# Kusehrideen & Anr v. State of U.P

- **Citation:** (2016) 3 ILRA 240
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-09
- **Bench:** Surendra Vikram Singh Rathore, Pratyush Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kusehrideen-anr-v-state-of-u-p-43524
- **Pages:** 12

## Text

240 INDIAN LAW REPORTS ALLAHABAD SERIES
falsely implicate the accused, who had admittedly lodged a report against the father and
brother of the victim. Even the father of the victim PW-2 Chhotey Lal had admitted that in
the case, which was lodged by the accused appellant Amar against him, he had not got
himself bailed out. This witness has stated that he has ignored whether Jaipal is witness in
the case lodged by the appellant Jaipal, but the whole prosecution theory as set forth by the
prosecution is unreliable. The witnesses are not trustworthy. The prosecution has miserably
failed to prove the case against the accused beyond reasonable doubt. There is admitted
enmity between the accused appellant and the family of the victim.

23. Thus, what has been stated and discussed above, I conclude that the prosecution
case is a bundle of false allegations and improbable facts, due to which the learned trial
court mislead itself and has incorrectly convicted the accused, which conviction cannot be
sustained in the eyes of law, as such the accused is entitled to be acquitted and the appeal is
liable to be allowed.

24. Hence, the impugned judgement of conviction and sentence dated 31.05.2014
passed by the learned Sessions Judge, Kanpur Dehat in Sessions Trial No. 110 of 2013
(State vs. Amar and another) arising out of Case Crime No. 404 of 2012, under section 376
IPC, PS Akbarpur, district Kanpur Dehat is hereby set aside.

25. Accordingly, the appeal is allowed.

26. The appellant Amar is on bail. His bail bond is cancelled and the sureties are
discharged. However, the appellant is directed to comply with the provision of Section 437A Cr.P.C.

27. Let a copy of this order be sent to the trial court concerned for compliance of the
order.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.03.2016

BEFORE

THE HON'BLE SURENDRA VIKRAM SINGH RATHORE, J.
THE HON'BLE PRATYUSH KUMAR, J.

Criminal Appeal No.- 335 of 2006

Kusehrideen & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for Appellants:-
Rajendra Yadav, Alok Kapoor, G.S. Tripathi, Neeraj Sahu, Rajiv Mishra, S.H. Ibrahim, Soniya Mishra,
Syed Shabiha Haider, U.N. Tiwari
3 All. Kusehrideen & Anr. Vs State Of U.P.
241

Counsel for Respondent:-
Govt. Advocate

HELD:

1. The prosecution case was supported by three eyewitnesses, whose presence at the spot was
natural and established. Their testimonies were consistent and trustworthy.
2. Minor contradictions in eyewitness accounts were held natural and not sufficient to discredit the
prosecution version.
3. Medical evidence fully corroborated the ocular evidence; the deceased sustained multiple firearm
injuries consistent with the prosecution narrative.
4. Injuries sustained by the child witness further corroborated the prosecution version and confirmed
his presence at the scene.
5. The defence argument regarding improbability of witnessing the incident at night was rejected;
torchlight was available and identification was possible.
6. The FIR was found prompt; allegations of ante-timing were rejected as there was no material to
support fabrication.
7. Motive was established - previous enmity arising from the accused enticing away the wife of the
deceased shortly before the incident.
8. The medical argument regarding stomach contents (undigested food) was rejected following
Supreme Court precedent that stomach contents cannot precisely determine the exact time of death.
9. The Court held that the child witness was competent; his testimony was natural, reliable, and stood
firm during cross-examination.
10. Delay in sending the dead body and papers for post-mortem was explained satisfactorily.
11. The defence version was found improbable and unsupported by evidence.
12. The appellate court reaffirmed its duty under Sections 374 and 386 CrPC to re-appreciate evidence
and found the conviction justified.
13. The Court relied on Supreme Court judgments (Ishvarbhai Fuljibhai Patni; Lal Mandi) to hold that
convictions based on consistent eyewitness testimony must be upheld.
14. The conviction under Section 302/34 IPC and Section 307/34 IPC was affirmed.
15. Regarding the conviction under Section 3(2)(v) of the SC/ST Act, the Court held that Section
3(2)(v) is not a standalone offence; it only enhances punishment when the crime is committed on the
ground of caste.
16. Since the trial court convicted the appellants only under Section 3(2)(v) simpliciter without linking
it to the underlying IPC offence or caste-based motive, the conviction was illegal.
17. The conviction under Section 3(2)(v) SC/ST Act was therefore set aside.
18. The convictions and sentences under IPC were maintained; only the SC/ST Act conviction was
modified.
19. Modified conviction warrants were directed to be issued accordingly.

Case Law Discussed:

1. Ishvarbhai Fuljibhai Patni v. State of Gujarat (Supreme Court).
2. Lal Mandi v. State of West Bengal (Supreme Court).
3. Dimple Gupta v. Rajiv Gupta (Supreme Court).
4. Jitender Kumar v. State of Haryana (Supreme Court).
5. Majaja Lal v. State of U.P. (Allahabad High Court).

(Delivered by Hon'ble Pratyush Kumar, J.)
242 INDIAN LAW REPORTS ALLAHABAD SERIES
1. The present appeal filed on behalf of the appellants is directed against judgment and
orders dated 23.2.2006 passed by Sri Ashok Kumar Tripathi, the then Additional Sessions
Judge/Special Judge (S.C.S.T. Act) Unnao in two combined Special Trial Nos. 167 of 1998
(State Vs. Kushehari Deen and others) and 307 of 1998 (State Vs. Ram Kishore) arising out
of Case Crime No. 98 of 1998, under sections 302/307 IPC and section 3 (2) (V) The
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1988 (hereinafter
referred as the S.C.S.T. Act) and relating to P.S. Safipur, District Unnao, whereby they were
convicted and sentenced under section 307 IPC read with 34 IPC for life imprisonment and
fine of Rs. 1,000/- each in default of payment of fine further six months imprisonment,
under section 302 IPC readwith section 34 IPC for life imprisonment and fine of Rs. 2000/-
each, indefault of payment of fine further one year's imprisonment and under section 3(2)
(V) S.C.S.T. Act for life imprisonment, all the sentences were directed to run concurrently.

2. In the instant appeal facts of the prosecution case may be summarized as under:

3. That on 24th April, 1998 at 7.35 A.M. Dhani Ram R/o villager Maniyapur, P.S.
Safipur handed a written report at the police station stating therein that 9 months ago his covillager Ram Kishore along with Shiv Prasad alias Panda had enticed away his wife. After
14 days he brought his wife back from Punjab, thereupon they threatened him that he would
not be spared. Due to fear he left his village and started to live with his family in village
Gumaria, Mauja Dadlaha. Kusherdeen R/o village Maniyapur also became annoyed with
him for that. In the intervening night of 23rd/24th April, 1998 he was sleeping with his wife
Urmila under a chappar and his daughters Guddi aged about 14 years, Neelam aged about 10
years and Nirmala aged about 8 years and son Kuldeep after taking their dinner were
sleeping on 2 cots in the courtyard. He wore white clothes and his daughter Guddi also wore
white clothes. At about 2 A.M. on the sound of fire he and his wife awoke and after turning
on flash light saw that in the courtyard Ram Kishore armed with 12 bore countrymade
pistol, Shiv Prasad alias Panda and Khushardeen armed with country-made pistols were
standing there. Mean time Ram Kishore, mistaking his daughter to be him and, in order to
kill him fired from his countrymade pistol. He and his children raised hue and cry thereupon
all the three miscreants passing through northern side made good their escape. He, his wife
Urmila, daughters Neelam and Nirmla and other neighbours saw the occurrence. Guddi had
died on the spot and Neelam was seriously injured.

4. At this chick FIR was scribed, case crime no. 98/98 under sections 302/307 IPC and
3 (2) (V) SC/ST Act was registered at P.S. Safipur. Its entry was made in the report of the
general diary and the investigation was taken over by the circle officer, who after
investigation submitted the charge sheet against all the three named accused persons. In the
special court the appellants were charged under sections 307/34, 302/34 IPC and section 3
(2) (V) SC/ST Act, which they denied and claimed to be tried.

5. In order to prove the charges on behalf of the prosecution in the documentary
evidence besides other papers, written report Ext. Ka-1, Recovery memo Ext. Ka-2, Injury
report Ext. Ka-3, X-ray report Ext. Ka-4, Site plan Ext Ka-5, Postmortem report Ext. Ka-7,
F.I.R. Ext. Ka-8, Copy of report Ext. Ka-9, Inquest report Ext. Ka-11, Recovery memo Ext.
3 All. Kusehrideen & Anr. Vs State Of U.P.
243
Ka-16 and Ka-17 were filed and eight witnesses were examined. Thereafter statements of
the accused persons were recorded under section 313 Cr.P.C., wherein they admitted that
first informant belonged to scheduled caste. Other facts stated by the prosecution witnesses
were denied by them. About medical evidence they pleaded ignorance. According to them
they were falsely implicated due to enmity. In the defence no evidence was given.

6. Briefly stated, prosecution witnesses in brief deposed as under:
1.
Dhani Ram P.W.1
He is the first informant, father of the deceased, supported the
version contained in the FIR and proved written report Ext. Ka1 and inspection memo of the flash light Ext Ka-2.

2.
Km. Neelam P.W.

She is an injured eye witness who supported the prosecution
version of the occurrence.

3.
Dr. K.P. Mishra
P.W.3

He is the doctor who on 24th April, 1998 at 8.30 A.M.
medically examined Km. Neelam and found five gun shot
injuries on her person and proved injury report Ext. Ka-3 and
X-ry Ext- Ka-4.

4.
Vijay
Narayan
Singh P.W.4
He is the investigating Officer and gave details about the steps
taken in the course of investigation and proved site plan Ext.
Ka-5 and charge sheet Ext. Ka-6.

5.
. Dr. Arun Saha
P.W.5

He on 24th April, 1998 at 4.45 p.m. performed autopsy on the
dead body of deceased Guddi and recorded two ante mortem
injuries on her person and proved postmortem report Ext. Ka-7.

6.
H.C. Ram Kumar
Varma P.W.6

He is the scribe of the chick FIR. He proved chick FIR Ext. Ka8 and copy of the report of the general diary Ext. Ka-9, chitthi
majaroobi Ext. Ka-10

7.
S.I. Ram Pyara
P.W.7

He conducted the inquest proceedings, proved inquest report
Ext Ka-11, recovered empty cartridge and cap of bullet. Proved
its memo Ext. Ka-16, took samples of blood stained and simple
earth, proved recovery memo Ext Ka-17. He also explained
discrepancy about distance between scene of occurrence and
police station occurring in the chick FIR and inquest report.
Note: In Ext. Ka-8 distance has been mentioned 10 km in Ext.
Ka-11. It is mentioned as 9 km.
Reason given by him is that he wrote the distance on the
information of the villagers.

8.
8.
Smt.
Urmila
P.W.8
Mother of the deceased supported the version contained in the
FIR.
244 INDIAN LAW REPORTS ALLAHABAD SERIES

7. The learned special Judge after hearing the arguments found the ocular version of the
occurrence trustworthy. He believed the medical evidence adduced by the prosecution and
further held that motive stood proved. He rejected the argument that in the darkness of night
miscreants could not be identified and convicted the present appellants and sentenced the
present appellants as above. He acquitted Shiv Prasad alias Panda on the ground he was not
assigned any specific role.

8. Heard Sri Rajiv Mishra and Ms. Soniya Mishra, learned counsel for the appellants
and Sri M.Y. Ansari, learned AGA for the State and perused the record.

9. Briefly summarized the arguments advanced in support of the appeal are that FIR is
ante timed. There was no source of light. In the statements of the eye witnesses there are
contradictions. Their evidence has been erroneously believed and the incident was not fairly
investigated.

10. On behalf of the State-respondent the learned AGA has replied that the FIR is
prompt, presence of the eye witnesses is natural and probable. Contradictions are minor and
the findings recorded in the impugned judgment are well substantiated from the record.

11. Before we propose to deal with the arguments submitted by the respective parties,
we would like to recollect the manner in which appeal against conviction is required to be
considered by this Court and scope of jurisdiction conferred on the Court by Sections 374
and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in
the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases
(Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate
jurisdiction, against conviction and sentence of life imprisonment, it was required to
consider and discuss the evidence and deal with the arguments raised at the bar. Let
alone, any discussion of the evidence, we do not find that the High Court even cared to
notice the evidence led in the case. None of the arguments of the learned counsel for
the appellant have been noticed, much less considered and discussed. The judgment is
cryptic and we are at loss to understand as to what prevailed with the High Court to
uphold the conviction and sentence of the appellant. On a plain requirement of justice,
the High Court while dealing with a first appeal against conviction and sentence is
expected to, howsoever briefly depending upon the facts of the case, consider and
discuss the evidence and deal with the submissions raised at the bar. If it fails to do so,
it apparently fails in the discharge of one of its essential jurisdiction under its appellate
powers. In view of the infirmities pointed out by us, the judgment under appeal cannot
be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995
CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given
3 All. Kusehrideen & Anr. Vs State Of U.P.
245
the caution to the High Court reminding its duty in the matter of hearing of appeal
against conviction. It would be gainful to reproduce the observation made in para-5 of
the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an
appeal against conviction, the Appellate Court has the duty to itself appreciate the
evidence on the record and if two views are possible on the appraisal of the evidence,
the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest
that the "Appellate Court cannot legally interfere with" the order of conviction where
the trial court has found the evidence as reliable and that it cannot substitute the
findings of the Sessions Judge by its own, if it arrives at a different conclusion on
reassessment of the evidence. The observation made in Tota Singh's case, which was an
appeal against acquittal, have been misunderstood and mechanically applied. Though,
the powers of an appellate court, while dealing with an appeal against acquittal and an
appeal against conviction are equally wide but the considerations which weigh with it
while dealing with an appeal against an order of acquittal and in an appeal against
conviction are distinct and separate. The presumption of innocence of accused which
gets strengthened on his acquittal is not available on his conviction. An appellate court
may give every reasonable weight to the conclusions arrived at by the trial court but it
must be remembered that an appellate court is duty bound, in the same way as the trial
court, to test the evidence extrinsically as well as intrinsically and to consider as
thoroughly as the trial court, all the circumstances available on the record so as to
arrive at an independent finding regarding guilt or innocence of the convict. An
Appellate Court fails in the discharge of one of its essential duties, if it fails to itself
appreciate the evidence on the record and arrive at an independent finding based on the
appraisal of such evidence."

12. Further before we enter into the merits of the respective arguments, we would like
to refer the medical evidence which consists of statement of Dr. K.P. Mishra who medically
examined the injured Km. Neelam on 24th April, 1998 at 8.30 A.M. and proved injury
report Ext. Ka-3 and X-ray report Ext. Ka-4 and statement of Dr. Arun Saha P.W.5 who
conducted the postmortem examination of the dead body of Guddi on 24th April, 1998 at
4.45 p.m. and proved the postmortem report Ext. Ka-7

13. Since homicidal death of Km. Guddi by gun shot has not been disputed before the
trial court and even he was not suggested otherwise, we would like to take note of the fact
that two ante mortem injuries were found on the dead body of Guddi. They read as under:

1. Fire-arm wound 3 cm. x 2-1/2 cm. x cavity deep on (LT) side of neck. 4 cm.
above the (LT) clavicle. Margins inverted. Blackening and tattooing present. (wound of
Entry)

2. Blacking and tattooing present on the (RT) forearm just above the (RT) wrist in
an area of 8 cm. x 4 cm.
246 INDIAN LAW REPORTS ALLAHABAD SERIES
14. According to doctor death had occurred due to shock and haemorrhage as a result
of antemortem gun shot injury. She could have died in the intervening night of 23rd/24th
April, 1998 at 2 A.M.

15. In view of above, on the basis of statement of Dr. Arun Shah, P.W.5 and
postmortem report Ext. Ka-7, we hold that the facts stated by the witness stand proved and
deceased could have died on the stated date and time in the manner opined by the witness.

16. Dr. K.P. Mishra, P.W.3 has deposed that he found five injuries on the person of
Km. Neelam at the time of medical examination. All were fresh caused by fire arm. In the xray no foreign body or bony injury could be found. In the cross examination he was asked
about the variation in the duration of the injuries and distance from which they could have
been caused. Thus injuries sustained by Neelam were not disputed by the defence before the
trial court. These injuries read as under:

1. Multiple skin deep wounds situated on the face Lat at & below left side of the
mouth, covering 6 cm. x 5.0 cm. area extending from left cheek to the chin, Blackening
& Charring present.

2. Multiple Abrasions small sized situated on the outer surface of the neck &
upper part of the chest, blackening & charring of the skin present due to unburnt gun
powder.

3. Gun-shot wound 0.5 cm x 0.4 cm x depth not probed situated on the neck 3.0
cm. above medial end of right clavicle, collar of abrasion present, margins inverted,
blackening present.

4. Multiple small sized abrasions on the anterior lateral surface area 10.0 cm. x 5.0
cm. right arm blackening and charring present.

5. Gun-shot wound 0.5 cm. x 0.4 cm. x depth not probed, on the inter scapular area
right side to the main on the back. Collar of abrasion present, blackening present.

17. Leaving aside his opinion, we hold on the basis of the testimony of Dr. K.P. Mishra
that on the stated date and time Km. Neelam could have sustained five gun shot simple
injuries.

18. Now we have to see whether FIR was lodged promptly or it was actually antetimed.

19. On behalf of the prosecution Dhaniram P.W.1 and Ram Kumar Verma P.W.6 have
been examined on this point. Ram Kumar Verma P.W.6 is the scribe of chick FIR who
proved chick FIR Ext. Ka-8 and copy of the report of the general diary Ext. Ka-9 and also
chitthi majaroobi Ext. Ka-10. He has been suggested that he ante-timed the registration of
the case. In the cross examination he admitted that on that date no other case was registered.
3 All. Kusehrideen & Anr. Vs State Of U.P.
247
20. Dhani Ram P.W.1 also reiterates the prosecution version and claims that written
report was dictated by him on his way to Safipur.

21. On behalf of the appellants attention of the Court has been drawn to the inquest
report Ext Ka-11 which does not contain names of the accused and weapons used by them.
The document referred by learned counsel for the appellant is not indicative of ante timing
of the FIR. In the inquest report we find case crime number and sections were correctly
written. There is no overwriting. In the last as enclosures copies of necessary documents
were attached and one of them is copy of chick FIR. letter to C.M.O. Ext. Ka-12, letter to
R.I. Ext. Ka-13, diagram dead body Ext. Ka-14, form no.13 (chalan las) Ext. Ka-15,
recovery memo Ext. Ka-16, Ka-17. All bear case crime number and sections. There is no
overwriting or cutting in these papers.

22. Though it is true that in chitthi Majaroobi Ext. Ka-10 case crime number and
sections have not been mentioned but we find name of the injured has been mentioned
therein. The possibility cannot be ruled out that considering five gun shot wounds while the
chick was being scribed and all formalities were completed, the constable took the injured
with him for medical examination and treatment. She was medically examined at 8.30 A.M.
on that day that shows that efforts were made for her immediate treatment. In this
background we do not think omission to mention case crime number in the chitthi majaroobi
is material.

23. On behalf of the appellants in order to show the ante timing of FIR and consultation
of the first informant with the police, the learned counsel for the appellant has referred the
statements of Dhaniram P.W.1 and Neelam P.W.2. Dhani Ram P.W.1 has stated in his cross
examination that police reached his house at 7 A.M. He could not say whether police came
after he lodged the FIR or before that. When his testimony is read as a whole we notice that
he has stated that he departed from his house before 6 A.M. and reached there at 6 A.M.
This shows that FIR was lodged prior to the visit of the police to his house. The learned
counsel for the appellant has also referred the statement of Km. Neelam P.W.2 where she
says that police came to her house two hours before sun rise and they took her and her father
in the Jeep to Safipur. She is a child witness having rural background. At the time of
incident she had sustained five gun shot injuries. Her memory after the incident may have
become hazy on account of trauma so we don't think that on the basis of her statement,
statement of her father and Ram Kumar Verma P.W.6 can be discarded. After giving our
anxcious consideration we come to the conclusion that FIR was not ante timed.

24. Motive has been proved successfully. This fact has not been disputed before us,
however, we find that statement of Dhaniram P.W.1 and Urmila P.W.8 are categorical in
this regard and this fact has been successfully proved that Urmila was taken by the appellant
no.2 with Shiv Prasad Panda from the house of the first informant. Her cash and ornaments
were misappropriated and she was brought back by her husband. For that reason the
appellants and Shiv Prasad alias Panda were annoyed with the first informant.
248 INDIAN LAW REPORTS ALLAHABAD SERIES
25. On behalf of the appellants time of occurrence has also been challenged on the
basis of testimony of Dr. Arun Shah P.W.5 who noted in the postmortem report that in the
stomach 100 gm semi digested food, in the small intestine paste and gases were found.
According to him in the rural area dinner is usually taken at about 7-8 p.m. presence of semi
digested food shows that before her death deceased must have taken food 2-3 hours earlier.
Therefore, alleged time of occurrence 2 a.m. is doubtful.

26. The Hon'ble Apex Court in reference to rustic witnesses has made a very
illuminating observation in the case of Dimple Gupta Vs. Rahiv Gupta AIR 2008 SC 239.
According to this observation villagers are prone to misjudge time and distance and they are
not skilled in narrating the chain of events with precision.

27. Keeping in view this observation time of 2 a.m. may not be taken literally, there
may be variation of one or two hours. Father and mother of the deceased were not cross
examined about when the deceased had taken her last meal and what her meal consisted of.
In absence of these facts we don't think that on the basis of contents of the stomach
categorical statement of Dhaniram P.W.1, and Ram Kumar P.W.6 can be discarded. Here
we would recall the observation of the Hon'ble Apex Court made in the case of Jitender
Kumar Vs. State of Haryana 2012 SCC 204 para 61.

"61. In view of the above medical references, the view expressed in Modi's book
(supra) and the principles stated in the judgments of this Court, it can safely be
predicated that determination of the time of death solely with reference to the stomach
contents is not a very certain and determinative factor. It is one of the relevant
considerations. The medical evidence has to be examined in light of the entire evidence
produced by the parties. It is certainly a relevant factor and can be used as a
significant tool by the Court for coming to the conclusion as to the time of death of the
deceased but other factors and circumstances cannot be ignored. The Court should
examine the collective or cumulative effect of the prosecution evidence along with the
medical evidence to arrive at the correct conclusion."

28. This settles the challenge to dispute time of occurrence.

29. Now we come to ocular version of the occurrence. Dhani Ram P.W.1 is the first
informant. He has lodged the FIR without undue delay. His presence during the night at the
spot is natural and probable. The only criticism about him is that he had no opportunity to
see the occurrence because deceased and injured were lying in the courtyard and the first
informant was sleeping inside an improvised chamber raised by thatched walls (tatiya). In
the site plan Ext. Ka-5 by letter ''A' the place has been indicated where the deceased and
injured were sleeping on a cot and by letter ''B' the place has been indicated where the first
informant and his wife were sleeping. It is clear from the site plan that the first informant
and his wife were sleeping near to the northern side of the improvised chamber which has
way for entry and exit on northern side. From this entry and exit point place ''A' is directly
visible. Argument contrary to this cannot be accepted by us.
3 All. Kusehrideen & Anr. Vs State Of U.P.
249
30. There is one more objection to his opportunity to see the occurrence that the night
was dark and no source of light was disclosed in the FIR but we find that in the FIR flash
light has been mentioned. The existence of flash light has been disputed on the basis of one
contradiction occurring between inspection memo of torch Ext. Ka-2 and statement of Dhani
Ram P.W.1. In the inspection memo reference has been made to flash light of two cells with
normal glass having small reflector whereas in the cross examination the witness has stated
that his flash light was of three cells with a broad glass having big reflector. Here we have to
remember that occurrence had taken place on 24th April, 1998 and the witness on this point
was cross examined on 5th December, 2003 on this point. More than five years had lapsed
which tends to show that memory of the witness may have faded. We don't think this
contradiction is a material one rather it shows that this witness has not been tutored and he
was deposing what he recollected in his memory. For this reason we also reject the argument
that at the time of occurrence due to no light the witness had no opportunity to see the
occurrence and identify the miscreants.

31. During cross examination some normal discrepancies have occurred in his
statement. We could not find any of them to be major contradiction between his statement
on oath and the version contained in the FIR. Thus his testimony during long crossexamination remained unshaken. We are not prepared to believe that he would spare real
culprits for murdering his young daughter and injuring the other and on whose account he
had to leave his native village. There is no reason for him to implicate any other person
except the real culprits. We find his testimony worthy of reliance.

32. Km. Neelam P.W.2 is a child witness who was administered oath after the trial
Judge satisfied himself about her understanding. She has fully supported the prosecution
version. She is an injured witness. Her testimony appears to be natural. Though on behalf of
the appellants last para of her statement has been referred to show that she was tutored by
public prosecutor. In this para the witness has stated that public prosecutor had refreshed her
memory by reading her statement but she further said that whatever statement was read over
that statement was truth. We do not think that the part of her statement referred by learned
counsel for the appellants diminishes the evidential value of her statement. Had she not been
a child witness it might have mattered but due to her tender age the public prosecutor had a
right to ensure that the witness he was going to examine had sufficient understanding or not,
whether she had seen the occurrence or not. A child may not understand the technicalities of
law. Whatever she was asked she replied that before the Court. Her statement reveals that
she had actually seen the occurrence. We found her to be a truthful witness.

33. Third eye witness is Smt. Urmila, P.W.8 mother of the deceased and the injured.
She is more a witness of the motive then the occurrence. But she has fully corroborated the
prosecution version. Her presence is natural and probable in the night in her house near her
children. After hearing the shot she was awakened and seen the incident. She had
opportunity to see the occurrence and identify the miscreants. We also found her to be a
reliable witness.
250 INDIAN LAW REPORTS ALLAHABAD SERIES
34. Thus murder of Km. Guddi and attempted murder of Km. Neelam stand proved by
medical evidence. These offences were committed by the appellants. This fact stands proved
by the testimonies of three eye witnesses named above.

35. There is one more ground that investigation was not fairly conducted. In support of
his ground learned counsel for the appellants could not indicate a single fact from the record.
This argument is not substantiated from the record hence rejected.

36. Now remains one illegality noticed by us that in addition to their conviction under
sections 302 and 307 IPC the appellants have also been convicted under section 3 (2) (V)
SC/ST Act and they have been sentenced separately under this section also.

37. Before we discuss this point it would be gainful to reproduce provisions contained
in section 3 (2) (v) of the Schedule Caste and Schedule Tribe Act. They read as under:

"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"

38. It is evident from the plain reading of these provisions here that no distinct separate
offence is created by them. They only enable the court, while convicting a person not being
member of a scheduled caste or scheduled tribe who have committed any offence punishable
under the Indian Penal Code, to award enhanced sentence. However, conviction and
sentence under section 3 (2) (V) of the S.C.S.T. Act simplicitor is not permissible and the
offender has to be convicted for the offence under the Indian Penal Code read with this
section and he can be sentenced to undergo imprisonment for life and to pay fine also. Our
view gets fortified from the observations made by the division Bench of this Court in
Majaja Lal Vs. State of U.P. 2009 (65) ACC 446 (All)

39. In the present case under both sections of Indian Penal Code the appellants have
been awarded sentence of imprisonment for life with fine. Thus the maximum sentence
prescribed under section (3) (2) (v) of the S.C.S.T. Act has already been awarded to the
appellants. There remains no further area for the applicability of the said section.

40. Except this all other findings recorded by the learned trial Judge are well
substantiated from the record supported by cogent reasons. We are in agreement with him
on other points. We conclude except the defect noticed by us the impugned judgment
requires no interference.

41. In view of above the conviction and sentence awarded to the appellants under
section 3 (2) (V) of the said Act are not warranted by law. To this extent the impugned
judgment and orders require to be modified.
3 All. Dharmendra Vs State Of U.P.
251
42. Criminal appeal no. 335 of 2006 is dismissed. We affirm the conviction and
sentences of the appellants awarded under section 307/34 and 302/34 IPC whereas their
conviction and sentence under the Scheduled Caste and Scheduled Tribe Act are set aside.
The appellants are in jail. The Special Judge shall send their modified conviction warrants to
the jail, where they shall serve out their sentences in accordance with law.

43. Office is directed to certify this order to the court concerned forthwith and send
back the lower court record.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.03.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 1009 of 2014

Dharmendra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for Appellant:
M.S. Chandel, Dilip Kumar

Counsel for Respondent:
Govt. Advocate, L.K. Verma

HELD:

1. The prosecutrix's testimony was found unreliable, inconsistent, and suffering from major
contradictions between her FIR, Section 164 CrPC statement, and court testimony.
2. Medical evidence did not support the allegation of forceful rape: no external injuries were found, no
vaginal injuries consistent with the prosecution story, and the medical possibility of injury due to a fall
was noted.
3. The place of occurrence-secluded fields-along with the testimony that the prosecutrix remained
with the appellant for 1-2 hours suggested probability of consensual intercourse.
4. Serious contradictions existed: denial of unconsciousness; denial of pistol threat; contradictions
regarding dragging vs. carrying; contradictions about presence of witnesses Kalua and Choudhary.
5. Forensic Lab Report found semen and sperm on both the victim's petticoat and the accused's
underwear, contradicting her claim that the accused did not ejaculate.
6. Strong enmity between the families was proved: prior litigation, ejectment suits, Section 145 CrPC
proceedings, and disputes over residential land.
7. Material prosecution witnesses Kalua and Choudhary were not produced, weakening the
prosecution case.
8. The trial court ignored defence documents demonstrating enmity and failed to properly appreciate
evidence.
9. The prosecution failed to prove guilt beyond reasonable doubt; the story projected by the
prosecutrix was improbable.