Research › Search › Judgment

Chhattisgarh High Court · body

2022 DIGILAW 79 (CHH)

Yunus Khan v. State of Chhattisgarh

2022-02-08

ARVIND SINGH CHANDEL, RAJENDRA CHANDRA SINGH SAMANT

body2022
JUDGMENT : R.C.S. Samant, J. 1. This criminal appeal has been preferred against the judgment of conviction and order of sentence dated 11.04.2014 passed by the Special Judge, Scheduled Caste/Scheduled Tribe(Prevention of Atrocities) Act, 1989, Koriya, Baikunthpur, Chhattisgarh in Special Session Trial No.03/2013 convicting the accused/appellant under Section 363, 366, 376 & 493 of the Indian Penal Code (for short 'the IPC') and Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act(for short 'the Act, 1989') and sentencing him to undergo RI for 7 years with fine of Rs.1,000/-, RI for 10 years with fine of Rs.1,000/-, RI for life with fine of Rs.1,000/-, RI for 10 years with fine of Rs.1,000/- and RI for life with fine of Rs.1,000/- respectively with default stipulations. 2. The prosecution case, in brief, is this that prosecutrix PW-8, who was of age 15 years went missing regarding which a missing report Ex.P- 18 was lodged by Rambai PW-9 on 27.5.2010. Appellant who is the resident of same locality was also found missing. The prosecutrix was found in the house of Khurshid on 19.6.2010. The police recorded her statement under Section 161 of CrPC, in which, she stated that about 7 to 8 months prior to the date of incident, the appellant used to visit her frequently on her way to school and express that he likes her and that he wants to marry her. The prosecutrix came to know about some negotiation of her marriage by her parent, who told about it to the appellant. The appellant then allured her and enticed her that he himself will marry her and started having physical relation with her. The appellant then abducted the minor prosecutrix, kept her in his custody and he also exploited her sexually. On the asking of the prosecutrix, the appellant then brought her back to Manendragarh on 18.6.2010. Subsequent to which, she was recovered by the police. Her statement was recorded and then she was handed over to her mother Rambai PW-9. The prosecutrix was medically examined. Statement of witnesses were recorded and on completion of investigation, charge-sheet was filed. 3. After the completion of committal proceedings, the learned Special Judge took cognizance in the case and framed charges against the appellant under Sections 363, 366, 376 & 493 of IPC and Section 3(2)(v) of the Act, 1989. The appellant denied the charges and pleaded not guilty. The prosecution examined 18 witnesses. 3. After the completion of committal proceedings, the learned Special Judge took cognizance in the case and framed charges against the appellant under Sections 363, 366, 376 & 493 of IPC and Section 3(2)(v) of the Act, 1989. The appellant denied the charges and pleaded not guilty. The prosecution examined 18 witnesses. The appellant/accused was examined under Section 313 of CrPC, who denied all the incriminating evidence against him and stated, that he is innocent and has been falsely implicated. The appellant/accused sought opportunity for examining witness in defence, but he has not examined any witness in defence. The learned trial Court after giving opportunity of hearing to the prosecution and the defence, has delivered the impugned judgment convicting and sentencing the appellant in the manner mentioned hereinabove. 4. It is submitted by the counsel for the appellant that the conviction against the appellant is erroneous and without the evidence of prosecution beyond reasonable doubt. The prosecution had failed to prove, that the prosecutrix was minor on the date of incident. Evidence of the prosecutrix PW-8 is full of contradictions and omissions. Further, her accompanying the appellant for going to the place shows, that she was a consenting party. She has made clear admission in cross-examination, that she and the appellant both had love affair and that she left her house for the reason that her parents were negotiating her marriage with somebody else. The other witnesses in this respect are the hearsay witnesses who have given the hearsay evidence, hence, the offences charged against the appellant are not made out in any respect. As regards the conviction under Section 3(2)(v) of the Act, 1989, it is submitted that the reason for commission of any such offence as alleged had not being specifically made out. The prosecutrix was a member of Scheduled Tribe, hence, this conviction only for this reason is not at all sustainable. Although it is argued that appellant has not committed any offence, but in case this Court does not feel inclined to acquit the appellant from the offences of abduction and rape then he may be acquitted from the charge under Section 3(2)(v) of the Act, 1989. Although it is argued that appellant has not committed any offence, but in case this Court does not feel inclined to acquit the appellant from the offences of abduction and rape then he may be acquitted from the charge under Section 3(2)(v) of the Act, 1989. Reliance has been placed on the judgment of Supreme Court in the case of Khuman Singh v. State of M.P., reported in 2019 SCC OnLine SC 1104 in Criminal Appeal No.1283 of 2019 decided on 27.08.2019, in Asharfi v. State of U.P. reported in (2018) 1 SCC 742 in Criminal Appeal No.1182 of 2015 decided on 8.12.2017 and Patan Jamal Vali v. State of Andhrapradesh, reported in 2021 SCC OnLine SC 343 in Criminal Appeal No.452 of 2021 decided on 27.4.2021. It is submitted that the Supreme Court has very clearly held that the ground for commission of offence must be the reason that the victim is a member of Scheduled Caste or Scheduled Tribe. The caste of the victim has never mattered in the present case. It was clearly a love relation which has gone wrong and become unlawful, because of the minority of he prosecutrix, hence, the appellant may be acquitted of charge under Section 3(2)(v) of the Act, 1989 and the sentence imposed upon him in the other offences may be reduced to the minimum. 5. Learned State counsel opposes the grounds raised in the appeal and also the submissions made by the appellant counsel. It is submitted that the prosecution has very clearly proved that the age of the prosecutrix had been about 15 years on the date of incident, therefore, the admission of the prosecutrix regarding any love affair with the appellant is of no consequence. There is clear evidence present that the appellant had abducted the minor prosecutrix kept her in his custody for some time in different places and has exploited her sexually. Further, it is not disputed that the prosecutrix is a member of Scheduled Tribe, therefore, the conviction of the appellant against all the offences mentioned hereinabove are proper and need no interference, hence, the appeal be dismissed. 6. We have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 7. It is undisputed that prosecutrix PW-8 is a member of Scheduled Tribe and she is 'Gond' by caste. 6. We have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 7. It is undisputed that prosecutrix PW-8 is a member of Scheduled Tribe and she is 'Gond' by caste. Regarding the age of prosecutrix PW-8, she herself stated that her age at the time of incident was about 15 years and her date of birth is 2.6.1995. She has denied the adverse suggestions given to her by the defence in cross-examination. Rambai PW-9 is the mother of the prosecutrix, she has stated that her daughter the prosecutrix was of age about 15 years on the date if incident. In cross-examination, she has also denied the adverse suggestions given and, therefore, there is no such admission that the prosecutrix was major on the date of incident. Parmanand PW-7 has stated on the basis of the school register of District Board Primary Certificate Examination, 2008, that the date of birth of prosecutrix was recorded as 20.6.1995. In cross-examination, his statement has remained intact and unrebuttted. Smt. Narmada Chouhan PW-11 is Head Master of Government Girls Primary School. She had on the basis of the admission register, she stated that the date of birth of the prosecutrix was 20.6.1995. According to her statement in cross-examination, it is although clear that she is not scribe of the entry of admission of the prosecutrix, but all the same there is no reason to disbelieve the entry that has been made in the school register regarding the date of birth of prosecutrix. This is the evidence present in the case regarding the age of prosecutrix which has remained intact and unrebutted, therefore, the finding of the learned trial Court, that the prosecutrix was minor of age below 16 years does not need any interference. 8. Prosecutrix PW-8 has stated that she was acquainted with the appellant, who used to tell her that he likes her and he wants to marry her. The marriage of the prosecutrix was being negotiated by her parents regarding which the appellant/accused had knowledge from some source, who called the prosecutrix on 24.5.2010 and allured her with promise to marry her and then took her to a jungle where he kept her for five days and continuously raped her without her willingness and consent. Later on, the appellant took her to 56 Dafai where he kept minor prosecutrix in confinement. Later on, the appellant took her to 56 Dafai where he kept minor prosecutrix in confinement. Subsequent to which, she was brought to the house of the appellant where the police recovered her and recorded her statement. She has stated that she was compelled by the parents of the appellant to tell the story that she and the appellant had been to Mumbai for some time. In cross-examination, it is the suggestion of the appellant that there had been a love affair of the appellant with the prosecutrix. She has denied all the adverse suggestions and her statement in examination-in-chief regarding her abduction and rape by the appellant has remained unrebutted through out. Rambai PW-9 is the mother of the prosecutrix. She has stated that the prosecutrix had informed her that the appellant had abducted her and raped her. She is although hearsay witness, but her statement is relevant as she is the mother of the victim, who was narrated about the incident by the victim herself, in this manner it supports the version of the prosecutrix PW-8. Dr. Swati Bansariya PW-6 examined the prosecutrix and opined that the prosecutrix was habitual to sexual intercourse, vide her report Ex.P-5, which is suggestive of this fact that the prosecutrix had been subjected to physical relation and according to her statement she was physically exploited by the appellant himself, hence, in this case, the prosecution has successfully proved that the appellant had abducted and raped the minor prosecutrix of age below 16 years, therefore, the commission of offences under Section 363, 366 and 376 of IPC are made out. 9. The offence under Section 493 of IPC as defined is, that the victim/prosecutrix was made to believe in a deceitful manner that she is married to the accused and then the cohabitation has taken place. In the present case, there is no statement made by the prosecutrix PW-8 that any marriage was performed by the appellant with her. Her only statement is this, that the appellant had on pretext that he will marry her in future had exploited her sexually, therefore, there is no case present for conviction of the appellant under Section 493 of IPC, hence, conviction under Section 493 of IPC against the appellant is not sustainable. 10. The conviction of the appellant under Section 3(2)(v) of the Act, 1989 also needs consideration. 10. The conviction of the appellant under Section 3(2)(v) of the Act, 1989 also needs consideration. According to the statement of prosecutrix PW-8 the appellant had a crush for her he liked her and he wanted to marry her and subsequent to that he committed the offence of abduction and rape with the prosecutrix. Nowhere the prosecutrix PW-8 has stated that she was abducted and raped by the appellant only for the reason that she is a member of Scheduled Tribe. The provision under Section 3(2)(v) of the Act, 1989 is as follows:- “(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;” 11. Hon'ble Supreme Court has in the case of Patan Jamal Vali (supra) has observed by putting emphasis on the words “on the ground that such person is a member of Scheduled Caste or Scheduled Tribe.” Reliance was placed on the judgment of Supreme Court in the case of Ramdas and others v. State of Maharashtra, reported in (2007) 2 SCC 170 , in which, it was held that merely because of the reason that victim belongs to the Scheduled Caste or Scheduled Tribe community the provision of SC/ST (Prevention of Atrocities) Act would not be attracted in a case of sexual assault. Similar view has been taken by the Supreme Court in the case of Asharfi (supra) and Khuman Singh (supra), therefore, the evidence in this case is not found to be of that quality for holding conviction against the appellant under Section 3(2)(v) of the Act, 1989, therefore, the conviction of the appellant under this provision is also erroneous and unsustainable. 12. After careful scrutiny of the evidence present in the record of the case and the law applicable in the facts and circumstances of this case, we are of the considered view that this appeal deserves to be allowed in part. 13. Accordingly, The appeal is allowed in part. The conviction of the appellant for commission of offence under Sections 363, 366 & 376 of IPC are upheld. 13. Accordingly, The appeal is allowed in part. The conviction of the appellant for commission of offence under Sections 363, 366 & 376 of IPC are upheld. The conviction against the appellant under Section 493 of IPC and Section 3(2)(v) of the Act, 1989, are hereby set aside. The appellant was arrested in this case on 10.12.2012 and he has continued in detention since then. The learned trial Court has imposed the maximum sentence of life imprisonment upon the accused for commission of offence under Section 376 of IPC. As it is an incident of the year 2010 when the amendment in Criminal Law Amendment Act, 2013 had not come into force, therefore, the law prior to that amendment was applicable in this case. In the provision under Section 376 of IPC prior to the amendment of 2013, the minimum sentence which could have been imposed was seven years which could have extended for life. The only specific provision present was regarding rape of victim below 12 years age. The prosecutrix in this case was above 12 years and about 15 years. Therefore, we are of the view that the appellant has undergone more than the minimum jail sentence which could have been imposed upon the appellant on his conviction under Section 376(1) of IPC. Hence, the sentence imposed upon the appellant for offences under Section 363 & 366 are not interfered with. However, the sentence imposed upon the appellant under Section 376 of IPC is reduced to the period of detention and jail sentence already undergone by him in jail. 14. The default stipulation has ordered by the learned trial Court with respect to fine sentence against the appellant in the conviction upheld shall remain the same. 15. Accordingly the appeal is disposed off.