Allahabad High Court
Dharmmuni Joshi And Another vs State Of U.P. on 28 February, 2023
Bench: Kaushal Jayendra Thaker, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 10.2.2023 Delivered on 28.2.2023 Court No. - 44 Case :- CRIMINAL APPEAL No. - 3212 of 2014 Appellant :- Dharmmuni Joshi And Another Respondent :- State of U.P. Counsel for Appellant :- Ramesh Prasad,Birendra Singh,Hafeez Khan,Hans Pratap Singh,Syed Ali Imam Counsel for Respondent :- Govt.Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajit Singh,J.
1. Heard Sri Syed Ali Imam, learned counsel for the accused-appellants and learned A.G.A. for the State.
2. Most unfortunate aspect of this litigation is that despite the fact that the incident occurred in the year 2008, the accused are in jail since 07.08.2014.
3. This appeal challenges the judgment and order dated 07.08.2014 passed by Special Judge (SC/ST Act)/Additional Sessions Judge, Banda in Special Criminal Case No.77 & 107 of 2008, under Sections 366, 368, 376 I.P.C. & 3(2)V SC/ST Act (State vs. Dharmmuni Joshi & Balkhandi Giri) wherein the learned Special Judge has convicted & sentenced accused-appellants, Dharmmuni Joshi and Balkhandi Giri, under Section 376 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') 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 them to imprisonment for life with fine of Rs.10,000/- each (Default sentence one year). Under Section 368, they were sentenced to ten years' rigorous imprisonment with fine of Rs.5,000/- and, in case of default in payment of fine, further to under go six months simple imprisonment. Accused-appellant, Dharmmuni Joshi was also sentenced under Section 366 of IPC for ten years' rigorous imprisonment with fine of Rs.5,000/- and, in case of default in payment of fine, further to under go six months simple imprisonment.
4. Brief facts as culled out from the F.I.R. are that the prosecutrix was given some medicine which have toxic effect in it and that is how she was lured into following the accused to their home and thereafter, both the brothers committed forcible sexual intercourse on her for one year and after one year she filed an application under Section 156 (3) Cr.P.C. which culminated into investigation having taken place.
5. The Investigating Officer investigated the matter after recording the statements of about five witnesses and prepared a site plan and enquired and filed the supplementary report after collecting the injury report returned the case of the prosecutrix culminated into F.I.R. and the charge sheet was laid against the accused-appellants.
6. 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.
7. So as to bring home the charge, the prosecution has examined the following witnesses who are as under :
1Prosecutrix PW1 2 Sankar Giri PW2 3 Bharat Giri PW3 4 Dr. Smt. Aneeta Sagar PW4 5 Lalman Verma PW5 6 Kishan Lal PW6 7 Vijay Tripathi PW7
8. In support of ocular version following documents were filed:
1F.I.R.
Ex.Ka.5 2 Written Report Ex.Ka.1 3 Injury Report Ex. Ka.2 4 Supplementary Report Ex. Ka.3 5 Charge sheet Ex. Ka. 7 6 Charge-sheet Ex. Ka. 8 7 8 Site Plan with Index Site Plan with Index Ex. Ka.3A Ex. Ka.4
9. 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.
10. As far as commission of offence under Section 3 (2) (v) of SC/ST Act is concerned, it is submitted by learned counsel for the accused-appellants that the offence would not fall within the purview of 3(2) (v) of SC/ST Act as none of the ingredients required for proving that the act was committed because the prosecutrix belong to the said community nor is it proved by cogent evidence that the accused committed the offence (if any) as she belonged to the said community.
11. 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. It is further submitted 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 appellants has relied on the decisions in Patan Jamal Vali vs. State of Andhra Pradesh, 2021 (4) Supreme 16, Dinesh @ Buddha vs. State of Rajasthan, 2006 (2) Supreme 363, Kaini Rajan vs. State Kerala, 2013 0 Supreme (SC) 896 and also 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 & Sections 366, 368 and 376 of IPC is made out and, therefore, the conviction is required to be set aside.
12. Per contra, learned A.G.A. for the State has submitted that the conviction of the accused is just and proper as ingredients of offences alleged to have been committed are very much there. It is further submitted by learned A.G.A. the accused-appellants were well aware of the caste of the prosecutrix and only because of her caste the above offence has been committed with her and, therefore, finding of the learned Special Judge is just and proper. The learned A.G.A. has heavily relied on the decision of the Apex Court in the case of Patan Jamal Vali (Supra). The accused has also relied on the said judgement.
13. 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 3 (2) (v) of SC/ST Act and provisions of Section 366, 368 & 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."
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].
368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person.--Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
[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 descriptions:--
(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 lawfully 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 stupefying 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.]
14. 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.
15. The evidence on record does not highlight 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 been remotely suggests 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.
16 In the medical report of the prosecutrix, no injury was found on her private part. Two slides were taken from the discharge of vagina and sent for examination. Pathology report received by the doctor and supplementary report was prepared. In supplementary report, no living or dead spermatozoa was found which shatters the prosecution case with regard to commission of rape. Neither dead nor live spermatozoa was found. She was having fetus of five months.
17. This judgment shows that the learned Sessions Judge has convicted the accused-appellant where 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. Neither the First Information Report nor the oral testimony of prosecution witnesses even remotely suggest that the the above offence was committed on the ground that the prosecutrix belongs to a particular community.
18. The medical report does not show presence of any spermatozoa. No injury was found on her private part. The learned judge, unfortunately, no where has discussed about the ingredients of Section 375 of IPC. The learned Sessions Judge has also gone on the assumption that as she was married lady, there is no necessity of there being any kind of injury sustained by her. The learned Session Judge has considered the fact that spermatozoa may or may not be found. The important aspects are non founding of spermatozoa and non finding of any kind of injuries which would permit us to upturn the judgment of learned Sessions Judge. There is no finding as far as commission of offence under Section 3 (2) (v) of SC/ST Act. 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 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. 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. Even if, we go by the evidence of PW-1 who was 35 years of age has nowhere in her oral testimony even mentioned that the accused had kept her captive in their house because she belonged to a particular community and hence, the charge itself having not been proved. The accused could not have been convicted for the charges. She does not have caste certificate, which would be be necessary to see by the learned Sessions Judge for invoking Section 3 (2) (v) of the SC/ST Act which is also absent in the judgement. Just because the parents belonged to a particular community and she was earlier married with one Ganga Ram Bajpayee, does not mean that it was proved that the act was committed because she belonged to a particular community. Thus, the conviction under Section 3(2)(v) of SC/ST Act cannot be upheld and is set aside.
20. There is no medical evidence to prove that she was dragged by the accused when she was taken to their home. The judgment cited by the learned counsel for the appellants in Patan Jamal Vali vs. State of Andhra Pradesh, Dinesh @ Buddha vs. State of Rajasthan, Kaini Rajan vs. State Kerala, and in Vishnu (Supra) would inure for the benefit of the accused. One more aspect is that PW-1, after staying for one year, had gone to the Commissionrate with an advocate, there also she has not raised any hue and cry. It cannot be said that she was confined against her wish. Neither can it be said nor is it proved that there was forcible sex by the appellants herein with the prosecutrix. We are unable to accept the submissions made by learned counsel for the State that this was a case of rape. The ingredients of Sections 366, 368 & 375 of IPC are not proved. The fact that even after her marriage, she has deserted her three children and she was staying with the accused. Her evidence does not proved that she was forced into any kind of relationship.
21. In view of the above, this appeal is allowed. The judgment and order impugned in this appeal is set aside. The accused-appellants are acquitted from the charges levelled against them. The accused are on bail pursuant to the order of this Court dated 10.2.2023. The need not surrender.
22. Record and proceedings be sent back to the Trial Court forthwith.
Order Date :- 28.2.2023/Jitendra