# Haneef v. State of U.P - **Citation:** (2016) 4 ILRA 407 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-04-08 - **Bench:** Mrs. Ranjana Pandya - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/haneef-v-state-of-u-p-43644 - **Pages:** 8 ## Headnote eye-witnesses (father and PW-2) saw the act; competent child witness consistently described assault; medical evidence of fresh perineal laceration and undeveloped sexual features corroborated forcible penetration - Held, offence of rape under Section 376 IPC proved beyond reasonable doubt; minor inconsistencies about exact place/apprehension immaterial. (Paras 2-18) SC/ST Charge Not Made Out - No evidence that assault was because of victim's caste; essential ingredient of Section 3(2)(v) SC/ST Act missing; conviction thereunder set aside, while sentence under Section 376 IPC maintained; appeal partly allowed. (Paras 19-24) Appeal Partly Allowed - Conviction and sentence under Section 376 IPC affirmed; conviction and sentence under Section 3(2)(v) SC/ST Act set aside; appellant to undergo remainder of sentence with remission as per rules; amicus fee directed. (Paras 20-24) ## Text 4 All. Haneef Vs State Of U.P. 407 13. From the aforesaid observations, it emanates that the year of recruitment means what the legislature has defined it to mean. Rule 9 of the Rules of 1983 which is related to promotion, defined 'eligibility' with reference to the date of occurrence of a vacancy. Rule 14 of 1998 rules refers to the year of recruitment and not to the year in which the vacancy has occurred. This provision enjoins that a post can be filled in by direct recruitment, if suitable and eligible candidates are not available in the year of recruitment for promotion. This does not indicate that the eligibility of candidate has to be determined not with reference to the year of recruitment, but with reference to the year in which the vacancy occurred. However, the denial of promotion, in my opinion, to the petitioner is perse bad in law and it shows the bias and prejudice mind of the concerned authority causing colossal loss and injustice to the petitioner. Need to say that fairness in action is the essence of the State authorities, which is lacking in the instant case. 14. In the instant case as averred above, the post of Lecturer in Math fell vacant in the College on 30.6.1996 due to retirement of permanent incumbent, namely, Shri Narsingh Nath Shukla. The said post of Lecturer was to be filled in through promotion, but it has not been informed neither by the Management nor by the District Inspector of Schools, Balrampur to the Commission. It has also been brought on record that in the interregnum the State Government issued a Government Order on 17.4.1997 imposing ban on selection process/recruitment, consequently the Commission had also imposed ban for selection. 15. Taking the entire facts in its entirety and legal position, as averred above, it is imminently clear that the impugned order dated 17.10.2002 passed by the Joint Director of Education, IX Region, Faizabad, suffers from legal infirmities and cannot be sustained, consequently it is hereby quashed. The opposite parties are directed to consider the claim of the petitioner for promotion on the post of Lecturer (Math) w.e.f. 23.4.1999, the date on which claim of the petitioner for promotion was refused and grant him all consequential benefits with a maximum period of three months from today. 16. The writ petition stands allowed in above terms. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 08.04.2016 BEFORE THE HON'BLE MRS. RANJANA PANDYA, J. Jail Appeal No.- 4305 Of 2015 Haneef ...Appellant Versus State of U.P. ...Respondent Counsel for Appellant: 408 INDIAN LAW REPORTS ALLAHABAD SERIES Sri P.C. Srivastava, Amicus Curiae Counsel for the Respondent: A.G.A. Rape of Minor Dalit Girl - Four-year-old girl raped near Bhagwat function; FIR lodged within two hours; eye-witnesses (father and PW-2) saw the act; competent child witness consistently described assault; medical evidence of fresh perineal laceration and undeveloped sexual features corroborated forcible penetration - Held, offence of rape under Section 376 IPC proved beyond reasonable doubt; minor inconsistencies about exact place/apprehension immaterial. (Paras 2-18) SC/ST Charge Not Made Out - No evidence that assault was because of victim's caste; essential ingredient of Section 3(2)(v) SC/ST Act missing; conviction thereunder set aside, while sentence under Section 376 IPC maintained; appeal partly allowed. (Paras 19-24) Appeal Partly Allowed - Conviction and sentence under Section 376 IPC affirmed; conviction and sentence under Section 3(2)(v) SC/ST Act set aside; appellant to undergo remainder of sentence with remission as per rules; amicus fee directed. (Paras 20-24) (Delivered by Hon'ble Mrs. Ranjana Pandya, J.) 1. Challenge in this appeal is to the judgment and order dated 25.07.2015 passed by the learned Additional Sessions Judge/Special Judge, SC/ST Act, Kannauj in Special Session Trial No. 183 of 2012 (State Vs. Hanif) arising out of the Crime No. 116 of 2012 under Section 376 IPC, 3(ii)(v) SC/ST Act, Police Station Gursahaiganj, District Kannauj whereby the accused was found guilty and convicted under Section 376 IPC read with Section 3 (2) (v) SC/ST Act and sentenced to 10 years' rigorous imprisonment and a find of Rs.5,000/- with default stipulation. 2. Brief facts of the case are that Ishwar Dayal got lodged a written report at Police Station Indergarh, District Kannauj stating that on 28.03.2012 near the house of Prem Singh, the function of Bhagwat was being going on. His minor daughter aged about four years had gone to see Bhagwat function. He was present at the house. At 2 o'clock in the day time, he heard the shouting of some people, then he also ran towards the hut behind the house of Prem Singh. Abhinesh, Raj Bahadur and other villagers also reached there. They all saw that Hanif, servant of Ram Naresh was raping his minor daughter aged four years. On seeing them, Hanif fled away. He was apprehended and the child was brought along with her mother to the police station where report was got lodged. Dr. Seema Shukla PW-4 medically examined the victim and proved the medical examination report as Ext. Ka-2 and the ossification report as Ext. Ka-3. She found the following injuries on the body of the victim:- 1. Fresh lacerated wound of 2 cm x 0.5 cm in private part which bleeds on touch present at perineum, at Introit's at 6 o'clock position downward. 2. Sexual character of the victim had not developed. She had 20 teeth in her mouth. Vaginal slide was prepared. 4 All. Haneef Vs State Of U.P. 409 3. Constable Mulayam Singh prepared the chik report and scribed the GD which were proved as Ext. Ka-4 and Ka-5. Investigation was entrusted to PW-6 SI Munnu Lal Verma who recorded the statement of witnesses, inspected the spot at the pointing out of the informant, which was proved as Ext. Ka-6. The victim was sent for medical examination. The investigation ended into a charge sheet, which was proved by this witness as Ext. Ka-7. PW-7 Dr. R.D. Gautam conducted the ossification test on the victim and proved the report as Ext. Ka-8 and the X-ray plate as Ext. Ka-9. 4. The prosecution examined as many as six witnesses. PW-1 is Ishwar Dayal, the father of the victim who proved the written report as Ext. Ka-1. PW-2 is Raj Bahadur who is said to have seen the accused committing rape on the victim. PW- 3 is the victim. The evidence of PW-4 Dr. Seema Shukla, Constable Mulayam Singh and PW-6 SI Munnu Lal Verma and PW-7 Dr. R.D Gautam have already been discussed by me. 5. After the prosecution evidence was concluded, the statement of accused was recorded under Section 313 Cr.P.C. in which he denied the occurrence and stated that he was assaulted and was falsely implicated. The accused produced Dr. Akhilesh Kumar as DW-1 who proved the injuries sustained by the accused. He further proved the injury report as Ext. Kha-1. 6. After hearing the counsel for the parties, the learned Court convicted and sentenced the accused appellant as narrated in para-1 of the judgment. 7. Feeling aggrieved, the accused appellant has preferred the present appeal. 8. I have heard Sri P.C. Srivastava, Amicus Curiae on behalf of the appellant, learned AGA for State and perused the record. 9. Learned AGA appearing for the State has supported the impugned judgment and order and submitted that the conviction and sentence awarded to the accused appellant is based on evidence available on record against which the present appeal is not maintainable and is liable to be dismissed. 10. As far as the occurrence is concerned, it is said to have taken place on 28.03.2014 at 2 o'clock in the day. Report of the occurrence was lodged on the same day at 4:00 P.M., the distance of police station being four kilometers, the report is prompt. Thus, a prompt first information report rules out the possibility of false implication and any embellishment or exaggeration in the first information report. 11. The learned counsel for accused appellant submitted that the whole prosecution case is inconsistent. There are inconsistencies regarding the place from where the accused was apprehended. There are inconsistencies regarding the place of the incident. Hence, the whole prosecution story becomes doubtful, due to which the appellant deserves acquittal. 410 INDIAN LAW REPORTS ALLAHABAD SERIES 12. Per contra, the learned AGA has submitted that the evidence of child witness has to be relied upon like the evidence of any other evidence keeping in mind that the possibility of child witness being tutored would always be there. As per the first information report, it is not mentioned as to where Haneef was apprehended. It has only been mentioned that when Haneef fled away leaving the girl, he was apprehended by the informant and other villagers. PW-1 Ishwar Dayal had stated that when he reached the spot on hearing shrieks, he saw the victim being raped by the accused appellant. He saw the occurrence and apprehended the accused on the spot, from where he was brought to the police station. This witness has stated that the accused was met in the tent where Bhagwat was being conducted, where he was assaulted. Raj Bahadur is also the witness in whose presence the accused was assaulted. He has stated that when the witnesses saw him raping the child, he fled away, but was surrounded and apprehended. 13. I do not think that there is any contradiction in the statement of Ishwar Dayal and Raj Bahadur because apprehension of the accused in the hut or just a few paces away would not make the prosecution case doubtful specially so when no enmity has been proved by the accused with the informant or the witnesses. 14. As far as the evidence of victim, PW-3, is concerned, before being produced before the Court her veracity was tested by the Court. She could state the bad act by gestures, signs and her own voice. As far as the child witness is concerned, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, applies to a child witness who is competent and whose version is reliable. 15. To observe the rule of practical wisdom, I would like to find corroboration to the statement of the child witness. The evidence of PW-3 is clear and consistent with the fact that the accused tried to give money to the victim and when she refused, the accused did bad work with her. She sustained injuries and started bleeding. The cross-examination of this witness was criticized on the point that this witness said that prior to this incident, Haneef and her father had a fight. But I think any stray sentence by this child witness who is only about four years' age will not render her statement useless. Her statement has further been criticized because she has stated that whatever her parents told her has been stated by her in the Court, but this would also not make the prosecution case doubtful because practically in day to day living we see that the parents tell the children to speak truth and if the parents tell the child to tell the truth, there is nothing wrong in this. Besides, the Doctor also opined that possibility of rape could not be ruled out since the wound was deep up to rectal wall. The medical report shows that there was a fresh lacerated wound of 2 cm x 0.5 cm which was bleeding on touch and was present in private part at the perineum at Introit's at 6 o'clock position downward. This shows that this is a very brutal rape with the minor 4 All. Haneef Vs State Of U.P. 411 and the accused has crossed all limits of brutality. He has monstrously behaved with the small girl aged about 5-6 years. 16. A society which is civilized and replete with cultural values of thousand years old and respects girl and human right, child abuse and rape of a girl child can never be tolerated and the culprits deserve to be dealt with iron hands of law. 17. In the case at hand, the Court is concerned with the rape committed on a girl child. Such crime are rampant for unfathomable reasons and it is the obligation of law and law-makers to cultivate respect for the children and specially the girl children who are treated with such barbarity and savageness as indicated above. In this context, I am usefully refer to Section 376 IPC as amended w.e.f. 3rd February, 2013 which reads as follows :- "376.Punishment for sexual assault--(1)(a) whoever, except in the cases provided for by sub-section (2) commits sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to 10 years and shall also be liable to fine. (b) If the sexual assault is committed by a person in a position of trust or authority towards the complainant or by a near relative of the complainant, he/she shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to life imprisonment and shall also be liable to fine. (2) Whoever,- (a) Being a police officer commits rape- (i) Within the limits of the police station to which he is appointed; or (ii) In the premises of any station house; or (iii) On a woman or minor in his custody or in the custody of a police officer subordinate to such officer; or (b) Being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or (c) being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place of institution; or 412 INDIAN LAW REPORTS ALLAHABAD SERIES (e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or (g) commits rape during communal or sectarian violence; or (h) commits rape on a woman knowing her to be pregnant; or (i) commits rape on a woman when she is under sixteen years of age; or (j) commits rape, on a woman incapable of giving consent; or (k) being in a position of control or dominance over a woman, commits rape on such woman; or (l) commits rape on a woman suffering from mental or physical disability; or (m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or (n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. Explanation.--For the purposes of this sub-section.-- (a) 'armed forces' means the naval, military and airforces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government; (b) 'hospital' means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation; (c) 'police officer' shall have the same meaning as assigned to the expression 'police; under the Police Act, 1861(5 of 1861); 4 All. Haneef Vs State Of U.P. 413 (d) 'women's or children's institution' means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the inception and care of women or children." 18. The pain and suffering of a child is a brutal assault on her physical frame, when she is raped. She has no idea about the sex or rape. It is a nightmare. It is not a Utopian thought or "floating fancy" of unwarranted assumption. It is the demonstration of reality in concrete terms. When a society moves in this way, there has to be instillation of fear of law and the punishment has to be definitive in a different way. In such a situation the classical understanding of crime by Marcus Aurelius, the Roman Emperor of 2nd Century A.D., who had said that poverty is the mother of crime may not hold good, for the crimes committed on girl children has no nexus with the economic status of the perpetrator of crime; on the contrary, may have nexus with neurotic behaviour. In fact, this is a crime which is a shameless demonstration and total insensitive exposition of attitude to a victim. It is a gross violation of the social values and a failure of an individual. It is an act of extreme depravity. 19. As far as punishment under Section 3 (2) (v) of SC/ST Act is concerned, there is no whisper in the statement of witnesses that offence was committed on the ground that the child was a member of Scheduled Caste or Scheduled Tribe. Thus, the conviction of the appellant under Section 3 (2) (v) of SC/ST Act is bad in the eyes of law. 20. On the basis what has been stated and discussed above, I conclude that the accused has been wrongly convicted under Section 3 (2) (v) of SC/ST Act. But the conviction under Section 376 IPC is well founded on evidence available on record. As such, the appeal is liable to be partly allowed and is allowed partly. 21. The conviction and sentence under Section 376 IPC is confirmed. The conviction and sentence under Section 3 (ii) (v) SC/ST Act is set aside. 22. The appellant is in jail and would serve out the remainder of his sentence if not already completed. He will be entitled to get remission, as regards, the period of sentence, as per rules. 23. Sri P.C. Srivastava, Amicus Curiae, Advocate, appointed as Amicus Curiae in this case on behalf of appellant Haneef shall be paid a sum of Rs.15,000/- for his assistance to the Court from the Legal Services Authority, High Court, Allahabad as per rules. 24. Let certified copy of this judgment be sent to the concerned court immediately for sending modified conviction warrant of the accused appellant to the concerned prison. --------- 414 INDIAN LAW REPORTS ALLAHABAD SERIES ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 21.08.2015 BEFORE THE HON'BLE MANOJ KUMAR GUPTA, J. Matters Under Article 227 No.- 4439 Of 2015 Smt. Dr. Mamtesh Gupt ...Petitioner Versus The State Of U.P. & Anr. ...Respondents Counsel for the Petitioner: Shri Rajeev Misra, Shri Rajesh Kumar Counsel for the Respondents: Govt. Advocate, Shri Fakhr Uz Zaman. Held - Paras 1-2: Background. Petitioner (a doctor) installed a generator on a public road, causing obstruction and pollution. A neighbor (Respondent No. 2) initiated proceedings. A police report confirmed encroachment via a permanent ("pucca") foundation. Paras 3-5: Evidence & Orders. The Magistrate found that Nagar Nigam never gave permission, and authorities confirmed that installing generators on public roads is illegal. The Sub-Divisional Magistrate (SDM) ordered removal (26.2.2015), and the Sessions Judge upheld this in revision (10.8.2015). Paras 6-7: Procedural Challenge. The court rejected the petitioner's claim that a Nagar Nigam report was improperly used, noting it was part of the record and legally obtained. Paras 8-9: "Negative Equality" Rejected. The petitioner argued others also had generators on the road. The court held that one person's illegal act does not justify another's; "Negative equality" is not recognized in law. Paras 10-14: Permission Legality. Even if the Nagar Nigam had issued a receipt/permission, the court ruled it would be wholly illegal, as the Nagar Nigam is a custodian of public land and cannot authorize encroachments. Paras 15-16: Public vs. Private Nuisance. The court clarified that while a single neighbor complained, encroachment on a public road is a public wrong and a public nuisance under Section 133 Cr.P.C. Paras 17-19: Conclusion. The court noted that if the generator was truly "silent and emission-free," the petitioner should have kept it inside her house. Finding no merit, the court dismissed the petition. Petition Dismissed. Case laws Cited:-