Partly allowed

Santosh Yadav v. State Of Chhattisgarh

Chhattisgarh HC1 Nov 2022CRA/913/2016

Case brief

AI extract

What is this about?

Special Judge convicted the appellant for rape and kidnapping. High Court upheld IPC and POCSO convictions, invoking Patan Jaman Vali and Asharfi to set aside convictions under unamended SC/ST Act Section 3(2)(v) for lack of caste ground proof, and Section 3(1)(xii) due to absence of dominating position evidence.

What did the court decide?

Convictions and sentences under Sections 3(2)(v) and 3(1)(xii) of the SC/ST Act set-aside

Santosh Yadav Vs State Of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2022)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 913 of 2016

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Santosh Yadav S/o Sonsingh Yadav, Aged About 21 Years R/o Village Maradabra, Police Station Chilphi, Civil And Revenue District Kabirdham Chhattisgarh

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---- Appellant

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Versus

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State Of Chhattisgarh Through Station House OfÏcer, Police Station Chilphi, District - Kabirdham Chhattisgarh

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---- Respondent

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For Appellant Mr. Dharmesh Shrivastava, Advocate For Respondent /State Mr. Animesh Tiwari, Dy. AG

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DIVISION BENCH

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Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ.

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Judgment on Board 01/11/2022

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Sanjay K. Agrawal, J.

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1. This criminal appeal preferred by the appellant herein under Section 374(2) of the Code of Criminal Procedure is directed against the impugned judgment of conviction and order of sentence dated 22.1.2016 passed by the learned Special Judge, Kabirdham (Kawardha) (CG) in ST No.144/2015, whereby, the learned Special Judge has

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convicted and sentenced the appellant in the following

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manner :

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Conviction	Sentence
Section 363 of the IPC	RI for 7 years
Section 366 of the IPC	RI for 10 years
Section 376 of the IPC	RI for 10 years

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Section 3(2)(v) of the Scheduled Castes Life and Scheduled Tribes (Prevention of Imprisonment Atrocities) Act

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Section 3(1)(xii) of the Scheduled Castes RI for 5 years and Scheduled Tribes (Prevention of Atrocities) Act

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Section 3 & 4 of the Protection of RI for 7 years Children from Sexual Offences Act, 2012 (in short “the POCSO Act”)

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2. Case of the prosecution, in brief, is that on 26.7.2015, at about 7:00 p.m., in Gram Maradabhra, Police Station Chilphi, the appellant abducted the minor victim (PW-1) from the lawful guardianship of her father Dhanau Maravi (PW-2) and committed sexual intercourse with her knowing fully well that she is a member of Schedule Tribe Community and the said act is punishable under the provisions of Section 3 (2)(v) and 3(1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (unamended) (in short “the SC/ST Act”). Further case

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of the prosecution is that on the fateful day, when the minor victim (PW-1) had gone to answer the call of nature along with her sister Pramila, a minor girl about 7 years, near a place adjoining to her house, the appellant came there and abducted her. The said fact was informed by Pramila to her father Dhanau Maravi (PW-2), who searched for the prosecutrix, but when he could not find her, he lodged an FIR-Ex.P/9 in the Police Station. Thereafter, on investigation, the prosecutrix was recovered from the possession of the appellant near Bus Stand, Kawardha. It was alleged that the appellant abducted the victim and thereafter, committed sexual intercourse with her. The prosecutrix was medically examined by Dr. Astha Mishra (PW-10) and Dakhil-Kharij register was seized from her school. The undergarments of the prosecutrix and the appellant were also seized and sent for FSL examination. As per the FSL report, on Article – A i.e. underwear of the appellant, the stains of semen of human sperm was found. In Articles - B, C, D & E belonging to the victim, nothing was found to implicate the appellant in the crime in question.

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3. After usual investigation, the appellant/accused was charge-sheeted for offences punishable under Sections 363, 366, 376 of IPC and Section 3(2)(v) and 3(1) (xii) of the SC/ST Act and under Sections 3 & 4 of the POCSO Act,

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which was committed to the Court of Sessions for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence.

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4. In order to bring home the offence, the prosecution examined as many as 13 witnesses and exhibited 33 documents. Further, vide Article A 1 – Mark Sheet and A 2 – School Transfer Certificate of the victim were brought on record. The defence has examined none and no document has been exhibited on their behalf.

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5. The trial Court upon appreciation of oral and documentary evidence on record, proceeded to convict and sentence the appellant under Sections 363, 366, 376 of IPC, Section 3(2)(v) and 3(1) (xii) of the SC/ST Act and under Sections 3 & 4 of the POCSO Act in the manner mentioned in the opening paragraph of the judgment against which the instant appeal has been preferred.

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6. Mr. Dharmesh Shrivastava, learned counsel for the appellant, would submit that an offence under Section 3(2) (v) of the SC/ST Act (as amended) is not made out against the appellant in light of the decision of the Supreme Court in the matters of Patan Jaman Vali Vs. State of Andhra Pradesh1, and Asharfi Vs. State of Uttar Pradesh2. He

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1AIR 2021 SC 2190

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2(2018) 1 SCC 742

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would further submit that when the appellant has been convicted under Section 376 of the IPC, the trial Court is unjustified in convicting him for an offence under Section 3 (1)(xii) of the SC/ST Act. As such, the appellant's conviction under Section 3 (2) (v) and 3(1) (xii) of the SC/ST Act is liable to be set aside.

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7. Mr. Animesh Tiwari, learned Dy. AG for the State would support the impugned judgment and submit that the learned Special Judge has rightly convicted the appellant for the offence under Section 3(2)(v) and 3(1) (xii) of the SC/ST Act, based on proper appreciation of the evidence on record.

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8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection.

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9. The trial Court has found the age of the prosecutrix to be less than 18 years on the basis of Ex.-P/15C - copy of the Dakhil-Kharij register, Ex.-P/5 - Progress Report of the School, Articles A-1 - Mark-sheet and A-2 - School Transfer Certificate, in which, her date of birth is mentioned as 15.6.1999. The date of offence is 26.7.2015 and as such, the age of the prosecutrix is found to be 16 years one month on the date the incident i.e she is less than 18 years. The said finding recorded by the trial Court holding

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the victim to be less than 18 years of age is a correct finding of fact based on evidence available on record, which is neither perverse nor contrary to the record and we hereby afÏrm the said finding.

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10. The trial Court has also convicted the appellant for an offence under Section 376 of the IPC, based on the testimony of PW-1 (victim). PW-1 has clearly supported the case of the prosecution stating inter alia that she was subjected to sexual intercourse by the appellant herein and furthermore, she has been examined by Dr. Astha Mishra (PW-10) vide Ex.-P/22 and the said Doctor has found external injuries on various parts of her body and also found the hymen ruptured. The minor victim had also pain and tenderness over right and left thigh. In view of the statement of PW-1 and medical opinion of Dr. Astha Mishra vide Ex.P/22, the Special Judge has rightly come to the conclusion that the minor victim was subjected to sexual intercourse. Further, kidnapping of the minor victim by the appellant is also a finding of fact based on evidence available on record, which is a correct finding of fact and is neither perverse nor contrary to the record and we do not find any infirmity in the said finding and hereby afÏrm the conviction of the appellant under Sections 363, 366 & 376 of the IPC. Even otherwise, this finding has not been seriously disputed by learned counsel for the appellant.

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11. Now, the main contention raised on behalf of the appellant is whether the conviction of the appellant under Section 3(2)(v) of the SC/ST Act is justified or not?

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12. Section 3(2)(v) of the SC and ST (Prevention of Atrocities) Act, 1989 prior to its amendment w.e.f 26.01.2016 by SC and ST Act (Prevention of Atrocitie s) Act, 2015, stood as under:

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“3 . Punishment for offences of atrocities -

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(1) xxx xxx xxx

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(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

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(i) to (iv) xxx xxx xxx

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(v) commits any offence under the Indian Penal Code 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;”

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13. In the matter of Asharfi (supra), their Lordships of the Supreme Court, while dealing with Section 3(2) (v) of the S.C./S.T. Act prior to its amendment on 26.1.2016 , held thus in para 6, 7 & 8:

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“ 6 . In respect of the offence under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, the appellant had been sentenced to life imprison-

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ment. The gravamen of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is that any offence, envisaged under Indian Penal Code punishable with imprisonment for a term of ten years or more, against a person belonging Scheduled Caste/Scheduled Tribe, should have been committed on the ground that "such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member". Prior to the Amendment Act 1 of 2016, the words used in Section 3(2)(v) of the SC/ST Prevention of Atrocities Act are "......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe". 7 . Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has now been amended by virtue of Amendment Act 1 of 2016. By way of this amendment, the words ".......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe" have been substituted with the words "........knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". Therefore, if subsequent to 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under In dian Penal Code which is punishable with imprisonment for a term of ten years or more, is committed upon a victim who belongs to SC/ST community and the accused person has knowledge that such victim belongs to SC/ST community, then the charge of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is attracted. Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community sufÏces to bring home the charge under

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Section 3(2)(v) of the SC/ST Prevention of Atrocities Act.

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8. In the present case, unamended Section 3(2)(v) of the SC/ST Prevention of Atrocities Act is applicable as the occurrence was on the night of 8/9.12.1995. From the unamended provisions of Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, it is clear that the statute laid stress on the intention of the accused in committing such offence in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community.”

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14. The Supreme Court in the matter of Patan Jaman Vali (supra), noticing Section 3(2) (v) of the Act of 1989 (unamended) considered the issue of proving the offence under Section 3(2)(v) of the Act of 1989 against a person on the ground that such person is a member of Scheduled Caste or Scheduled Tribe or such property belongs to such member and held that it is to be established by the prosecution on the basis of evidence adduced at the trial and held as under:-

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“ 58. ….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

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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 difÏcult to establish what led to the commission of the 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.

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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 sufÏcient to sustain a conviction...

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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

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member of a SC or ST. The conviction under Section 3(2)(v) would consequently have to be set aside.”

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15. Revering back to the facts of the present case, the material available on record does not show that the appellant has committed rape on the minor victim on the ground that she belonged to Scheduled Tribe Communityca. Section 3(2)(v) of the SC/ST Act (unamended) can be pressed into service only if it is proved that the offence of rape has been committed on the ground that PW-1 is a member of Scheduled Tribe Community. In the absence of evidence proving intention of the appellant that he committed the offence mainly because the victim belonged to Scheduled Tribe Community, the conviction of the appellant under Section 3(2)(v) of the SC/ST of the Act cannot be sustained. The prosecution has not led separate evidence to show that the accused/appellant has committed the offence on the basis of caste identity of the victim (PW-1).

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16. The prosecution could have brought legal evidence on record to show that the appellant was having knowledge that the victim belongs to Scheduled Tribe Community in view of the judgment of the Supreme Court rendered in the matter of Patan Jaman Vali (supra), wherein, it has been held that knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the

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language of Section 3(2)(v) of the SC/ST Act as it stood at the time when the offence in the present case was committed.

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17. In that view of the matter, the conviction of the appellant for the offence under Section 3(2)(v) of the SC/ST Act is liable to be set-aside and is hereby set-aside.

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18. The appellant has also been convicted under Section 3(1) (xii) of the SC/ST Act (unamended) prior to its amendment w.e.f. 26.1.2016, which stood as under :

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“Section 3(1)(xii) - being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;”

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19. A careful perusal of the aforesaid provisions would show that as per Section 3(1)(xii) of the said Act, it must be proved that the accused was in a position to dominate the will of a woman belonging to a Scheduled Caste or Scheduled Tribe Community and uses that position to exploit her sexually to which she would not have otherwise agreed. The position to dominate means commanding and controlling position. The expression “sexual exploitation” includes sexual intercourse without consent. (See : Madanlal Vs. State of C.G, 2007 (1) C.G.L.J. 435 )

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20. The ingredients of the offence under Section 3 (1)(xii) of the S.C./S.T. Act are that -

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(1)the offender must be a person who is not a member of Scheduled Caste or Scheduled Tribe.

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(2) he be in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe

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(3) the said position was used to exploit the woman sexually to which, she would not have otherwise agreed.

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The “Position to Dominate” means “Commanding and controlling position”. The position of the accused coupled with the use of such position to exploit the victim women sexually are important criteria apart from the Caste/Tribe factor of the victim/accused.

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21. In light of the ingredients of Section 3(1)(xii) of the SC/ST Act, it is quite vivid that the Special Judge has only recorded a finding that the offence of rape has been committed by the appellant upon the victim under Section 376 of the IPC and thereafter, held that the offence under Section 3(1)(xii) of the SC/ST has been committed because the victim was a member of the Scheduled Tribe Community.

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22. In our considered opinion, merely because the girl/victim was a member of Scheduled Tribe Community, it cannot be

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assumed that the appellant was able to dominate her will to exploit her sexually. Even otherwise, the charges framed against the appellant are very vague and the prosecution has not led any evidence to show that the appellant was in commanding and controlling position and in absence of any separate evidence in this regard, the conviction under Section 3(1) (xii) of the SC/ST Act deserves to be and is hereby set-aside.

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23. Consequently, the conviction imposed on the appellant under Sections 363, 366, 376 of the IPC and Sections 3 & 4 of the POCSO Act are maintained. However, the conviction and sentence imposed on the appellant under Section 3(2) (v) & 3(1) (xii) of the SC/ST Act are set-aside.

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24. With the aforesaid modifications, the appeal is partly allowed.

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Sd/Sd/- (Sanjay K. Agrawal) ( Deepak Kumar Tiwari) Judge Judge

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Shyna

Santosh Yadav v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Santosh Yadav v. State Of Chhattisgarh

Case brief

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What did the court decide?

What the court decided

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