# Mani Ram Chaudhary v. State of Uttar Pradesh

- **Citation:** (2022) 9 ILRA 1551
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-19
- **Case number:** Crl. Appeal No. 3561 of 2004
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mani-ram-chaudhary-v-state-of-uttar-pradesh-49047
- **Pages:** 9

## Headnote

Criminal Law - Scheduled Castes and the
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3 (2) (v) -
Punishment for offence of atrocities -
Section 3 (2) (v) SC/ST Act apply only if
the offence under the IPC punishable with
imprisonment for a term of ten years or
more is committed by a person of upper
caste against a person of scheduled caste
or scheduled tribe on the ground that such
person is a member of scheduled caste or
scheduled tribe - It is necessary to prove
that the offence was committed on the
ground of the victim being of scheduled
caste - In the instant case prosecution
failed to bring on record any evidence
which may demonstrate that the minor
victim was raped on the ground of her
being a scheduled caste - Merely because
minor victim is a scheduled caste would
not attract the offence under Section
3(2)(v) of the SC/ST Act - Conviction u/s
3(2(v) of the SC/ST Act set aside(Para 29,
32)
Criminal Law - Indian Penal Code, 1860 -
Section 376 - Evidence Act, 1872 - Section
3 - Rape - Informant belonged to
scheduled caste and her daughter was a
student of Class Vth - On 09.12.2002, at
about 1.00 pm, at around 1:00 pm, the
informant's daughter was returning from
school
when
the
accused
appellant
noticing her alone, forcefully took her into
his house and raped her - a prompt report
was lodged at 16.45 pm - victim was
admitted to a hospital for nearly four days
1552 INDIAN LAW REPORTS ALLAHABAD SERIES
on account of injuries on her private part -
Presiding Officer found the victim to be
mature and sensible and relied upon her
statement
-
she
clearly
stated
that
accused
appellant
grabbed
her
and
brought her inside the Ghaari and raped
her - she identified the accused appellant
and supported the prosecution version -
the victim and her mother have clearly
deposed in support of the charge - medical
report
clearly
supported
the
ocular
testimony - offence of rape proved against
the accused appellant beyond reasonable
doubt - Held - no infirmity in holding the
accused appellant guilty of the offence u/s
376 IPC - Conviction proper (20, 21)
Partly Allowed. (E-5)
List of Cases cited:

## Text

9 All. Mani Ram Chaudhary Vs. State of Uttar Pradesh
1551
Anr. Vs. State of Punjab, (2013) 12 SCC
746.

58. In the case of Lakahan Sao Vs.
State of Bihar and Another (2000) 9 SCC
82, it was held that the non-recovery of the
pistol or spent cartridge does not detract
from the case of the prosecution where the
direct evidence is available/acceptable.

59. Having given our anxious
considerations to the submissions made by
the learned counsel for the parties, we are
clearly of the opinion that the prosecution
has succeeded in establishing its case
against the appellants beyond any shadow
of doubt and the view taken by the learned
Sessions Judge is absolutely correct in the
eye of law.

60. In the result, the appeals lack
merit and are hereby dismissed.

61.

The
appellants
Buddhsen,
Mahipal, Veerpal, Janki and Hori Lal are in
jail, they will serve out the remaining
period of sentence. The appellant Jairam is
on bail, he shall be taken into custody
forthwith and sent to jail to serve the
sentence.

62. Copy of this judgment alongwith
the original record be transmitted to the
Court concerned for necessary compliance.
A compliance report be sent to this Court
within one month. The office is directed to
keep the compliance report on record.
----------
(2022) 9 ILRA 1551
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Crl. Appeal No. 3561 of 2004

Mani Ram Chaudhary ...Appellant
Versus
State of Uttar Pradesh ...Respondent

Counsel for the Appellant:
Sri S.K. Pandey, Sri Rajesh Kumar Chaudhary

Counsel for the Respondents:
Govt. Advocate

Criminal Law - Scheduled Castes and the
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3 (2) (v) -
Punishment for offence of atrocities -
Section 3 (2) (v) SC/ST Act apply only if
the offence under the IPC punishable with
imprisonment for a term of ten years or
more is committed by a person of upper
caste against a person of scheduled caste
or scheduled tribe on the ground that such
person is a member of scheduled caste or
scheduled tribe - It is necessary to prove
that the offence was committed on the
ground of the victim being of scheduled
caste - In the instant case prosecution
failed to bring on record any evidence
which may demonstrate that the minor
victim was raped on the ground of her
being a scheduled caste - Merely because
minor victim is a scheduled caste would
not attract the offence under Section
3(2)(v) of the SC/ST Act - Conviction u/s
3(2(v) of the SC/ST Act set aside(Para 29,
32)
Criminal Law - Indian Penal Code, 1860 -
Section 376 - Evidence Act, 1872 - Section
3 - Rape - Informant belonged to
scheduled caste and her daughter was a
student of Class Vth - On 09.12.2002, at
about 1.00 pm, at around 1:00 pm, the
informant's daughter was returning from
school
when
the
accused
appellant
noticing her alone, forcefully took her into
his house and raped her - a prompt report
was lodged at 16.45 pm - victim was
admitted to a hospital for nearly four days
1552 INDIAN LAW REPORTS ALLAHABAD SERIES
on account of injuries on her private part -
Presiding Officer found the victim to be
mature and sensible and relied upon her
statement
-
she
clearly
stated
that
accused
appellant
grabbed
her
and
brought her inside the Ghaari and raped
her - she identified the accused appellant
and supported the prosecution version -
the victim and her mother have clearly
deposed in support of the charge - medical
report
clearly
supported
the
ocular
testimony - offence of rape proved against
the accused appellant beyond reasonable
doubt - Held - no infirmity in holding the
accused appellant guilty of the offence u/s
376 IPC - Conviction proper (20, 21)
Partly Allowed. (E-5)
List of Cases cited:

1. Dinesh @ Buddha Vs St. of Raj. (2006) 3 SCC
771

2. Ramdas and others Vs St. of Mah., 2006(8)
SC 635

3. Asharfi Vs St.of U.P., (2018) 1 SCC 742

4. Khuman Singh Vs St. of M. P. Criminal Appeal
No. 1283 of 2019, decided on 27.8.2019

5. Patan Jamal Vali Vs State of Andhra Pradesh,
AIR 2021 Supreme Court 2190

6. Dharmendra Vs State of U.P., 2011 Cr.L.J.
204

(Delivered by Hon'ble Ashwani Kumar
Mishra, J. & Hon'ble Shiv Shanker Prasad, J.)

1. This criminal appeal is directed
against the judgment and order dated
21.5.2004, passed by the Special Judge
Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, Basti,
District Basti in Special Sessions Trial No.
14 of 2003, State vs. Maniram Chaudhary;
whereby the appellant has been convicted
under sections 376 IPC and Section 3(2)(v)
of Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989
and consequently sentenced to rigorous life
imprisonment
along
with
fine
of
Rs.20,000/- for the offence under Section
376 IPC and rigorous life imprisonment for
the offence under Section 3(2)(v) SC/ST
Act along with fine of Rs. 20,000/- and on
failure to deposit the fine appellant is to
undergo two years additional rigorous
imprisonment. Both the sentences are to
run concurrently.

2. As per the prosecution case a
written report (Ext.A-1) was given to the
Police Station Kaptanganj, District Basti by
Shanti Devi (PW-1) stating that she
belongs to scheduled caste and her
daughter is a student of Class Vth in the
Primary School, Bheeta. On 9th December,
2002, at about 1.00 pm, the informant's
daughter was returning from her school to
have lunch. On her way situated the house
of accused appellant. Accused appellant on
spotting the victim alone dragged her inside
his house and raped her. The victim
somehow reached her house and informed
her mother, who has filed the written report
(Ex.A.1).

3. The scribe of the written report is
one Sitaram (PW-3), the President of
Bahujan Samaj Party, Kaptanganj. On the
basis of written report a first information
report (Ex.Ka.5) was lodged as Case Crime
No. 254 of 2002, under Section 376 IPC
read with Section 3(1)XII of the SC/ST
Act, 1989.

4.

The
victim
was
thereafter
medically
examined
by
Dr.
Seema
Chaudhary, Emergency Medical Officer,
Woman
Hospital,
Basti
(PW-5)
on
9.12.2002, at 7.15 pm. Injury report of
victim is Exhibit Ka-3. As per the report
9 All. Mani Ram Chaudhary Vs. State of Uttar Pradesh
1553
the victim was 4' 6'' tall and weighed 24
Kg. No external injury was seen but blood
stains were seen on victim's Vulva
Perineum and Thigh. Hymen was found
torn
in
midline
alongwith
bleeding.
Bleeding was also seen in vagina. Vaginal
semen was taken and sent for pathological
examination. The patient was examined
under general anesthesia and lateral vaginal
laceration near left fornix was seen
bleeding and she was advised admission;
vaginal pulsing was done and she was kept
under observation. The victim was also sent
to radiologist for x-ray and determination
of her age.

5. The radio-logical x-ray was done
on 10th December, 2002 by Dr. Sudhakar
Mishra (PW-7). X-ray of victim's right
elbow and right knee was held by Dr.
Sudhakar Mishra on 10.12.2002 and his
report is Exhibit Ka-7. The victim was also
examined by Dr. Jagdish Singh, Dental
Surgeon (PW-8), who determined victim's
age to be 12 years.

6. The victim was kept in the hospital
from
9.12.2002
to
13.12.2002.
The
investigation proceeded thereafter and
statement was recorded of PW-1, PW-2,
PW-4 under Section 161 Cr.P.C. and the
site
plan
was
also
prepared.
Upon
conclusion of investigation a chargesheet
came to be submitted against the accused
appellant under Section 376 IPC read with
Section 3(1)XII SC/St Act on which the
Magistrate took cognizance and committed
the case to Sessions. Charges were
accordingly framed by the Court of
Sessions against the accused appellant who
denied the same and demanded trial.

7. On behalf of the prosecution
documentary evidence in the form of FIR
(Ext.Ka-5);
Written
report
(Ext.A-1);
Injury reports (Exts. Ka-3, 4, 7, 8) and
Recovery memo (Ext. Ka-2) was proved
and was duly exhibited. Oral deposition
was made by Shanti Devi (PW-1), Victim
(PW-2), Sita Ram (PW-3), Kashi Ram
(PW-4), Dr. Seema Chaudhary (PW-5),
Vishwanath Yadav (PW-6), Dr. Sudhakar
Mishra (PW-7), Dr. Jagdish Singh (PW-8)
and Om Prakash (PW-8).

8. The accused appellant was
confronted with the incriminating material
which has surfaced against him during trial
under Section 313 Cr.P.C. He denied the
accusations that while victim was returning
home to have her lunch the accused
appellant grabbed and dragged her inside
the house and raped her. About lodging of
report the accused appellant termed it to be
false. Other accusations made against the
accused appellant were also denied. In
reply to question no. 6 he has stated that on
account of enmity with Sita Ram (PW-3),
the accused has been falsely implicated in
collusion with the investigating officer.

9. It is worth noticing that after the
trial proceeded in the matter and hearing
was concluded the Court of Sessions before
delivering the judgment altered the charge
under Section 3(1)XII SC/ST Act to
Section
3(2)(v)
SC/ST
Act.
The
prosecuting officer made statement that the
prosecution does not intend to produce any
additional evidence in respect of the
charge. Counsel for the accused appellant
also made a statement that the accused
appellant does not intend to submit any
further evidence in the matter.

10. On the basis of aforesaid material
the Court of Sessions has found the charge
of rape under Section 376 IPC proved
against the accused appellant. The court
below also found the charge under Section
1554 INDIAN LAW REPORTS ALLAHABAD SERIES
3(2)(v) of SC/ST Act to be proved beyond
reasonable doubt.

11.

Feeling
aggrieved
by
aforementioned judgment and order the
accused appellant has filed the present
appeal. We have heard Sri Rajesh Kumar
Chaudhary for the appellant and Mrs.
Archana Singh, learned AGA for the State
and carefully perused the records.

12. It is urged on behalf of the accused
appellant that he has been falsely implicated
in the present case at the instant of PW-3 with
whom he had political rivalry. It is argued
that the offence under Section 376 IPC has
not been established on the basis of evidence
led by the prosecution.

13. Learned counsel for the appellant
further submits that the charge under Section
3(2)(v) SC/ST Act has not been substantiated
by the prosecution, inasmuch as, it is neither
shown that accused appellant was aware
about the caste of the victim, nor is it shown
that the offence itself was committed upon
the victim on the ground of her being a
member of the scheduled caste. It is also
contended that the accused appellant has not
been confronted under Section 313 Cr.P.C.
with the charge under Section 3(2)(v) SC/ST
Act and in its absence the conviction and
sentence of appellant under Section 3(2)(v)
SC/ST Act would be impermissible.

14. Learned counsel for the appellant
has produced the custody certificate dated
12.6.2022 of accused appellant to submit that
he has undergone sentence with remission of
over 25 years and his continued incarceration
in jail is unwarranted.

15. Learned AGA, on the other hand,
submits that the offence of rape is proved
against the accused appellant beyond
reasonable doubt since the victim and her
mother have clearly deposed in support of
the charge which is otherwise supported
with medical evidence. It is further argued
that the victim being a member of
scheduled caste had been subjected to rape
and, therefore, the charge under Section
3(2)(v) SC/ST Act is also made out.
Submission is that deposition of prosecutrix
with regard to commissioning of offence of
rape upon her is clearly corroborated with
the medical evidence and the appeal lacks
merit.

16. The accused appellant has
primarily been charged of offence under
Section 376 IPC and Section 3(2)(v) SC/ST
Act. The trial Court has found both the
charges to be proved against the accused
appellant beyond doubt. So far as the first
charge under Section 376 IPC is concerned,
we find from the evidence on record that
the victim was a Class Vth student and
while returning from her school for lunch
had to cross the house of the accused
appellant. The site plan is on record which
shows existence of paved road from east to
west. Towards east of the road there existed
a dirt track to the school. The house of
accused appellant was on the junction of
paved road and dirt track. After the house
of the accused appellant there existed two
temples of goddess Kali and Durga,
whereafter one could reach the school. The
victim while was returning from the school
was grabbed by the accused appellant who
dragged her inside and she was raped. The
offence itself was committed at 1.00 pm
and a prompt report was lodged in respect
of the offence at 16.45 pm. The distance
between the police station and place of
occurrence is about 10 kms.

17. It appears that the first informant
is an illiterate lady and she took services of
9 All. Mani Ram Chaudhary Vs. State of Uttar Pradesh
1555
PW-3 for writing the written report on the
basis of which the FIR was registered. The
victim has been examined by Emergency
Medical Officer at Woman Hospital Basti
at 7.15 pm on the same day. The injury
report of victim is on record in which blood
stains are seen on vulva perineum and thigh
and her hymen was torn in midline. She
was also bleeding. The victim had to be
examined
by
administering
general
anesthesia and lateral vaginal laceration
near left fornix was seen bleeding. The
victim
was
hospitalized
and
later
discharged on 13.12.2002.

18. PW-1, who is the first informant
and PW-2, who is the victim have deposed
in court. PW-1 in her statement has
elaborately explained that once victim
having home she immediately informed her
mother about the crime got a written report
scribed from an unknown person in an
office having blue flag. She has denied the
suggestion that on account of enmity
between accused appellant and PW-3 she
has falsely implicated the accused appellant
or to receive compensation.

19. PW-2 has also been examined by
the Presiding Officer found that the victim
is mature and sensible and her statement
can be relied upon. She has clearly stated
that while returning from the school she
had to cross the house of accused appellant
and when she reached the house of the
accused appellant he grabbed her and
brought her inside the Ghaari and raped
her. She has stated that the accused
appellant had covered her mouth so that she
may not shout and after committing rape
the accused appellant left her. She was
bleeding and immediately informed it to
her mother. She has deposed that she did
not know the accused appellant from before
and his name was disclosed to her by her
mother at the police station. She has also
stated that other students returning with her
were ten paces ahead of her and that
nobody could see her being grabbed by the
accused appellant.

20. Although on behalf of accused
appellant it is argued that he has been
falsely implicated on account of political
rivalry between him and PW-3, but the
Court below has found such defence to be
wholly baseless in view of the evidence
adduced by the victim and her mother.
Having considered the injury report, the
statement of doctor and the fact that victim
was admitted to a hospital for nearly four
days on account of injuries on her private
part, we are in agreement with the
conclusion drawn by the court below that
the
guilt
of
accused
appellant
of
committing rape is clearly established. The
statement of victim has been found credible
and reliable by the court below and she has
specifically identified the accused appellant
and has supported the prosecution version.

21. Plea of rivalry between PW-3 and
the accused appellant is pressed in order to
submit that written report was scribed by
PW-3, who had falsely implicated the
accused appellant. This explanation does
not appear to be convincing since it is
apparent from the evidence that house of
the accused appellant fell on the way of the
victim returning from her school to her
house. She has clearly identified the place
of occurrence and it remains undisputed
that the house of accused appellant situates
there. The accused appellant has also been
identified by the victim. The medical report
clearly supports the ocular testimony. In
such circumstances, merely because written
report was scribed by the PW-3, the
evidentiary value of prosecution case
would not suffer. The injury report, etc. are
1556 INDIAN LAW REPORTS ALLAHABAD SERIES
otherwise,
clearly
proved
and
duly
exhibited by the prosecution. In that view
of the matter, we find no infirmity in the
judgment and order of the court below
holding the accused appellant guilty of the
offence under Section 376 IPC beyond
reasonable doubt.

22. This takes us to the next aspect of
the present appeal which is with regard to
the conviction of accused appellant under
Section 3(2)(v) of the SC/ST Act. Section
3(2)(v) of the SC/ST Act reads as under:-

"(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;"

23. In order to establish an offence
under Section 3(2)(v) SC/ST Act, the
prosecution is required to prove that the
offence is committed on the ground that
such person is a member of scheduled caste
or scheduled tribe.

24. In Dinesh @ Buddha Vs. State of
Rajasthan, (2006) 3 SCC 771, the above
provision fell for consideration before the
Supreme
Court,
wherein
the
Court
observed as under:-

"At this juncture it is necessary to take
note of Section 3 of the Atrocities Act. As
the Preamble to the Act provides 'the Act
has
been
enacted
to
prevent
the
commission of offences of atrocities
against the members of the Scheduled
Castes
and
Scheduled
Tribes.
The
expression 'atrocities' is defined in Section
2 of the Atrocities Act to mean an offence
punishable under Section 3. The said
provision so far relevant reads as follows:

"3(2)(v): Punishments for offences of
atrocities-
(2) Whoever, not being a member of a
Scheduled Caste or a Scheduled Tribe, -

xxx xxx xxx
(v) 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 a Scheduled Caste or
a Scheduled Tribe or such property belongs
to such member, shall be punishable with
imprisonment for life and with fine;

xxx xxx xxx"

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)
has no application. Had 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."

25. The aforesaid provision has again
been considered by the Supreme Court in
Ramdas
and
others
Vs.
State
of
Maharashtra, 2006(8) SC 635, wherein the
Court observed as under:-

"At the outset we may observe that
there is no evidence whatsoever to prove
the commission of offence under Section
3(2)(v) of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989. The mere fact that the victim
9 All. Mani Ram Chaudhary Vs. State of Uttar Pradesh
1557
happened to be a girl belonging to a
scheduled caste does not attract the
provisions of the Act. Apart from the fact
that the prosecutrix belongs to the Pardhi
community, there is no other evidence on
record to prove any offence under the said
enactment. The High Court has also not
noticed any evidence to support the charge
under the Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Act, 1989
and was perhaps persuaded to affirm the
conviction on the basis that the prosecutrix
belongs to a scheduled caste community.
The conviction of the appellants under
Section 3(2)(v) of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 must, therefore, be set aside."

26. In Asharfi Vs. State of U.P.,
(2018) 1 SCC 742, the Supreme Court
again observed as under:-

"The evidence and materials on
record do not show that the appellant had
committed rape on the victim on the
ground that she belonged to Scheduled
Caste. Section 3(2)(v) of the SC/ST
Prevention of Atrocities Act can be
pressed into service only if it is proved
that the rape has been committed on the
ground that PW-3 Phoola Devi belonged
to Scheduled Caste community. In the
absence of evidence proving intention of
the appellant in committing the offence
upon PW-3-Phoola Devi only because
she
belongs
to
Scheduled
Caste
community,
the
conviction
of
the
appellant under Section 3(2)(v) of the
SC/ST Prevention of Atrocities Act
cannot be sustained."

27. In Khuman Singh Vs. State of
Madhya Pradesh, Criminal Appeal No.
1283 of 2019, decided on 27.8.2019 also
the Supreme Court held as under:-

"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 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."

28. In Patan Jamal Vali Vs. State of
Andhra Pradesh, AIR 2021 Supreme Court
2190, the provision was again considered
exclusively so as to determine the scope of
Section 3(2)(v) of SC/ST Act after taking
note of earlier judgment on the issue. The
Supreme Court observed as under in
paragraph 55:-

"55...................A
true
reading
of
Section 3(2)(v) would entail that conviction
under this provision can be sustained as
long as caste identity is one of the grounds
for the occurrence of the offence."

29. A Division Bench of this Court in
Dharmendra Vs. State of U.P., 2011 Cr.L.J.
204 also had an occasion to consider
Section 3(2)(v) of SC/ST Act, wherein this
Court observed as under:-

"It is apparent from the above
provision that Section 3 (2) (v) SC/ST Act
shall apply only if the offence under the
Indian
Penal
Code
punishable
with
imprisonment for a term of ten years or
more is committed by a person of upper
1558 INDIAN LAW REPORTS ALLAHABAD SERIES
caste against a person of scheduled caste or
scheduled tribe on the ground that such
person is a member of scheduled caste or
scheduled tribe. It is not sufficient that if
the accused belongs to upper caste and the
victim belongs to scheduled caste. It is also
necessary to prove that the offence was
committed on the ground of the victim
being of
scheduled
caste.
No
such
allegation has been made in the FIR that
the offence was committed because of
victim belonged to scheduled caste nor
there is any such evidence of record. Thus
the conviction of appellant under Section 3
(2) (v) SC/St Act cannot be sustained."

30. When we examine the facts of the
case in light of the law settled on the point
we find that the only evidence available on
record is that the victim belongs to
scheduled caste while accused appellant is
from Kurmi Community (OBC). PW-1 has
stated so in her deposition, relevant portion
whereof is extracted hereinafter:-

^^eS tkfr ds pekj rFkk eqfYte tkfr ds dqehZ
gSA xjhc rFkk pekj tkfr dk gksus ds dkj.k eqfYte
us ?kVuk fd;kA^^

31. There is nothing on record to show
that the accused appellant knew the caste of
the deceased or that the offence of rape was
committed on the ground that victim is a
member of scheduled caste or due to victim's
caste identity. The victim herein is 11-12 year
old minor girl who was alone and grabbed by
the accused appellant. At the time when the
victim was grabbed by the accused appellant
there was none else available. The evidence
otherwise does not show that the victim was
known to accused appellant from before or
that the accused appellant was aware of the
caste of victim and was a ground for the
crime.

32. PW-2 in fact has stated that she
did not known even the name of accused
appellant and his name has been disclosed
to her at the police station by her mother.
The prosecution has not brought on record
any evidence which may demonstrate that
the minor victim was raped on the ground
of her being a scheduled caste. Merely
because minor victim is a scheduled caste
would not attract the offence under Section
3(2)(v) of the SC/ST Act. In light of the
deliberations held above, we have no
hesitation in coming to the conclusion that
the prosecution has failed to establish
existence of necessary ingredients to attract
commissioning of offence under Section
3(2)(v) of the SC/ST Act against the
accused appellant.

33. We further find that the
prosecution while putting incriminating
material collected against the accused
appellant during the course of trial has not
confronted him with regard to the charge
levelled under Section 3(2)(v) of the SC/ST
Act. The statement under Section 313
Cr.P.C. has been carefully examined by us
in which there is no reference of offence
committed upon the victim on the ground
that she belongs to scheduled caste or on
account of her caste identity. Unless the
accused appellant is confronted on such
accusation the right of the accused
appellant to submit his defence is clearly
breached and, therefore, we are of the view
that the accused appellant otherwise cannot
be convicted under Section 3(2(v) of
SC/ST Act.

34. For the above reasons, we set
aside the judgment and order of the court
below dated 21.5.2004 convicting the
accused appellant under Section 3(2(v) of
the SC/ST Act.
9 All. Smt. Kushma Devi Vs. The State of U.P.
1559

35. This takes us to the last question
which is with regard to the punishment to be
imposed upon the accused appellant. The
charge against the accused appellant is of
committing offence under Section 376 IPC
upon a minor 12 year girl who was returning
from her school. The charge against the
accused appellant is extremely serious. The
accused appellant was a person of nearly 45
years of age on the date of commissioning of
the offence and, therefore, he was expected
to be aware of his actions and its
consequences.

36. Learned counsel for the accused
appellant
submits
that
the
maximum
punishment under Section 376 IPC ought not
to exceed above 10 years in the facts of the
case.

37. Learned AGA on the other hand
submits that the punishment of life is
appropriate in the facts of the case.

38. Considering the fact that minor
victim was only 11-12 year of age at the time
of commissioning of the offence, we are of
the view that the accused appellant does not
deserve any leniency and sentence of ten
years would clearly be inadequate. However,
in the facts of the case we find that the
accused appellant has already suffered
incarceration with remission of more than 25
years. In our view, this would be sufficient
punishment for the accused appellant who
otherwise by now would be a person of 65-70
years and has spent major part of his life in
imprisonment. In such circumstances, we
substitute the punishment for life awarded to
the accused appellant under section 376 IPC
with the sentence already undergone by the
appellant. The fine is reduced to Rs. 10,000/-
and on its failure to pay the accused appellant
shall undergo further imprisonment of three
months.

39.

This
Criminal
Appeal,
accordingly, is partly allowed.

40. A copy of this order shall be
communicated to the accused appellant in
Jail through Chief Judicial Magistrate/Jail
Superintendent concerned, forthwith.

41. The accused appellant shall be
released from Jail, forthwith, unless he is
wanted in any other case, subject to
compliance of Section 437A Cr.P.C.
----------
(2022) 9 ILRA 1559
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Crl. Appeal No. 6073 of 2016
with
Crl. Appl. No. 6611 of 2016

Smt. Kushma Devi ...Appellant
Versus
The State of U.P. ...Opp. Party

Counsel for the Appellant:
Ms. Archna Singh Jadaun, Sri Noor Mohammad,
Sri Mayank Rastogi

Counsel for the Respondents:
G.A.

A. Criminal Law - Evidence Act, 1872 -
Section 32 - Dying Declaration - A dying
declaration can be oral or in writing and in
any adequate method of communication
whether by words or by signs or otherwise,
provided the indication is positive and
definite - Typically, such statements are
made verbally before the person's death and
then documented by a magistrate, doctor, or
police officer - When it is recorded, no oath
is necessary nor is the presence of a