# Imshad (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 1101
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-05
- **Case number:** Criminal Appeal No. 3609 of 2009
- **Bench:** Pankaj Naqvi, Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/imshad-in-jail-v-state-of-u-p-45753
- **Pages:** 11

## Headnote

A. Criminal Law-Indian Penal Code,
1860- Section 376 and Section 3(2)(V)
of SC/ST Act- Appeal against conviction.

Delay in lodging F.I.R.- Neither fated nor
illegal.

Sterling Witness
The conviction in a rape case could be based
on the sole testimony of the victim without
corroboration, if the witness is a 'sterling
witness. (Para-11)

Non-examination of the Investigating
Officer
Does not fatal the prosecution case. (Para-14)

No Test Identification Parade under
section 376 IPC
Would not vitiated the testimony of victim.
(Para-19)

Therefore modify the sentences reduced to
the period of imprisonment has already
undergone. (Para-29)

Criminal Appeal partly allowed. (E-2)

List of cases cited: -

## Text

6 All. Imshad Vs. State of U.P. 1101

9. Considering all the facts and
circumstances of the case, the accusedappellant is sentenced to the period
already undergone by him in jail during
trial and after conviction an amount of
fine of Rs. 4000/- be enhanced to Rs.
10,000/-.

10. Accused-appellant is directed to
deposit the fine of Rs. 10,000/- before
learned lower court at the time of
applying for release order, out of which
Rs. 9000/- shall be paid to the injured, if
he/she is alive and in case he/she is dead,
then it would be paid to his/her legal
heirs.

11. Appeal is partly allowed in the
above terms.

12. Copy of this order be
transmitted to the concerned lower court
forthwith for compliance.
----------
(2020)06ILR A1101
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.06.2020

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Criminal Appeal No. 3609 of 2009

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

Counsel for the Appellant:
Sri M.P.S. Chauhan, Sri Anil Kumar, Sri
Amresh Bahadur Tiwari

Counsel for the Opposite Party:
A.G.A.
A. Criminal Law-Indian Penal Code,
1860- Section 376 and Section 3(2)(V)
of SC/ST Act- Appeal against conviction.

Delay in lodging F.I.R.- Neither fated nor
illegal.

Sterling Witness
The conviction in a rape case could be based
on the sole testimony of the victim without
corroboration, if the witness is a 'sterling
witness. (Para-11)

Non-examination of the Investigating
Officer
Does not fatal the prosecution case. (Para-14)

No Test Identification Parade under
section 376 IPC
Would not vitiated the testimony of victim.
(Para-19)

Therefore modify the sentences reduced to
the period of imprisonment has already
undergone. (Para-29)

Criminal Appeal partly allowed. (E-2)

List of cases cited: -

1. Deepak Vs St. of Har. 2015 (4) SCC 762.

2. P. Rajagopal & ors. Etc. Vs St. of T.N 2019
(5) SCC 403.

3. Santosh Prasad @ Santosh Kumar Vs St. of
Bihar, 2020 SCC Online SC 194.

4. St. of Karnataka Vs Bhaskar Kushali
Kotharkar & ors. (2004) 7 SCC 487.

5. Mulla and Another Vs St.of U.P. (2010) 3
SCC 508.

6. Mukesh & anr. Vs St. for NCT of Delhi &
Others (2017) 6 SCC 1.

7. Khuman Singh Vs St. of M.P. (2019) SCC
Online 1104.

8. Bavo alias Manubhai Ambalal Thakore Vs
St. of Gujarat (2012) 2 SCC 684
.
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Thongam Tarun Singh Vs St. of Manipur
(2019) SCC Online SC 709.

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

This is an appeal under Section
374(2)
Criminal
Procedure
Code
(Cr.P.C.) preferred by accused/appellant
Imshad, challenging the judgment and
order dated 15.4.2009 whereby he stands
convicted under Section 376 IPC/Section
3(2)(V) of SC/ST Act and sentenced for
life with fine of Rs.50,000/- and a default
sentence of two years in Sessions Trial
No.729/05, by Additional District and
Sessions Judge/Special Judge/SC/ST Act,
Fast Track Court No.4, Aligarh, Uttar
Pradesh.

1. PROSECUTION CASE

I. First informant, Shiv Dhara
(PW-2), mother of victim lodged a
written report (Ex.Ka-1) at Police Station
- Saasni Gate, Aligarh on 17.1.2005 at
about 9:40 AM, against an unknown
under Section 376 IPC, that she was a
resident of Mohalla Sarai Rajaram, P.S.
Saasni Gate, Aligarh. On 16.1.2005 (a
day before), about 4 PM while her
daughter (victim), aged about 9 years was
playing in the mohalla, an unknown
person allured her to first floor of a vacant
and dilapidated house of one Karmesh
Chand Maheshwari at Pathak Street of
Mohalla Jayganj and committed rape.
Victim told her about the mishap in the
night of 16.1.2005.

II. Accordingly, an FIR (Ex.Ka2)
was
lodged
and
investigation
commenced.
Investigation
Officer
inspected the place of occurrence on
17.1.2005, collected bed sheet, blood
stained pillow cover, three portion of
cotton mattress and a torn white cloth
having blood clots and also recovered
blood stained green undergarment and
one cream coloured pant. Recovery
memos were prepared in presence of
witnesses namely Dharmendra Kori and
Satya Prakash.

III.
Victim
was
medically
examined on 17.1.2005 at about 2:45 PM
at MIG 4, Government Hospital, Aligarh
by Dr. Suneeta Sagar (PW-4). Details of
medical examination are as follows :-

"External
Examination
-
Height - 4'1", Wt. - 23 Kg, Teeth - 12/12,
Breast do not developed. No mark on
injury present on any part of body."

"Internal Examination - There
is an injury present on private part.
Hymen fresh torn at 6'O clock position.
There is perineal tear present at 6'O clock
position, muscle deep, about 2 c.m. long.
Vaginal swab taken for pathological
examination for spermatozoa and for age,
adv. X Ray of right hand for Carpal
bones."

IV.
Medical
Officer,
MIG
Government
Hospital
issued
supplementary
medical
report
dated
1.2.2005 of the victim. Details of which
are as follows :-

"X-Ray report - Done at M.S.
Hospital, Aligarh, dated 18.1.05.

X-Ray Rt. Hand < AP Lat - The
centre of pisiform bone has not appeared.

Pathology report - Done at
M.S. Hospital. Dead spermatozoa seen.

From above report the age of
girl is about 8 yrs (Eight) and probability
of rape is there."

V.
On
completion
of
investigation, the I.O. submitted a charge
sheet
dated
18.2.2005
against
the
accused/appellant under Sections 376 IPC
and 3(2)(V) SC/ST Act, on which
cognizance was taken, case committed to
6 All. Imshad Vs. State of U.P. 1103
Sessions and charges framed under
abovementioned Sections on 19.4.2005,
to which the accused pleaded not guilty
and claimed trial.

VI. In support of its case,
prosecution examined victim (PW-1),
Smt. Shiv Dhara/mother of the victim
(PW-2),
Shri
Kunwar
Pal
Singh/subsequent Investigating Officer
(PW-3) and Dr. Suneeta Sagar (PW-4).

2. PROSECUTION WITNESSES -

I. Victim (PW-1), aged 11 years
(at the time of examination) was found to
comprehend and possess competence to
understand
questions
on
the
issue,
examined by the trial court on 1.4.2008.
She supported the prosecution case that
she was allured by the accused for Rs.20,
taken to a secluded place and was
subjected to rape. She shouted but none
came to rescue her. She narrated the
incident to her mother, when she came
back from work. She denied prior
acquaintance with the accused. She
recognized the accused when he came to
hospital along with police for his medical
examination while she was admitted in
the hospital. She recognized the accused
in the Court also. She was subjected to
detail cross-examination but remained
unshattered and consistent to the case of
the prosecution, however, incorrectly
stated about her father's death at the time
of occurrence. She admitted about media
coverage of the occurrence.

II. Smt. Shiv Dhara (PW-2),
mother
of
PW-1
(first
informant)
supported the prosecution version and
narrated the occurrence as disclosed by
her daughter. Her daughter recognized the
accused when he came to hospital along
with police for his medical examination
after 5-6 days of occurrence. Her husband
was alive on the day of occurrence,
however, being unwell, he was on bed
rest.
About
100-200
villagers
accompanied her to police station for
lodging the FIR, however, she denied any
media coverage of the occurrence. She
denied lodging of the FIR only in order to
receive compensation under the SC/ST
Act.

III. S.I. - Kunwar Pal Singh
(PW-3), the subsequent Investigating
Officer authenticated the signatures and
handwriting of SI N.S. Dixit, the first I.O.
who also prepared recovery memos,
recorded statements of the witnesses but
was not examined during trial.

IV. Dr. Suneeta Sagar (PW-4),
proved the medical report of the victim
and confirmed that she was raped. On the
basis of supplementary medical report,
age of the victim on the day of occurrence
was reported to be around 8 years.

3. Accused/appellant denied the
prosecution case under Section 313
Cr.P.C., however, chose not to say
anything in his defence.

4. JUDGMENT OF THE TRIAL
COURT -

The
learned
trial
court,
while
convicting/sentencing
the
accusedappellant held as under :-

(i) PW-1 and 2 supported the
prosecution case in toto.

(ii)
PW-4
proved
medical
evidence, that victim was about 8 years
old at the time of occurrence and was
subjected to rape.

(iii) Evidence of victim, aged 11
years (at the time of her examination
before the trial court) is reliable and on
the basis of her solitary evidence, order of
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction could be passed. There was no
reason to doubt trustworthiness of the
witness, coupled with the fact that she
also recognized the accused in the Court.

(iv) Even in the absence of nonexamination
of
first
I.O.
and
identification of accused in TIP, order of
conviction could be based only on the
basis of reliable testimony of the victim.

(v) On the question of sentence,
learned trial court held that accused
committed heinous crime and while
awarding him life sentence took into
consideration, the age of victim, social
effect of crime etc.

5. SUBMISSIONS ON BEHALF
OF THE APPELLANT -

Shri Anil Kumar, learned counsel for
the appellant challenging the conviction
and sentence submitted that :-

(a) No Identification Parade was
conducted even though FIR was lodged
against an unknown person. Accusedappellant was falsely implicated in the
case due to large scale media coverage of
the incident.

(b) According to prosecution
case, victim recognized the accused,
when
he
was
taken
for
medical
examination at the hospital, which was
not proved, thereafter, accused was
recognized in the Court by the victim,
which is not a substantive evidence.

(c) FIR was lodged after 17
hours of the occurrence, however, no
plausible explanation was afforded.

(d) There was no evidence on
record to substantiate the offence under
Section 3 (2)(V) of SC/ST Act against the
accused-appellant.

(e) Alternatively he submitted
that appellant is languishing in jail since
6.2.2008 i.e. for more than 12 years, in
case conviction is upheld, sentence be
reduced to the period already undergone.

6. SUBMISSIONS ON BEHLAF
OF THE STATE -

Per contra, Shri A.N. Mulla assisted
by Shri Rupak Chaubey, learned AGAs
submitted that :-

(a) It is well settled that
conviction could be based even on the
solitary evidence of the prosecutrix,
provided it inspires confidence, as in the
present case. Statement of the victim is
completely
supported
by
medical
evidence.

(b) Non-examination of the first
Investigating Officer is not fatal for
prosecution case as no prejudice could be
demonstrated.

(c) Identification of the accused
during trial is substantive evidence,
whereas TIP is not. In the present case
though no TIP took place but the victim
identified the accused-appellant before
the trial court, therefore, it is safe to rely
upon such identification.

(d) There is no evidence on
record which remotely indicates that
accused-appellant was falsely implicated
due to alleged large scale media coverage
of the occurrence.

(e) Delay of 17 hours in lodging
the FIR is not fatal for the prosecution
case, considering that a 8 years old girl
was raped and her mother being alone
with an ailing husband has to take care of
her daughter, therefore, it must have taken
some time for her to lodge an FIR,
besides reporting such a case is still
considered to be a taboo.

(f) Accused was a resident of a
nearby mohalla, where family of victim
6 All. Imshad Vs. State of U.P. 1105
resides, therefore, it is highly probable
that appellant knew that the victim,
belongs to a Scheduled Caste, offence
under Section 3(2)(V) of SC/ST Act is
also made out.

(g)
Appellant
committed
heinous crime of committing rape of 8
years old girl this Court may not take a
lenient view on the quantum of sentence.

DISCUSSION -

7. DELAY IN LODGING THE
FIR -

The occurrence took place at 4 P.M.
on 16.1.2005. According to prosecution
story, victim told her mother (PW-2)
about the occurrence same day at about 78 P.M. but FIR was lodged next day
(17.1.2005) at 9:40 A.M., with delay of
more than 12 hours. Learned counsel for
the appellant contended that there is no
explanation for the delay.

8. In Deepak vs. State of Haryana:
2015 (4) SCC 762, it has been held in
para 15 that :-

"15.
The
Courts
cannot
overlook the fact that in sexual offences
and, in particular, the offence of rape and
that too on a young illiterate girl, the
delay in lodging the FIR can occur due to
various reasons. One of the reasons is the
reluctance of the prosecutrix or her
family members to go to the police station
and to make a complaint about the
incident, which concerns the reputation of
the prosecutrix and the honour of the
entire family. In such cases, after giving
very cool thought and considering all
pros and cons arising out of an
unfortunate incident, a complaint of
sexual offence is generally lodged either
by victim or by any member of her family.
Indeed, this has been the consistent view
of this Court as has been held in State of
Punjab vs. Gurmit Singh & Ors.."
(emphasis supplied)

9. In P.Rajagopal and others Etc.
vs. State of Tamil Nadu reported in 2019
(5) SCC 403, it has been held in para 12
that :-

"12. Normally, the Court may
reject the case of the prosecution in case
of inordinate delay in lodging the first
information
report
because
of
the
possibility of concoction of evidence by
the prosecution. However, if the delay is
satisfactorily explained, the Court will
decide the matter on merits without giving
much importance to such delay. The
Court is duty-bound to determine whether
the explanation afforded is plausible
enough given the facts and circumstances
of the case. The delay may be condoned if
the complainant appears to be reliable
and without any motive for implicating
the accused falsely. [See Apren Joseph v.
State of Kerala and Mukesh v . State
(NCT of Delhi)]" (emphasis supplied)

10. PW-2 stated in evidence that she
neither made any effort to lodge a report
on the day of occurrence for fear of
shame, nor she shared the same with her
neighbours. The report came to be lodged
next day, as the condition of her daughter
(victim) was worsening, when she was
left with no option but to lodge a report.
Another relevant circumstance is that her
husband was unwell and bed ridden and
she alone had to manage everything.
Thus, in view of above circumstances and
the
legal
position,
there
was
no
inexplicable delay in lodging the FIR so
as to falsely implicate the accused.
1106 INDIAN LAW REPORTS ALLAHABAD SERIES

11. STERLING WITNESS -

In the present case, an eight year girl
(PW-1) was raped. She not only identified
the accused-appellant during trial but
supported the prosecution in its totality.
She remained consistent and unshaken
during detail cross examination and
narrated entire occurrence and manner of
sexual
assault.
Medical
evidence
corroborates
ocular
evidence.
This
solitary witness inspires confidence. It is
a settled principle that conviction in a
rape case could be based on the sole
testimony
of
the
victim
without
corroboration, if the witness is a 'sterling
witness'.

12. In a recent judgment of Santosh
Prasad @ Santosh Kumar vs. State of
Bihar, reported in 2020 SCC Online SC
194, the Apex Court held that :-

"5.4 Before considering the
evidence of the prosecutrix, the decisions
of this Court in the cases of Raju (supra)
and Rai Sandeep @ Deepu, relied upon
by he learned Advocate appearing on
behalf of the appellant-accused, are
required to be referred to and considered.

5.4.1 x x x x x x x x x x x x x x x
x x x x x x x x x x x

5.4.2 In the case of Rai Sandeep
alias Deepu (supra), this Court had an
occasion to consider who can be said to
be a "sterling witness". In paragraph 22,
it is observed and held as under:

"22 In our considered opinion,
the "sterling witness" should be of a very
high quality and calibre whose version
should, therefore, be unassailable. The
court considering the version of such
witness should be in a position to accept
it for its face value without any hesitation.
To test the quality of such a witness, the
status of the witness would be immaterial
and what would be relevant is the
truthfulness of the statement made by
such a witness. What would be more
relevant would be the consistency of the
statement right from the starting point till
the end, namely, at the time when the
witness makes the initial statement and
ultimately before the court. It should be
natural and consistent with the case of the
prosecution qua the accused. There
should not be any prevarication in the
version of such a witness. The witness
should be in a position to withstand the
cross-examination of any length and
howsoever strenuous it may be and under
no circumstance should give room for any
doubt as to the factum of the occurrence,
the persons involved, as well as the
sequence of it. Such a version should have
co-relation with each and every one of
other supporting material such as the
recoveries made, the weapons used, the
manner
of
offence
committed,
the
scientific evidence and the expert opinion.
The said version should consistently
match with the version of every other
witness. It can even be stated that it
should be akin to the test applied in the
case of circumstantial evidence where
there should not be any missing link in the
chain of circumstances to hold the
accused guilty of the offence alleged
against him. Only if the version of such a
witness qualifies the above test as well as
all other such similar tests to be applied,
can it be held that such a witness can be
called as a "sterling witness" whose
version can be accepted by the court
without any corroboration and based on
which the guilty can be punished. To be
more precise, the version of the said
witness on the core spectrum of the crime
should remain intact while all other
attendant
materials,
namely,
oral,
6 All. Imshad Vs. State of U.P. 1107
documentary and material objects should
match the said version in material
particulars in order to enable the court
trying the offence to rely on the core
version to sieve the other supporting
materials for holding the offender guilty
of the charge alleged."

5.4.3 In the case of Krishna
Kumar Malik v. State of Haryana (2011)
7 SCC 130, it is observed and held by this
Court that no doubt, it is true that to hold
an accused guilty for commission of an
offence of rape, the solitary evidence of
the prosecutrix is sufficient provided the
same inspires confidence and appears to
be absolutely trustworthy, unblemished
and should be of sterling quality."
 (emphasis supplied)

13. We have scanned the deposition
of PW-1 keeping the aforesaid decisions
in mind. She remained consistent during
her entire testimony. She withstood entire
cross-examination. Her version is also
supported by medical evidence, therefore,
the witness is absolutely trustworthy,
unblemished and of sterling quality.

14. NON-EXAMINATION OF
INVESTIGATING OFFICER -

As we have held that PW-1 is a
'sterling witness', there is no material
contradiction or improvements in her
testimony,
therefore,
even
nonexamination of first Investigating Officer
is of no consequence, as the second I.O.
(PW-3) was examined who confirmed the
handwriting/signatures of the first I.O. on
relevant papers to which there is no
serious challenge, coupled with the fact
that non-examination of the first I.O., did
not result in any prejudice to the accused.

15. In this regard, it is useful to refer
judgment of the Supreme Court in State
of Karnataka vs. Bhaskar Kushali
Kotharkar and Others: (2004) 7 SCC
487 where it has been held in para 10 and
11 that :-

"10. There is very strong and
convincing evidence to prove that these
respondents along with others had
attacked deceased Prakash, PW-1 and
PW-2. The Sessions Judge had given
valid
reasons
for
finding
these
respondents guilty. The Single Judge was
not justified in reversing the conviction
and sentence solely on the ground that
investigating officer was not examined by
the prosecution. As the respondents were
not prejudiced by the non- examination of
the investigating officer and also the
constable who recorded the FI statement.
The finding of the learned Single Judge is
erroneous, therefore, we set aside the
same. In Behari prasad and Ors. v. State
of Bihar, [1996] 2 SCC 317, this Court
held
that
non
examination of
the
investigating officer is not fatal to the
prosecution case especially when no
prejudice was likely to be suffered by the
accused.

11. In Bahadur Naik v. State of
Bihar, [2000] 9 SCC 153, this Court held
that when no material contradictions have
been brought out, then non-examination
of the investigating officer as a witness
for prosecution was of no consequence
and under such circumstance no prejudice
had been caused to the accused by such
non examination."
 (emphasis supplied)

16. NO TEST IDENTIFICATION
PARADE -
1108 INDIAN LAW REPORTS ALLAHABAD SERIES

Learned counsel for the appellant
vehemently argued that no TIP was
conducted
which
indicates
false
implication of the appellant as he was
unknown to the prosecutrix/victim. We
are not impressed with this contention as
TIP is not a substantive evidence unlike
dock identification which is substantive
evidence.

17. In Mulla and Another vs. State
of U.P., reported in (2010) 3 SCC 508, it
has been held by the Apex Court in para
Nos.42, 43, 44 and 45 that :-

"42.
Failure
to
hold
test
identification parade does not make the
evidence
of
identification
in
court
inadmissible, rather the same is very
much
admissible
in
law.
Where
identification of an accused by a witness
is made for the first time in Court, it
should not form the basis of conviction.

43. As was observed by this
Court in Matru v. State of U.P.., (1971) 2
SCC 75, identification tests do not
constitute substantive evidence. They are
primarily meant for the purpose of
helping the investigating agency with an
assurance that their progress with the
investigation
into
the
offence
is
proceeding on the right lines. The
identification can only be used as
corroborative of the statement in Court.
(Vide Santokh Singh v. Izhar Hussain,
(1973) 2 SCC 406).

44. The necessity for holding an
identification parade can arise only when
the accused persons are not previously
known to the witnesses. The whole idea of
a test identification parade is that
witnesses who claim to have seen the
culprits at the time of occurrence are to
identify them from the midst of other
persons without any aid or any other
source. The test is done to check upon
their veracity. In other words, the main
object of holding an identification parade,
during the investigation stage, is to test
the memory of the witnesses based upon
first impression and also to enable the
prosecution to decide whether all or any
of them could be cited as eyewitnesses of
the crime.

45.
The
identification
proceedings are in the nature of tests and
significantly, therefore, there is no
provision for it in the Code and the Indian
Evidence Act, 1872. It is desirable that a
test identification parade should be
conducted as soon as possible after the
arrest of the accused. This becomes
necessary to eliminate the possibility of
the accused being shown to the witnesses
prior to the test identification parade.
This is a very common plea of the accused
and, therefore, the prosecution has to be
cautious to ensure that there is no scope
for making such allegation. If, however,
circumstances are beyond control and
there is some delay, it cannot be said to
be
fatal
to
the
prosecution."
(emphasis supplied)

18. In Mukesh & Anr. vs. State for
NCT of Delhi & Others reported at 2017
(6) SCC 1, it has been held in para 143
and 144 that :-

"143. In Santokh Singh v. Izhar
Hussain and another, it has been
observed that the identification can only
be used as corroborative of the statement
in court.

144. In Malkhansingh v. State of
M.P., it has been held thus:

"7. ... The identification parades
belong to the stage of investigation, and
there is no provision in the Code of
Criminal Procedure which obliges the
6 All. Imshad Vs. State of U.P. 1109
investigating agency to hold, or confers a
right upon the accused to claim a test
identification
parade.
They
do
not
constitute substantive evidence and these
parades are essentially governed by
Section 162 of the Code of Criminal
Procedure. Failure to hold a test
identification parade would not make
inadmissible the evidence of identification
in court. The weight to be attached to
such identification should be a matter for
the courts of fact. ..." And again:

"16. It is well settled that the
substantive evidence is the evidence of
identification in court and the test
identification
parade
provides
corroboration to the identification of the
witness in court, if required. However,
what weight must be attached to the
evidence of identification in court, which
is not preceded by a test identification
parade, is a matter for the courts of fact
to examine. ...." (emphasis supplied)

19. In view of aforesaid, mere fact
that TIP was not conducted in the present
case would not vitiate the testimony of
PW-2 (victim) who identified the accused
at the hospital and also in the court during
trial.

20. We, in view of the above
discussions, are of the view that PW-2
(victim) being a sterling witness and
conviction under Section 376 IPC can be
based on her solitary, reliable and
trustworthy evidence.

WHETHER
CONVICTION
UNDER SECTION 3(2)(V) OF SC/ST
ACT IS SUSTAINABLE ?

21. We now have to consider
whether conviction u/s 3(2) V of SC/ST
Act is sustainable or not ?

22. Learned counsel for the
appellant argued that there was no
evidence
on
record
that
accused
committed offence of rape, only because
the victim was a member of Schedule
Caste or Schedule Tribe.

23. The Apex Court in a recent
judgment of Khuman Singh vs. State of
Madhya Pradesh: 2019 SCC Online
1104 in para 12, 13 and 14 has held that :-

"12. ......The object of Section
3(2)(v) of the Act is to provide for
enhanced punishment with regard to the
offences under the Indian Penal Code
punishable with imprisonment for a term
of ten years or more against a person or
property knowing that the victim is a
member of a Scheduled Caste or a
Scheduled Tribe.

13. In Dinesh alias Buddha v.
State of Rajasthan (2006) 3 SCC 771, the
Supreme Court held as under:-

"15.
Sine
qua
non
for
application of Section 3(2)(v) is that an
offence must have been committed against
a person on the ground that such person
is a member of Scheduled Castes and
Scheduled Tribes. In the instant case no
evidence has been led to establish this
requirement. It is not case of the
prosecution that the rape was committed
on the victim since she was a member of
Scheduled Caste. In the absence of
evidence to that effect, Section 3(2)(v) of
the Atrocities Act been applicable then by
operation of law, the sentence would have
been imprisonment for life and fine.

As held by the Supreme Court,
the offence must be such so as to attract
the offence under Section 3(2)(v) of the
Act.
The
offence
must
have
been
committed against the person on the
ground that such person is a member of
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
Scheduled Caste and Scheduled Tribe. In
the present case, the fact that the
deceased was belonging to "Khangar"-
Scheduled Caste is not disputed. There is
no evidence to show that the offence was
committed only on the ground that the
victim was a member of the Scheduled
Caste and therefore, the conviction of the
appellant-accused under Section 3(2)(v)
of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act is
not sustainable.(emphasis supplied)

24. In the present case, prosecution
has not brought any evidence on record
which could even suggest that accused
committed offence of rape, only for the
reason that the victim was a member of
Schedule Caste or Schedule Tribe as the
accused had no prior acquaintance with
the victim. Accordingly, conviction under
Section 3(2)(V) of S.C./S.T. Act is not
sustainable, liable to be set aside.

25. QUANTUM OF SENTENCE -

Lastly, we have to deal with the
argument regarding quantum of sentence.
It is useful to refer following judgments
passed by the Supreme Court on the issue.

26. In Bavo alias Manubhai
Ambalal Thakore vs. State of Gujarat:
2012 (2) SCC 684, in paras 12, 13, 14, it
has been held that :-

"12. The learned counsel for the
appellant relied on a decision of this
Court in Narayanamma (Kum) vs. State
of Karnataka and Others (1994) 5 SCC
728
and
contended
that
the
life
imprisonment is not warranted and
sentence may be reduced to the period
already undergone. The said decision
relates to the rape on a minor girl aged
14 years. While the trial Judge convicted
and sentenced the accused to three years
RI, the High Court reversed the same and
acquitted the accused. It was challenged
before this Court. After considering the
entire materials, this Court set aside the
order of the High Court and affirmed the
conclusion arrived at by the trial Court.
Though this Court expressed displeasure
in awarding only three years RI for the
crime of rape, taking note of length of
time, not inclined to enhance it and
confirmed the sentence awarded by the
trial Court.

13. Counsel for the appellant
relied on another decision of this Court in
Rajendra Datta Zarekar vs. State of Goa,
(2007) 14 SCC 560. The said case also
relates to the offence under Section 376.
The victim was aged about 6 years and
the accused was aged about 20 years.
Ultimately, this Court confirmed the
conviction and sentence of 10 years as
awarded by the High Court. However, the
fine amount of Rs. 10,000/- awarded
under Section 376(2)(f) being found to be
excessive reduced to Rs. 1,000/-.

14. Considering the fact that the
victim, in the case on hand, was aged
about 7 years on the date of the incident
and the accused was in the age of 18/19
years and also of the fact that the incident
occurred nearly 10 years ago, the award
of life imprisonment which is maximum
prescribed is not warranted and also in
view of the mandate of Section 376(2)(f)
IPC, we feel that the ends of justice would
be met by imposing RI for 10 years.
Learned counsel appearing for the
appellant informed this Court that the
appellant had already served nearly 10
years. (emphasis supplied)

27. In Thongam Tarun Singh vs.
State of Manipur: 2019 SCC Online SC
6 All. Kuldeep Vs. State of U.P. 1111
709, it has been held in paras 11 and 12
that :-

"11. The question falling for
consideration
is
whether
there
are
adequate and special reasons warranting
exercise of discretion to reduce the
sentence
of
imprisonment.
What
is
'adequate and special reasons' would
depend upon several factors and no
strait-jacket formula can be imposed. No
catalogue can be prescribed for adequacy
of reasons nor instances can be cited
regarding special reasons. They differ
from case to case.

12. It is stated that at the time of
occurrence, appellant no. 1 was working
as a police driver and appellant no. 2 was
a
singer
having
good
reputation,
performing as a singer on the stage and
both the appellants were aged about 2425 years, at the time of the occurrence. It
is also stated that both the appellants
have no criminal antecedents and they
hail from backward area. Learned
counsel for the appellants have also
produced certificate issued from the Jail
Authorities to show that the conduct of
the appellants (post conviction) are very
good and satisfactory and they have been
participating
in
the
sports/garden
activities and other programmes of the
Jail.
Considering
the
facts
and
circumstances of the case and that the
appellants have no criminal antecedents
and also the conduct of the appellants in
the Jail (post conviction), the sentence of
imprisonment of fifteen years (for the
conviction under Section 376 (2)(g) IPC)
and sentence of imprisonment of ten years
(for the conviction under Section 120B
IPC) are reduced to eight years."
(emphasis supplied)

28. Considering that no case is made
out against the accused-appellant under
Section 3(2)(V) of SC/ST Act, he is
languishing in jail since 6.2.2008 (i.e.
more than 12 years), further he was about
20 years at the time of occurrence and
today he is about 34 years and no other
criminal history is reported, we, therefore,
modify the sentence under Section 376
IPC to sentence already under gone.

29. The appeal is partly allowed.
The conviction/sentence under Section
376 IPC r/w Section 3(2)(V) of SC/ST
Act is altered to conviction under Section
376 IPC only on sentence undergone
while acquitting the appellant under
Section 3(2)(V) of SC/ST Act. Appellant
is in jail. He shall be released forthwith, if
not detained in any other case.

30. A certified copy of this
judgment be sent to the trial court for
necessary compliance.
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(2020)06ILR A1111
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.04.2020

BEFORE

THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 5665 of 2013

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

Counsel for the Appellant:
Sri S.K. Verma, Sri Devendra Kumar
Mishra, Sri Dheeraj Kumar Dwivedi, Sri
Sharad Kumar Srivastava, Sri Virendra
Kumar Yadav