# Santosh Kumar Mishra v. State of U.P. . Opp. Party

- **Citation:** (2015) 2 ILRA 677
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-06
- **Case number:** Criminal Appeal No. 4479 of 2008
- **Bench:** Arvind Kumar Tripathi, Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-kumar-mishra-v-state-of-u-p-opp-party-43276
- **Pages:** 6

## Headnote

A.G.A.
Criminal
Appeal-conviction
for
offence
under
Section
323,
376,
504
IPCprosecution fully proved charges-beyond
doubt-evidence of complainant and victim
are
clinically
convincing-punishment
inflicted by Trail Court-confirmed-appeal
dismissed.
Held: Para-14
On the basis of above discussion we are of
the considered opinion that prosecution
side had proved the charges leveled against
the accused-appellant regarding allegation
of rape and trial Court had rightly passed
the judgment in this regard. The evidences
of
complainant
and
of
victim
are
678
 INDIAN LAW REPORTS ALLAHABAD SERIES
convincing, therefore judgment of trial
court regarding conviction of accused for
offences punishable under sections 376,
323, 504 and 506 IPC is found correct. The
findings of trial court and judgment of
conviction for those charges are hereby
confirmed.
(B)SC/ST (prevention of atrocities) Act
1989-Section 3(2)(v)-rape committed-to
fulfill undue lust-rather to take revenge of
being
scheduled
caste-finding
and
conviction by Trail Court-not sustainableset-a-side appeal allowed partly.
Held: Para-18
On the basis of above discussion it is
explicitly clear that charged offence of
rape had not been committed because
victim-complainant was a member of
SC/ST community. This offence appears
to
had
been
committed
only
for
satisfying the lusty desire of appellant.
In such a case offence punishable under
section 3(2)(v) of Scheduled Castes or
Schedule
Tribes
Act
has
not
been
committed. Therefore the finding of of
trial Court holding the appellant guilty
for the offence under SC/ST Act is
erroneous and is hereby set aside.
Case Law discussed:
AIR 2006 SC 1267; (2007) 2 SCC 170

## Text

2 All] Santosh Kumar Mishra Vs. State of U.P.
677
circumstances, noted above. The offence
per se is not against the public; rather
involves transfer of property having civil
consequences. The transaction has civil
complexion. The respondents have not
drawn attention of the Court towards any
material which would indicate that
petitioner has criminal antecedents. In the
opinion of the Court, this is one of the
exceptional cases, in which extraordinary
writ jurisdiction is required to be invoked.
18. In view of above, a writ in the
nature of mandamus is issued. It is
directed that in the event of arrest in Case
Crime No.131 of 2015 under Sections
420, 504, 506, 467, 468, 471 I.P.C., P.S.
Bakshi Ka Talab, district Lucknow, the
petitioner shall be enlarged on bail on her
furnishing bail bonds to the satisfaction of
the arresting/Investigating Officer, subject
to the following conditions :
(1) The petitioner shall make herself
available for interrogation as and when
required;
(2) The petitioner shall not directly
or indirectly make any inducement, threat
or promise to any person acquainted with
the facts of the case so as to dissuade him
from disclosing such facts to the Court, or
to the investigating agency; and
(3) The petitioner shall not leave
India without the previous permission of
the Court.
It is further directed that this order
shall subsist till 10 days after the
petitioner receives a notice of filing of
investigation report under Section 173
CrPC, within which period, the petitioner
would be at liberty to apply for regular
bail. The time thus granted would not be
extended by this Court.
It is specifically provided that the
prosecuting agency would be at liberty to
approach this Court for withdrawing the
concession granted to the petitioner, in
case the petitioner violates any of the
conditions imposed by this Court.
19. The petition is allowed in the
above terms.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.05.2015
BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE PRAMOD KUMAR
SRIVASTAVA, J.
Criminal Appeal No. 4479 of 2008
Santosh Kumar Mishra
 ...Appellant
Versus
State of U.P. .
...Opp. Party
Counsel for the Appellant:
Sri K.K. Tripathi, Sri Aman Khan, Sri M.K.
Tripathi, Sri Mohd. Aman Khan, Sri T.K.
Mishra
Counsel for the Opp. Party:
A.G.A.
Criminal
Appeal-conviction
for
offence
under
Section
323,
376,
504
IPCprosecution fully proved charges-beyond
doubt-evidence of complainant and victim
are
clinically
convincing-punishment
inflicted by Trail Court-confirmed-appeal
dismissed.
Held: Para-14
On the basis of above discussion we are of
the considered opinion that prosecution
side had proved the charges leveled against
the accused-appellant regarding allegation
of rape and trial Court had rightly passed
the judgment in this regard. The evidences
of
complainant
and
of
victim
are
678
 INDIAN LAW REPORTS ALLAHABAD SERIES
convincing, therefore judgment of trial
court regarding conviction of accused for
offences punishable under sections 376,
323, 504 and 506 IPC is found correct. The
findings of trial court and judgment of
conviction for those charges are hereby
confirmed.
(B)SC/ST (prevention of atrocities) Act
1989-Section 3(2)(v)-rape committed-to
fulfill undue lust-rather to take revenge of
being
scheduled
caste-finding
and
conviction by Trail Court-not sustainableset-a-side appeal allowed partly.
Held: Para-18
On the basis of above discussion it is
explicitly clear that charged offence of
rape had not been committed because
victim-complainant was a member of
SC/ST community. This offence appears
to
had
been
committed
only
for
satisfying the lusty desire of appellant.
In such a case offence punishable under
section 3(2)(v) of Scheduled Castes or
Schedule
Tribes
Act
has
not
been
committed. Therefore the finding of of
trial Court holding the appellant guilty
for the offence under SC/ST Act is
erroneous and is hereby set aside.
Case Law discussed:
AIR 2006 SC 1267; (2007) 2 SCC 170
(Delivered by Hon'ble Pramod Kumar
Srivastava, J.)
1. This appeal has been preferred
against the judgment of conviction and
punishment dated 16.07.2008 passed by
Special Judge SC/ST Act, Kanpur Dehat
in Special S.T. No. 80 of 2002 (arising
out of crime no. 40 of 2001) State v.
Santosh Mishra under sections 323, 376,
504, 506 IPC and section 3(2)(v) of the
Scheduled Castes or Schedule Tribes
(Prevention of Atrocities) Act, 1989
[hereinafter referred to as "SC/ST Act"].
2. Prosecution case in brief is that
complainant Shyam Narayan (PW-2) and
his wife Smt. Meera Devi (PW-1) belong
to chamar caste and are resident of village
Indalpur, p.s. Shivrajpur, district Kanpur
Dehat. On 03.04.2001 at about 05:00 p.m.
in evening complainant's wife Meera Devi
was cutting grass near the field of Raman
Shukla of his village, then accused
Santosh Mishra came from behind,
grabbed her neck, closed her mouth and
forcibly dragged in the field of Raman
Shukla where he raped Meera Devi.
When she raised alarm the complainant
reached there and saw that Santosh
Mishra was lying over the body of Meera
Devi
in
necked
condition.
When
complainant raised alarm then Santosh
Mishra had scuffle with him, due to which
neck of complainant was wounded by
nails of accused Santosh Mishra. During
this episode Sri Krishna, Awadhesh, and
other villagers came there and saw that
Santosh Kumar Mishra was abusing and
threatening them.
Complainant
went
directly to police station Shivrajpur for
lodging report, but his report was not
lodged, then he approached senior officers
of police and thereafter he again moved
application dated 07.04.2001 to S.S.P.
Kanpur Dehat on which case crime no. 40
of 2001 under Section 323, 354, 376, 504
and 506 IPC and Section 3(1)(X) SC/ST
Act was registered.
3. After completion of investigation,
police had submitted charge-sheet for
offences
punishable
under
Section
323,376, 504 and 506 SIPC and Section
3(2)(v) SC/ST Act. On the basis of said
charge-sheet, special session trial no. 80
of 2012 (State Vs. Santosh Mishra) was
registered.
4. Special Judge (SCST Act) / Addl.
Sessions Judge, Kanpur Dehat had framed
charge of offences on 11.12.2002 against
2 All] Santosh Kumar Mishra Vs. State of U.P.
679
accused for several offences to which
accused pleaded not guilty and claimed
his
trial.
Thereafter
charges
were
amended and replaced by fresh charges on
06.04.2005 for offences under Section
323, 354, 376, 504 and 506 IPC read with
Section 3(2)(v) SC/ST Act . Accused
again pleaded not guilty and claimed to be
tried.
5. In oral evidences prosecution side
had examined PW-1 Meera Devi (victim),
PW-2 Shyam Narayan (complainant),
PW-3 C.O. J.P. Tiwari, PW-4 Dr. Pushpa
Gurnani, PW-5 lady constable Anju
Shukla and PW-6 Dr. R.B Gautam. They
proved
documentary
evidences
of
prosecution side.
6. After closure of prosecution
evidence statement of accused under
Section 313 CrPC was recorded in which
he had denied the prosecution case and
stated that on 2.4.2001 Meera Devi was
damaging wheat crop in the garb of
grazing grass when he objected then
Meera Devi had started abusing after that
on 05.04.2001 Meera Devi , Lalita and
Shyam Narayan had put their cow and
goat in the field of wheat, on which they
had quarreled, due to this enmity
complainant had lodged wrong report and
false case was registered. As per defence
evidence, accused had examined DW-1
Santosh Kumar, DW-2 Ram Nath and
DW-3 Ram Swaroop.
7.
After affording opportunity of
hearing prosecution of defence side Special
Judge SC/ST Act / Additional Sessions
Judge, Kanpur Dehat had passed judgment
dated 16.07.2008 by which accused Santosh
Mishra was convicted for the charges of
Section 323, 376, 504, 506 IPC and Section
3(2)(v) SC/ST Act. Accused was acquitted
from the charge of Section 354 IPC.
Thereafter
trial
court
had
afforded
opportunity of hearing to accused on
quantum of sentence and passed the order of
punishment and sentenced on 16.07.2008, by
which accused was convicted six months
rigorous imprisonment for charge under
Section 323 IPC, 10 years rigorous
imprisonment and Rs. 2,000/- fine (in default
of payment of three months additional
imprisonment), for charge under Section 376
IPC, six months rigorous imprisonment, for
charge under Section 504 IPC, six months
rigorous imprisonment for offence under
Section 506 IPC and imprisonment for life
and Rs. 2,000/- (in default of payment of
three months imprisonment), for the charge
of Section 3(2)(v) SC/ST Act. The trial court
had also directed that all sentences would run
concurrently. Aggrieved by this judgment of
conviction and sentence dated 16.07.2008
accused had preferred present appeal
8. The argument of learned counsel
for the appellant was that there was
contradiction in evidences of prosecution
witnesses, therefore, they should be
treated as believable. Since prosecution
side had failed to prove the charges
against appellant, therefore impugned
judgment based on false evidences should
be
set
aside.
Learned
AGA
had
confronted the argument of appellant side
and contended that two witnesses of fact,
namely, PW-1 Meera Devi (victim) and
PW-2 Shyam Narayan (complainant) had
proved
the
charges
framed
against
accused appellant therefore appeal should
be dismissed.
9. The alternative argument of
learned counsel for the appellant was that
event if chargse of offences of Indian
Penal Code are accepted to be proved in
that case also charge of offence under
680
 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 3(2)(v) SC/ST Act is not proved.
His argument was that prosecution side
had not proved that alleged offencse of
rape etc. were committed because the
victim belong to SC/ST community;
therefore the conviction under Section
3(2)(v) SC/ST Act is erroneous and
should be set aside. His contention was
that in any case sentence of 10 years
imprisonment for offence under Section
376 IPC in present case is excessive
which should be mitigated.
10. We have considered the rival
contentions and perused the records.
11. It is admitted case that medicolegal
examination
of
victim
was
performed very late on 08.04.2001 in
which no evidence regarding rape was
found, and PW-4 Dr. Pushpa Gurnani had
stated that no opinion about rape can be
given. She had also stated that victim was
habitual to sexual intercourse and also
stated that sperms can be found within 72
hours of the incident. In the present case
medico-legal examination performed after
about 5 days so the absence of medical
evidence about commission of intercourse
or rape is not unlikely. But in this case
two witnesses of facts were examined by
prosecution side which are PW-1 Meera
Devi (victim) and PW-2 Shyam Narayan
(complainant).
12.
We have examined the statement
of PW-1 (victim) who had specifically stated
that at the time of incident appellant had
committed rape with her when she was
mowing the grass in the field. At that time
accused appellant had used forced and shut
her mouth, dragged her by neck and raped
her in the field of Pramod Shukla by
inserting his private part in her vagina. She
had tried resist and cut his hand, then his
hand was removed from her mouth and she
raised alarm. Then her husband came there
with other persons, who had tried to catch the
accused but he escaped from the spot. In this
incident her blouse was torn. That day report
by her husband could not be lodged. Her
medical examination was conducted after a
few days. Police had come after 5-6 days and
taken her blouse and dhoti in custody.
During cross-examination the victim stated
that she had not suffered any injury but her
husband had got some scratches on his neck.
PW-2 complainant Shyam Narayan had
stated that on 03.04.2001 at about 05:00 p.m.
he was watering crop of wheat in the field
and his wife was cutting grass at the
boundary of field of Ramesh Shukla, then
accused Santosh Mishra had forcibly taken
his wife in the field of Raman Shukla and
raped. On alarm of his wife, he alongwith Sri
Krishna, Awadhesh and Naresh came on
spot and saw that incident and shouted, then
accused fled away after abusing and
threatening them. His report was not lodged
same day in police station, then he had
approached S.S.P., D.I.G and other police
officers, thereafter his report was lodged.
During cross-examination PW-2 stated that
at the time of incident accused had pushed
him and ran away. At that time he had seen
that accused was committed rape with his
wife in naked state.
13. The evidences of two witnesses
of facts, namely, PW-1 Meera Devi
(victim) and PW-2 Shyam Narayan
(complainant) supported each other and
appear to be credible which are also
supported by other formal evidences. The
findings of facts regarding proving of
charges against accused were recorded by
learned Sessions Judge in impugned
judgment holding that rape of Meera Devi
was committed by accused-appellant. The
findings of trial Court to this effect are
2 All] Santosh Kumar Mishra Vs. State of U.P.
681
based on proper appreciation of evidence
which are plausible and convincing.
Though defence side had examined three
defence
witnesses,
namely,
DW-1
Santosh Kumar, DW-2 Ram Nath and
DW-3 Ram Swaroop, but these witnesses
had given evidence regarding incident of
scuffle
and
manhandling
happened
between accused and complainant on
05.04.2001. They had also given evidence
of fact regarding altercation between
accused and complainant on other dates,
but they had not given any evidence
regarding incident of 03.04.2001 for
which charges were framed against
accused appellant. For the incident of
03.04.2001, the evidence of defence
witnesses are useless and have no value
because admittedly they had not given
any credible evidence regarding incident
of 03.04.2001 as mentioned in the charge.
14.
On the basis of above discussion
we are of the considered opinion that
prosecution side had proved the charges
leveled
against
the
accused-appellant
regarding allegation of rape and trial Court
had rightly passed the judgment in this
regard. The evidences of complainant and of
victim are convincing, therefore judgment of
trial court regarding conviction of accused
for offences punishable under sections 376,
323, 504 and 506 IPC is found correct. The
findings of trial court and judgment of
conviction for those charges are hereby
confirmed.
15.Section 3(2)(v) of the Scheduled
Castes or Schedule Tribes (Prevention
and Atrocities) Act, 1989 reads as under:
"3(2) whoever, not being a member
of Scheduled Caste or Schedule Tribe-
(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"
16. The provision of Section 3(2)(v)
of the SC/ST Act, as noted above provides
that a person can be punished under this
provision only when he commit such
offence
against
person
of
SC/ST
community on the ground that such a
person/victim is a member of SC/ST. From
the evidence, it appears that alleged act of
rape had been committed by accusedappellant for satisfying his lust and not for
any other reason. It was not the prosecution
case that rape was committed because
victim
belongs
to
scheduled
caste
community. At least there is no evidence in
this regard. Therefore, we are of well
thought-out opinion that accused-appellant
cannot be punished for offence punishable
under Section 3(2)(v) of SC/ST Act.
Hon'ble Supreme Court in Dinesh @
Buddha v. State of Rajasthan, AIR 2006 SC
1267 has held as under:
"15. 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.
682
 INDIAN LAW REPORTS ALLAHABAD SERIES
16. In view of the finding that Section
3(2)(v) of the Atrocities Act is not
applicable,
the sentence provided in
Section 376(2)(f), IPC does not per se
become life sentence."
17. Hon'ble Supreme Court in
Ramdas v. State of Maharashtra, (2007) 2
SCC 170 has held as under:
"11. 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 Castes 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. The High 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."
18. On the basis of above discussion
it is explicitly clear that charged offence
of rape had not been committed because
victim-complainant was a member of
SC/ST community. This offence appears
to had been committed only for satisfying
the lusty desire of appellant. In such a
case offence punishable under section
3(2)(v) of Scheduled Castes or Schedule
Tribes Act has not been committed.
Therefore the finding of of trial Court
holding the appellant guilty for the
offence under SC/ST Act is erroneous and
is hereby set aside.
19.
Accordingly this appeal is partly
allowed. The punishment awarded to
appellant, in in Special S.T. No. 80 of 2002
(arising out of crime no. 40 of 2001) State v.
Santosh Mishra, p.s. Shivrajpur, Kanpur
Dehat passed by the Court of Addl. Sessions
Judge/ Spl. Judge (SCST Act), Kanpur
Dehat is amended. The appeal is confirmed
for the conviction and punishment of charge
u/ss 323, 376, 504, 506 IPC. But the
conviction and punishment for the charge u/s
376 IPC read with section 3(2)(v) of
Scheduled Castes or Schedule Tribes Act is
set aside and accused-appellant is acquitted
of the said charge. All sentences would run
concurrently
and
the
period
already
undergone in jail by accused-appellant in this
case will be adjusted in his punishment.
20. The copy of this judgment be
sent to concerned Superintendent Jail
Superintendent and also to Sessions
Judge,
Kanpur
Dehat
for
ensuring
compliance.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE MANOJ KUMAR GUPTA, J.
C.M.W.P. No. 6976 of 2015
Rahul Upadhyay
...Petitioner
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioner:
Sri W.H. Khan, Sri J.H. Khan, Sri Gulrej
Khan