Chattisgarh High Court
Yunus Khan vs State Of Chhattisgarh on 8 February, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on: 25/01/2022
Judgment delivered on: 08/02/2022
CRA No. 504 of 2014
1. Yunus Khan, S/o. Khurshid Musalman, Aged About 20 Years, R/o. 56 Dafai
Khongapani, P.S. Jhagarakhand, Civil and Rev. Distt. Koriya, Chhattisgarh
---- Appellant
Versus
1. State of Chhattisgarh Through P.S. Jhagarakhand, Civil and Rev. Distt.
Koriya, Chhattisgarh
---- Respondent
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For the Appellant : Mr. Shakti Raj Sinha, Advocate.
For the State/Respondent : Mr. Kapil Maini, Panel Lawyer.
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Hon'ble Shri Justice Rajendra Chandra Singh Samant &
Hon'ble Shri Justice Arvind Singh Chandel
CAV Judgment
Per R.C.S. Samant, J.
08/02/2022
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. 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 appellnat 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 Vs. 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 Vs. 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 Vs. 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. 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. 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. 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 Vs. 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. 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 jain 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.
Sd/- Sd/-
(R.C.S. Samant) (Arvind Singh Chandel)
Judge Judge
Nisha
