The Allahabad High Court set aside the conviction and sentence under Section 3 (2) (v) of the appellant and has observed that to prosecute a person under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, there must be evidence to show that the accused committed on the ground that such person/victim is a member of a Scheduled Caste or a Scheduled Tribe.
The Division Bench of Justice Kaushal Jayendra Thaker and Ajai Tyagi passed this order while hearing a Criminal Appeal filed by Pintu Gupta.
The appeal challenges the order dated 13.6.2017 passed by IIIrd Additional Sessions Judge, Jaunpur in Sessions Trial convicting accused-appellant, Pintu Gupta, under Sections 326 of Indian Penal Code, 1860 and Section 3 (2) (v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The accused-appellant was sentenced to rigorous imprisonment of 10 years with fine of Rs 25,000 under Section 326 of IPC and was sentenced to imprisonment for life with fine of Rs 10,000 under Section 3 (2) (v) of SC/ST Act. Default sentences for both the offences were one year rigorous imprisonment each. The date of the sentence was 14.6.2017.
The facts of the case are that on the basis of the written report, the FIR came to be lodged against the accused on 29.1.2011 by the father of the injured as the injured was hospitalized. The injured was caused burn injuries by hitting him with a bottle in which there was some liquid which is said to be acid and the injured was taken for medical treatment.
The FIR states that the age of accused Pintu Gupta was 20 years and that of the injured Sanju Kumar Benvanshi, namely the son of the informant, was 18 years at the time of incident.
It was further alleged in the FIR that looking at the incident there was commotion in the public and the public started running here and there. As the accused sprinkled acid on the face of the injured, his face was badly burnt and for some time his eyesight was lost. The First Information Report was lodged on 29.1.2011. The incident occurred at 6.30 in the evening when people were sitting in shops and were having their tea.
The police, after recording statements of the medical professionals namely, Dr Prabha Shankar Chaturvedi, who had treated the injured and the police authorities, laid the charge-sheet against the accused on 4.2.2011.
The accused was committed to the Court of Session as the case was triable by the Court of Session. The Sessions Judge framed charges on the accused on 27.4.2012. The accused pleaded not guilty and wanted to be tried.
The Court has also examined a witness namely Kayam Mehndi. The accused-appellant was examined under Section 313, CrPC and the judgment of the Sessions Judge was delivered on 13.6.2017 and the sentence was ordered on 14.6.2017.
The appeal came to be filed in July 2017 and was admitted by the Court. The accused is in jail since 2.2.2011, meaning thereby, he was an undertrial prisoner and during trial, he didn’t get bail.
The counsel for the appellant submitted that Section 326 of IPC is not made out as injuries are not such which would fall within the purview of Section 326 of IPC.
It is further submitted by the counsel for the appellant that even if it is proved that the offence under Section 326 IPC is made out, the punishment is on higher side which requires to be modified.
As far as commission of offence under Section 3 (2) (v) of SC/ST Act is concerned, it is submitted by the counsel that the FIR nowhere states that the injured belongs to a particular community. No documentary evidence to prove the same is there. The documentary evidence, so as to prove that the injured belong to Scheduled Caste or Scheduled Tribe, has not been produced either before the Investigating Officer or Sessions Court.
The FIR also, according to the counsel for the appellant, does not state anything about the same though the incident is said to have occurred in a public place. No independent witness has been examined by the prosecution except the father of the injured whose presence at the place of incident is very doubtful as in his examination-in-chief, he has opined that he does not know why the incident had occurred. In his statement, he has mentioned that he is not aware whether the accused appellant Pintu Gupta was also injured. It is his categorical statement that the police officer inquired of his son but he has denied the fact, in his oral testimony, he has not mentioned that as he belongs to a particular community.
It is stated that before the police authority, under Section 161 of CrPC, the injured has only stated that accused-appellant, Pintu Gupta, had beaten him and, therefore also, no case is made out under Section 3 (2) (v) of SC/ST Act. It is further submitted that the finding of fact by the Sessions Judge is based on surmises and conjectures.
The AGA has taken us through the testimony of Sanju Kumar Benvanshi & Dr Prabha Shankar Chaturvedi so as to contend that provisions of Section 3 (2) (v) of SC/ST Act is made out as the injured and the father of the injured belong to a Scheduled Caste and, therefore conviction under the aforesaid section is just and proper and the judgment cited by counsel for the appellant in Khuman Singh, Jai Karan & Vishnu (Supra) would not apply to the facts of this case and the conviction under SC/ST Act be maintained.
The Court observed,
The FIR, in the case at hand, was lodged by the father of the injured. Whether it can be said that the incident which occurred in broad day light was on the ground that the injured belong to a particular community falling in the term ‘Scheduled Castes’ or ‘Scheduled Tribes’ so as to attract the provision of Section 3 (2) (v) of SC/ST Act.
The FIR is silent about this aspect. Documentary evidence showing what caste to the offender and the injured belong has not been brought on record. For attracting the provisions of Section 3 (2) (v) of SC/ST Act, there should be corroboration by way of documentary evidence to prove that the injured, on whom the act is committed, belongs to ‘Scheduled Castes’ or ‘Scheduled Tribes’. Just because a person belongs to and says so, will it be a piece of evidence? It is nobody’s case that the appellant committed this crime on the ground that the injured belong to a particular community. Even if we believe that there is no documentary evidence and that the injured belongs to the community which he states then also can it be said that the offence has been committed as he belongs to a particular community? This is a moot question which arises before us.
In the case at hand, no independent witness has been examined who would depose that the accused committed the offence on the ground that the injured belonged to a community covered under SC/ST Act. This omission proves fatal for the prosecution in such a vital matter where punishment is for life imprisonment. The Judge has not even discussed the evidence and only on the basis of caste, he held that the offence was deemed to be committed. There is no deeming provision under SC/ST Act.
In view of the above, the Court cannot concur with the Sessions Judge as the evidence which has been laid before the judge has been misread by the Sessions Judge and he has misconstrued the provision of Section 3 (2) (v) of SC/ST Act. Conviction and sentence under Section 3 (2) (v) of the accused-appellant is, therefore, set aside.
The Court held,
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, the 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.
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’. It appears from perusal of impugned judgment that sentence awarded by the trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. The Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying the criminal justice system.
“In view of the above, as far as offence under Section 326 of IPC is concerned, the punishment of 10 years imprisonment is too harsh and the fine of Rs 25000 is also too harsh. We reduce the sentence to 9 years incarceration and fine to Rs 2000, reason being, the complainant and the injured would have been adequately compensated by the Government as they have invoked provisions of Section 3 (2) (v) of SC/ST Act. We do not direct refund of the said amount though we record clean acquittal under Section 3 (2) (v) of SC/ST Act. We also reduce the default sentence to one month.
The accused-appellant is in jail. If 9 years of incarceration is over, he shall be set free immediately, if not warranted in any other offence. The default sentence will be given effect to after completion of 9th year of incarceration and if the period of default sentence is also over, he need not pay fine. Records be transmitted to Trial Court,” the Court ordered.