# Munish v. State

- **Citation:** (2016) 8 ILRA 1035
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-12
- **Bench:** Vikram Nath, Ravindra Nath Kakkar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munish-v-state-44114
- **Pages:** 10

## Headnote

This appeal has been preferred against the State vs. Munish, convicting the appellant under Sections 376
I.P.C. and 3(2)(v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short '1989
Act'), and sentencing him under Section 376 IPC for 10 years rigorous imprisonment with fine of Rs.1000/-
and in default of payment of fine 6 months rigorous imprisonment and under Section 3(2)(v) of 1989 Act life
imprisonment. Both sentences were ordered to run concurrently.

The prosecution case, in brief, is that one Chhote Lal who along with his wife used to work at a
brick kiln of Bahadurpur village, reported to the police that on 24.5.2008 they were at his tent
(dwelling place) at brick kiln. Due to scorching heat the informant along with his four year old
daughter Rita was lying on a brick stack. At about 10 O' Clock in the night, appellant Munish who
too was engaged for withdrawal of bricks from the kiln, appeared there and said that a ghost had
overcome him and requested to light a deepak (earthen lamp) in his name. On being told the
informant went to light an earthen lamp and on coming back did not find his 4 year old daughter
Rita there. On raising an alarm that his daughter had been taken away by Munish Botham, his
wife with Dhaniram and Raghunath rushed to the spot and search was undertaken. They heard
the screaming of the girl and in torch light Munish Botham was seen grappling the girl in the Nali
of tube well belonging to one Devraj. The girl was weeping and on arriving at the scene, Munish
fled. The blood was coming out from her private parts.

 Considering the entire aspects of the matter and looking to the circumstances of the case, we
are of the view that the judgment and order of conviction and sentence passed by the trial court
so far as under Section 376 I.P.C. is well discussed and the lower court has rightly observed that
the prosecution has succeeded to prove the guilt of the accused-appellant under Section 376
I.P.C. beyond any reasonable doubt. Accordingly, the judgment and conviction so far as under
Section 376 I.P.C. by the court below is concerned is hereby confirmed.

There is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the
1989 Act. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste
1036 INDIAN LAW REPORTS ALLAHABAD SERIES

community does not attract the provisions of the Act. Apart from the fact that the prosecutrix
belongs to the 'Chamar' Community, there is no other evidence to support the charge under
Section 3(2)(v) of the 1989 Act. The Trial Judge was perhaps persuaded to affirm the conviction
on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the
appellant under section 3(2)(v) of the 1989 Act must, therefore, be set aside.

In the result, the appeal is allowed in part while setting aside the conviction and sentence for the
offence under Section 3(2)(v) of the 1989 Act. The conviction and sentence for offence under
Section 376 I.P.C. is confirmed. The appellant is acquitted for the charge under Section 3(2)(v) of
the 1989 Act.

Held: Para-

Case Law discussed:
Sri Narayan Shah and another Vs. State of Tripura, 2005 (Criminal) Page 410,
Jai Prakash Singh Vs. State of Bihar, (2012) 4 SCC Page 379,
Kalicharan Vs. State of U.P., 2015 (6) ALJ Page 147,
State of U.P. Vs. Naresh, (2011) 4 SCC Page 324,
State of M.P. & Anr. Vs. Ram Krishna Balothia & Anr, 1995,
Dinesh alias Buddha v. State of Rajasthan, (reported in AIR 2006 SC 1267) in paragraph no.15,
Masumsha Hasanasha Musalman v. State of Maharashtra, reported in AIR 2000 SC 1786

## Text

8 All. Munish Vs State
1035
(2016) 8 ILRA 1035
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.08.2016

BEFORE

THE HON'BLE VIKRAM NATH, J.
THE HON'BLE RAVINDRA NATH KAKKAR, J.

Jail Appeal No.- 1592 Of 2011

Munish ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
From Jail

Counsel for the Respondent:
A.G.A

This appeal has been preferred against the State vs. Munish, convicting the appellant under Sections 376
I.P.C. and 3(2)(v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short '1989
Act'), and sentencing him under Section 376 IPC for 10 years rigorous imprisonment with fine of Rs.1000/-
and in default of payment of fine 6 months rigorous imprisonment and under Section 3(2)(v) of 1989 Act life
imprisonment. Both sentences were ordered to run concurrently.

The prosecution case, in brief, is that one Chhote Lal who along with his wife used to work at a
brick kiln of Bahadurpur village, reported to the police that on 24.5.2008 they were at his tent
(dwelling place) at brick kiln. Due to scorching heat the informant along with his four year old
daughter Rita was lying on a brick stack. At about 10 O' Clock in the night, appellant Munish who
too was engaged for withdrawal of bricks from the kiln, appeared there and said that a ghost had
overcome him and requested to light a deepak (earthen lamp) in his name. On being told the
informant went to light an earthen lamp and on coming back did not find his 4 year old daughter
Rita there. On raising an alarm that his daughter had been taken away by Munish Botham, his
wife with Dhaniram and Raghunath rushed to the spot and search was undertaken. They heard
the screaming of the girl and in torch light Munish Botham was seen grappling the girl in the Nali
of tube well belonging to one Devraj. The girl was weeping and on arriving at the scene, Munish
fled. The blood was coming out from her private parts.

 Considering the entire aspects of the matter and looking to the circumstances of the case, we
are of the view that the judgment and order of conviction and sentence passed by the trial court
so far as under Section 376 I.P.C. is well discussed and the lower court has rightly observed that
the prosecution has succeeded to prove the guilt of the accused-appellant under Section 376
I.P.C. beyond any reasonable doubt. Accordingly, the judgment and conviction so far as under
Section 376 I.P.C. by the court below is concerned is hereby confirmed.

There is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the
1989 Act. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste
1036 INDIAN LAW REPORTS ALLAHABAD SERIES

community does not attract the provisions of the Act. Apart from the fact that the prosecutrix
belongs to the 'Chamar' Community, there is no other evidence to support the charge under
Section 3(2)(v) of the 1989 Act. The Trial Judge was perhaps persuaded to affirm the conviction
on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the
appellant under section 3(2)(v) of the 1989 Act must, therefore, be set aside.

In the result, the appeal is allowed in part while setting aside the conviction and sentence for the
offence under Section 3(2)(v) of the 1989 Act. The conviction and sentence for offence under
Section 376 I.P.C. is confirmed. The appellant is acquitted for the charge under Section 3(2)(v) of
the 1989 Act.

Held: Para-

Case Law discussed:
Sri Narayan Shah and another Vs. State of Tripura, 2005 (Criminal) Page 410,
Jai Prakash Singh Vs. State of Bihar, (2012) 4 SCC Page 379,
Kalicharan Vs. State of U.P., 2015 (6) ALJ Page 147,
State of U.P. Vs. Naresh, (2011) 4 SCC Page 324,
State of M.P. & Anr. Vs. Ram Krishna Balothia & Anr, 1995,
Dinesh alias Buddha v. State of Rajasthan, (reported in AIR 2006 SC 1267) in paragraph no.15,
Masumsha Hasanasha Musalman v. State of Maharashtra, reported in AIR 2000 SC 1786

(Delivered by Hon'ble Ravindra Nath Kakkar, J.)

1. This appeal has been preferred against the judgment and order dated 17.9.2010 passed by
the Special Judge, SC & ST Act, Kannauj, in S.T.No. 292 of 2008 arising out of Case Crime
No.108 of 2003, State vs. Munish, convicting the appellant under Sections 376 I.P.C. and 3(2)(v) of
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short '1989 Act'),
and sentencing him under Section 376 IPC for 10 years rigorous imprisonment with fine of
Rs.1000/- and in default of payment of fine 6 months rigorous imprisonment and under Section
3(2)(v) of 1989 Act life imprisonment. Both sentences were ordered to run concurrently.

2. The prosecution case, in brief, is that one Chhote Lal who along with his wife used to
work at a brick kiln of Bahadurpur village, reported to the police that on 24.5.2008 they were at his
tent (dwelling place) at brick kiln. Due to scorching heat the informant along with his four year old
daughter Rita was lying on a brick stack. At about 10 O' Clock in the night, appellant Munish who
too was engaged for withdrawal of bricks from the kiln, appeared there and said that a ghost had
overcome him and requested to light a deepak (earthen lamp) in his name. On being told the
informant went to light an earthen lamp and on coming back did not find his 4 year old daughter
Rita there. On raising an alarm that his daughter had been taken away by Munish Botham, his wife
with Dhaniram and Raghunath rushed to the spot and search was undertaken. They heard the
screaming of the girl and in torch light Munish Botham was seen grappling the girl in the Nali of
tube well belonging to one Devraj. The girl was weeping and on arriving at the scene, Munish fled.
The blood was coming out from her private parts. The informant lodged a first information report
which was registered by Constable Clerk Maya Ram at G.D. report no.21 at about 17.30 O' Clock
on 28.5.2008. The victim was medically examined by Dr. Renu Singh on 28.5.2008 and medical
8 All. Munish Vs State
1037
examination report Exhibit Ka-4 was prepared. The case was investigated by Circle Officer Ram
Swarup Singh who inspected the place of occurrence, prepared the site plan (Ex.Ka-7) and after
collection of sufficient evidence, submitted charge sheet against the accused appellant. The court
took cognizance of the offence and complying with the provisions of Section 207 Cr.P.C. the
appellant was provided copies of documents, and since offences were cognizable by Sessions
Court, committed the case to Sessions Judge for trial, The Sessions Court framed charge against the
appellant under Section 376 I.P.C. read with Section 3 (2)(v) of 1989 Act to which the appellant
pleaded not guilty and claimed to be tried.

3. To prove its case the prosecution examined PW-1 Chhote Lal, PW-2 Reena, PW-3 Dr.
Renu Gupta, PW-4 Head Constable Maya Ram and PW-5 Ram Swarup Singh, Circle Officer
(Investigating Officer).

4. After the prosecution evidence was closed, statements of accused appellant under
Section 313 Cr.P.C. were recorded by the trial court. The appellant denied the alleged incident and
stated that the appellant was falsely implicated in the alleged incident on account of enmity.

5. PW-1 Chhote Lal, who is the first informant, stated that the incident occurred about 9
months ago at a brick kiln of village Bahadurpur, where he along with his wife used to mould
bricks. On the fateful day it was about 10 O' Clock in the night. The informant with his daughter
Rita aged about 4 years was lying on a brick stack. At that time appellant Munish came there and
said he had been overwhelmed by evil spirit (ghost) and asked him to light an earthen lamp of his
name. The informant went to light the lamp and when he returned, he did not find his daughter Rita
there. He raised an alarm upon which his wife along with Dhaniram and Raghunath came there and
on search being made, he heard screams of the victim. They rushed to her and found that the
appellant had grabbed the victim and seeing the informant and others, he fled away. The informant
took his daughter and found that the blood was coming out from her private parts and soon noticed
that the appellant had sexually assaulted his daughter. Thereupon, the FIR was lodged which he
also proved as Ex. Ka-1.

6. PW-2 Reena is mother of he victim Rita. She stated in her evidence that about 10 months
ago she along with his two year son was sleeping in the hut at brick kiln and her husband with
daughter Rita was sleeping on the brick stack. At about 10.00 O' Clock in the night, her husband
came in the hut and informed that Munish had been overwhelmed by ghost and so he had to light an
earthen lamp for him. When her husband went back to the stack, her daughter was not there. They
carried out search here and there and on hearing screams of the girl, they rushed to that direction
and reached near a tube well where in the Nali Munish had grabbed the girl and sexually assaulted.
However, he managed to flee from the spot seeing the informant and others.

7. PW-3 Dr. Renu Gupta conducted medical examination of the victim Rita and on
examination of internal organs it was found that hymen was torn in the shape of 6 O' Clock and
perennial tear also was in the same position. It was half cm. deep and extended upto anus with
reddish corners. No fresh bleeding was there. Two slides of vaginal smear were prepared by the
1038 INDIAN LAW REPORTS ALLAHABAD SERIES

doctor and were sent for sperm examination. The doctor also proved the medical examination
report (Ex. Ka-3).

8. PW-4 Head Constable Maya Ram had registered the first information report (Ex. Ka-6)
in the G.D. and PW-5 Ram Swarup Singh, Circle Officer had conducted investigation of the case
and prepared the site plan (Ex.Ka-7 and Ex.Ka-8) and after collecting sufficient evidence submitted
charge sheet against the appellant.

9. We have heard Sri Ambrish Kumar, learned counsel for the appellant, Sri P.S. Yadav,
learned A.G.A. for the State and perused the lower court record.

10. The main contention of the learned counsel for the appellant is with regard to the delay
in lodging the F.I.R. His next submission is that the victim was aged about four years but neither
her statement under Section 164 had been recorded nor the victim had been produced for crossexamination before the trial court. It is next submitted that there is neither an eye witness nor
independent witness of the alleged incident. The testimony of P.W.1 and P.W.2 are that of related
witnesses who are father and mother of the victim. Lastly argued that there is laches and
discrepancy in the investigation as statement under Section 164 Cr.P.C. of the victim has not been
recorded. The source of light (torch) has not been taken nor produced and there is a contradiction
on the point of recovery of the clothes of victim whether it is a 'salwar' or 'frock' and also there is a
contradiction in the testimony regarding the colour of the clothes. Learned counsel for the appellant
vehemently argued that the offence under Section 3(2)(v) of 1989 Act is not proved, hence prayed
to allow the appeal and acquit the accused.

11. Per contra, learned A.G.A. has contended that the judgment of the trial court is just and
well reasoned. The finding recorded by the court below of conviction and sentence is based on the
ocular testimony corroborated with the medical testimony; there is also an explanation in delay in
lodging the FIR. The benefit on the basis of laches and discrepancies in the investigation does not
go to vanish the whole prosecution story and the explanation was also given of non- recording of
statement under Section 164 Cr.P.C. considering the age of the victim of only 4 years and that the
victim was not in a position to withstand the cross-examination and due to the lack of
understanding she had not been produced as a prosecution witness. Under the fact and
circumstances the testimony of the eye witnesses, namely, P.W.1 Chhote Lal father of the victim
and P.W.2 Reena, the mother of the victim establishes the offence of rape against her daughter. So
this argument of the learned counsel for the appellant has no merit and accordingly learned A.G.A.
prayed for the dismissal of the appeal.

12. We have considered the submissions advanced by both the parties and perused the
material available on record. So far as submission of the learned counsel with regard to the delay in
lodging the FIR is concerned, perusal of the record shows that the incident is of 24.5.2008 at about
10 o'clock night and report was lodged on 25.5.2008 at 14.00 p.m. and the distance of the Police
Station is 3 kms from the place of occurrence. In the written report (Ex.Ka-1), the complainant
8 All. Munish Vs State
1039
Chhote Lal has given an explanation that due to the fear of accused Munish he could not lodge the
FIR in the night on the date of incident.

13. With regard to the delay in lodging the FIR, the Hon'ble Apex Court has propounded
the principle for the appreciation of the aspect of delay if any caused in lodging of the FIR. Hon'ble
Apex Court has laid down the following proposition in the case of Jai Prakash Singh Vs. State of
Bihar, (2012) 4 SCC Page 379. The relevant paragraph no.12 is reproduced hereinunder :-

"12. The FIR in criminal case is a vital and valuable piece of evidence though may
not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in
respect of the commission of an offence is to obtain early information regarding the circumstances
in which the crime was committed, the names of actual culprits and the part played by them as well
as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the
FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured
version, exaggerated account or concocted story as a result of large number of
consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance
regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of
what has actually happened, and who was responsible for the offence in question."

14. It is settled law that if delay in lodging the FIR cannot be explained substantively, then
it would be fatal to the case of prosecution. However, it is obligatory on the part of the court to take
notice of delay and examine the same in the back drop of the case whether any acceptable
explanation has been offered by the prosecution and whether the same deserves acceptance being
substantive. In view of the proposition cited above, inference can safely be drawn that the delay
should be explained and if not explained even then the court has to consider the aspect of delay in
lodging the FIR in the light of totality of evidence and draw inference about the veracity of the
prosecution version considering the fact and circumstances of the case which varies from case to
case. Moerso, on the score of delay, the entire story of the prosecution cannot be discarded. In the
case of Sri Narayan Shah and another Vs. State of Tripura, 2005 (Criminal) Page 410, the
Hon'ble Apex Court has held that "mere delay in lodging the FIR is really of no consequence, if the
reason is explained because in cases of rape generally the family remains reluctance to report the
matter to the Police to save the shame and prestige of the family."

15. As per the above legal proposition and as we have already stated that in the written
report there was an explanation by the complainant, the father that the victim of rape happens to be
four year infant and that due to the fear of accused Munish he could not lodge the report of the
alleged incident.

16. With regard to the next submission of the learned counsel that the victim was not
produced before the trial court by the prosecution as a witness and the statement under Section 164
Cr.P.C. of the victim was not recorded during investigation, we cannot subscribe any benefit on this
score because the age of the victim at the time of commission of the crime was merely four years
and as per the prosecution version on 24.5.2008 at about 10 O'clock in the night appellant accused
1040 INDIAN LAW REPORTS ALLAHABAD SERIES

Munish said to the father of the victim that a ghost had overcome him so light a deepak (earthen
lamp) in his name and on being told the informant went to light the earthen lamp and when he
returned his four year old daughter Reeta was not there. He and his wife rushed to the spot and they
heard the screaming of the girl and in the torch light they saw that the accused Munish was
grappling the victim in the Nali of the tubewell belonging to one Devraj and the girl was weeping
and the blood was oozing out from her private part. P.W.1 - father of the victim Chhote Lal and
P.W. 2 Reena, mother of the victim, supported the prosecution version. Learned counsel for the
appellant was not able to discredit their testimony on the point of time, place and occurrence and
naming of the accused and the involvement and complicity of the accused in the commission of the
alleged crime. On a careful scrutiny of the evidence available on record and the quality of statement
given by P.W.1 and P.W.2 inspire confidence and it is found to be absolutely trustworthy
unblemished and is of sterling quality. What would be more relevant is the consistency of the
statement right from the starting point till the end, namely, at the time the witness makes the initial
statement and ultimately testimony before the court. It is found to be natural and consistent with the
case of the prosecution. To be more precise the version of the above said witnesses on the score of
prosecution version is found to remain intact. They have stated in their testimony that when they
reached the spot after hearing the shrieks of the prosecutrix/victim they saw that the appellant
accused Munish grappled the victim at the place of occurrence, i.e., Nali of tubewell belonging to
one Devraj, blood was oozing out from her private parts of the body. It is of a common prudence
that the father and mother of the victim would not speak lie. Under the facts and circumstances as
stated above, although it is true that P.W.1 and P.W.2 are father and mother of the victim but only
on this ground their testimony cannot be discarded or disbelieved. The court simply has to examine
the testimony with due care and caution. As we have already stated the microscopic analysis of
their testimony is worthy of credit, therefore, non-production of the victim before the trial court or
non recording of the statement under Section 164 Cr.P.C. has no relevance considering the age of
the victim and the ocular testimony which has come before the trial court discussed above.

17. So far as the submission made by the learned counsel for the appellant with regard to
the deficiency in the investigation such as "non production of the torch", on this point it would be
relevant to record that there are settled legal propositions that only on the basis of faulty or
defective investigation testimony of the eye witnesses cannot be brushed aside. If a defective and
wrong sketch map has been prepared by the Investigating Officer without inspecting the place of
occurrence, the Hon'ble Apex Court in the case of Kalicharan Vs. State of U.P., 2015 (6) ALJ
Page 147 held that "on the ground of defective investigation the prosecution case cannot be thrown
out. If there is discrepancy in the preparation of a defective site plan mentioning the wrong details,
no benefit can be accorded to the accused where the prosecution witnesses, namely, P.W.1 and
P.W.2 father and mother of the victim had clearly and cogently established the date, time and place
of occurrence. Under such legal proposition we are of the view that the submissions raised by the
learned counsel for the accused appellant has no substance.

18. With regard to the submission raised by the learned counsel for the appellant regarding
the recovery of the clothes of the victim and produced during trial and the statements of P.W.1 and
P.W.2 has variations, we have given our conscious thought and perused the records of the court
8 All. Munish Vs State
1041
below. There is a categorical statement of P.W.1 and P.W.2 that the accused Munish ran away with
the underwear of the victim and a frock as stated by P.W.2 and P.W.1 was seized by the
Investigating Officer. The articles produced before the court happens to be the salwar. The
witnesses were cross-examined at length but nothing unnatural had come on the testimony. So far
as the legal proposition is concerned, Hon'ble the Apex Court in the case of State of U.P. Vs.
Naresh, (2011) 4 SCC Page 324 held as under :-

"In all criminal cases, normal discrepancies are bound to occur in the depositions
of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or
due to mental disposition such as shock and horror at the time of occurrence. Where the omissions
amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other
witnesses also make material improvement while deposing in the court, such evidence cannot be
safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements
on trivial matters which do not affect the core of the prosecution case, should not be made a ground
on which the evidence can be rejected in its entirety.

The court has to form its opinion about the credibility of the witness and record a
finding as to whether his deposition inspires confidence.

"Exaggerations per se do not render the evidence brittle. But it can be one of the
factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for
being tested on the touchstone of credibility."

Therefore, mere marginal variations in the statements of a witness cannot be
dubbed as improvements as the same may be elaborations of the statement made by the witness
earlier."

19. On the basis of the above legal proposition the statement of P.W.1 and P.W.2 so far as
the recovery of clothes are concerned, we find that whether salwar or frock hardly matters as it does
not go to the root of the case or materially affect the core of prosecution case and as we have
already stated that the evidence of P.W.1 and P.W.2 being the father and mother and they had given
their eye version of the commission of crime, the presence, involvement and complicity and the
commission of crime only against the appellant accused which inspire the confidence and
credibility and trustworthiness of P.W.1 and P.W.2. Therefore, we are not inclined to give any
benefit on the point of the submission raised by the appellant's counsel.

20. As per the aforesaid discussion so far as the conviction under Section 376 I.P.C.
recorded by the court below is concerned, there is nothing on record to show that the injuries of the
victim were forged or manufactured. The ocular testimony of P.W.1 and P.W.2, father and mother
respectively as regard the commission of the offence of rape is fully corroborated by medical
evidence. FIR also supports the ocular testimony of P.W.1 and P.W.2 as well as the medical
evidence, the seizure memo of salwar as well as the position of the salwar itself also corroborate the
testimony of ocular witnesses of the incident. Running away from the place of occurrence of the
1042 INDIAN LAW REPORTS ALLAHABAD SERIES

accused, which is proved by the eye witnesses P.W.1 and P.W.2, finds support to the prosecution version
and the victim was profusely bleeding from her private parts establishes the commission of the offence of
rape.

21. Considering the entire aspects of the matter and looking to the circumstances of the case, we
are of the view that the judgment and order of conviction and sentence passed by the trial court so far as
under Section 376 I.P.C. is well discussed and the lower court has rightly observed that the prosecution has
succeeded to prove the guilt of the accused-appellant under Section 376 I.P.C. beyond any reasonable
doubt. Accordingly, the judgment and conviction so far as under Section 376 I.P.C. by the court below is
concerned is hereby confirmed.

22. The last submission with regard to the commission of offence under Section 3(2)(v) of the
1989 Act, we are in full agreement with the contention raised by the learned counsel for the appellant. For
ready reference the provisions of Section 3(2)(v) of the 1989 Act is reproduced hereinunder :-

"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"

23. 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 1989 Act. The mere fact that the victim happened to be a girl
belonging to a Scheduled Caste community does not attract the provisions of the Act. Apart from the fact
that the prosecutrix belongs to the 'Chamar' Community, there is no other evidence to support the charge
under Section 3(2)(v) of the 1989 Act. The Trial Judge was perhaps persuaded to affirm the conviction on
the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellant
under section 3(2)(v) of the 1989 Act must, therefore, be set aside. So far as the legal proposition is
concerned, in the case of State of M.P. & Anr. Vs. Ram Krishna Balothia & Anr, 1995 Criminal Law
Journal 2076, Hon'ble Apex Court has observed as under :-

"The offences which are enumerated under Section 3 are offences which, to say the least,
denigrate members of Scheduled Castes and Schedules Tribes in the eyes of society, and prevent them
from leading a life of dignity and self-respect. Such offences are committed to humiliate and subjugate
members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude.
These offences constitute a separate class and cannot be compared with offences under the Penal Code."

24. The expression "on the ground" has been subject matter of decision in a number of cases
decided under the 1989 Act. In the case of Masumsha Hasanasha Musalman v. State of Maharashtra,
reported in AIR 2000 SC 1786 it was held that "To attract the provisions of Section 3(2)(v) of the Act, the
sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe
and that the offence under the Indian Penal Code is committed against him on the basis that such a person
belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under
the Section 3(2)(v) of the Act, is constituted." In the case of Dinesh alias Buddha v. State of Rajasthan,
8 All. Munish Vs State
1043
(reported in AIR 2006 SC 1267) in paragraph no.15 it was held that "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 the Scheduled Castes or the Scheduled Tribes. In the instant case no evidence has
been led to establish this requirement. It is not the case of the prosecution that the rape was committed on
the victim since she was a member of a Scheduled Caste. In the absence of evidence to that effect, Section
3(2)(v) has no application." In the case of Ramdas and Ors. v. State of Maharashtra, (reported in AIR
2007 SC 155) in paragraph no.10 it has been held that "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 that the
prosecutrix belongs to the Pardhi Community, there is no other evidence on record to prove any offence
under the said enactment."

25. The words "on the ground" shows that the prosecution is required to prove that the target of
crime was selected 'on the ground' that he/she belonged to Scheduled Caste or Scheduled Tribe, or that
crime was committed for the reason that such person belonged to such community tribe. In other words, it
must be shown that if the victim would not have belonged to Scheduled Castes or Scheduled Tribes, the
crime would not have been committed. The cause for the offence must contain an element of a caste/racial
prejudice. If an accused committed rape on a woman/girl belonging to a Scheduled Caste only to satisfy
his sexual lust, without any prejudice of caste to which the girl belonged, he would be guilty of offence
under Section 376 I.P.C. but he would not be guilty of offence under Section 3(2)(v) of the 1989 Act, as he
did not commit sexual intercourse with the girl on the ground that she was a Scheduled Caste girl. To
attract the above mentioned provisions of Section 3(2)(v) of the 1989 Act mere knowledge that the victim
belonged to a Scheduled Caste or Scheduled Tribe community or mere intention to commit an offence
against a member of a Scheduled Caste or Scheduled Tribe is not sufficient but something more is needed,
i.e., a graver kind of mens rea denoted by the phrase "on the ground" in the provision, is required.

26. The Trial Court has also not noticed any evidence to support the charge under the Scheduled
Castes 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 Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 must, therefore, be set aside.

27. In the above circumstances we find that the conviction and sentence for offence under Section
3(2)(v) of the 1989 Act are not sustainable in the eye of law and is liable to be set aside.

28. In the result, the appeal is allowed in part while setting aside the conviction and sentence for
the offence under Section 3(2)(v) of the 1989 Act. The conviction and sentence for offence under Section
376 I.P.C. is confirmed. The appellant is acquitted for the charge under Section 3(2)(v) of the 1989 Act. It
is made clear that the accused appellant Munish shall now serve out the sentence for the offence under
section 376 I.P.C.
---------
1044 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 1044
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.08.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.

Misc. Single No.- 1849 Of 2015

Vishram Yadav ...Petitioner
Versus
Commissioner Devi Patan Mandal Gonda & Anr. ...Respondents

Counsel for the Petitioner:
Nitin Srivastava

Counsel for the Respondents:
C.S.C.

The petitioner has filed the instant writ petition.

Submission of learned Counsel for the petitioner is that the petitioner was issued a firearm license of S.B.B.L.
Gun No.10075/93, License No.185. An FIR was lodged against the petitioner under Sections 323, 504, 506 IPC
and Section 3(1)10 of SC/ST Act at Police Station Khargupur, District Gonda. Thereafter, the firearm license of
the petitioner was cancelled by the District Magistrate. The petitioner preferred an Appeal before the learned
Commissioner, who after setting aside the order dated 28.05.2009 remanded the matter to the District
Magistrate for consideration afresh, and also directed to pass appropriate order after providing adequate
opportunity to the petitioner. Thereafter, vide impugned order dated 24.04.2013, the District Magistrate,
Gonda reiterated his earlier order of rejection without considering and dealing with the pleas as raised by the
petitioner.

Mere fact that some reports had been lodged against the petitioner could not form basis of cancelling the
license. There is no dispute to the fact that the petitioner is a political person and was the Gram pradhan of
the Village. Moreoso, in the criminal case, petitioner has been acquitted by the Trial Court and the judgment
of acquittal was brought to the notice of the Appellate Court but the Appellate Authority ignored this vital
aspect of the matter, which is a serious omission on his part.

It is well settled in law that mere pendency of criminal case or apprehension of abuse of arm is
not sufficient grounds for passing the order of suspension or revocation of license under Section
17 (3) of the Act. Here, as averred above, the petitioner has been acquitted in the said criminal
case.

The licensing authority is directed to renew the firearm license of the petitioner, which was
cancelled, within a maximum period of three months from the date of production of certified
copy of this order.

Held: Para-