# Shahid (In Jail) v. State of U.P

- **Citation:** (2023) 3 ILRA 745
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-14
- **Case number:** Criminal Appeal No. 5303 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shahid-in-jail-v-state-of-u-p-49822
- **Pages:** 9

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 376 - Punishment for Rape -
Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989
- Section 3 (2) (v) - The Code of Criminal
Procedure, 1973 - Sections 313, 433 -
Appeal against conviction - As per FIR - on
03.12.2006, when the prosecutrix was
playing
outside
the
house,
accused
allured her into his house and committed
rape - Trial Court framed charges -
Prosecution has examined 12 witnesses -
No documentary evidence proved that the
injured belongs to SC or ST produced
either before Investigating Officer or
Sessions Court - No independent witness
has been examined - Both prosecutrix and
P.W.1 did not know the accused - P.W.1
has denied commission of rape - No
internal/external injury was found (Para
2, 3, 5, 6, 9, 10)

Held: Evidence on record depicts the theory of
commission of rape on the ground that the
prosecutrix belong to a particular community.
Neither the FIR nor oral testimony have
suggested the same. It is not worth believing
that a person who wants to commit sexual
offence would enquire from the prosecutrix her
name, caste and then commit the unlawful act.
The prosecutrix is four years old child and the
incident has been properly explained by the
prosecutrix and, therefore, there is possibility of
such act being committed. Accused has been
rightly
convicted
under
Section
376
-
'Reformative theory of punishment' is to be
adopted
and it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. Hence, acquitted from charges
leveled under SC/ST Act. (Para 14, 15, 17, 24,
25)

Appeal is partly allowed. (E-13)

List of Cases cited:

## Text

3 All. Shahid Vs. State of U.P.
745

26. Appeal is partly allowed in the
above terms.

27. Office is directed to transmit a
copy of this order to the learned Sessions
Judge, Mirzapur for compliance.

28. Office is also directed to send
back the record of the trial court
immediately.

29. Sri Chetan Chaterjee and Miss
Nishi Mehrotra, learned Amicus Cuarie
have argued this appeal on behalf of
appellants, Mukesh @ Jeet Lal @ Jetaye
and Hari Narain @ Devganda @ Jhinguri
and they shall be paid a sum of Rs. 15,000/-
each as remuneration by High Court Legal
Aid Committee.
----------
(2023) 3 ILRA 745
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.02.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 5303 of 2008

Shahid ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri S.K. Gupta, Sri Ambrish Kumar Kashyap,
Sri Hafeez Khan, Sri S.K. Vidyarthi, Sri S.R.
Verma

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 376 - Punishment for Rape -
Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989
- Section 3 (2) (v) - The Code of Criminal
Procedure, 1973 - Sections 313, 433 -
Appeal against conviction - As per FIR - on
03.12.2006, when the prosecutrix was
playing
outside
the
house,
accused
allured her into his house and committed
rape - Trial Court framed charges -
Prosecution has examined 12 witnesses -
No documentary evidence proved that the
injured belongs to SC or ST produced
either before Investigating Officer or
Sessions Court - No independent witness
has been examined - Both prosecutrix and
P.W.1 did not know the accused - P.W.1
has denied commission of rape - No
internal/external injury was found (Para
2, 3, 5, 6, 9, 10)

Held: Evidence on record depicts the theory of
commission of rape on the ground that the
prosecutrix belong to a particular community.
Neither the FIR nor oral testimony have
suggested the same. It is not worth believing
that a person who wants to commit sexual
offence would enquire from the prosecutrix her
name, caste and then commit the unlawful act.
The prosecutrix is four years old child and the
incident has been properly explained by the
prosecutrix and, therefore, there is possibility of
such act being committed. Accused has been
rightly
convicted
under
Section
376
-
'Reformative theory of punishment' is to be
adopted
and it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. Hence, acquitted from charges
leveled under SC/ST Act. (Para 14, 15, 17, 24,
25)

Appeal is partly allowed. (E-13)

List of Cases cited:

1. Vishnu Vs St. of U.P (Criminal Appeal No. 204
of 2021)

2. Pintu Gupta Vs St. of U.P (Criminal Appeal
No. 4083 of 2017)

3. Ved Prakash Vs St. of Har., JIC 1996 SC 18

4. Patan Jamal Vali Vs St. of Andhra Pradesh,
2021 SCC OnLine SC 343
746 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Mohd. Giasuddin Vs St. of AP, (AIR 1977 SC
1926)

6. Deo Narain Mandal Vs St. of UP, (2004) 7 SCC
257

7. Ravada Sasikala Vs St. of A.P. , AIR 2017 SC
1166

8. Jameel Vs St. of UP, (2010) 12 SCC 532

9. Guru Basavraj vs St. of Karn., (2012) 8 SCC
734

10. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

11. St. of Punj. Vs Bawa Singh, (2015) 3 SCC
441

12. Raj Bala Vs St. of Har., (2016) 1 SCC 463

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajit Singh, J.)

1. Heard Sri Amrish Kashyap, learned
counsel for the accused-appellant and
learned A.G.A. for the State.

2. This appeal challenges the
judgment and order dated 04.12.2007
passed by Special Judge (SC/ST Act),
Kanpur Nagar in Special Sessions Trial
No.670 of 2007 (State vs. Shahid) wherein
the learned Special Judge has convicted &
sentenced accused-appellant, Shahid, under
Section 376 of Indian Penal Code, 1860
(hereinafter referred to as 'IPC') for life
imprisonment and fine of Rs.10,000,
further convicting under Section 363 of
IPC for imprisonment 5 years rigorous
imprisonment & fine of Rs.5000/- and read
with Section 3 (2) (v) of Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred
to as SC/ST Act) and sentenced him to
imprisonment
for
life
with
fine
of
Rs.10,000/- and, in case of default in
payment of fine, further to under go one
year's simple imprisonment.

3. Brief facts as culled out from the
record are that Vijay Kumar, the father of
prosecutrix, made a complaint to Police
Station Cantt Kanpur Nagar stating that on
03.12.2006, at about 4.00 p.m., when the
prosecutrix was playing outside the house,
the accused-appellant, Shahid, caught her
from behind, Shahid allured him into his
house and started committing rape on her.
On raising alarm by the prosecutrix, the
informant along with his neighbours
reached at the place of incident where they
saw that accused was committing rape on
her, accused ran away from there. It was
alleged that the prosecutrix sustained
injuries and the informant brought her to
the Police Station.

4. After lodging of the F.I.R, the
investigation was moved into motion. The
prosecutrix was got medically examined.
The Investigating Officer, after taking
statements of witnesses, submitted chargesheet against the accused-appellant under
Section 376 of IPC and under Section 3 (2)
(v) of SC/ST Act.

5. The accused was committed to the
Court of Sessions as the case was triable by
the Court of Session. The learned Sessions
Judge framed charges on the accused. The
accused pleaded not guilty and wanted to
be tried.

6. So as to bring home the charge, the
prosecution has examined 12 witnesses
who are as under :

1
Vijay
Kumar
@ Vijjan
PW1
3 All. Shahid Vs. State of U.P.
747
2
Niketa
@
Annu
PW2
3
Dr.
Avnish
Kumar
PW3
4
Ajayveer
Singh
PW4
5
Jyotsna
Kumari
PW5
6
Ranveer Singh
PW6
7
Akhlal Ahmad
Khan
PW7
8
Ajay
Kumar
Trivedi
PW8
9
R.P. Gupta
PW9
10
Vikas Ram
PW10
11
A.M. Khan
PW11
12
S.B. Mishra
PW12

7. In support of ocular version
following documents were filed:

1
F.I.R.
Ex.Ka.3
2
Written Report
Ex.Ka.1
3
Recovery memo of
underwear
Ex. Ka. 9
4
X-ray Report
Ex. Ka.10
5
Discharge - slip
Ex. Ka. 2
6
Injury report
Ex. Ka.5
7
Supplementary
report
Ex. Ka.6
8
Medico
Legal
examination report
Ex. Ka.12
9
Charge sheet
Ex. Ka.7
10
Report of Forensic
Science Lab.
Ex. Ka. 11
11
Site
Plan
With
Index
Ex. Ka.8

8. At the end of the trial and after
recording the statement of the accused under
section
313
of
Cr.P.C.,
and
hearing
arguments on behalf of prosecution and the
defence, the learned Special Judge convicted
the appellant as mentioned aforesaid.

9. As far as commission of offence
under Section 3 (2) (v) of SC/ST Act is
concerned, it is submitted by learned counsel
that the F.I.R. nowhere states that the injured
belongs to a particular community. No
documentary evidence so as to prove that the
injured belongs to Scheduled Caste or
Scheduled Tribe was produced either before
Investigating Officer or Sessions Court. No
independent witness has been examined by
the prosecution. It is stated by prosecutrix
that she did not know the accused. P.W.1 had
stated that he did not know the accused and in
his cross examination he had denied the
commission of offence and, therefore, no
case is made out for commission of offence
under Section 3 (2) (v) of SC/ST Act and
finding of the learned Special Judge requires
to be upturned.

10. As far as commission of offence
under Section 376 of IPC is concerned, it is
submitted by learned counsel for the
appellant that the accused has been falsely
implicated in the present case. The medical
evidence does not support the prosecution
version as no internal/external injury was
found on person of the prosecutrix though
the F.I.R. and medical examination were
prompt. It is further submitted that even
P.W.1, in his cross examination has denied
the commission of rape and the finding of
the Special Judge is based on surmises and
conjectures and requires to be upturn. In
support of his argument, learned counsel
for the appellant has relied on the decision
of this Court in Criminal Appeal No. 204 of
2021 (Vishnu vs. State of U.P.) decided on
28.1.2021 & in Criminal Appeal No.4083
of 2017 (Pintu Gupta vs. State of U.P.)
decided on 28.7.2022 and has contended
that no ingredients of Section (3) (2) (v) of
SC/ST Act & Section 376 of IPC is made
out and, therefore, the conviction is
required to be set aside.
748 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Per contra, learned A.G.A. for the
State has submitted that the conviction of
the accused is just and proper as ingredients
of offence under Section 3 (2) (v) of SC/ST
Act and Section 376 are very much proved.
It is further submitted by learned A.G.A.
that P.W.2, prosecutrix, has stated that
before committing the unlawful act, the
accused had asked her name, caste and her
husband's name and, therefore, finding of
the learned Special Judge is just and
proper.

12. Before we venture upon to discuss
the evidence and the arguments advanced
by the learned counsel for the parties, it
would be pertinent to discuss Section 375
of IPC which read as under:

"3. Punishments for offences of
atrocities.--

(1).....................xx...............xx.......

(2) Whoever, not being a member
of a Scheduled Caste or a Scheduled
Tribe,--

(i).....................xxx..........

(ii)....................xx...........

(iii)...............xxx...........

(iv)..............xxx...............

(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."

[375. Rape.--A man is said to
commit "rape" who, except in the case
hereinafter
excepted,
has
sexual
intercourse
with
a
woman
under
circumstances falling under any of the six
following de-scriptions:--

(First) -- Against her will.

(Secondly) --Without her consent.

(Thirdly) -- With her consent,
when her consent has been obtained by
putting her or any person in whom she is
interested in fear of death or of hurt.

(Fourthly) --With her consent,
when the man knows that he is not her
husband, and that her consent is given
because she believes that he is another man
to whom she is or believes herself to be
law-fully married.

(Fifthly) -- With her consent,
when, at the time of giving such consent, by
reason
of
unsoundness
of
mind
or
intoxication or the administration by him
personally or through another of any
stupe-fying or unwholesome substance, she
is unable to understand the nature and
consequences of that to which she gives
consent.

(Sixthly) -- With or without her
consent, when she is under sixteen years of
age. Explanation.--Penetration is sufficient
to
constitute
the
sexual
intercourse
necessary to the offence of rape.

(Exception) --Sexual intercourse
by a man with his own wife, the wife not
being under fifteen years of age, is not
rape.]

13. The aforesaid provisions of law
would now be seen in view of the ocular
version as well as the documentary
evidence of the prosecution witnesses.
P.W.1,
in
his
cross
examination,
categorically mentions that he has not seen
the appellant committing any kind of
sexual intercourse with the prosecutrix.
P.W.3, whose oral testimony has been
considered, also categorically states that he
cannot conclusively opine that whether
there was commission of sexual intercourse
against the will or against the consent of
the prosecutrix.
3 All. Shahid Vs. State of U.P.
749

14. The evidence on record highlights
the theory of commission of rape on the
ground that the prosecutrix belong to a
particular community. Neither the F.I.R.
nor the oral testimony have remotely
suggested the same. So as to attract the
provisions of Section 375 read with Section
376 of IPC and Section 3 (2) (v) of SC/ST
Act, ingredients of the said offence has to
be proved.

15. The judgment shows that the
learned Sessions Judge has convicted the
accused-appellant though there was no
evidence for commission of offence under
Section 3 (2) (v) of The Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989. It is not worth
believing that a person who wants to
commit sexual offence would enquire from
the prosecutrix her name and her caste and
then commit the unlawful act. P.W. 1 who
is the father of the prosecutrix has stated,
he had also stated that he did not know the
accused-appellant. The judgment relied by
the prosecution before the Court below
namely
Ved Prakash
vs.
State
of
Haryana, JIC 1996 SC 18 cannot apply to
the facts of this case.

16. The learned Session Judge has
considered the fact that spermatozoa may
or may not be found. The important aspects
are (a) the prosecution is a 4 years old
child, (b) she has narrated the incident, (c)
Medical report and the oral testimony of
PW-5 which would not permit us to upturn
the judgment of learned Sessions Judge

17. The evidence of the prosecutrix is
four years old child cannot be doubted and
is a full-proof of the fact that the accused
laid her into the home, the manner in which
the incident occurred has been properly
explained by the prosecutrix and, therefore,
the medical evidence of Doctor testifies to
this effect that there is possibility of such
act being committed. In view of the matter,
we are convinced that the appellant has
been rightly convicted under Section 376.

18. As far as findings on Section 376
are concerned, there is no finding. As far as
commission of offence under Section 3 (2)
(v) of SC/ST Act is concerned, only on the
ground that the prosecutrix and her family
members belong to a particular community,
can it be said that the offence has been
committed? The answer is, No. We are also
fortified in our view by the decision of the
Apex Court in Patan Jamal Vali vs. State
of Andhra Pradesh, 2021 SCC OnLine
SC 343, wherein the Apex Court has held
as under :

"58. The issue as to whether the
offence was committed against a person on
the ground that such person is a member of
a SC or ST or such property belongs to
such member is to be established by the
prosecution on the basis of the evidence at
the trial. We agree with the Sessions Judge
that the prosecution's case would not fail
merely because PW1 did not mention in her
statement to the police that the offence was
committed against her daughter because
she was a Scheduled Caste woman.
However, there is no separate evidence led
by the prosecution to show that the accused
committed the offence on the basis of the
caste identity of PW2. While it would be
reasonable to presume that the accused
knew the caste of PW2 since village
communities are tightly knit and the
accused was also an acquaintance of
PW2's family, the knowledge by itself
cannot be said to be the basis of the
commission of offence, having regard to the
language of Section 3(2)(v) as it stood at
the time when the offence in the present
750 INDIAN LAW REPORTS ALLAHABAD SERIES
case was committed. As we have discussed
above, due to the intersectional nature of
oppression PW2 faces, it becomes difficult
to establish what led to the commission of
offence - whether it was her caste, gender
or disability. This highlights the limitation
of a provision where causation of a
wrongful act arises from a single ground or
what we refer to as the single axis model.

59 It is pertinent to mention that
Section 3(2)(v) was amended by the
Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Amendment Act,
2015, which came into effect on 26 January
2016. The words "on the ground of" under
Section 3(2) (v) have been substituted with
"knowing that such person is a member of a
Scheduled Caste or Scheduled Tribe". This
has decreased the threshold of proving that
a crime was committed on the basis of the
caste identity to a threshold where mere
knowledge is sufficient to sustain a
conviction. Section 8 which deals with
presumptions as to offences was also
amended to include clause (c) to provide
that if the accused was acquainted with the
victim or his family, the court shall
presume that the accused was aware of the
caste or tribal identity of the victim unless
proved otherwise. The amended Section 8
reads as follows:

"8. Presumption as to offences. -
In a prosecution for an offence under this
Chapter, if it is proved that

(a) the accused rendered [any
financial assistance in relation to the
offences committed by a person accused
of],
or
reasonably
suspected
of,
committing, an offence under this Chapter,
the Special Court shall presume, unless the
contrary is proved, that such person had
abetted the offence;

(b) a group of persons committed
an offence under this Chapter and if it is
proved that the offence committed was a
sequel to any existing dispute regarding
land or any other matter, it shall be
presumed that the offence was committed in
furtherance of the common intention or in
prosecution of the common object.

[(c) the accused was having
personal knowledge of the victim or his
family, the Court shall presume that the
accused was aware of the caste or tribal
identity of the victim, unless the contrary is
proved.]"

60
The
Parliament Standing
Committee Report on Atrocities Against
Women and Children has observed that,
"high acquittal rate motivates and boosts
the confidence of dominant and powerful
communities for continued perpetration"
and recommends inclusion of provisions of
SC & ST Act while registering cases of
gendered violence against women from SC
& ST communities53. However, as we have
noted, one of the ways in which offences
against SC & ST women fall through the
cracks is due to the evidentiary burden that
becomes almost impossible to meet in cases
of
intersectional
oppression.
This
is
especially the case when courts tend to
read the requirement of "on the ground"
under Section 3(2)(v) as "only on the
ground of". The current regime under the
SC & ST Act, post the amendment, has
facilitated the conduct of an inter-sectional
analysis under the Act by replacing the
causation
requirement
under
Section
3(2)(v) of the Act with a knowledge
requirement making the regime sensitive to
the kind of evidence that is likely to be
generated in cases such as these. 61
However, since Section 3(2) (v) was
amended and Clause (c) of Section 8 was
inserted by Act 1 of 2016 with effect from
26 January 2016 these amendments would
not be applicable to the case at hand. The
offence in the present case has taken place
before the amendment, on 31 March 2011.
3 All. Shahid Vs. State of U.P.
751
Therefore, we hold that the evidence in the
present case does not establish that the
offence in the present case was committed
on the ground that such person is a
member of a SC or ST. The conviction
under Section 3(2)(v) would consequently
have to be set aside."

19. The decisions cited by learned
counsel for the appellant in Visnu (Supra)
and in Pintu Gupta (Supra) will also
apply to the facts of this case. This is a
similar case to Vishnu (Supra) where the
man was languishing in jail for non
commission of offence for which he was
punished.

20. In Mohd. Giasuddin Vs. State of
AP, [AIR 1977 SC 1926], explaining
rehabilitary & reformative aspects in
sentencing it has been observed by the
Supreme Court:

"Crime
is
a
pathological
aberration. The criminal can ordinarily be
redeemed and the state has to rehabilitate
rather than avenge. The sub-culture that
leads to ante-social behaviour has to be
countered not by undue cruelty but by
reculturization. Therefore, the focus of
interest in penology in the individual and
the goal is salvaging him for the society.
The infliction of harsh and savage
punishment is thus a relic of past and
regressive times. The human today vies
sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the rehabilitation of the
offender as a means of a social defence.
Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our
criminal courts, since brutal incarceration
of the person merely produces laceration of
his mind. If you are to punish a man
retributively, you must injure him. If you
are to reform him, you must improve him
and, men are not improved by injuries."

21. 'Proper Sentence' was explained in
Deo Narain Mandal Vs. State of UP
[(2004) 7 SCC 257] by observing that
Sentence should not be either excessively
harsh
or
ridiculously
low.
While
determining the quantum of sentence, the
court should bear in mind the 'principle of
proportionality'. Sentence should be based
on facts of a given case. Gravity of offence,
manner of commission of crime, age and
sex of accused should be taken into
account. Discretion of Court in awarding
sentence cannot be exercised arbitrarily or
whimsically.

22. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme
Court referred the judgments in Jameel vs
State of UP [(2010) 12 SCC 532], Guru
Basavraj vs State of Karnatak, [(2012) 8
SCC 734], Sumer Singh vs Surajbhan
Singh, [(2014) 7 SCC 323], State of
Punjab vs Bawa Singh, [(2015) 3 SCC
441], and Raj Bala vs State of Haryana,
[(2016) 1 SCC 463] and has reiterated that,
in operating the sentencing system, law
should adopt corrective machinery or
deterrence based on factual matrix. Facts
and given circumstances in each case,
nature of crime, manner in which it was
planned
and
committed,
motive
for
commission of crime, conduct of accused,
nature of weapons used and all other
attending circumstances are relevant facts
which
would
enter
into
area
of
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
752 INDIAN LAW REPORTS ALLAHABAD SERIES
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

23. Keeping in view the facts and
circumstances of the case and also
keeping in view criminal jurisprudence in
our country which is reformative and
corrective and not retributive, this Court
considers that no accused person is
incapable
of
being
reformed
and
therefore, all measures should be applied
to
give
them
an
opportunity
of
reformation in order to bring them in the
social stream.

24. As discussed above, 'reformative
theory of punishment' is to be adopted
and for that reason, it is necessary to
impose punishment keeping in view the
'doctrine of proportionality'.

25. We, therefore, hold that it is
proved that offence under Sections 376 is
made out. The accused-appellant is
acquitted
from
the
charges
leveled
against him under Section 3 (2)(v) of the
SC/ST Act. We direct the jail authority
concerned to set the accused-appellant
free, if not warranted in any other
offence.

26. Record and proceedings be sent
back to the Trial Court forthwith.

27. This Court is thankful to both
the learned advocate for ably assisting the
Court and getting this matter decided.

28. This court refuse the sentence to
that already undergone in the Jail under
Section 376 of the IPC. Accused is
acquitted charged under Section 3(2)(v)
of the SC/ST Act.

29. We, by this omnibus direction,
direct Registrar (Listing) to impress upon
the Registry concerned to follow the
decision of this Court in Vishnu (Supra)
which are yet not being followed as even
after 2021, the matters are not being
listed. Even this matter has been listed
only after the counsel for the appellant
has filed listing application as the
accused is in jail for more than 14 years.
His case has not been considered for
remission by the jail authorities though
14 years of incarceration is over and there
are directions of the Apex Court and this
Court. Even if there is no direction of the
Courts, under Section 433 of Cr.P.C. the
authorities
concerned
are
under
an
obligation to consider the case of the
accused for remission.
----------
3 All. Ashok Vs. State of U.P.
753
(2023) 3 ILRA 753
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.01.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 7842 of 2017

Ashok ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Arun Kumar Tripathi, Sri Shashank
Maurya, Sri K.K. Singh

Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 304 - Murder - The Code of
Criminal Procedure, 1973 - Sections 313 -
Evidence Act, 1872 - Section 27 - Appeal
against
conviction
-
Prosecution
has
examined 8 witnesses - Held, all the three
witnesses of fact proved their presence at
the time of incident - Their St.ments
established that incident occured on the
issue of collecting sand on roof and the
accused inflicted three fatal blows of
Takora (axe) from the back on the head of
the deceased and he died - The ocular
evidence
of
witnesses
and
the
postmortem report shows that injuries
were cause of death and it was homicidal
death - St.ment of the witnesses are
consistent
and
there
are
no
major
contradictions - All the three witnesses
are related to each other and with the
deceased, their testimony is trustworthy,
as they were the eye-witnesses - Accused
has failed to prove any enmity with the
deceased or witnesses - Evidence adduced
by prosecution has established the case
beyond reasonable doubts - Death was
not premeditated, accused had knowledge
and intention that his act would cause
bodily harm to the deceased, but did not
want to do away with the deceased -
Hence, offence is not punishable u/s 302
of
I.P.C.
but
culpable
homicide
not
amounting to murder, punishable u/s 304
(I) of I.P.C (Para 9, 17, 34, 38, 39 )

Appeal is partly allowed. (E-13)

List of Cases cited:

1. Appa Bhai Vs St. of Guj., AIR 1988 S.C. 696

2. Ashok Kumar Chaudhary Vs St. of Bihar, 2008
(61) ACC 972

3. Veeran & ors. Vs St. of M.P. (2011) 5 SCR 300

4. Tukaram & ors.Vs St. of Mah., reported in
(2011) 4 SCC 250

5. B.N. Kavatakar & anr. Vs St. of Karn.,
reported in 1994 SUPP (1) SCC 304

6. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC
1926

7. Deo Narain Mandal Vs St. of U.P., (2004) 7
SCC 257

8. Ravada Sasikala Vs St. of A.P., AIR 2017 SC
1166

9. Jameel vs St. of U.P. , (2010) 12 SCC 532

10. Guru Basavraj Vs St. of Karn., (2012) 8 SCC 734

11. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

12. St. of Punj. Vs Bawa Singh, (2015) 3 SCC
441

13. Raj Bala vs St. of Har., (2016) 1 SCC 463

(Delivered by Hon'ble Mohd. Azhar
Husain Idrisi, J.)

1. Heard Sri K.K. Singh, learned
Advocate appearing for Sri Shashank