Allowed

Shivkumar @ Baleshwar Yadav v. State of Chhattisgarh

Chhattisgarh HC16 Jun 2023CRA/9/2020

Case brief

AI extract

What is this about?

The Chhattisgarh High Court dismissed an appeal against a conviction and sentence for rape, abduction, and offences under the SC/ST Act. The court upheld the trial court's findings regarding the victim's minor status and the validity of prosecution evidence, particularly the caste certificate and school records.

What did the court decide?

The criminal appeal was dismissed and the impugned judgment of the trial court affirming the conviction and sentence was upheld.

Shivkumar @ Baleshwar Yadav Vs State of Chhattisgarh — Caste Atrocities | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Order Reserved on 08/05/2023

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Order Passed on 16/06/2023

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CRA No. 9 of 2020

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Shivkumar @ Baleshwar Yadav S/o Ramjag Yadav Aged About 22 Years R/o Village - Durti, Police Station - Pratappur District – Surajpur, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, Through: The Station House Officer, Police Station - Adim Jati Kalyan (AJK) Surajpur, District – Surajpur, Chhattisgarh.

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---- Respondent

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For Appellant : Mr. Ajay Kumar Pandey, Advocate. For State/respondent : Mr. Arijit Tiwari, P.L.

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Hon'ble Shri Justice Goutam Bhaduri, J. & Hon’ble Shri Justice Sanjay Kumar Jaiswal, J.

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CAV Order

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Per Hon’ble Shri Justice Sanjay Kumar Jaiswal,

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This appeal is preferred against the judgment dated 22.10.2019 passed by the learned Special Judge (SC/ST Act), Surajpur, District - Surajpur (C.G.) in Special Case No. 33/2018, wherein the appellant has been held guilty for commission of the offence punishable under Sections 363, 366, 376, 506 of IPC, 4 of Protection of Children from Sexual Offences Act, 2012 (in short hereinafter referred to as ‘POCSO Act’) & 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (in short hereinafter referred to as ‘SC & ST Act’) and sentenced as under:-

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Offence Under Section	Sentence
363 of IPC	R.I. for 1 year and fine of Rs. 100/-, in default of payment of fine amount additional R.I. for 1 month.
366 of IPC	R.I. for 3 years and fine of Rs. 100/-, in default of payment of fine amount additional R.I. for 1 month.
376 of IPC	R.I. for 10 years and fine of Rs. 1000/-, in default ofpayment of fine amount additional R.I. for 1

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	month.
506 of IPC	R.I. for 3 months and fine of Rs. 100/-, in default of payment of fine amount additional R.I. for 1 month.
4 of POCSO Act, 2012	R.I. for 10 years and fine of Rs. 1000/-, in default of payment of fine amount additional R.I. for 1 month.
3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989	Life imprisonment and fine of Rs. 1000/-, in default of payment of fine amount additional R.I. for 1 month. All the sentences shall run concurrently.

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Brief facts of the case are that complaint was made by the father of the victim in the police station, Pratappur to the effect that on 10.05.2018 at about 08:00 p.m., his minor daughter had given food to everyone in the house. When the family members were having food, his daughter went to the house of her grandfather for serving food, but did not return, after some time they searched for the victim at the house of their relatives, but no information was found about her. The father of the victim suspected that Baleshwar Yadav of Village Durti has allured her daughter and took away. On the basis of the said report, during the investigation, the police received information that the victim was seen with the accused near the waiting room near market of Village Durti, where the accused and the victim were found and on questioning, in front of the panch witnesses, the victim told that on the pretext of marriage, the accused forcibly sexually exploited her. After recovery of the victim with the consent of her and her father, her medical examination was done. After the arrest of the accused, his medical examination was also done. Documents related to the age and caste of the victim were seized and other seizure proceedings were taken. The statements of the witnesses were recorded. A separate map of the incident site was prepared by the police and Patwari. The seized articles were sent to the Forensic Science Laboratory, Ambikapur for chemical examination. Report of the seized articles were received vide Ex.-P/24, in which semen like stains were found in the victim's vaginal slides and in the underwear of the accused. After completion of the investigation, charge sheet was filed against the accused before the Special Court.

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The prosecution has examined as many as 19 witnesses. The statement of the appellant/accused was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded his innocence and false implication in the case. The trial Court after appreciation of statement of the witnesses and submissions of the parties found the appellant guilty of the aforesaid offence and sentenced him as mentioned in para-1.

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Learned counsel for the appellant submits that the impugned judgment passed by the learned trial Court is perverse, erroneous and contrary to the law. The learned trial Court has committed a grave error of law in convicting the appellant under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, whereas the prosecution has not produced any verified caste certificate in this regard. He next submits that the learned trial Court has convicted the appellant under Section 3(2)(v) of SC & ST Act, only on the basis of the Dakhil Kharij Register of the prosecutrix, whereas on the basis of Dakhil Kharij Register, the caste of the victim/prosecutrix cannot be proved. The learned trial Court has failed to appreciate that the prosecution has not proved the actual age of the prosecutrix because the witness Shankar (PW-1) father of the prosecutrix has specifically stated that the date of birth of the prosecutrix was written approximately and trial Court has also failed to appreciate the medical report, where no external or internal injury was found over the body of prosecutrix. He also submits that even if the case of the prosecution is taken as it is, no offences is made out against the appellant, as the prosecutrix is a willing and consenting party. He lastly submits that the learned trial Court has failed to appreciate that there are material contradictions and omissions in the case diary statement and as per Court deposition of prosecution witnesses, they cannot be relied upon and the same cannot be made basis for conviction of the appellant, therefore, the judgment passed by the learned trial Court is liable to be set aside.

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On the other hand, learned counsel for the State supported the judgment of

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the trial Court and submits that the judgment passed by the trial Court is based on proper appreciation of evidence available on record. Therefore the appeal is liable to be dismissed.

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Heard learned counsel for the parties and perused the judgment of the trial Court as well as the material available on record.

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As per the nature of the prosecution case, the important witness is prosecutrix (PW-2) whose age is stated to be 14 years and in the context of the incident, other witnesses are her father Bablu (PW-1), aunt Dhankunwar (PW-3), grandfather Shankar (PW-4), aunt Maniyaro (PW-7), maternal aunt Kamali Bai (PW-8). Kalyan Prasad (PW-5) and Santulan (PW-6) are the witnesses of recovery Panchnama (Annexure-P-10).

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Apart from the above witnesses, Sharan Singh (PW-9), headmaster of the Govt. Primary School, Sarnapara-Marhatta is also a witness, who enrolled the prosecutrix in the school. He has certified the original admission register of the school, Article B-1 and gave its verified copy as Article B-1-C, on the basis of which the date of birth of the prosecutrix is mentioned in Article B-1 as 15.09.2004.

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Dr. Suchita Nirmala Kindo (PW-10) has given her report on 16.05.2018 vide (Ex.-P/11) after medical examination of the prosecutrix and she has certified the Report (Ex.-P/11) and opined that it was difficult to enter two fingers in the vagina of the prosecutrix. The hymen of the prosecutrix was torn and there was cut injury at 6 O'clock position of hymen. From which it was clear that forcefully sexual intercourse was committed on her. Two slides of vaginal discharge were prepared, sealed and sent to the constable, advising for chemical examination. The green colour underwear of the prosecutrix was examined, in which stains like semen were visible, it was also sent for chemical examination. In the report, the doctor clarified that no external injury marks were found on the body of the

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prosecutrix.

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Dr. Lalit Singh (PW-17) has given report as Ex.-P/16-A on 17.05.2018 after the medical examination of appellant Shiv Kumar @ Baleshwar Yadav, to confirm the said report, Dr. Lalit Singh in his statement has stated that appellant Shiv Kumar @ Baleshwar Yadav was capable of intercourse, which could not be refuted. Dr. Lalit Singh (PW-17) has also stated that when the police brought the underwear of the appellant for examination, spots found in its inner part were encircled with red ink and handed over to the constable, advising him for chemical examination.

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In the rest of the examined witnesses, Head Constable Roshan Tandon (PW-12) has stated that he recorded the first information report (Ex.-P-1) on 14.05.2018 made by Bablu (PW-1), father of the prosecutrix. Constable Anima Minj (PW-14) took the prosecutrix to the doctor for examination and to bring the sealed slides given by the doctor to the police and get them seized. Constable Amar Sai (PW-15) has confirmed the seizure by stating that the police would get the seizure Ex.-P-14 ready on handing over the packet brought by Anima Minj. Constable Akhilesh Dubey (PW-18) has stated that the appellant was taken to the hospital for medical examination and after getting his underwear sealed by the doctor, brought to the police station which is Ex.-P/21.

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The instant case had been investigated by R.K. Kashyap (PW-19)- SubInspector, along with R.K. Shukla (PW-16)- retired Deputy Superintendent of Police and the then Deputy Superintendent of Police- B.L Kehri (PW-11).

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The prosecutrix (PW-2) has stated in her court statement that she belongs to Chamar caste and this fact is known by the appellant. She has stated that the police have seized her caste certificate in the form of Article A-1. In this regard, the seizure (Ex.-P/7) has been corroborated by the prosecutrix as well as Uttam Painkra (PW-13). According to the caste certificate (Article A-1), the prosecutrix

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belongs to the Chamar caste which comes under the Scheduled Caste category. There is no rebuttal to the above statement of the prosecutrix and the documentary evidence adduced. The villages of the prosecutrix and the appellant are adjacent. The statement of the prosecutrix does not contradict that the appellant knew her before the incident. It has also repeatedly come up in the prosecution evidence that the appellant used to visit the house of the prosecutrix. The fact has also come in evidence that the appellant used to come to work in the village of the prosecutrix. In this way, the fact has also been established by the suggestion given by the appellant that he was knowing the accused before the incident. Therefore, there remains no doubt that the appellant has been knowing the fact that the prosecutrix, being a Chamar, belongs to the Scheduled Caste category.

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In the present case, the age of the prosecutrix at the time of the incident has been stated to be 14 years. Even in the court statement, the prosecutrix has stated her age as 14 years. In her statement (Ex.-P-8), which was recorded by the Judicial Magistrate under Section 164 of the Code of Criminal Procedure, her age has been mentioned only as 14 years and her date of birth is mentioned as 15.09.2004 in Article B-1-C (Admission Register) of Government Primary School, Sarnapara Marhatta, and on the basis of that, her age-related certificate is given in Article B-2. If we count from that date also, then on the date of incident i.e. 10.05.2018, her age could not be more than 14 years. Thus, she is stated to be a minor at the time of the incident.

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It has been argued on behalf of the appellant that teacher namely Durga Sharan Singh (PW-9), who had admitted the prosecutrix in the school and had issued the admit card and the certificate, has admitted in cross-examination that he had recorded the date of birth of the prosecutrix as 15.09.2004 of his own, therefore, the date of birth cannot be accepted.

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If we look at the complete ground behind making the above statement by

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teacher Durga Sharan Singh (PW-9), he has stated in his court statement that at the time of admission, the father of the prosecutrix did not produce any documents. He has also stated that the father of the prosecutrix is illiterate and he did not tell the date of birth of the prosecutrix but stated that the prosecutrix was admitted in the school when she was 06 years old. Based on this, teacher Durga Sharan Singh (PW-9) recorded her date of birth as 15/09/2004 being told by the father. It is evident from the perusal of the admission register (article B-1-C) that the admission was done on 01.07.2011.

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The father of the prosecutrix, Bablu (PW-1), has stated in his court statement that at the time of the incident, the prosecutrix was studying in class-7th and her age was 13½ to 14 years. Also, counting from the date of birth written by teacher Durga Sharan Singh as 15.09.2004, the age of the prosecutrix was between 13½ to 14 years at the time of the incident i.e. 10.05.2018. Even though the father of the prosecutrix may not be able to tell the date of birth of the prosecutrix, being a resident of a rural environment, there is no reason to doubt the age of the prosecutrix given by him. His statement is corroborated with the date of birth written by teacher Durga Sharan Singh.

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Bablu (PW-1), father of the prosecutrix, in his cross-examination, has stated on the suggestion of the defence that when he got the prosecutrix admitted in class-I, the age of the prosecutrix was 8 years. If taking this also to be true, then it is clear that the admission took place on 01.07.2011 and if the prosecutrix was 8 years old then, then her date of birth becomes at most 2003 and from 01.01.2003, if we calculate the date of birth from the date of incident i.e. 10.05.2018, then the age of the prosecutrix falls between 15 to 16 years only.

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The aunt of the prosecutrix, Manyaro (PW-7), in her cross-examination, has denied the suggestion of the defence that the prosecutrix must have been 18 years of age at the time of the incident. Rather, it has been stated spontaneously that the age of the prosecutrix is 14 years. Thus, the entire evidence adduced by

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the prosecution has come to the fore that the age of the prosecutrix at the time of occurrence was about 14 years i.e. she was much less than 18 years of age. Thus, it is found to be established that the prosecutrix was a minor at the time of the incident.

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The prosecutrix (PW-2) has stated in her court statement that after giving food to her family members at around 08.00 pm, when she had gone to the house of her grandfather Shankar (PW-4) to give food, the appellant was hiding in the middle of the tree, and on seeing her took her by pressing her mouth and when she tried to shout, he threaten to kill her. Then he took her to the forest on the pretext of marriage, stripped her clothes and forcibly committed sexual intercourse with her and left her at night at the house of her maternal uncle Kesho at village Dumariya and went back to his home. She stayed at the house of her maternal uncle at the village-Dumariya for about 05 days. Thereafter, the appellant came to take her to his home, the policemen came near Durti Bazar, questioned him and brought him to police station, Pratappur. Thereafter, in further proceedings, medical examination and seizure were made.

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In order to evaluate the credibility of the statement of the prosecutrix (PW2), looking to the facts, in her cross-examination, she has stated that village Dumariya of her maternal uncle is about 20 km. from her village and there are many villages on the way. The incident was not informed to anyone. Even at village Dumariya, she did not inform the incident to her maternal uncle but informed to her maternal aunt. She has also denied the suggestion that she did not shout at the time of the incident. She has also denied the suggestion that the appellant has not committed sexual intercourse with her. Thus, the prosecutrix remained firm.

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Looking to the above evidence, the age of the prosecutrix was about 14 years, much less than 18 years at the time of the incident. According to the prosecutrix, appellant had threatened to kill her. The statement of the prosecutrix

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appears to be true because she did not inform about the incident to her maternal uncle even after staying at his house. For the time being, even if she is considered a consenting party, she had not attained the age of 18 years, therefore, consent of the prosecutrix has no adverse effect on the matter of prosecution. It has been established from the statements of the prosecutrix that the appellant had abducted the minor by taking her forcibly from the lawful custody of her guardians, who was a scheduled caste girl. The accused had forcibly committed rape on her and threatened to kill her.

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Looking to the other corroborative evidence, in the statement of the prosecutrix recorded under Section 164 of the Code of Criminal Procedure, in Ex.P-8, she has confirmed the events and made statement against the appellant. Bablu (PW-1), being the father of the prosecutrix, has said that the missing report of the prosecutrix was lodged at Police Station Pratappur as Ex.-P-1. In the first information report (Ex.-P-1), doubt has also been expressed about the appellant himself taking the prosecutrix. Accordingly, the statement of the prosecutrix is also supported by the First Information Report (Ex.-P-1).

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Dhankunwar (PW-3), the aunt of the prosecutrix, who resided in the same house with the prosecutrix, has also stated that the prosecutrix had left the house at night to give food to her grandfather, and did not return. Later on, when the police caught the appellant along with the prosecutrix, then she stated that the appellant had taken her away. Thus, the statement of the prosecutrix is also corroborated by the statement of Dhankunwar.

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The grandfather of the prosecutrix Shankar (PW-4) has also stated in his statement that at about 08.00 pm., the prosecutrix had come home to give food and did not return home. Then his father Bablu (PW-1) lodged a missing report. Later on, the policemen recovered the prosecutrix along with the appellant. Thus, the statement of grandfather Shankar also corroborates the fact that the appellant had taken away the prosecutrix. Kalyan Prasad (PW-5) and Santulan (PW-6)

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neighbours, have deposed in their statement before the Court that they saw and recognized the prosecutrix and the appellant when the police recovered. Thus, the statement of these witnesses supports the case of the prosecution that when the appellant was going back with the prosecutrix, the police had recovered the prosecutrix.

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The other aunt of the prosecutrix, Manyaro (PW-7), has also confirmed in her statement in the court that the prosecutrix had missed in the night and her father Bablu had reported to the police station. Later on, when the policemen brought the prosecutrix, she stated that the appellant forcibly committed sexual intercourse with her by holding her mouth and taking her to Durti Nala and dropping her at the house of her maternal uncle. This statement also corroborates the statements of the prosecutrix.

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Kamli Bai (PW-8), the maternal aunt of the prosecutrix, resident of village Dumariya, has also confirmed that the prosecutrix had come to her house and stayed for one night and later on she told her that she was going with her grandmother. She did not know who had come to drop her. According to the statement of the prosecutrix, Kamali Bai has not confirmed the fact that the prosecutrix was told about the incident to her, but the statement of Kamli Bai (PW8) confirms the statement of the prosecutrix that she had come to her house. Thus, the statement of the prosecutrix cannot be termed as unreliable.

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The fact has been established from the statement of the investigators that the underwear of the prosecutrix and the appellant were seized and the same were sent for chemical examination. Dr. Nirmala Kindo, who conducted the medical examination of the prosecutrix, has also opined that she had also prepared a slide of the vaginal discharge of the prosecutrix and handed to the constable for chemical examination. The said articles have been sent to the laboratory for chemical examination. In this regard, the draft of the Superintendent of Police is Ex.-P-22, the receipt of the exhibits of the laboratory is Ex.-P-23 and

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the investigation report of the Regional Forensic Science Laboratory, Ambikapur is Ex.-P-24. This investigation report is admissible in evidence under section 293 of the Code of Criminal Procedure. According to the investigation report, semen like stains were presented in the underwear of the prosecutrix and the appellant and in the slide prepared from the vaginal discharge of the prosecutrix. Thus, the investigation report also confirms the fact that sexual intercourse was committed by the appellant with the minor prosecutrix.

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Looking to the entire evidence discussed above, no such facts have come to the fore, which casts any doubt on the statement of the prosecutrix or contradict her statements. Her close relatives present in the house are natural witnesses. The neighbours who saw the prosecutrix and the appellant being caught by the police are also natural witnesses. The report was lodged by the father of the prosecutrix expressing doubt on the appellant, the statement of the maternal aunt residing at another village corroborates the statements of the prosecutrix. The reports of medical examination and chemical test by the Regional Forensic Science Laboratory also corroborate the fact that sexual intercourse has been committed with the prosecutrix. The medical report also corroborates the fact that sexual intercourse was done with the prosecutrix and the fact has also been mentioned that the prosecutrix was minor at the time of incident. The caste certificate confirms the fact that the prosecutrix belongs to the Chamar caste which comes under the Scheduled Caste category. This fact has been established on the suggestion given by the appellant side itself that the prosecutrix used to talk to the appellant earlier also. It has also come to the fore that the appellant used to visit the house of the prosecutrix and that the appellant used to work as labourer in the village of the prosecutrix. The prosecutrix has also stated that she belongs to the Chamar caste and the appellant knew about the same, which has not been disputed. Thus, the prosecution case is established against the appellant.

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The arguments raised by the appellant are not found acceptable. The prosecution case against the appellant is based on proper appreciation of the evidence and documents. Therefore, there is no ground to interfere with the impugned judgment passed by the learned Trial Court. The impugned judgment is affirmed. Accordingly, the Criminal Appeal is dismissed.

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Sd/-

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Sd/-

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(Goutam Bhaduri) (Sanjay Kumar Jaiswal) Judge Judge

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H.L. Sahu

Shivkumar @ Baleshwar Yadav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Shivkumar @ Baleshwar Yadav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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