but the
witnesses have testified that she had to be
operated. In such extreme sufferings of
minor child some support of the family
members would be natural and obvious.
Though it is settled that a minor child may
be prone to tutoring but that in itself may not
be decisive in the facts of the present case.

28. We have carefully examined the
testimony of victim and it is apparent that
she has disclosed in detail about the incident
suffered by her. From the questions posed to
her the Court has recorded its satisfaction
that the victim is capable of understanding
the answers given by her. At the relevant
time when she was produced in court she
was studying in class 1st. She has been
honest in acknowledging the assistance that
she got from her family members in making
her version clear and categorical to the
court. She has, however, specifically
recognized the accused appellant as being
the person who committed sexual assault on
her. She has denied the suggestion that it
was someone else who had done such
heinous act on her. She has also denied the
suggestion that under family pressures she
has implicated the accused appellant. The
victim has also proved her statement
recorded before the Magistrate under
Section 164 Cr.P.C. wherein also she has
specifically
implicated
the
accused
appellant.

29. The prosecution has also explained
the manner in which the identity of accused
appellant came to be established during the
234 INDIAN LAW REPORTS ALLAHABAD SERIES
course of investigation. Though the victim
took the name as 'Gau Gau' when she
regained
consciousness
but
complete
identity of accused could not be ascertained
then. The police took photographs of various
persons and all such photographs were
shown to minor who identified the accused
appellant. This is specifically recorded by
the Investigating Officer in the case diary
and
explained
in
the
testimony
of
Investigating Officer during trial. The
process of identification cannot be said to be
doubtful when we examine the age of victim
and the extreme brutality which she has
suffered. The trial court has ensured the
competence of the PW-3 (the child victim)
to depose before the court. She has clearly
deposed that the accused appellant has
committed sexual assault upon her. This fact
finds support from the medical evidence on
record. Parents of the victim as also the
neighbours have supported the version of
victim as per which she sustained injuries
and was found bleeding from her private
parts. The Investigating Officer during
investigation
collected
bloodstained
underwear of victim on which semen was
also found. The bloodstained underwear has
also been produced in court as material
exhibit. We otherwise find that there is no
specific reason furnished by the accused
appellant for falsely implicating him in the
matter. Though it is suggested that he had
inimical relations with the scribe, but apart
from saying so in his statement under
section 313 Cr.P.C. no other credible
evidence has been led in that regard. The
defence witnesses although have suggested
enmity but no reasons of such differences or
enmity with the scribe have been furnished.

30. Taking into consideration the
totality of circumstances we are not
inclined to accept the argument on behalf
of appellant that since the the victim has
stated that her parents had told her to take
name of the accused appellant or identify
him in court would lessen the evidentiary
value of prosecution evidence. The place
of occurrence as well as presence of
witnesses in night are not questioned. It is
otherwise settled that the evidence of rape
victim stands at par with the testimony of
injured witness. The accused appellant
otherwise lives close-by and his presence
at the place of occurrence cannot be easily
doubted.

31. It is also settled that if statement
of rape victim inspires confidence and is
found trustworthy and reliable no further
corroboration is required. In the case of
Ganga singh vs. State of Madhya Pradesh
(2013) 7 SCC 278 the Supreme Court held
that the victim of rape has to be given
same weight as is given to injured witness
and her testimony needs no corroboration.
The prompt lodging of FIR; reference of
victim to the hospital at 02.30 in the night;
her medical examination soon thereafter
by the doctor clearly persuades the Court
not to doubt the veracity of prosecution
case.

32. From the analysis of testimony of
prosecution witnesses it is clear that the
prosecution on the strength of evidence led
by it has successfully established its case
beyond reasonable doubts against the
accused appellant. The medical evidence
also corroborates oral testimony of victim.
There is also no serious discrepancies in the
testimony of PW-3 (victim) which may
effect her reliability. In such circumstances,
there is no reason to disbelieve the victim.
The trial court has analysed the evidence on
record in proper manner and has recorded
the finding of guilt of accused appellant. The
finding of trial court is, therefore, not shown
to have suffered from any illegality or
5 All. Gaurav Yadav @ Phadka Vs. State of U.P.
235
perversity. Consequently, the conviction of
accused appellant under Section 376 IPC is
sustained.

33. So far as the conviction and
sentence of accused appellant under Section
3(2)(V) of SC/ST Act is concerned, we find
that none of the witnesses have anywhere
alleged that the offence of rape was
committed upon the victim on account of her
caste identity. Except to state that the victim
belongs to scheduled caste, there is
absolutely no evidence on record to even
remotely suggest that the offence has been
committed by the accused appellant upon
the victim on account of her caste identity.

34. In what manner an offence under
Section
3(2)(v)
SC/ST
Act
can
be
established has been dealt with extensively
by the 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 by the accused appellant.
The
observations
of
the
Court
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-
236 INDIAN LAW REPORTS ALLAHABAD SERIES

(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."

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."

35. There is no evidence on record to
show that the offence of rape was committed
by the accused appellant on account of the
caste identity of the victim. In the absence of
any evidence in that regard, we are
persuaded
to
accept
the
appellant's
contention that the offence under Section
3(2)(v) SC/ST Act is not established against
the accused appellant. The conviction and
sentence of the accused appellant under
Section 3(2)(v) SC/ST Act is, therefore,
reversed and he has been acquitted in this
offence.

36. Coming to the question of quantum
of punishment under Section 376 IPC,
learned counsel for the appellant submits
that at the time when the incident occurred
the minimum punishment for the offence
under Section 376 IPC was 10 years and
maximum punishment was life. Learned
counsel has produced custody certificate of
accused appellant as per which the actual
custody undergone by him is 12 years 8
months 29 days as on 05.02.2024. Together
with remission the period of incarceration is
nearly 15 years as on date, which is above
the
minimum
period
of
punishment
prescribed for the offence of rape on a
victim below 12 years of age. The accused
appellant was around 25 years of age when
his statement was recorded under Section
313 Cr.P.C. on 19.09.2016 and he was
around 18-19 years at the time of incident.
Argument is that considering the period of
incarceration undergone by the accused
appellant and the offence committed by him,
his sentence be modified to the sentence
already undergone by him.
5 All. Gaurav Yadav @ Phadka Vs. State of U.P.
237

37. Learned A.G.A. for the State, on
the other hand, submits that in the facts of
the
case
the
accused
appellant
has
committed heinous crime inasmuch as the
victim has been subjected to brutal sexual
assault on account of which she had to suffer
immense pain and suffering. It is, therefore,
submitted that the punishment of life
imposed by the trial court is adequate and
requires no interference.

38. Learned counsel for the appellant,
in reply, submits that the accused appellant
was only around 18-19 years of age at the
time when incident occurred. He was a auto
rickshaw driver and has no criminal
antecedents.
The
mother
of
accused
appellant is a vegetable seller and is
extremely poor lady. Apart from the
appellant there is no other earning member
in the family. It is also submitted that though
offence is serious for which the accused
appellant has to be adequately punished, yet,
the Court may also show leniency on
account of abject poverty faced by the
accused appellant as also his age at the time
of incident. Learned counsel for the
appellant has placed reliance upon a
judgment of this Court in the case of Gopal
Rana vs. State of U.P. being Criminal
Appeal No.6934 of 2010 wherein the Court
observed as under in paragraph nos.29 and
30:-

29. Reliance is also place upon a
Division Bench judgment of this Court in
Criminal Appeal No. 2433 of 2008
(Munawwar Vs. State of U.P.), wherein this
court after sustaining the finding of guilt and
consequently conviction of the accused
appellant modified the sentence to the
period actually undergone by the accused
appellant. Reliance is also placed upon the
judgments of Supreme Court in the cases of
G.V. Siddaramesh v. State of Karnataka
2010 (3) SCC 152 and Hem Chand v. State
of Haryana 1994 (6) SCC 727, wherein
sentence of life awarded by the courts below
was modified by the Supreme Court and
reduced the sentence to the period already
undergone of over 10 years. to sentence
already undergone.

30. Having considered the facts of
the present case as also the applicable
judgments on the issu e as well as the nature
of offence committed by the accused
appellant
and
the
sentence
already
undergone by him, we are of the considered
view that in the facts of the case, the
sentence awarded to the accused appellant
be modified and that ends of justice will be
served if the appellant be punished with
period of sentence already undergone by
him. The sentence awarded to the accusedappellant by the court below is modified to
the above extent and the appeal is liable to
be allowed, in part, to such extent.

39. Considering the above facts and
circumstances, we are of the considered
view that the accused appellant must be
made to undergo punishment commensurate
with the nature of guilt established against
him. Considering the age of the accused
appellant at the time of incident; his
precarious financial position wherein his
mother is a vegetable seller; there is no
earning member in the family; accused is a
first offender and possibility of his
reformation cannot be ruled out, the
sentence of 14 years rigorous imprisonment
would adequately serve the purpose. Since
the period of sentence undergone by the
accused appellant with remission is nearly
15 years the life punishment imposed can be
substituted with the sentenced already
undergone by him under Section 376 IPC.

40. Consequently, the appeal succeeds
and is allowed in part. The punishment of
238 INDIAN LAW REPORTS ALLAHABAD SERIES
life imposed upon accused appellant under
Section 376 IPC is modified with the
sentence already undergone by him. The
accused appellant is reported to be in jail, he
shall be released forthwith, unless is wanted
in any other case, subject to compliance of
Section 437A Cr.P.C.
----------
(2024) 5 ILRA 238
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Criminal Appeal No. 2759 of 2020

Pramod Pandey & Ors. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Kamlesh Singh

Counsel for the Respondents:
Avanindra Kumar Mishra, G.A.

Criminal Law-Indian Penal Code-1860Sections-323, 504 & 506- The Scheduled
Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989-Section 3(1)(x) -
The Code of Criminal Procedure,1973Section 227, 228 & 245(2)- The trial court
is to pass an order either under Section 227 or
under Section 228 Cr.P.c., the trial court is not
required to pass two orders under the above
two sections, i.e. firstly giving reasons for not
discharging the accused and followed by
another order relating to the framing of
charges-The
application
moved
by
the
appellants under Section 245(2) Cr.P.C.