# Mohd. Moin @ Lala & Anr. (In Jail) v. State of U.P

- **Citation:** (2021) 8 ILRA 496
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-17
- **Case number:** Criminal Appeal No 1414 of 2012
- **Bench:** Pankaj Naqvi, Naveen Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-moin-lala-anr-in-jail-v-state-of-u-p-47239
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure,1973
-
Section
374(2)
-
Indian Penal Code, 1860 - Scheduled
Caste & Scheduled Tribes Act, 1989 -
Sections 376 & 3(2)5 SC/ST Act -
challenge
to-conviction-
The
sexual
assault took place inside a room of the
house of DW-1-DW-1 is the sister-in-law
of PW-5, while latter is friend and
colleague
of
PW-1.-Against
this
background presence of PW-1 in the
house of DW-1 is not highly unlikely.
The two accused chased the two ladies
and entered the house of DW-1 forcibly
wherein accused forcibly dragged PW-1/
the victim in a room and sexually
assaulted her at gunpoint, while the
other was guarding the room and they
also extended threats to the inmates
that if they dare to raise alarm, they
would
be
eliminated-so
far
the
testimony
of
PW-1/
the
victim
is
concerned, same does not suffer from
any
infirmity,
which
also
stands
corroborated with that of PW-5, coupled
with the fact that it is highly unlikely
that a working lady (married) would go
to the extent of foisting a case of sexual
assault on her only with a view to
extract compensation. Thus it can be
safely said that the prosecution has
been
successful
in
establishing
the
offence of rape against the accusedappellants-PW-1
feigns
complete
ignorance as to the identity of both the
accused, while PW-5 is familiar with
both of them-the accused inquired from
PW-5 as to the identity of PW-1/ the
victim to which PW-5 only replied that
she happens to be her colleague-no
evidence that the accused had any
previous knowledge as to the identity of
PW-1/ the victim therefor it can be said
with
reasonable
certainty
that
the
alleged offence was not committed on
the ground that the victim belongs to
SC/ST community-so far the conviction
of appellants under Section 3(2)(v) of
SC/ST Act is concerned, same cannot be
sustained while conviction under Section
376 and 506 IPC is liable to be
maintained-Consequently, the appeal is
liable to be allowed in part. (Para 1 to
19)

The appeal is partly allowed. (E-5)

List of Cases cited:

## Text

496 INDIAN LAW REPORTS ALLAHABAD SERIES
persons in which case non-explanation of
the injuries sustained by the accused
persons would have assumed significance.
The learned Sessions Judge has on
appreciation of oral and the circumstantial
evidence inferred that the place of the
incident was the chowk and not a place
near the houses of the accused persons.
Nothing more could have been revealed by
other village people or the party of tight
rope dance performers. The evidence
available on record shows and that
appears to be very natural, that as soon as
the melee ensued all the village people and
tight-rope dance performers took to their
heels. They could not have seen the entire
incident. The learned Sessions Judge has
minutely scrutinised the statements of all
the
eye-witnesses
and
found
them
consistent and reliable. The High Court
made
no
effort
at
scrutinising
and
analysing the ocular findings arrived at by
the Sessions Court. With the assistance of
the learned counsel for the parties we have
gone through the evidence adduced and on
our independent appreciation we find the
eye-witnesses consistent and reliable in
their narration of the incident. In our
opinion non-examination of other witnesses
does not cast any infirmity in the
prosecution case. " (Emphasised by me)

12. Thus, in view of the aforesaid
discussion, the prosecution has failed to
prove its case beyond reasonable doubt.
Every part of the testimony of the
prosecutrix
is
infirm,
doubtful
and
contradictory as well as improbable which
does not pose confidence. There is no
corroborative evidence in support of the
testimony
of
the
prosecutrix.
Five
important and available witnesses have
been withheld by the prosecution from the
Court, therefore, it is hard to convict the
appellant on this quality of evidence and it
is a fit case to draw adverse inference
against the prosecution for withholding five
important eye-witnesses from the Court.

13. In view of what has been stated
hereinabove, the criminal appeal is allowed
and the judgment and order of conviction
and sentence dated 29.11.2001, passed by
Additional
Sessions
Judge
(FTC-IV),
Lucknow in Sessions Trial No.610/2001,
Crime No.176 of 2000, P.S. Malihabad,
Lucknow is set aside. The appellant is
acquitted of the charges levelled against
him.

This Court by its order dated
13.12.2001 had admitted the appellant to
bail. He be discharged of his bail bonds.

14. Let a copy of this judgment be
transmitted to the learned trial Court as
well as Superintendent, Jail concerned, for
compliance. The lower court records be
also sent back to the lower court.
----------

(2021)08ILR A496
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.08.2021

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE NAVEEN SRIVASTAVA, J.

Criminal Appeal No 1414 of 2012

Mohd. Moin @ Lala & Anr.
 ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Hari Bans Singh, Sri Deepak Kumar
Srivastava, Deepak Singh, Sri Ganesh
Shanker Srivastava
8 All. Mohd. Moin @ Lala & Anr. Vs. State of U.P.
497
Counsel for the Opposite Party:
A.G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,1973
-
Section
374(2)
-
Indian Penal Code, 1860 - Scheduled
Caste & Scheduled Tribes Act, 1989 -
Sections 376 & 3(2)5 SC/ST Act -
challenge
to-conviction-
The
sexual
assault took place inside a room of the
house of DW-1-DW-1 is the sister-in-law
of PW-5, while latter is friend and
colleague
of
PW-1.-Against
this
background presence of PW-1 in the
house of DW-1 is not highly unlikely.
The two accused chased the two ladies
and entered the house of DW-1 forcibly
wherein accused forcibly dragged PW-1/
the victim in a room and sexually
assaulted her at gunpoint, while the
other was guarding the room and they
also extended threats to the inmates
that if they dare to raise alarm, they
would
be
eliminated-so
far
the
testimony
of
PW-1/
the
victim
is
concerned, same does not suffer from
any
infirmity,
which
also
stands
corroborated with that of PW-5, coupled
with the fact that it is highly unlikely
that a working lady (married) would go
to the extent of foisting a case of sexual
assault on her only with a view to
extract compensation. Thus it can be
safely said that the prosecution has
been
successful
in
establishing
the
offence of rape against the accusedappellants-PW-1
feigns
complete
ignorance as to the identity of both the
accused, while PW-5 is familiar with
both of them-the accused inquired from
PW-5 as to the identity of PW-1/ the
victim to which PW-5 only replied that
she happens to be her colleague-no
evidence that the accused had any
previous knowledge as to the identity of
PW-1/ the victim therefor it can be said
with
reasonable
certainty
that
the
alleged offence was not committed on
the ground that the victim belongs to
SC/ST community-so far the conviction
of appellants under Section 3(2)(v) of
SC/ST Act is concerned, same cannot be
sustained while conviction under Section
376 and 506 IPC is liable to be
maintained-Consequently, the appeal is
liable to be allowed in part. (Para 1 to
19)

The appeal is partly allowed. (E-5)

List of Cases cited:

1. Ramdas & anr .Vs. St. of Mah. (2007) 2 SCC
170

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

(Delivered by Hon'ble Naveen Srivastava, J.)

 This Criminal Appeal is preferred against
the judgment and order dated 30.3.2012 passed
by Special Judge, SC/ST Act, Kanpur Nagar in
S.T. No. 1122 of 2007 (State vs. Rais Dear and
others), convicting/sentencing the appellants
under Section 376 IPC read with Section 3(2)5
SC/ST Act to life with fine of Rs.20,000/- and
under Section 506 IPC to 1 year imprisonment.
Both sentences to run concurrently.

1. The prosecution case in brief is as
under: -

(i) PW-1, informant / victim along
with her friend PW-5, while returning from
their workplace on 12.2.2007 at about 4:00
P.M, came across accused Mohd. Moin @ Lala
and accused Rais @ Dear near Nai Basti. PW-5
in order to return a carry bag of her sister-in-law
(DW-1) went to her house along with PW-1.
Both the accused chased PW's-1 and 5, entered
the house forcibly and sexually assaulted PW-1
at gunpoint in a room, while PW-5 was
extended threats that if either of them dare to
report, they would be done away with.

(ii) Post occurrence, PW-1 was
escorted by PW-5 to her house, where she
narrated the incident to her mother and
sister (PW-3). They decided to lodge a
498 INDIAN LAW REPORTS ALLAHABAD SERIES
report same day and while they were on
their way to lodge a report they were
obstructed by the accused, who slapped
PW-3, then PW-1 along with PW-3 could
muster courage to lodge a report only next
evening, i.e, 13.2.2007 on the basis of a
written report (Ex.- Ka-1) scribed by one
Deepak Saini as Case Crime no. 112/ 2007
under Sections 376, 506 IPC and 3(2)(v)
SC/ST Act at 5 PM at P.S. Chakeri, Kanpur
Nagar, against above named accused
persons.

(iii) During investigation, PW-1
was medically examined by PW-2/ the
doctor on 14.2.2007 at about 1:45 P.M, in
police custody. The statement of the victim
under Section 164 CrPC was also recorded
on 3.4.2007. The I.O, after recording of the
statements of witnesses and carrying out
other investigational formalities submitted
a charge sheet against both the accused
under aforesaid provisions.

(iv) The Special Court, while
taking cognizance of the offences, framed
charges under Sections 376, 506 IPC and
3(2)(v) of SC/ST Act against both the
accused, which they denied and claimed to
be tried.

(v) The prosecution in order to
establish its case examined PW-1/ the
victim; PW-2/ the doctor; PW-3/ the sister
of PW-1, who accompanied PW-1 to lodge
a report, PW-4/ the I.O, PW-5/ friend of
PW-1, an alleged eye-witness and PW-6/
the Head Moharrir, who reduced the
contents of the FIR in the G.D.

(vi)
The
accused
in
their
statements under Section 313 CrPC
denied the occurrence and alleged false
implication
and
in
support
thereof
produced DW-1, owner of the house, who
denied the occurrence having taken place
inside her house.

(vii)
The
trial
court
after
evaluating
the
evidence
on
record
convicted the appellants as above.

2. We have heard Sri Deepak Singh,
learned counsel for the appellants and Sri
A.N. Mulla, and Sri V.S. Rajbhar, the
learned A.G.A's.

3.

Learned
counsel
for
the
appellants
raised
the
following
contentions:-

(i) FIR is delayed with no
explanation, which is also not proved as
the scribe (a stranger) was not examined.

(ii) Conviction under SC/ST Act
is not sustainable as there is no evidence
to indicate that the victim was sexually
assaulted only for the reason that she
belongs to SC/ST Community, coupled
with the fact that PW-1 (the victim) had
no prior knowledge of the identity of the
accused and vice-versa.

(iii) PW's-1 and 5 tendered
contradictory statements as to sequence
of
occurrence
and
the
number
of
witnesses.

(iv) DW-1 owner of the house
completely denied the occurrence having
taken place inside her house.

(v) Prosecution was launched
malafidely only with a view to extract
compensation.

4. Shri A.N. Mulla, the learned
A.G.A
controverted
the
above
submissions as under:-
8 All. Mohd. Moin @ Lala & Anr. Vs. State of U.P.
499

(i) Prosecution has given a
satisfactory
explanation
for
delayed
lodging of the FIR, coupled with the fact
that in a case involving sexual offence,
delay is not of much consequence, if the
case is otherwise established. Mere nonexamination of the scribe/ author of the FIR
could not dent the case of prosecution.

(ii) PW-1 in her testimony
alleged that the accused sexually assaulted
her knowingly that she belongs to a SC
Community, thus conviction under SC/ST
Act cannot be faulted.

(iii)
No
major
contradiction
between PW's 1 and 5, so as to doubt the
veracity of prosecution story.

(iv) DW-1 was a charge-sheet
witness, who appears to have been won
over subsequently.

5. The sexual assault at gunpoint by
both the accused on PW-1 (victim) is
alleged to have taken place on 12.2.2007 at
around 6 in the evening inside the house of
DW-1 (sister-in-law of PW-5). An attempt
is made by PW's 1, 3 and 5 to lodge an FIR
same evening but they were obstructed by
the accused. PW-1 along with her sister
PW-3 could lodge the FIR only next day at
5 P.M. However, PW-1 under Section 164
CrPC had deposed that once they were
obstructed on 12.2.2007 from lodging the
FIR, she telephonically contacted one
Saleem, a constable, who got the accused
arrested, whereas she was also stating that
the FIR was lodged next day, i.e, on
13.2.2007 at around 5 P.M, after a written
report was scribed one Deepak with whom
she had no previous familiarity and who
did not even read out the contents as
dictated by PW-1. We in the above
background are of the view that lodging of
the FIR is shrouded with suspicious
circumstances, but that alone would not be
sufficient to belie the prosecution case.

6. The sexual assault took place inside
a room of the house of DW-1. DW-1 is the
sister-in-law of PW-5, while latter is friend
and colleague of PW-1. Against this
background presence of PW-1 in the house
of DW-1 is not highly unlikely. The two
accused chased the two ladies and entered
the house of DW-1 forcibly wherein
accused Moin @ Lala forcibly dragged
PW-1/ the victim in a room and sexually
assaulted her at gunpoint, while the other
was guarding the room and they also
extended threats to the inmates that if they
dare to raise alarm, they would be
eliminated, thereafter it was accused Rais
@ Dear, who ravished her. Both the
accused came out of the house extending
threats. PW-1 in cross-examination could
not be dented on the vital aspects of the
case.

7. PW-3 is the sister of PW-1. She
stated that on the date of occurrence itself
she along with PW-1 attempted to lodge the
FIR, but accused prevented them. She
stated that accused Moin @ Lala armed
with an unlicensed weapon had slapped her
and prevented them from lodging the FIR.
The sisters return to their home without
lodging any FIR as the report could be
lodged next day at 5 in the evening.

8. PW-5 by and large has supported
the sexual assault on PW-1 by both the
accused inside the house of DW-1.

9. The sexual assault on PW-1 is
alleged to have taken place inside the room
at gunpoint by the accused. Admittedly, the
house belongs to DW-1, sister-in-law of
PW-5. PW-1 at page-17 of the paper-book
500 INDIAN LAW REPORTS ALLAHABAD SERIES
is emphatic, when she states that when they
reached the house, DW-1 was not present,
rather her children were present while PW5 at page 39 was affirming that in the said
house, DW-1 along with others including
tenants were present.

10. Much stress was laid on behalf of
the appellants on the testimony of DW-1 as
she denied the very occurrence having
taken place inside her house. We lest not
forget that DW-1 was enlisted as a chargesheet witness to support the prosecution but
she appeared as a defence witness and
denied the occurrence. We do not attach
much significance to her testimony as the
testimony of PW-1 / the victim has
undoubtedly established that she was raped
by the accused in the house of DW-1,
which is also corroborated with the
testimony of PW-5 and the possibility of
DW-1 having been won over by the
accused cannot be ruled out as initially
DW-1 in her statement under Section 161
CrPC supported the prosecution story.

11. We, after carefully perusing the
evidence of witnesses, are of the view that
in so far the testimony of PW-1/ the victim
is concerned, same does not suffer from
any
infirmity,
which
also
stands
corroborated with that of PW-5, coupled
with the fact that it is highly unlikely that a
working lady (married) would go to the
extent of foisting a case of sexual assault
on her only with a view to extract
compensation. Thus it can be safely said
that the prosecution has been successful in
establishing the offence of rape against the
accused-appellants.

12. We now proceed to examine as to
whether the sexual assault of the victim
would entail a graver punishment under
Section 3(2)(v) of the SC/ST Act.

13. Section 3(2)(v) of the SC/ST Act
at the relevant time read as under:

"Whoever, not being a member
of a Scheduled Caste or a Scheduled
Tribe,--

(i) .....

(ii) .....

(iii)......

(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,"

14. A perusal of the aforesaid
provision manifests that to establish a
conviction under Section 3(2)(v), the
prosecution has to establish that an offence
was committed against a person or property
on the ground that such person or property
belongs to SC/ST community.

15. The Apex Court in Ramdas and
Anr Vs. State of Maharashtra (2007) 2
SCC 170, held 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
happened to be a girl belonging to a
scheduled caste does not attract the
provisions of the Act. Apart from the fact
8 All. Mohd. Moin @ Lala & Anr. Vs. State of U.P.
501
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."

Similarly, in Asharfi Vs. State of
U.P. (2018) 1 SCC 742 the Apex Court
also held as under:

"6. In respect of the offence under
Section 3(2)(v) of the SC/ST Prevention of
Atrocities Act, the appellant had been
sentenced
to
life
imprisonment.
The
gravamen of Section 3(2)(v) of SC/ST
Prevention of Atrocities Act is that any
offence, envisaged under Indian Penal
Code punishable with imprisonment for a
term of ten years or more, against a person
belonging
Scheduled
Caste/Scheduled
Tribe, should have been committed on the
ground that "such person is a member of a
Scheduled Caste or a Scheduled Tribe or
such property belongs to such member".
Prior to the Amendment Act 1 of 2016, the
words used in Section 3(2)(v) of the SC/ST
Prevention of Atrocities Act are "......on the
ground that such person is a member of a
Scheduled Caste or a Scheduled Tribe".

7. Section 3(2)(v) of the SC/ST
Prevention of Atrocities Act has now been
amended by virtue of Amendment Act 1 of
2016. By way of this amendment, the words
".......on the ground that such person is a
member of a Scheduled Caste or a
Scheduled Tribe" have been substituted
with the words "........knowing that such
person is a member of a Scheduled Caste
or
Scheduled
Tribe".
Therefore,
if
subsequent to 26.01.2016 (i.e. the day on
which the amendment came into effect), an
offence under Indian Penal Code which is
punishable with imprisonment for a term of
ten years or more, is committed upon a
victim who belongs to SC/ST community
and the accused person has knowledge that
such victim belongs to SC/ST community,
then the charge of Section 3(2)(v) of SC/ST
Prevention of Atrocities Act is attracted.
Thus,
after
the
amendment,
mere
knowledge of the accused that the person
upon whom the offence is committed
belongs to SC/ST community suffices to
bring home the charge under Section
3(2)(v) of the SC/ST Prevention of
Atrocities Act.

8. In the present case, unamended
Section 3(2)(v) of the SC/ST Prevention of
Atrocities
Act
is
applicable
as
the
occurrence
was
on
the
night
of
8/9.12.1995.
From
the
unamended
provisions of Section 3(2) (v) of the SC/ST
Prevention of Atrocities Act, it is clear that
the statute laid stress on the intention of the
accused in committing such offence in
order to belittle the person as he/she
belongs to Scheduled Caste or Scheduled
Tribe community.

9. 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
502 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

16. We in the light of above
parameters examine as to whether in the
instant case an offence under Section
3(2)(v) of SC/ST Act is made out or not.

17. PW-1 feigns complete ignorance
as to the identity of both the accused, while
PW-5 is familiar with both of them. We
hasten to add that it was the case of
prosecution that the accused were also not
aware of as to the identity of PW-1 (victim)
as it was the case of prosecution that the
accused inquired from PW-5 as to the
identity of PW-1/ the victim to which PW-5
only replied that she happens to be her
colleague. We thus do not find any shred of
evidence to infer that the accused had any
previous knowledge as to the identity of
PW-1/ the victim therefor it can be said
with reasonable certainty that the alleged
offence was not committed on the ground
that
the
victim
belongs
to
SC/ST
community.

18. We in the light of above
discussion are of the considered view that
in so far the conviction of appellants under
Section 3(2)(v) of SC/ST Act is concerned,
same cannot be sustained while conviction
under Section 376 and 506 IPC is liable to
be maintained. Consequently, the appeal is
liable to be allowed in part.

19. The appeal is allowed in part.
The judgment and order dated 3.10.2016 is
set aside to the extent it convicts and
sentences the appellants under Section
3(2)(v) of the SC/ST Act. Conviction under
Section 376 and 506 IPC is maintained.

20. Appellant no.1 has admittedly
served incarceration for more than 9 years
from the date of impugned judgment, while
appellant no.2 is in jail for more than 14
years. We are thus of the view that
appellants are liable to be released on
sentence undergone.

Appellants be released forthwith
unless wanted in any other case.

Let a copy of this judgment along
with records be sent to the judgeship
concerned for ensuring compliance under
intimation to this Court.
----------
(2021)08ILR A502
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.07.2021

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No 1768 of 2018

Anita Devi Pal ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
Sudhir Kumar Singh, Santosh Kumar

Counsel for the Opposite Parties:
Govt. Advocate, Umesh Singh

A. Criminal Law - Code of Criminal
Procedure,1973
-
Section
374(2)
-
Indian Penal Code, 1860- Scheduled
Caste & Scheduled Tribes Act, 1989 -
Sections 147/323/504 & 3(1)(Da &
(Dha) and 2(V)(Ka) - challenge tosubsequent FIR- the first FIR was
lodged by the complainant on 8.11.2017