# Jai Karan @ Pappu v. State of U.P

- **Citation:** (2021) 11 ILRA 117
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-10
- **Case number:** Criminal Appeal No. 8196 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-karan-pappu-v-state-of-u-p-46524
- **Pages:** 11

## Headnote

(A) Criminal Law - The Indian Penal Code,
1860 - Sections 363, 366 & 376 , The Code of
criminal procedure, 1973 - Section 164 , 313 -
The Schedule Castes And The Schedule Tribes
(Prevention of Atrocities ) Act , 1989 - Section
3(1)(xi) & Section 3(2)(v) - appeal against
conviction .

Prosecutrix kidnapped by appellant and two other
unknown persons - committed gang rape with her by
gagged her mouth at gunpoint - girl found by her
father in the field of sorghum in an unconscious
condition after two days - written information about
kidnapping by Father of prosecutrix - after completing
investigation submitted charge sheet against the
accused - conviction - hence appeal.

HELD:- Trial Judge wrongly came to the conclusion
that as the prosecutrix belonged to community falling
in the scheduled caste and the appellant belonged to
upper caste the provision of SC/ST Act are attracted
in the present case. The accused has been wrongly
convicted, hence, the judgment and order impugned
is reversed and the accused is acquitted of charges
levelled. The accused appellant, if not wanted in any
other case, be set free forthwith.(Para -35,38 )

Criminal Appeal allowed. (E-7)

List of Cases cited:-

## Text

11 All. Jai Karan @ Pappu Vs. State of U.P.
117
avoided keeping in view the reformative
approach underlying in our criminal justice
system.

14. Keeping in view the facts and circumstances
of the case and also keeping in view criminal
jurisprudence in our country which is reformative
and corrective and not retributive, this Court
considers that no accused person is incapable of
being reformed and therefore, all measures should be
applied to give them an opportunity of reformation in
order to bring them in the social stream.

15. Learned counsel for the appellant further
submitted that the sentence of life imprisonment
awarded by the trial court is very severe and same
may be reduced along with other sentence awarded
under Section 452 IPC. It may be pertinent to
mention that Section 376 (2)F of IPC specifically
provides that whereby the victim has less than 12
years of age, the sentence awarded shall not be less
than 10 years but it may be for life and the accused
shall also be liable to fine. Here the victim was about
11 years old at the time of occurrence, therefore, the
case is fully covered by clause (f) of sub-section (2)
of Section 376 of IPC and the sentence awarded
cannot be less than 10 years unless there are adequate
and special reasons for doing so. We do not find any
adequate and special reasons for imposing of
sentence less than 10 years. Since the learned counsel
for the appellant has not pressed the appeal on its
merit, however, after perusal of entire evidence on
record and judgement of trial court, we consider that
the appeal is devoid of merit and is liable to be
dismissed. Hence, the conviction of the appellant is
upheld.

16. As discussed above, ''reformative theory of
punishment' is to be adopted and for that reason, it is
necessary to impose punishment keeping in view the
''doctrine of proportionality'. It appears from perusal
of impugned judgement that sentence awarded by
learned trial court for life term is very harsh keeping
in view the entirety of facts and circumstances of the
case and gravity of offence. Hon'ble Apex Court, as
discussed above, has held that undue harshness
should be avoided taking into account the
reformative approach underlying in criminal justice
system.

17. In the FIR of this case, the age of accused is
shown 21 years. Keeping in view the entire facts and
circumstances of this case and evidence on record,
we are of the considered view that ends of justice
would be met if sentence is reduced.

18. Hence, we substitute the sentence under
Section 452 IPC from seven years to three years and
fine
is
reduced
to
Rs.2,000/-.
Additional
imprisonment of one year in case of default of fine
shall remain the same. We substitute the sentence
under Section 376 IPC from life imprisonment to the
rigorous imprisonment of 13 years with all
remissions and fine of Rs.40,000/-. Additional
imprisonment in case of default of fine shall remain
the same. Out of the amount of fine, Rs.40,000/- shall
be paid to the victim as compensation.

19. It is made clear that both the sentences shall
run concurrently.

20. Accordingly, the appeal is partly allowed
with the modification of sentence as above.
----------
(2021)11ILR A117
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 8196 of 2008

Jai Karan @ Pappu ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
118 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri S.N. Pandey, Sri Amit Tripathi, Sri Havaldar
Verma, Sri Ram Ashrey Kashyap, Sri Syed Wajid
Ali

Counsel for the Respondent:
A.G.A.

(A) Criminal Law - The Indian Penal Code,
1860 - Sections 363, 366 & 376 , The Code of
criminal procedure, 1973 - Section 164 , 313 -
The Schedule Castes And The Schedule Tribes
(Prevention of Atrocities ) Act , 1989 - Section
3(1)(xi) & Section 3(2)(v) - appeal against
conviction .

Prosecutrix kidnapped by appellant and two other
unknown persons - committed gang rape with her by
gagged her mouth at gunpoint - girl found by her
father in the field of sorghum in an unconscious
condition after two days - written information about
kidnapping by Father of prosecutrix - after completing
investigation submitted charge sheet against the
accused - conviction - hence appeal.

HELD:- Trial Judge wrongly came to the conclusion
that as the prosecutrix belonged to community falling
in the scheduled caste and the appellant belonged to
upper caste the provision of SC/ST Act are attracted
in the present case. The accused has been wrongly
convicted, hence, the judgment and order impugned
is reversed and the accused is acquitted of charges
levelled. The accused appellant, if not wanted in any
other case, be set free forthwith.(Para -35,38 )

Criminal Appeal allowed. (E-7)

List of Cases cited:-

1. Sadashiv Ramrao Hadbe Vs St. Of Mah., 2006 (10)
SCC 92

2. Narain Trivedi Vs St. of U.P., LAW (ALL)-2009-1147

3. Vishnu Vs St. of U.P., Criminal Appeal No. 204 of
2021

4. Narain Trivedi Vs St. of U.P., LAW (ALL)-2009-1147

5. Hitesh Verma Vs St. of Uttarakhand & anr., 2020
(10) SCC 710
6. Gujarat Vs Bhalchandra Laxmishankar Dave, 2021
(0) AIJEL-SC 66983

7. Guru Dutt Pathak Vs St. of U.P., LAW (SC) 2021 5
5

8. Ganesan Vs St., Criminal Appeal No. 680 of 2020
(Arising from S.L.P. (Criminal) No.4976 of 2020)

9. Rafiq Vs St. of U.P., AIR 1981 SC page 559

10. Nawab Khan Vs St., 1990 Cri.L.J. Page 1179

11. Bharvada Bhogin Bhai Hirji Bhai Vs St. of Guj.,
AIR 1983 SC page 753

12. Pudav Bhai Anjana Patel Vs St. of Gujarat,
Criminal Appeal No.74 of 2006

(Delivered by Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the appellant has
challenged the Judgment and order dated 24.11.2008
passed by court of Special Judge, S.C. & S.T
Act/Additional Sessions Judge, Kanpur Dehat in
Sessions Trial No.269 of 2001, arising out of Case
Crime No.216 of 2001, under Sections 363/366/376
I.P.C., read with Section 3(1)(xi) of Scheduled Casts
and Scheduled Tribes (Prevention of Atrocities) Act,
1989 (hereinafter referred to as, 'S.C./S.T. Act,
1989'), Police Station Akbarpur, District Kanpur
Dehat whereby the accused-appellant was sentenced
under Section 363 Indian Penal Code (I.P.C.) for
three years' rigorous impriosonment and with a fine
of Rs.1000/-; under Section 366 I.P.C. with the
sentence of five years' rigorous imprisonment and
fine of Rs.1000/- and; under Section 376 I.P.C. with
the sentence of rigorous imprisonment for 10 years
and a fine of Rs.2000/- and; under Section 3 (2) (v) of
S.C. & S.T. Act with a sentence of life imprisonment
and fine of Rs.2000/- with a direction that all the
sentences will run simultaneously and in event of
default of payment of fine, to undergo two months'
further imprisonment.

2. The brief facts as per prosecution case
are that on 12.8.2001 at about 8:00 p.m., the
11 All. Jai Karan @ Pappu Vs. State of U.P.
119
prosecutrix was kidnapped by appellant-Jai
Karan @ Pappu and two other unknown
persons. Father of the prosecutrix given the
written information about the kidnapping to the
near police station. After two days on 14.8.2001
at about 10.00 a.m., the girl was found by her
father in the field of sorghum which is the farm
of Shiv Ram Shukla in an unconscious
condition. After came to consciousness, she
disclosed the whole incident to her family
members that accused-appellant with two
unknown persons committed gang rape with her
by gagged her mouth at gunpoint and went away
extending threat that if any report is lodged at
the police station or this fact is divulged to
anyone, they will kill her whole faimly. When
she along with her father hiding themselves went
to the police station for reporting the said
incident and after denied lodging the FIR, they
sent a complaint report to the Superintendent of
Police, Kanpur Dehat then FIR was lodged on
15.8.2011 by the police.

3. Police Station Incharge, Akbarpur,
Kashmir Singh Yadav tookup the investigation
visited the spot, prepared site plan, recorded
statements of the prosecutrix and witnesses and
after completing investigation submitted charge
sheet against the accused.

4. The accused being charge sheeted for
offence triable by court of session. The learned
Magistrate committed the case to the court of
session. The court of session summoned the
accused who pleaded not guilty to the charges
framed and wanted to be tried.

5. The prosecution so as to bring home the
charges examined eight witnesses, who are as
under:-

1.
Suryapal
PW1
2.
Prosecutirx
PW2
3.
Shiv Nath
PW3
4.
Dr. Narendra Kumar Jaiswal
PW4
5.
Dr. Raj Rani
PW5
6.
Kashmir Singh Yadav
PW6
7.
Ramesh Chandra Pradhan
PW7
8.
Amar Singh
PW8

6. In support of the ocular version of the
witnesses, following documents were produced
and contents were proved by leading evidence:

1. F.I.R.
Ext. Ka-6
2.
Written report
Ext. Ka-1
3.
Statement of Prosecutrix under Section
164 Cr.P.C.
Ext. Ka-2
4.
Recovery memo of Blood & Semen
stained
Cloth
Chaddhi
and
Salwar
Ext.
Ext. Ka-9
5.
X-Ray Report
Ext. Ka-3
6.
Injury Report
Ext. Ka-4
7.
Supplementary report
Ext. Ka-5
8.
Charge Sheet Mool
Ext. Ka-14
9.
Site Plan with Index
Ext. Ka-13

7. Heard learned counsel for the appellant,
learned AGA for the State and also perused the
record.

8. It is submitted by the counsel for the
appellant that as far as commission of offence
under Section 3(1)(xi) and 3(2)(v) of S.C./S.T.
Act, 1989 is concerned, the learned Sessions
Judge convicted the accused due to the fact that
the victim was a person belonging to Scheduled
Caste Community, though there were no
allegations
as
regard
the
offence
being
committed due to the caste of the prosecutrix
and there were no allegations of commission of
offence which would attract the provision of
Section 3(2)(v) read with Section 3(1)(xi) of
SC/ST Act, 1989.

9. Learned counsel for appellant has relied
on the following decisions of the Apex Court
120 INDIAN LAW REPORTS ALLAHABAD SERIES
rendered in the case of Sadashiv Ramrao
Hadbe Vs. State of Maharashtra, 2006 (10)
SCC 92 and the judgments of this Court titled
Narain Trivedi v. State of Uttar Pradesh,
LAW(ALL)-2009-1-147 decided on 15 Jan
2009 and case titled Vishnu v. State of U.P. in
Criminal Appeal No. 204 of 2021, decided on
28.1.2021 so as to contend and submit that in
fact no case is made out against the accused
under Section 376 IPC or the offences under
Sections 363, 366 IPC and Section 3(1)(xi) read
with Section 3(2)(v) of S.C./S.T. Act, 1989. It is
submitted that the prosecutrix and her family
members have roped in the accused with ulterior
motive.

10. It is submitted by learned counsel for
the State that prosecutrix belongs to Scheduled
Caste community and the judgment of learned
Trial Judge cannot be found fault with just
because there is silence on the part of the
prosecutrix about the caste and this is not so
grave a lapse that benefit can be granted to
accused. It is submitted that the incident
occurred because of the caste of the prosecutrix.
It is further submitted that any incident on
person belonging to a particular caste would be
an offence. It is further submitted by learned
counsel for the State that the accused ravished
the prosecutrix who was a minor and was
belonging to lower strata of life.

11. Learned counsel for the appellant has
relied on the judgment of Sadashiv Ramrao Hadbe
Vs. State of Maharashtra (supra) and has submitted
that learned counsel presses for clean acquittal of
the accused and not for a fixed term incarceration
though the appellant has been in jail for more than
13 years. In support of submission, learned counsel
presses into service the judgment in the case of
Narain Trivedi v. State of Uttar Pradesh,
LAW(ALL)-2009-1-147 rendered by this Court
and learned counsel has relied on findings returned
in paragraphs 4 and 5 of the said judgment, which
lay down as follows :-

"4. Let the appellants Sri Narain
Trivedi, Ashok Kumar @ Khanna and Pramod
Kumar @ Nanhkau be released on bail in the
above case till disposal of the appeal on their
furnishing personal bond and two sureties each in
the like amount to the satisfaction of the trial court
concerned. Realization of fine to the extent of fifty
per cent shall remain stayed till disposal of the
appeal. Remaining fifty per cent fine shall be
deposited in the trial court prior to the release.

It is worthwhile to mention that the
learned Sessions Judge has convicted and
sentenced the appellants to undergo imprisonment
for life and to pay a fine of Rs.3000/- each under
section 3(2)(5) SC/ST Act. They have also been
convicted separately under section 307/34 I.P.C.
and sentenced to undergo imprisonment for seven
years and to pay a fine of Rs.2000/- each. This
method
of
convicting
and
sentencing
the
appellants is not in accordance with law. Section
3(2)(5) SC/ST Act does not constitute any
substantive offence and hence, conviction and
sentence of the appellants under section 3(2)(5)
SC/ST Act simplicitor is wholly illegal. Section
3(2)(5) SC/ST Act provides as under:-3(2)
Whoever, not being a member of a Scheduled
Caste
or
a
Scheduled
Tribe.-(i)
to
(iv).......................(v) commits any offence under the
Indian Penal Code (45 of 1860) punishable with
imprisonment for a term of ten years or more
against a person or property on the ground that
such person is a member of a Scheduled Caste or a
Scheduled Tribe or such property belongs to such
member, shall be punishable with imprisonment
for life and with fine;

As would appear from the language
used by the Legislature in section 3(2)(5) SC/ST
Act, it is clear that this section does not
constitute any substantive offence and if any
person not being a member of a Scheduled Caste
or a Scheduled Tribe commits any offence under
the Indian Penal Code punishable with
imprisonment for a term of ten years or more
against a person or property on the ground that
such person is a member of Scheduled Caste or
11 All. Jai Karan @ Pappu Vs. State of U.P.
121
Scheduled Tribe or such property belongs to
such member, then enhanced punishment of life
imprisonment would be awarded in such case,
meaning thereby that conviction and sentence
under section 3(2)(5) SC/ST Act simplicitor is
not permissible and in cases where an offence
under the Indian Penal Code punishable with
imprisonment for a term of ten years or more is
committed against a person or property on the
ground that such person is a member of a
Scheduled Caste or a Scheduled Tribe or such
property belongs to such member, then in such
case the accused will be convicted and
sentenced for the offence under Indian Penal
Code read with Section 3(2)(5) SC/ST Act with
imprisonment for life and also with fine.
Therefore, in the present case, the appellants
could not be convicted and sentenced under
section 3(2)(5) SC/ST Act simplicitor.

5. Mistake which has been committed
by the learned Sessions Judge in present case in
convicting and sentencing the appellants under
section 3(2)(5) simplicitor has been noticed by
us in some other cases also. The Registrar
General is directed to send a copy of this order
to Sri Dilip Singh, the then Addl. Sessions
Judge/Special Judge, SC/ST Act, Fatehpur for
his future guidance.

12. Learned counsel for appellant presses
into service the judgment in the case of
Sadashiv Ramrao Hadbe Vs. State of
Maharashtra
(supra)
more
particularly
observations in paras 9, 10, 11 of the said
judgment, which are verbatim reproduced as
follows :-

"9. It is true that in a rape case the
accused could be convicted on the sole testimony
of the prosecutrix, if it is capable of inspiring of
confidence in the mind of the court. If the
version given by the prosecutrix is unsupported
by any medical evidence or the whole
surrounding
circumstances
are
highly
improbable and belie the case set up by the
prosecutrix, the court shall not act on the
solitary evidence of the prosecutrix. The courts
shall be extremely careful in accepting the sole
testimony of the prosecutrix when the entire case
is improbable and unlikely to happen.

10. In the present case there were so
many persons in the clinic and it is highly
improbable the appellant would have made a
sexual assault on the patient who came for
examination when large number of persons were
present in the near vicinity. It is also highly
improbable that the prosecutrix could not make
any noise or get out of the room without being
assaulted by the doctor as she was an able
bodied person of 20 years of age with ordinary
physique. The absence of injuries on the body
improbablise the prosecution version.

11. The counsel who appeared for the
State submitted that the presence of semen stains
on the undergarments of the appellant and also
semen stains found on her petticot and her sari
would probablise the prosecution version and
could have been a sexual intercourse of the
prosecutrix.

12. It is true that the petticot and the
underwear allegedly worn by the appellant had
some semen but that by itself is not sufficient to
treat that the appellant had sexual intercourse
with the prosecutrix. That would only cause
some suspicion on the conduct of the appellant
but not sufficient to prove that the case, as
alleged by the prosecution."

13. Learned counsel for the appellant has
also relied on the latest decision of Apex Court
in the case of Hitesh Verma Vs. State of
Uttarakhand & another, 2020(10)SCC 710,
pertaining to Scheduled Castes and Scheduled
Tribes ( Prevention of Atrocities) Act, 1989 and
has contended that the incidence reported is
prior to 2016, amendment more particularly
relates to the year 2000, where no offence of
S.C./S.T. Act, 1989 has been committed on the
lady on the basis of her caste belonging to a
particular caste. The learned Trial Judge has
misread the provisions of law, just because the
122 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecutrix is belonging to scheduled caste
community, the offence would not be made out
the ingredients and facts must prove the same.

14. The accused is in jail since more than
12 years. Hence he has already remain in jail
and has already undergone the punishment under
Sections 363, 366 and 376 of the Indian Penal
Code as senteced by the court below. The main
submission is regarding the sentence under
Section 3(2)(v) of SC/ST Act could not have
been returned against the accused when it was
not proved and even if proved life imprisonment
is too harsh and sentence.

15. Learned counsel for the State has
vehemently submitted that this is a clear case of
allurement and the learned trial Judge has rightly
convicted the accused under Sections 363, 366 and
376 of the Indian Penal Code for life under
Scheduled Casts and Scheduled Tribes Act (SC/ST
Act, 1989) and heavily relied on the deposition of
the prosecutrix and the medical evidence so as to
contend that the incident occurred with girl who is
below the age of 14 and has submitted that the FIR
and the evidence cannot be brused aside on minor
contradictions and that the rape was committed
during the entire night, the evidence of the
prosecutrix clinches the issue and that the medical
evidence is against the accused. We are unable to
convince ourselves with the submission made by
learned AGA for State that she has been a victim
of atrocity as she belonged to particular
community. We have been taken through the
evidence and the deposition mainly of prosecution
witnesses and judgment of Trial Court. We have
read the same.

16. The recent decision of the Apex Court
in the case of State of Gujarat v. Bhalchandra
Laxmishankar Dave, 2021 (0) AIJEL-SC
66983, decided on 2nd February, 2021 wherein
the Apex Court has held that while dealing with
the matter relating to conviction, the Court
should discuss the decision of the trial court and
also the judgment in Guru Dutt Pathak v.
State of Uttar Pradesh, LAW(SC) 2021 5 5,
decided on 5th May, 2021. All the principles
laid down in this latest decision, we are oblige to
consider the evidence afresh.

17. We venture to discuss the evidence of
the prosecutrix on which reliance is placed by
learned trial judge and whether it inspires
confidence or not so as to sustain the conviction
of accused. There were concrete positive signs
from the oral testimony of the prosecutrix as
regards the commission of forcible sexual
intercourse. In case of Ganesan Versus State
Represented by its Inspector of Police,
Criminal Appeal No. 680 of 2020 ( Arising
from S.L.P. ( Criminal ) No.4976 of 2020)
decided on 14.10.2020 wherein the principles of
accepting the evidence of the minor prosecutrix
or the prosecutrix are enshrined the words may
be that her testimony must be trustworthy and
reliable then a conviction based on sole
testimony of the victim can be based. In our case
when we rely on the said decision, it is borne out
that the testimony of the prosecutrix cannot be
said to be that of a sterling witness and the
medical evidence on evaluation belies the fact
that any case is made out against the accused.

18. PW-1, Surya Pal is the father of the
prosecutrix. It was he who was the person whom
the prosecutrix had conveyed about the incident.
In his cross examination, conveyed that After
two days of kidnapping on 14.8.2001 at about
10.00 a.m., the girl was found by him in the filed
of sorghum which is the farm of Shiv Ram
Shukla in an unconscious condition. After she
regained conscious, she disclosed the whole
incident to her family members that accusedappellant with one unknown person committed
rape one by one with her. The accused gagged
her mouth at gunpoint. The accused went away
extending threat that if any report is lodged at
the police station or this fact is divulged to
anyone, they will kill her with entire faimly.
11 All. Jai Karan @ Pappu Vs. State of U.P.
123

19. PW-2, is the prosecutrix who in her
ocular version has reiterated the statement made
under Section 164 to Magistrate and contents of
FIR version that she was 14 years of age when
incident occurred. She was found in an
unconscious condition from the filed of Corn.
The Prosecutrix conveyed to the author of the
FIR that two persons had taken her rather forced
her on gunpoint and had threatened her with dire
consequnces and gagged her that is why she
could not shout. The prosecutrix also mentioned
that both of them committed sexual intercourse
with her and both of them used to commit rape.
Jai Karan aged about 33 years of age whose
village is next to her village and when they were
commmitting this act they had done it on
gunpoint. She has also conveyed that when her
FIR was not lodged by the police station then
she dictated the typed FIR and sent to the
Superintendent of Police, Kanpur Dehat, in her
cross examination she deposed that she
(prosecutrix) belonged to the community known
as Chamar community which is enumerated as
scheduled caste. The prosecutrix in her oral
testimony has narrated the version of forcible
sex on her and that the accused had gauged her,
she did not convey this to anybody because of
threats given by the accused. In her cross
examination, she conveyed that her father had
dictated the report to the police. If the police did
not mention in the FIR that the accused had done
the illegal act she could not possibly know why
the same is not reflected in the report. According
to her, she was aged 17 and half years at the
time of deposition. She knew one accused- Jai
Karan @ Pappu by name, but did not know the
name of another accused.

20. PW-3 is the uncle of prosecutrix who
has deposed on oath that his Niece was going
out of her cottage to piss and when she did not
return till late night PW-3, complainant and
other family members started searching her.
After two days the girl was found in filed of
sorghum in an unconscious condition. After
she conscious, she disclosed the whole
incident.

21. The ocular version of PW-4 and 5
who are Medical Officers, PW-6 who is the
Officer who had conducted the investigation.
PW-7 who is the Principal of School stated
that age of the prosecutrix as per the school
record is 1.3.1987. The medical officer in his
ocular
version
opined
that
on
local
examination, there was no mark of injury on
private parts and inside the thighs, no blood
was present on internal examination of
prosecutrix. Her hymen was torn and two
fingers could easily pass without pain. Doctor
in her medical certificate opined that on the
above findings, it cannot be said that rape has
been committed or not, but she was habituated
to sexual intercourse, she was referred to the
Radiologist and Pathology lab. The pathology
report showed that no live or dead sperm was
seen in the vaginal smear and therefore the
medical evidence belies the theories of the
complainant that she was raped.

22. We now decide to sift the evidence
threadbare of the prosecution story, the evidence
led and discussed before the trial court and
appreciated by the learned Trial Judge. The
Apex Court recently in State of Gujarat v.
Bhalchandra Laxmishankar Dave has held
that trial court judgment and findings should be
dealt with threadbare which we are doing and
therefore when there is no finding of fact that as
to how the offence under Section 3(2)(v) of
SC/ST Act is made out, the accused could be
punished.
Jai
Karan
and
other
person
committing gang rape and the leanred Judge did
not accept the version of the accused. There is
no finding of fact as to how the case under
SC/ST Act or as popularly known Atrocities Act
is made out. There is no finding corroborated by
the evidence of the prosecutrix which would
bring whom the charge under Section 3(2)(v)
else neither the prosecutrix nor her father nor
124 INDIAN LAW REPORTS ALLAHABAD SERIES
other witnesses have mentioned that she was
lured, kidnapped and raped because she
belonged to a particular community.

23. Provision of Section 3(1)(xi) of the
Scheduled Castes and Scheduled Tribes Act,
1989 read as follows : -

"(xi) assaults or uses force to any
woman belonging to a Scheduled Caste or a
Scheduled Tribe with intent to dishonour or
outrage her modesty;"

24. Provision of Section 3(2)(v) of the
Scheduled Castes and Scheduled Tribes Act,
1989 which reads as follows has not been
complied with and, therefore, the accused could
not have been convicted under the provisions of
Section 3(2)(v) of the SC/ST Act.

(v) commits any offence under the
Indian Penal Code (45 of 1860) punishable with
imprisonment for a term of ten years or more
against a person or property on the ground that
such person is a member of a Scheduled Caste
or a Scheduled Tribe or such property belongs
to such member, shall be punishable with
imprisonment for life and with fine;

25. Provision of Section 376 I.P.C. read as
follows :

"376. Punishment for rape.--

(1) Whoever, except in the cases
provided for by sub-section (2), commits rape
shall be punished with imprisonment of either
description for a term which shall not be less
than seven years but which may be for life or for
a term which may extend to ten years and shall
also be liable to fine unless the women raped is
his own wife and is not under twelve years of
age, in which cases, he shall be punished with
imprisonment of either description for a term
which may extend to two years or with fine or
with both: Provided that the court may, for
adequate and special reasons to be mentioned in
the
judgment,
impose
a
sentence
of
imprisonment for a term of less than seven
years.

(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 whether or not situated in the police
station to which he is appointed; or

(iii) on a woman in his custody or in
the custody of a police officer subordinate to
him; or

(b) being a public servant, takes
advantage of his official position and commits
rape on a woman in his custody as such public
servant or in the custody of a public servant
subordinate to him; or

(c) 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 woman's or children's
institution takes advantage of his official
position and commits rape on any inmate of
such jail, remand home, place or institution; or

(d) being on the management or on the
staff of a hospital, takes advantage of his official
position and commits rape on a woman in that
hospital; or

(e) commits rape on a woman knowing
her to be pregnant; or

(f) commits rape on a woman when
she is under twelve years of age; or

(g) commits gang rape, shall be
punished with rigorous imprisonment for a term
which shall not be less than ten years but which
may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and
special reasons to be mentioned in the judgment,
impose a sentence of imprisonment of either
description for a term of less than ten years.
Explanation 1.--Where a woman is raped by one
11 All. Jai Karan @ Pappu Vs. State of U.P.
125
or more in a group of persons acting in
furtherance of their common intention, each of
the persons shall be deemed to have committed
gang rape within the meaning of this subsection. Explanation 2.--"Women's or children's
institution" means an institution, whether called
an orphanage or a home for neglected woman or
children or a widows' home or by any other
name, which is established and maintained for
the reception and care of woman or children.
Explanation 3.--"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."

26. In respect of the victim, the doctor in
medical report has opined as under :-

"In the x-Ray of both wrist A.P., all
eight carpal bones were found present. The
lower epiphyses of both wrist joints have not
fused. In the x-Ray of both elbow joints, all the
bony epiphyses around both elbow joints had
fused

In her supplementary report, lady
doctor opined that no spermatozoa was seen by
her. According to physical appearance, age of
the prosecutrix was 15 to 16 years. No definite
opinion about rape was given"

27. The evidence as discussed by learned
Judge shows that the mere fact that no external
marks of injury was found by itself would not
throw the testimony of the prosecutrix over
board as it has been found that the prosecutrix
had washed all the tainted cloths worn at the
time of occurrence as she was a minor girl. We
also do not give any credence to that fact and
would like to go through the merits of the
evidence led.

28. As far as the commission of offence
under Section 376 IPC is concerned, the learned
Judge has relied on the judgments of (1) Rafiq
Versus State of U.P., AIR 1981 SC page 559,
(2) Nawab Khan Versus State, 1990 Cri.L.J.
Page 1179 and the judgment in (3) Bharvada
Bhogin Bhai Hirji Bhai Versus State of
Gujarat, AIR 1983 SC page 753 and convicted
the accused. The accused has not sought benefit
of Section 155(4) of Evidence Act.

29. The evidence of Dr. Raj Rani Kansal,
District
Hosptial/Dafrin
Hospital,
Medical
Officer, PW-5 who medically examined the
prosecutrix on 16.8.2000 at 12.00 noon, found
no external or internal injury on the person of
the victim. On preabclomen examination, uterus
size was 20 weeks and ballonement of uterus
was present. On internal examination, vagina of
the victim was permitting insertion of two
fingers.
Internal
uterine
ballonement
was
present. The victim complained of pain during
internal examination but no fresh injury was
seen inside or outside the private part. Her
vaginal smear was taken on the slide, sealed and
sent
for
pathological
investigation
for
examination. The doctor opined both in occular
as well as her written report that the prosecutrix
was having five months pregnancy and no
definite opinion about rape could be given.

30. In the x-ray examination, both wrist
A.P., all eight carpal bones were found present.
Lower epiphyses of both writst joints were not
fused. All the bony epiphyses around both elbow
joints were fused. In the supplementary report,
the docotr opined that no spermatozoa was seen
by her and according to the physical appearance,
age of the victim was appearing to be 15 to 16
years and no definite opinion about rape could
be given.

31. As far as the medical evidence is
concerned, there are three emerging facts.
Firstly, no injury was found on the person of the
victim. We are not mentioning that there must be
any corroboration in the prosecution version and
medical evidence. The judgment of the Apex
126 INDIAN LAW REPORTS ALLAHABAD SERIES
Court rendered in the case of Bharvada Bhogin
Bhai Hirji Bhai Versus State of Gujarat, AIR
1983 SCC page 753, which is a classical case
reported way back in the year 1983, on which
reliance is placed by the learned Session Judge
would not be helpful to the prosecution. The
medical evidence should show some semblance
of forcible intercourse, even if we go as per the
version of the prosecutrix that the accused had
gagged her mouth for ten minutes and had
thrashed her on ground, there would have been
some injuries to the fully grown lady on the
basis of the body.

32. The findings in the case of Vishnu
(supra) are verbatim reproduced as there is
similarly affects:-

"In our finding, the medical evidence
goes to show that doctor did not find any sperm.
The doctor categorically opined that no signs of
forcible sexual intercourse were found. This was
also based on the finding that there were no
internal injuries on the lady who was grown up
lady.

The factual data also goes to show that
there
are
several
contradictions
in
the
examination-in-chief
as
well
as
cross
examination of all three witnesses. In her
examination-in-chief, she states that incident
occurred at about 2:00 p.m. but nowhere in her
ocular version or the FIR, she has mentioned
that she was going to the fields with lunch for
her father-in-law. This statement was made for
the first time in the ocular version of the
husband of the prosecutrix i.e. PW-3 and that it
was father-in-law who narrated incident to the
police authority. The father-in-law as PW-2 in
his testimony states that he was told about the
incident by her daughter-in-law (Bahu) on
which he complained some villagers about the
accused who denied about the incident,
therefore, they decided to go to the police station
on the next day but the police refused to lodge
the report on the ground that no one was present
in the police station, therefore, they went on
third day of the incident to lodge the FIR. After
this, again he contradicts his story in his own
statement recorded on cross-examination on the
next date stating that the incident was told by his
daughter-in-law to his wife who told him about
the same. There is further contradiction in the
statements of this witness. In examination-inchief he states that the parties called for
Panchayat in the village but there is nothing on
record that who were the persons called for
Panchayat. If the pregnant lady carries fifth
month pregnancy is thrashed forcefully on the
ground then there would have been some injury
on her person but such injuries on her person
are totally absent."

33. The judgment relied on by the learned
counsel for the appellant will also not permit us
to concur with the judgment impugned of the
learned Trial Judge where perversity has crept
in.

34. As far as Section 3(2)(v) of Scheduled
Casts and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 is concerned, the FIR and
the evidence though suggest that any act was
done by the accused on the basis that the
prosecutrix was a member of Scheduled Castes
and Scheduled Tribes then the accused can be
convicted for commission of offence under the
said provision. The learned Trial Judge has
materially erred as he has not discussed what is
the evidence that the act was committed because
of the caste of the prosecutrix. The sister-in-law
of the prosecutrix had filed such cases, her
husband and father-in-law had also filed
complaints. We are unable to accept the
submission of learned AGA that the accused
knowing fully well that the prosecutrix belongd
to lower strata of life and therefore had caused
her such mental agony which would attract the
provision of Section 3(2)(v) of the S.C./S.T. Act.
The reasonings of the learned Judge are against
the record and are perverse as the learned Judge
11 All. Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P. & Anr.
127
without any evidence on record on his own has
felt that the heinous crime was committed
because the accused had captured the will of the
prosecutrix and because the police officer had
investigated the matter as an attrocities case
which would not be undertaken within the
purview of Section 3(2)(v) of S.C./S.T. Act and
has recorded conviction under Section 3(2)(v) of
the Act which cannot be sustained. We are
supported in our view by the judgment of
Gujarat High Court in Criminal Appeal No.74
of 2006 in the case of Pudav Bhai Anjana
Patel Versus State of Gujarat decided on
8.9.2015 by Justice M.R. Shah and Justice
Kaushal Jayendra Thaker.

35. Learned trial Judge wrongly came
to the conclusion that as the prosecutrix
belonged to community falling in the
scheduled caste and the appellant belonged
to upper caste the provision of SC/ST Act
are attracted in the present case.

36. While perusing the entire evidence
beginning from FIR to the statements of
PWs-1, 2 and 3 we do not find that
commission of offence was there because of
the fact that the prosecutrix belonged to a
certain community.

37. The learned Judge further has not
put any question in the statement recorded
under Section 313 Cr.P.C. of the accused
relating to rape which is against him.

38. In view of the facts and evidence
on record, we are convinced that the accused
has been wrongly convicted, hence, the
judgment and order impugned is reversed
and the accused is acquitted of charges
levelled. The accused appellant, if not
wanted in any other case, be set free
forthwith.

39. Appeal is allowed accordingly.

40. Record be sent to the trial court.

41. We are thankful to learned counsel for
appellant and learned AGA for the State who
have ably assisted the Court.
----------
(2021)11ILR A127
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.10.2021

BEFORE

THE HON'BLE RAJEEV MISRA, J.

Criminal Revision No. 2183 of 2021
connected with
Application U/S 482 No. 13664 of 2021

Ravindra Pratap Shahi @ Pappu Shahi
 ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Rakesh Kumar Srivastava, Sri Gopal Swaroop
Chaturvedi (Senior Adv.)

Counsel for the Opposite Parties:
G.A., Sri Satyendra Narayan Singh, Sri Shesh
Narain Mishra

A. Criminal Law - Criminal Procedure Code,
1973 - Sections 227 & 228 - Once the charges
have been framed, the issue of discharge
becomes
redundant,
as
Courts
have
no
jurisdiction to allow discharge after charges
having been framed. After charges have been
framed, Court can neither convict or acquit an
accused. (Para 29)

At the time of examining the framing of charge order
under Section 228 Cr.P.C., arguments from both the
parties have to be considered. Such an exercise is not
permissible while deciding the correctness of charge
order as it will amount to mini trial. (Para 33)

Revision Rejected. (E-10)

List of Cases cited:-