Chattisgarh High Court
Raju @ Rajesh Patel vs State Of Chhattisgarh on 24 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 161 of 2014
Raju @ Rajesh Patel, S/o. Late Chhote Lal Patel, Aged About
24 Years, R/o. Pakka Ghouda, Khongapani, Civil & Revenue
Distt. Koriya, Chhattisgarh
---Appellant
Versus
State Of Chhattisgarh, Through Station House Officer, Police
Station- Jhagrakhand, Distt. Korea, Chhattisgarh
---Respondent
For Appellant :- Mr. Anil Gulati, Advocate
For State/Respondent :- Ms. Ruchi Nagar, Dy. Govt. Advocate
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
(24.01.2023)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant under Section
374(2) of Cr.P.C. is directed against the impugned judgment
dated 04.01.2014 passed by learned Special Judge, Scheduled
Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989,
Koriya, Baikunthpur, in Special Sessions Trial No.05/2011, by
which, the appellant herein has been convicted for the offences
under Sections 376, 493 of I.P.C. and Sections 3(1)(xii) & 3(2)(v)
of the Scheduled Castes & Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (in short "the SC/St Act") and sentenced as
under :
Conviction : Sentence
U/s. 376 of I.P.C. : R.I. for 10 years with fine of
Rs.1000/-, and in default of
payment of fine, further R.I. for 6
months.
U/s. 493 of I.P.C. : R.I. for 10 years with fine of
Rs.1000/-, and in default of
payment of fine, further R.I. for 6
months.
U/s. 3(1)(xii) of SC/ST : R.I. for 5 years with fine of
(Prevention of Atrocities) Rs.1000/-, in default of payment
Act of fine, further R.I. for 6 months.
U/s. 3(2)(v) of SC/ST : Life imprisonment with fine of
(Prevention of Atrocities) Rs.1000/-, in default of payment
Act of fine, further R.I. for 6 months.
2. Case of the prosecution, in short, is that the appellant committed
sexual intercourse with major victim continuously from six
months prior to 23.10.2010 near B.C.M. Forest Nala and other
places against her will and without her consent knowing fully
well that she is a member of Scheduled Tribe and the said act is
punishable under Section 376 of I.P.C. and under the provisions
of Section 3(1)(xii) and Section 3(2)(v) of the SC/ST Act. Further
case of the prosecution is that the appellant took the victim
being a major girl, on the pretext of marriage, to B.C.M. Forest
Nala, Pokhari Dafai Lal Ground and Sidhbaba Forest
continuously six months prior to the date of FIR i.e. 23.10.2010
and committed sexual intercourse against her wish & will and
without her consent and thereby committed the offence under
Sections 376 & 493 of I.P.C. and under Sections 3(1)(xii) and
3(2)(v) of the SC/ST Act. On the report of the victim, the FIR
was registered vide Ex.P-1 and the victim and appellant were
medically examined vide Ex.P-8 and seized slides were sent for
FSL, but the FSL report was not brought on record. Thereafter,
on due investigation, the appellant was charge-sheeted for the
aforesaid offences, which was ultimately committed to the Court
of Sessions for trial in accordance with law, in which the
accused abjured his guilt and entered into defence stating that
he has been falsely implicated and he has not committed any
offence.
3. In order to bring home the offence, prosecution examined as
many as 13 witnesses and exhibited 17 documents and the
appellant-accused in support of his defence has neither
examined any witness nor exhibited any document. Article A-1
and A-2 were also brought on record.
4. The trial Court, after appreciation of oral and documentary
evidence on record, convicted the appellant herein for the
offences as mentioned in the opening paragraph of the
judgment, against which the present appeal has been preferred.
5. Learned counsel for the appellant submits that the victim being
major was consenting party and no ingredients of Section 493 of
I.P.C. and Section 3(1)(xii) of the SC/ST Act are available in the
evidence brought out by the prosecution and therefore, no
offence under the aforesaid penal provisions are made out, as
such, appellant is liable to be acquitted.
6. Learned State counsel submits that the appellant has rightly
been convicted for the aforesaid offences, as the prosecution
has been able to bring home the offences beyond reasonable
doubt and therefore, the appeal deserves to be dismissed.
7. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the
records with utmost circumspection.
8. Firstly the appellant has been convicted for the offence under
Section 376 of I.P.C. on the premises that continuously from six
months prior to 23.10.2010, the date of FIR, the appellant
committed sexual intercourse against the will & wish of the
victim and without her consent. In order to prove the offence, the
victim has been examined as PW-1.
9. The victim (PW-1), aged about 20 years, on the date of offence,
in the examination before the Court, has stated that on the
pretext of marriage, the appellant had committed sexual
intercourse with her on different places continuously from six
months. However, in the cross-examination, she has clearly
stated that she is close to the appellant, as they were known to
each other and they used to talk on the mobile phone and even
in para 6 of the statement before the Court, she has clearly
stated that firstly the sexual intercourse was done without her
consent, thereafter, twice sexual intercourse was done with her
consent. As such, the victim being major woman and in view of
para 6 of her statement, she was a consenting party and the
incident is six months prior to the date of offence, which has
been continued for six months till the date of lodging of FIR i.e.
23.10.2010, as such, delay in lodging the FIR has not been
explained by the prosecution. Further, the father of the victim
namely Balkaran (PW-2) has stated that his daughter has
informed that she has love affair with the appellant which has
also not been explained by the prosecution. However, the
reason given that the appellant has committed sexual
intercourse on the pretext of marriage has also not been proved
by the prosecution except self-serving statement of the victim
(PW-1), as such, the victim being major was consenting party on
the date of offence. In medical report also, no sign of forceful
sexual intercourse has been shown and even no FSL report has
been brought on record connecting the appellant for the crime in
question, as such, the learned trial Court has committed grave
error in convicting the appellant for the offence under Section
376 of I.P.C.
10. Next, the appellant has been convicted for the offence under
Section 493 of I.P.C.
Section 493 of I.P.C. reads as under :
"493. Cohabitation caused by a man deceitfully
including a belief of lawful marriage. - Every
man who by deceit causes any woman who is not
lawfully married to him to believe that she is
lawfully married to him and to cohabit or have
sexual intercourse with him in that belief, shall be
punished with imprisonment of either description
for a term which may extend to ten years, and shall
also be liable to fine."
11. The Supreme Court in the matter of Ram Chandra Bhagat v.
State of Jharkhand1, laid down the ingredients of offence under
Section 493 of I.P.C. and it has been held in para 7 as under :
"Upon perusal of Section 493 of the IPC, to
establish that a person has committed an offence
under the said Section, it must be established that
a person had deceitfully induced a belief to a
woman, who is not lawfully married to him, that
she is a lawfully married wife of that person and
thereupon she should cohabit or should have had
sexual intercourse with that person. Looking at the
afore-stated section, it is clear that the accused
must induce a woman, who is not lawfully married
to him, to believe that he is married to her and as
a result of the afore- stated representation, the
woman should believe that she was lawfully
married to him and there should be cohabitation or
sexual intercourse as a result of the deception.
12. In the present case, admittedly, the victim and appellant were
not married to each other, but there is no evidence on record to
show that the appellant has induced the victim who is not
lawfully married to him, to believe that he is married to her and
as a result of the aforesaid representation, the victim should
believe that she was lawfully married to the appellant and there
should be cohabitation or sexual intercourse as a result of the
deception. As the ingredients of offence under Section 493 of
I.P.C. is absolutely missing in the instant case, the trial Court is
unjustified in convicting the appellant under Section 493 of I.P.C.
13. Similarly, the appellant has been convicted for offence under
Section 3(1)(xii) of the SC/ST Act, which provides that (i) the
offender must be a person who is not a member of Scheduled
1 (2013) 1 SCC 562
Caste or Scheduled Tribe, (ii) he be in a position to dominate the
will of a woman belonging to a Scheduled Caste or a Scheduled
Tribe; (iii) the said position was used to exploit the woman
sexually, to which she would not have otherwise agreed. In the
instant case, the ingredients of offence under Section 3(1)(xii)
are absolutely missing, therefore, the trial Court is absolutely
unjustified in convicting the appellant for the offence under
Section 3(1)(xii) of SC/ST Act.
14. Since the offence under Section 493 of I.P.C. has not been
proved, therefore, the charge under Section 3(2)(v) of SC/ST
Act would also fail. Accordingly, the conviction and sentence of
the appellant for offences under Section 376 & 493 of I.P.C. and
also for offence under Sections 3(1)(xii) & 3(2)(v) of SC/ST Act
are hereby set aside. The appellant is acquitted of the aforesaid
offences. The appellant is on bail, he need not surrender;
however, his bail bonds shall remain in operation for a period of
6 months in view of the provisions contained in Section 437-A of
Cr.P.C.
15. Accordingly, the criminal appeal is allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Aks
