As per case facts, a minor girl was raped by an unknown person, and her mother lodged an FIR the next day. Medical examination confirmed the assault. The accused, Imshad, ...
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A.F.R.
Reserved on – 5.3.2020
Delivered on – 5.6.2020
Case : CRIMINAL APPEAL No. 3609 of 2009
Appellant : Imshad
Respondent : State of U.P.
Counsel for Appellant : M.P.S. Chauhan,Anil Kumar
Counsel for Respondent : Govt. Advocate
Hon'ble Pankaj Naqvi,J.
Hon'ble Saurabh Shyam Shamshery,J.
[Per: Saurabh Shyam Shamshery, J.]
This is an appeal under Section 374(2) Criminal
Procedure Code (Cr.P.C.) preferred by accused/appellant
Imshad, challenging the judgment and order dated
15.4.2009 whereby he stands convicted under Section 376
IPC/Section 3(2)(V) of SC/ST Act and sentenced for life
with fine of Rs.50,000/ and a default sentence of two
years in Sessions Trial No.729/05, by Additional District
and Sessions Judge/Special Judge/SC/ST Act, Fast Track
Court No.4, Aligarh, Uttar Pradesh.
1.PROSECUTION CASE
I.First informant, Shiv Dhara (PW2), mother of victim
lodged a written report (Ex.Ka1) at Police Station
Saasni Gate, Aligarh on 17.1.2005 at about 9:40 AM,
against an unknown under Section 376 IPC, that she was
a resident of Mohalla Sarai Rajaram, P.S. Saasni Gate,
Aligarh. On 16.1.2005 (a day before), about 4 PM while
CRIMINAL APPEAL No. 3609 of 2009
Neutral Citation No. - 2020:AHC:50498-DB
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her daughter (victim), aged about 9 years was playing in
the mohalla, an unknown person allured her to first floor
of a vacant and dilapidated house of one Karmesh Chand
Maheshwari at Pathak Street of Mohalla Jayganj and
committed rape. Victim told her about the mishap in the
night of 16.1.2005.
II.Accordingly, an FIR (Ex.Ka2) was lodged and
investigation commenced. Investigation Officer inspected
the place of occurrence on 17.1.2005, collected bed sheet,
blood stained pillow cover, three portion of cotton
mattress and a torn white cloth having blood clots and
also recovered blood stained green undergarment and one
cream coloured pant. Recovery memos were prepared in
presence of witnesses namely Dharmendra Kori and Satya
Prakash.
III.Victim was medically examined on 17.1.2005 at
about 2:45 PM at MIG 4, Government Hospital, Aligarh by
Dr. Suneeta Sagar (PW4). Details of medical examination
are as follows :
“External Examination – Height 4'1”, Wt. 23 Kg,
Teeth – 12/12, Breast do not developed. No mark on
injury present on any part of body.”
“Internal Examination – There is an injury present
on private part. Hymen fresh torn at 6'O clock position.
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There is perineal tear present at 6'O clock position, muscle
deep, about 2 c.m. long. Vaginal swab taken for
pathological examination for spermatozoa and for age,
adv. X Ray of right hand for Carpal bones.”
IV.Medical Officer, MIG Government Hospital issued
supplementary medical report dated 1.2.2005 of the
victim. Details of which are as follows :
“XRay report – Done at M.S. Hospital, Aligarh,
dated 18.1.05.
XRay Rt. Hand < AP Lat – The centre of pisiform
bone has not appeared.
Pathology report – Done at M.S. Hospital. Dead
spermatozoa seen.
From above report the age of girl is about 8 yrs
(Eight) and probability of rape is there.”
V.On completion of investigation, the I.O. submitted a
charge sheet dated 18.2.2005 against the
accused/appellant under Sections 376 IPC and 3(2)(V)
SC/ST Act, on which cognizance was taken, case
committed to Sessions and charges framed under
abovementioned Sections on 19.4.2005, to which the
accused pleaded not guilty and claimed trial.
CRIMINAL APPEAL No. 3609 of 2009
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VI. In support of its case, prosecution examined victim
(PW1), Smt. Shiv Dhara/mother of the victim (PW2),
Shri Kunwar Pal Singh/subsequent Investigating Officer
(PW3) and Dr. Suneeta Sagar (PW4).
2.PROSECUTION WITNESSES –
I.Victim (PW1), aged 11 years (at the time of
examination) was found to comprehend and possess
competence to understand questions on the issue,
examined by the trial court on 1.4.2008. She supported
the prosecution case that she was allured by the accused
for Rs.20, taken to a secluded place and was subjected to
rape. She shouted but none came to rescue her. She
narrated the incident to her mother, when she came back
from work. She denied prior acquaintance with the
accused. She recognized the accused when he came to
hospital along with police for his medical examination
while she was admitted in the hospital. She recognized
the accused in the Court also. She was subjected to detail
crossexamination but remained unshattered and
consistent to the case of the prosecution, however,
incorrectly stated about her father's death at the time of
occurrence. She admitted about media coverage of the
occurrence.
II.Smt. Shiv Dhara (PW2), mother of PW1 (first
CRIMINAL APPEAL No. 3609 of 2009
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informant) supported the prosecution version and
narrated the occurrence as disclosed by her daughter. Her
daughter recognized the accused when he came to
hospital along with police for his medical examination
after 56 days of occurrence. Her husband was alive on
the day of occurrence, however, being unwell, he was on
bed rest. About 100200 villagers accompanied her to
police station for lodging the FIR, however, she denied
any media coverage of the occurrence. She denied lodging
of the FIR only in order to receive compensation under the
SC/ST Act.
III.S.I. Kunwar Pal Singh (PW3), the subsequent
Investigating Officer authenticated the signatures and
handwriting of SI N.S. Dixit, the first I.O. who also
prepared recovery memos, recorded statements of the
witnesses but was not examined during trial.
IV.Dr. Suneeta Sagar (PW4), proved the medical report
of the victim and confirmed that she was raped. On the
basis of supplementary medical report, age of the victim
on the day of occurrence was reported to be around 8
years.
3.Accused/appellant denied the prosecution case under
Section 313 Cr.P.C., however, chose not to say anything in
his defence.
CRIMINAL APPEAL No. 3609 of 2009
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4.JUDGMENT OF THE TRIAL COURT –
The learned trial court, while convicting/sentencing
the accusedappellant held as under :
(i) PW1 and 2 supported the prosecution case in
toto.
(ii) PW4 proved medical evidence, that victim was
about 8 years old at the time of occurrence and was
subjected to rape.
(iii) Evidence of victim, aged 11 years (at the time of
her examination before the trial court) is reliable and on
the basis of her solitary evidence, order of conviction
could be passed. There was no reason to doubt
trustworthiness of the witness, coupled with the fact that
she also recognized the accused in the Court.
(iv) Even in the absence of nonexamination of first
I.O. and identification of accused in TIP, order of
conviction could be based only on the basis of reliable
testimony of the victim.
(v) On the question of sentence, learned trial court
held that accused committed heinous crime and while
awarding him life sentence took into consideration, the
age of victim, social effect of crime etc.
CRIMINAL APPEAL No. 3609 of 2009
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5.SUBMISSIONS ON BEHALF OF THE APPELLANT –
Shri Anil Kumar, learned counsel for the appellant
challenging the conviction and sentence submitted that :
(a) No Identification Parade was conducted even
though FIR was lodged against an unknown person.
Accusedappellant was falsely implicated in the case due
to large scale media coverage of the incident.
(b) According to prosecution case, victim recognized
the accused, when he was taken for medical examination
at the hospital, which was not proved, thereafter, accused
was recognized in the Court by the victim, which is not a
substantive evidence.
(c) FIR was lodged after 17 hours of the occurrence,
however, no plausible explanation was afforded.
(d) There was no evidence on record to substantiate
the offence under Section 3 (2)(V) of SC/ST Act against
the accusedappellant.
(e) Alternatively he submitted that appellant is
languishing in jail since 6.2.2008 i.e. for more than 12
years, in case conviction is upheld, sentence be reduced to
the period already undergone.
6.SUBMISSIONS ON BEHLAF OF THE STATE –
CRIMINAL APPEAL No. 3609 of 2009
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Per contra, Shri A.N. Mulla assisted by Shri Rupak
Chaubey, learned AGAs submitted that :
(a) It is well settled that conviction could be based
even on the solitary evidence of the prosecutrix, provided
it inspires confidence, as in the present case. Statement of
the victim is completely supported by medical evidence.
(b) Nonexamination of the first Investigating Officer
is not fatal for prosecution case as no prejudice could be
demonstrated.
(c) Identification of the accused during trial is
substantive evidence, whereas TIP is not. In the present
case though no TIP took place but the victim identified the
accusedappellant before the trial court, therefore, it is
safe to rely upon such identification.
(d) There is no evidence on record which remotely
indicates that accusedappellant was falsely implicated
due to alleged large scale media coverage of the
occurrence.
(e) Delay of 17 hours in lodging the FIR is not fatal
for the prosecution case, considering that a 8 years old girl
was raped and her mother being alone with an ailing
husband has to take care of her daughter, therefore, it
must have taken some time for her to lodge an FIR,
CRIMINAL APPEAL No. 3609 of 2009
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besides reporting such a case is still considered to be a
taboo.
(f) Accused was a resident of a nearby mohalla,
where family of victim resides, therefore, it is highly
probable that appellant knew that the victim, belongs to a
Scheduled Caste, offence under Section 3(2)(V) of SC/ST
Act is also made out.
(g) Appellant committed heinous crime of
committing rape of 8 years old girl this Court may not
take a lenient view on the quantum of sentence.
DISCUSSION –
7.DELAY IN LODGING THE FIR –
The occurrence took place at 4 P.M. on 16.1.2005.
According to prosecution story, victim told her mother
(PW2) about the occurrence same day at about 78 P.M.
but FIR was lodged next day (17.1.2005) at 9:40 A.M.,
with delay of more than 12 hours. Learned counsel for the
appellant contended that there is no explanation for the
delay.
8.In Deepak vs. State of Haryana: 2015 (4) SCC 762,
it has been held in para 15 that :
“15. The Courts cannot overlook the fact that in
sexual offences and, in particular, the offence of
CRIMINAL APPEAL No. 3609 of 2009
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rape and that too on a young illiterate girl, the
delay in lodging the FIR can occur due to various
reasons. One of the reasons is the reluctance of
the prosecutrix or her family members to go to
the police station and to make a complaint about
the incident, which concerns the reputation of the
prosecutrix and the honour of the entire family.
In such cases, after giving very cool thought and
considering all pros and cons arising out of an
unfortunate incident, a complaint of sexual
offence is generally lodged either by victim or by
any member of her family. Indeed, this has been
the consistent view of this Court as has been held
in State of Punjab vs. Gurmit Singh & Ors..”
(emphasis supplied)
9.In P.Rajagopal and others Etc. vs. State of Tamil
Nadu reported in 2019 (5) SCC 403, it has been held in
para 12 that :
“12. Normally, the Court may reject the case of the
prosecution in case of inordinate delay in lodging the
first information report because of the possibility of
concoction of evidence by the prosecution. However,
if the delay is satisfactorily explained, the Court will
decide the matter on merits without giving much
importance to such delay. The Court is dutybound to
determine whether the explanation afforded is
plausible enough given the facts and circumstances of
the case. The delay may be condoned if the
complainant appears to be reliable and without any
motive for implicating the accused falsely. [See Apren
Joseph v. State of Kerala and Mukesh v . State (NCT
of Delhi)]”
(emphasis supplied)
10.PW2 stated in evidence that she neither made any
effort to lodge a report on the day of occurrence for fear
CRIMINAL APPEAL No. 3609 of 2009
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of shame, nor she shared the same with her neighbours.
The report came to be lodged next day, as the condition of
her daughter (victim) was worsening, when she was left
with no option but to lodge a report. Another relevant
circumstance is that her husband was unwell and bed
ridden and she alone had to manage everything. Thus, in
view of above circumstances and the legal position, there
was no inexplicable delay in lodging the FIR so as to
falsely implicate the accused.
11.STERLING WITNESS –
In the present case, an eight year girl (PW1) was
raped. She not only identified the accusedappellant
during trial but supported the prosecution in its totality.
She remained consistent and unshaken during detail cross
examination and narrated entire occurrence and manner
of sexual assault. Medical evidence corroborates ocular
evidence. This solitary witness inspires confidence. It is a
settled principle that conviction in a rape case could be
based on the sole testimony of the victim without
corroboration, if the witness is a 'sterling witness'.
12.In a recent judgment of Santosh Prasad @ Santosh
Kumar vs. State of Bihar, reported in 2020 SCC Online
SC 194, the Apex Court held that :
“5.4 Before considering the evidence of the prosecutrix, the
CRIMINAL APPEAL No. 3609 of 2009
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decisions of this Court in the cases of Raju (supra) and Rai
Sandeep @ Deepu, relied upon by he learned Advocate
appearing on behalf of the appellantaccused, are required
to be referred to and considered.
5.4.1 x x x x x x x x x x x x x x x x x x x x x x x x x x
5.4.2 In the case of Rai Sandeep alias Deepu (supra), this
Court had an occasion to consider who can be said to be a
"sterling witness". In paragraph 22, it is observed and held
as under:
"22 In our considered opinion, the "sterling
witness" should be of a very high quality and
calibre whose version should, therefore, be
unassailable. The court considering the version of
such witness should be in a position to accept it
for its face value without any hesitation. To test
the quality of such a witness, the status of the
witness would be immaterial and what would be
relevant is the truthfulness of the statement made
by such a witness. What would be more relevant
would be the consistency of the statement right
from the starting point till the end, namely, at
the time when the witness makes the initial
statement and ultimately before the court. It
should be natural and consistent with the case of
the prosecution qua the accused. There should not
be any prevarication in the version of such a
witness. The witness should be in a position to
withstand the crossexamination of any length
and howsoever strenuous it may be and under no
circumstance should give room for any doubt as
to the factum of the occurrence, the persons
involved, as well as the sequence of it. Such a
version should have corelation with each and
every one of other supporting material such as
the recoveries made, the weapons used, the
manner of offence committed, the scientific
evidence and the expert opinion. The said version
should consistently match with the version of
every other witness. It can even be stated that it
should be akin to the test applied in the case of
circumstantial evidence where there should not be
CRIMINAL APPEAL No. 3609 of 2009
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any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged
against him. Only if the version of such a witness
qualifies the above test as well as all other such
similar tests to be applied, can it be held that
such a witness can be called as a "sterling
witness" whose version can be accepted by the
court without any corroboration and based on
which the guilty can be punished. To be more
precise, the version of the said witness on the core
spectrum of the crime should remain intact while
all other attendant materials, namely, oral,
documentary and material objects should match
the said version in material particulars in order
to enable the court trying the offence to rely on
the core version to sieve the other supporting
materials for holding the offender guilty of the
charge alleged."
5.4.3 In the case of Krishna Kumar Malik v. State of
Haryana (2011) 7 SCC 130, it is observed and held by this
Court that no doubt, it is true that to hold an accused
guilty for commission of an offence of rape, the solitary
evidence of the prosecutrix is sufficient provided the same
inspires confidence and appears to be absolutely
trustworthy, unblemished and should be of sterling
quality.”
(emphasis supplied)
13.We have scanned the deposition of PW1 keeping the
aforesaid decisions in mind. She remained consistent
during her entire testimony. She withstood entire cross
examination. Her version is also supported by medical
evidence, therefore, the witness is absolutely trustworthy,
unblemished and of sterling quality.
14.NONEXAMINATION OF INVESTIGATING OFFICER –
CRIMINAL APPEAL No. 3609 of 2009
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As we have held that PW1 is a 'sterling witness',
there is no material contradiction or improvements in her
testimony, therefore, even nonexamination of first
Investigating Officer is of no consequence, as the second
I.O. (PW3) was examined who confirmed the
handwriting/signatures of the first I.O. on relevant papers
to which there is no serious challenge, coupled with the
fact that nonexamination of the first I.O., did not result in
any prejudice to the accused.
15.In this regard, it is useful to refer judgment of the
Supreme Court in State of Karnataka vs. Bhaskar
Kushali Kotharkar and Others: (2004) 7 SCC 487
where it has been held in para 10 and 11 that :
“10.There is very strong and convincing evidence
to prove that these respondents along with others
had attacked deceased Prakash, PW1 and PW2.
The Sessions Judge had given valid reasons for
finding these respondents guilty. The Single Judge
was not justified in reversing the conviction and
sentence solely on the ground that investigating
officer was not examined by the prosecution. As
the respondents were not prejudiced by the non
examination of the investigating officer and also
the constable who recorded the FI statement. The
finding of the learned Single Judge is erroneous,
therefore, we set aside the same. In Behari prasad
and Ors. v. State of Bihar, [1996] 2 SCC 317,
this Court held that non examination of the
investigating officer is not fatal to the prosecution
case especially when no prejudice was likely to be
suffered by the accused.
11. In Bahadur Naik v. State of Bihar, [2000] 9
CRIMINAL APPEAL No. 3609 of 2009
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SCC 153, this Court held that when no material
contradictions have been brought out, then non
examination of the investigating officer as a
witness for prosecution was of no consequence
and under such circumstance no prejudice had
been caused to the accused by such non
examination.”
(emphasis supplied)
16.NO TEST IDENTIFICATION PARADE –
Learned counsel for the appellant vehemently argued
that no TIP was conducted which indicates false
implication of the appellant as he was unknown to the
prosecutrix/victim. We are not impressed with this
contention as TIP is not a substantive evidence unlike
dock identification which is substantive evidence.
17.In Mulla and Another vs. State of U.P., reported in
(2010) 3 SCC 508, it has been held by the Apex Court in
para Nos.42, 43, 44 and 45 that :
“42. Failure to hold test identification parade does not
make the evidence of identification in court
inadmissible, rather the same is very much admissible in
law. Where identification of an accused by a witness is
made for the first time in Court, it should not form the
basis of conviction.
43. As was observed by this Court in Matru v. State of
U.P.., (1971) 2 SCC 75, identification tests do not
constitute substantive evidence. They are primarily
meant for the purpose of helping the investigating
agency with an assurance that their progress with the
investigation into the offence is proceeding on the right
lines. The identification can only be used as
CRIMINAL APPEAL No. 3609 of 2009
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corroborative of the statement in Court. (Vide Santokh
Singh v. Izhar Hussain, (1973) 2 SCC 406).
44. The necessity for holding an identification parade
can arise only when the accused persons are not
previously known to the witnesses. The whole idea of a
test identification parade is that witnesses who claim to
have seen the culprits at the time of occurrence are to
identify them from the midst of other persons without
any aid or any other source. The test is done to check
upon their veracity. In other words, the main object of
holding an identification parade, during the
investigation stage, is to test the memory of the
witnesses based upon first impression and also to enable
the prosecution to decide whether all or any of them
could be cited as eyewitnesses of the crime.
45. The identification proceedings are in the nature of
tests and significantly, therefore, there is no provision
for it in the Code and the Indian Evidence Act, 1872. It
is desirable that a test identification parade should be
conducted as soon as possible after the arrest of the
accused. This becomes necessary to eliminate the
possibility of the accused being shown to the witnesses
prior to the test identification parade. This is a very
common plea of the accused and, therefore, the
prosecution has to be cautious to ensure that there is no
scope for making such allegation. If, however,
circumstances are beyond control and there is some
delay, it cannot be said to be fatal to the prosecution.”
(emphasis supplied)
18.In Mukesh & Anr. vs. State for NCT of Delhi &
Others reported at 2017 (6) SCC 1, it has been held in
para 143 and 144 that :
“143. In Santokh Singh v. Izhar Hussain and
another, it has been observed that the
identification can only be used as corroborative of
the statement in court.
CRIMINAL APPEAL No. 3609 of 2009
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144. In Malkhansingh v. State of M.P., it has been
held thus:
"7. … The identification parades belong to the
stage of investigation, and there is no provision in
the Code of Criminal Procedure which obliges the
investigating agency to hold, or confers a right
upon the accused to claim a test identification
parade. They do not constitute substantive
evidence and these parades are essentially
governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification
parade would not make inadmissible the evidence
of identification in court. The weight to be
attached to such identification should be a matter
for the courts of fact. …" And again:
"16. It is well settled that the substantive evidence
is the evidence of identification in court and the
test identification parade provides corroboration
to the identification of the witness in court, if
required. However, what weight must be attached
to the evidence of identification in court, which is
not preceded by a test identification parade, is a
matter for the courts of fact to examine. ….”
(emphasis supplied)
19.In view of aforesaid, mere fact that TIP was not
conducted in the present case would not vitiate the
testimony of PW2 (victim) who identified the accused at
the hospital and also in the court during trial.
20.We, in view of the above discussions, are of the view
that PW2 (victim) being a sterling witness and conviction
under Section 376 IPC can be based on her solitary,
reliable and trustworthy evidence.
WHETHER CONVICTION UNDER SECTION 3(2)(V)
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OF SC/ST ACT IS SUSTAINABLE ?
21.We now have to consider whether conviction u/s
3(2) V of SC/ST Act is sustainable or not ?
22.Learned counsel for the appellant argued that there
was no evidence on record that accused committed
offence of rape, only because the victim was a member of
Schedule Caste or Schedule Tribe.
23.The Apex Court in a recent judgment of Khuman
Singh vs. State of Madhya Pradesh: 2019 SCC Online
1104 in para 12, 13 and 14 has held that :
“12. …...The object of Section 3(2)(v) of the Act is
to provide for enhanced punishment with regard to
the offences under the Indian Penal Code
punishable with imprisonment for a term of ten
years or more against a person or property
knowing that the victim is a member of a
Scheduled Caste or a Scheduled Tribe.
13. In Dinesh alias Buddha v. State of Rajasthan
(2006) 3 SCC 771, the Supreme Court 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) of the Atrocities Act been applicable then
by operation of law, the sentence would have been
imprisonment for life and fine.
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As held by the Supreme Court, the offence must be
such so as to attract the offence under Section 3(2)
(v) of the Act. The offence must have been
committed against the person on the ground that
such person is a member of Scheduled Caste and
Scheduled Tribe. In the present case, the fact that
the deceased was belonging to "Khangar"Scheduled
Caste is not disputed. There is no evidence to show
that the offence was committed only on the ground
that the victim was a member of the Scheduled
Caste and therefore, the conviction of the appellant
accused under Section 3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act is not sustainable.
(emphasis supplied)
24.In the present case, prosecution has not brought any
evidence on record which could even suggest that accused
committed offence of rape, only for the reason that the
victim was a member of Schedule Caste or Schedule Tribe
as the accused had no prior acquaintance with the victim.
Accordingly, conviction under Section 3(2)(V) of S.C./S.T.
Act is not sustainable, liable to be set aside.
25.QUANTUM OF SENTENCE –
Lastly, we have to deal with the argument regarding
quantum of sentence. It is useful to refer following
judgments passed by the Supreme Court on the issue.
26.In Bavo alias Manubhai Ambalal Thakore vs. State
of Gujarat: 2012 (2) SCC 684, in paras 12, 13, 14, it has
been held that :
CRIMINAL APPEAL No. 3609 of 2009
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“12. The learned counsel for the appellant relied on
a decision of this Court in Narayanamma (Kum) vs.
State of Karnataka and Others (1994) 5 SCC 728
and contended that the life imprisonment is not
warranted and sentence may be reduced to the
period already undergone. The said decision relates
to the rape on a minor girl aged 14 years. While the
trial Judge convicted and sentenced the accused to
three years RI, the High Court reversed the same
and acquitted the accused. It was challenged before
this Court. After considering the entire materials,
this Court set aside the order of the High Court and
affirmed the conclusion arrived at by the trial Court.
Though this Court expressed displeasure in
awarding only three years RI for the crime of rape,
taking note of length of time, not inclined to
enhance it and confirmed the sentence awarded by
the trial Court.
13. Counsel for the appellant relied on another
decision of this Court in Rajendra Datta Zarekar vs.
State of Goa, (2007) 14 SCC 560. The said case
also relates to the offence under Section 376. The
victim was aged about 6 years and the accused was
aged about 20 years. Ultimately, this Court
confirmed the conviction and sentence of 10 years as
awarded by the High Court. However, the fine
amount of Rs. 10,000/ awarded under Section
376(2)(f) being found to be excessive reduced to Rs.
1,000/.
14. Considering the fact that the victim, in the case
on hand, was aged about 7 years on the date of the
incident and the accused was in the age of 18/19
years and also of the fact that the incident occurred
nearly 10 years ago, the award of life imprisonment
which is maximum prescribed is not warranted and
also in view of the mandate of Section 376(2)(f)
IPC, we feel that the ends of justice would be met by
imposing RI for 10 years. Learned counsel appearing
for the appellant informed this Court that the
appellant had already served nearly 10 years.
(emphasis supplied)
CRIMINAL APPEAL No. 3609 of 2009
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27.In Thongam Tarun Singh vs. State of Manipur:
2019 SCC Online SC 709, it has been held in paras 11
and 12 that :
“11. The question falling for consideration is
whether there are adequate and special reasons
warranting exercise of discretion to reduce the
sentence of imprisonment. What is 'adequate and
special reasons' would depend upon several factors
and no straitjacket formula can be imposed. No
catalogue can be prescribed for adequacy of
reasons nor instances can be cited regarding
special reasons. They differ from case to case.
12.It is stated that at the time of occurrence,
appellant no. 1 was working as a police driver and
appellant no. 2 was a singer having good
reputation, performing as a singer on the stage
and both the appellants were aged about 2425
years, at the time of the occurrence. It is also
stated that both the appellants have no criminal
antecedents and they hail from backward area.
Learned counsel for the appellants have also
produced certificate issued from the Jail
Authorities to show that the conduct of the
appellants (post conviction) are very good and
satisfactory and they have been participating in
the sports/garden activities and other programmes
of the Jail. Considering the facts and
circumstances of the case and that the appellants
have no criminal antecedents and also the conduct
of the appellants in the Jail (post conviction), the
sentence of imprisonment of fifteen years (for the
conviction under Section 376 (2)(g) IPC) and
sentence of imprisonment of ten years (for the
conviction under Section 120B IPC) are reduced to
eight years.”
(emphasis supplied)
28.Considering that no case is made out against the
CRIMINAL APPEAL No. 3609 of 2009
22
accusedappellant under Section 3(2)(V) of SC/ST Act, he
is languishing in jail since 6.2.2008 (i.e. more than 12
years), further he was about 20 years at the time of
occurrence and today he is about 34 years and no other
criminal history is reported, we, therefore, modify the
sentence under Section 376 IPC to sentence already under
gone.
29.The appeal is partly allowed. The
conviction/sentence under Section 376 IPC r/w Section
3(2)(V) of SC/ST Act is altered to conviction under
Section 376 IPC only on sentence undergone while
acquitting the appellant under Section 3(2)(V) of SC/ST
Act. Appellant is in jail. He shall be released forthwith, if
not detained in any other case.
30.A certified copy of this judgment be sent to the trial
court for necessary compliance.
Order Date : 5.6.2020
Rishabh
(Saurabh Shyam Shamshery, J.) (Pankaj Naqvi, J.)
CRIMINAL APPEAL No. 3609 of 2009
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