Vishnu v. State of U.P.) decided on
Case Details
1 Court No. - 44 Case :- CRIMINAL APPEAL No. - 4668 of 2017 Appellant :- Dinesh And 2 Others Respondent :- State of U.P. Counsel for Appellant :- Anuj Bajpai,Purushottam Pandey Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker, J. , J. Hon'ble Ajit Singh (Oral Judgment Per K. J. Thaker) 1. Heard Sri Purushottam Pandey, learned counsel for the appellants and learned A.G.A. for the State. 2. This appeal challenges the judgment and order dated 14.07.2017 passed by Special Judge SC/ST Act/Additional Session Judge, Court No.2, Shahjahanpur in Sessions Trial No.434 of 2012 (State vs. Dinesh and others) arising out of Case Crime No. 140 of 2012 whereby the learned Special Judge has convicted accused- appellants Dinesh, Kamlesh and Ramesh, for commission of offence under Sections 304/34 IPC & 3(2)5 SC/ST Act. 3.
Facts
Brief facts as culled out from the record are that appellants had used lathi and danda for beaten the uncle of the complainant when they were going for the natural call. The complainant's uncle received the injuries and died. 4. It is submitted by learned counsel for appellants that just because a person belongs to a particular caste, the offence is not committed the evidence of witnesses, no where state that act was done as deceased belonged to SC/ST community. 5. As far as commission of offence under Section 3 (2) (v) of
Legal Reasoning
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. 7. 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 304/34 are very much proved. 8. 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 : 3 "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 4
Arguments
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 2 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. 6. In support of his argument, learned counsel for the appellant has
Decision
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." 9. 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. 10. While considering the evidence of witnesses and the Postmortem report which states that the injuries on the body of the deceased would be the cause of death. It was homicidal death, the finding of the Court below is upheld requires modification. 11. However it is to be seen whether the quantum of sentence is too harsh and requires to be modified. In this regard, we have to analyse the theory of punishment prevailing in India. 12. 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 5 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." 13. '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. 14. 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 6 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 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. 15. 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. 16. 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'. 7 17. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence, Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided and Court should take into account the reformative approach underlying in criminal justice system. 18. Hence, the accused are held to be guilty under Section 304-I and sentenced to the period already undergone, fine is substituted to each of Rs.1000/- and default sentence of three months is substituted. If the fine is not paid within 12 weeks after release, they would be lodged back in the Jail for serving out three months incarceration in case of default in payment of fine. 19. The accused shall set free immediately by the authorities. The conviction under Section 3 (2) (v) of SC/ST Act and the fine is set aside. 20. Appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith. 21. This Court is thankful to learned Advocates for ably assisting the Court. Order Date :- 17.02.2023 A.N. Mishra Digitally signed by :- AMARNATH MISHRA High Court of Judicature at Allahabad