Partly allowed

Kishun Yadav v. State of Chhattisgarh

Chhattisgarh HC23 Nov 2023CRA/557/2020

Case brief

AI extract

What is this about?

In an appeal against conviction for aggravated penetrative sexual assault, the High Court held that evidence did not prove penetration. The conviction for Section 6 of POCSO was set aside, recharacterized as sexual assault under Section 8, and sentence reduced. Convictions under IPC and the SC/ST Act were affirmed.

What did the court decide?

Conviction and sentence under Section 6 of POCSO set aside and altered to conviction under Section 8 with 5 years RI; appeals under IPC and SC/ST Act affirmed; bail granted.

Kishun 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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CRA No. 557 of 2020

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Kishun Yadav, S/o Shri Shiv Narayan Yadav, Aged About 19 Years, R/o Village Korbi Patrapara, Out-Post Korbi, P.S. Pasan, District Korba, Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through Police Station, Ajak, District Korba, Chhattisgarh

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---- Respondent

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………………………………………………………………………… For Appellant Ms. Shivali Dubey, Advocate For Respondent /State Mr. Arjit Tiwari, Panel Lawyer

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DB.: Hon'ble Mr. Justice Goutam Bhaduri &

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Hon'ble Mr. Justice Deepak Kumar Tiwari

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JUDGMENT ON BOARD

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Per Deepak Kumar Tiwari, J.

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23/11/2023

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This appeal is directed against the judgment of conviction and order of sentence dated 16.12.2019 passed by the learned Special Judge {Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act}, District- Korba (CG) in Special Criminal Case No.51/2017, whereby, the appellant has been convicted and sentenced as under :

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Sl.No.	Offence	Sentence
1.	U/s. 363 of the IPC	Imprisonment up to 3 years RI and fine of Rs.500/- and in default of payment of fine amount further 1 month RI
2.	U/s. 3(2) (v-a) SC & ST (Prevention of Atrocities) Act, 1989)	Imprisonment up to 3 years RI and fine of Rs.500/- and in default of payment of fine amount further 1 month RI
3.	U/s. 366 of the IPC	Imprisonment up to 5 years RI and fine of Rs.500/- and in default of payment of fine amount further 4 month RI
4.	U/s. 6 of Protection of Children from Sexual Offence Act, 2012 (in short “the POCSO Act”)	Imprisonment up to 20 years RI and fine of Rs.5000/- and in default of payment of fine amount further 6 month RI
5.	U/s. 3 (2) (v) of the SC & ST	Life imprisonment R.I and fine of
	(Prevention of Atrocities) Act, 1989)	Rs.1000/- and in default of payment of fine amount further 6 month RI
6.	U/s. 3 (1) (w) of	Imprisonment up to i
	the SC & ST	1 years SI and fine of
	(Prevention of	Rs.100/- and in
	Atrocities) Act, 1989)	default of payment of fine amount
	(in short “the Act, 1989”)	further 1 month SI

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It is pertinent to mention here that the appellant has also

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been convicted under Section 376 of the IPC, however, considering the provisions of Section 42 of the POCSO Act, the appellant was sentenced only under Section 6 of the POCSO Act.

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Prosecution case, in brief, is that on 27.10.2017, the victim girl (PW-3), aged about 7 years and a student of Class III, had gone to the School at about 10:00 AM. During the recess time, after having her meals, she was playing in the school. At that time, the appellant, who is acquainted with the victim and her family members and is her ‘Mama’ ( Uncle - in village relation) came there and told her that her father is calling her, on which, she accompanied the appellant. When both of them reached near a culvert, he disrobed her including her slacks and underwear and thereafter, made her lie on the ground and did bad things with her after undressing himself (naked). When the victim raised hues and cries, her school mates - namely M (not examined), P (not examined) and PRI (PW-5) rushed to the place of occurrence and on seeing them, the appellant fled away. Thereafter, the victim reached home weeping and narrated the entire incident to her mother (PW-10) and her Uncle (PW-2). Thereafter, on the basis of written complaint-Ex.P/5 lodged by PW-2, Uncle of the victim, FIR vide No.”0/2017” (unregistered Number) was lodged vide

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Ex.-P/6 at Police Chowki, Korbi on 28.10.2017 and thereafter, a numbered FIR was registered vide Ex.P/16 on 29.10.2017. The victim was subjected to medical examination, which was done by Dr. Smt. B. Tigga (PW-4). On medical examination of the victim, the Doctor did not find any external injuries on her body and on internal examination, it was found that there was change in the skin colour of the perineal region i.e. it has turned bluish. No injury was found on the hymen and vulva region and the hymen was found intact. It was further opined that there was an attempt for penetration. During the examination of the victim, two slides were prepared and the same were sent for FSL examination. In the FSL ReportEx.P/21, no semen was found on the slides prepared. The spot map was prepared vide Ex.P/2. Since the victim belongs to the Scheduled Tribe Community, her Caste Certificate was obtained vide Ex.P/14 and the Revenue Register with regard to her Caste Certificate was obtained vide Ex.P/15C. The appellant was also medically examined vide Ex.P/13.

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The statements of the witnesses were recorded. The prosecutrix was also examined under Section 164 of the Cr.PC. After completion of the investigation, the charge sheet was filed and during trial, the appellant abjured his

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guilt and claimed to be tried.

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In order to prove its case, the prosecution examined as many as 14 witnesses and exhibited 22 documents. The appellant in his statement recorded under Section 313 of Cr.PC stated that he had been falsely implicated in the case and examined two defence witnesses. After evaluation of all the evidence on record, the trial Court convicted and sentenced the appellant as mentioned in para 1 of this judgment. Hence, this Appeal.

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Learned counsel for the appellant would submit that the victim (PW-3) has improved her statement as in her statement recorded under Section 164 of the Cr.PC, she has narrated the incident in a different manner and thereafter, in her Court statement, she has narrated the the incident different from that of her earlier statement. Hence, the version of the prosecutrix is itself not trustworthy. In alternative, learned counsel for the appellant submits that at the most, the offence would fall under Section 7 of the POCSO Act which defines ‘sexual assault’. Hence, the trial Court has wrongly convicted the appellant for the offence of commission of rape and aggravated penetrative sexual assault and the necessary ingredients to attract the said offence are not present in the case.

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On the other hand, learned counsel for the State would submit that on the date of the incident, the victim was a student of Class III and aged about 7 years and the said fact has been duly proved by the Progress Report of the victim filed vide Ex.P/12, which also shows that the victim belongs to the Scheduled Tribe Community. To prove the aforesaid fact of her caste identity, two documents have been filed vide Ex.P/14 and Ex.P/15C respectively. He would further submit that the appellant belongs to the same village of that of the victim and is also acquainted with her family members and as such, he was well aware of the caste identity of the victim and in this regard, there is statutory presumption under Section 8(c) of the Act, 1989. He would further submit that the victim (PW-3) has narrated the entire incident and her evidence is duly corroborated by the other evidence. Hence, the judgment is well-merited, which does not call for any interference.

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Heard learned counsel for the parties at length and also perused the record.

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The prosecutrix (PW-3) in her statement deposed that she is studying in Class III and on the date of the incident i.e. on 27.10.2017 at about 10:00 AM, she had gone to the school. During recess, after taking her meals, she was sitting along with her friends in the school. At that point of time, the

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appellant came to her and said that her father had called her to take her for some treatment and thereafter, he took her near the culvert and disrobed her i.e. the slacks and underwear worn by her and made her lie on the ground and and did some wrong act ( Ganda Ganda ) with her. Explaining the above incident, she further narrated that the appellant committed the wrong act with her after he took off his clothes. When the victim raised hues and cries, her three schoolmates – M (not examined), P (not examined) and PRI (PW-5) reached the spot. At that juncture, the appellant was on top of her and shaking his genital towards her private part and on seeing the other children, who reached the spot, he fled away. Then the children took the prosecutrix to the School and from there, she went to her home along with her friends and narrated the entire incident to her mother (PW-10) and Uncle (PW2). The uncle of the victim (PW-2) has lodged the FIR on the basis of written complaint-Ex.P/5, based upon which, unnumbered FIR-Ex.P/6 was registered at Police Chowki Korbi and thereafter, numbered FIR-Ex.P/16 was registered therein.

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Dr. Smt. B. Tigga (PW-4) has examined the victim on 29.10.2017 and she has not found any external injury over the body of the victim. On internal examination, it was

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found that there was change in the skin colour of the perineal region i.e. it has turned bluish. No injury was found on the hymen and vulva region and the hymen was found intact. She opined that there was an attempt for penetration and to confirm the same, she referred the victim to an Expert for obtaining second opinion, however, during investigation, no second opinion was sought, though suggested. In the cross-examination, Dr. Smt. B. Tigga (PW-4) admitted that the bluish colour in the perineal region can be caused by colliding or being hit by any object.

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Recently, in the matter of Manak Chand alias Mani vs. State of Haryana, 2023 SCC OnLine SC 1397 , it was held that before accepting the testimony of the prosecutrix, the same must be appreciated in the background of the entire case. The following was observed in para 7 to 9, which reads thus :

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The evidence of a prosecutrix in a case of rape is of the same value as that of an injured witness. It is again true that conviction can be made on the basis of the sole testimony of the prosecutrix. All the same, when a conviction can be based on the sole testimony of the prosecutrix, the courts also have to be extremely careful while examining this sole testimony as cautioned in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384:

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“If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration

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required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”

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This was reiterated by this Court in Sadashiv Ramrao Hadbe v. State of Maharashtra, (2006) 10 SCC 92:

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“It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix.”

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Both the prosecutrix as well as the accused have a right for a fair trial, and therefore when the statement of the prosecutrix does not inspire confidence and creates a doubt, the court must look for corroborative evidence. Relying upon the case of Gurmit Singh (supra) this court in Raju v. State of Madhya Pradesh, (2008) 15 SCC 133 held as under:

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“10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.

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It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.”

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After lodging of the FIR, the statement of the victim was recorded under Section 164 of Cr.PC on 30.10.2017 by the concerned Judicial Magistrate First Class. In such statement, the victim (PW-3) has only narrated the incident by stating that the appellant came to the School and informed her that her father had called her to take her for some treatment and on this pretext, he took her to the forest and disrobed her i.e. her slacks and underwear were removed from her body and she was made to lie on the ground and thereafter, he touched her private part. On account of such misconduct of the appellant, the victim started weeping and hearing her cries, her school mates reached the spot and the appellant, on seeing them, fled away. The victim has not stated about committal of rape in her statement recorded under Section 164 of the Cr.PC. Upon being asked by the Court to clear the words ‘Ganda Ganda’ used by the victim in her statement, she explained that the appellant had committed rape with her. The victim (PW-3) also deposed at para 3 that the appellant laid over her body and shook his private part towards her private part but such fact was not deposed by the victim in her earlier statement recorded under Section 164 of the Cr.PC. So the statement of the victim was not constant about committal of rape or penetrative sexual assault. The two

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material witnesses (M) and (P) both were not examined by the prosecution and other witness Pri (PW-5), who also reached the spot along with M & P immediately after the incident, on hearing the cries of the victim, has not supported the case of the prosecution and completely turned hostile. The other witness Bhupendra (PW-7) stated that after hearing the cries of the victim, they reached the spot and found that the appellant was on top of the victim, who was lying on the ground and as such, after removing the undergarments, the appellant had committed wrong with the victim.

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It is pertinent to mention here that Dr. Smt. B. Tigga (PW4), while examination of the victim vide Ex.P/10, has given a suggestion to confirm the opinion that there was any attempted sexual penetration, as there was no bleeding and the hymen was also found intact. Further, there was no external injury found on the body of the prosecutrix and on internal examination, there was a change in the the colour of the skin near the perineal region as the same was found to be bluish in colour, however, she opined that the discolouration of skin may occur on account of other factors also and lastly, she necessitated for an expert opinion to confirm the same. However, for the reasons best known to the prosecution, no such opinion was

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obtained during investigation.

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It is cardinal rule and principle in the administration of criminal justice that when two views are possible, one pointing towards the guilt of the accused and the other towards his innocence , the one which is favourable to the accused must be adopted. Such proposition was laid down in the matter of Kali Ram Vs. State of H.P., (1973) 2 SCC 808 and the same view was reiterated in the matter of Pradeep Kumar Vs. State of Chhattisgarh, (2023) 5 SCC 350 . The relevant para 27 of the same is reproduced below :

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“27. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted.”

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In view of the aforesaid principles, if we examine the instant case regarding commission of penetrative sexual assault or rape, it is quite vivid that there was material improvement in the version of the victim as certain facts which have come in her evidence before the Court are

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missing in her statement recorded under Section 164 of the Cr.P.C. Further, no define opinion regarding sexual assault has been given in the Medical Examination ReportEx.P/10. Moreover, the FSL report with regard to the slides, which were prepared vide Ex.P/21 and sent for examination, has also resulted negative but the version of the victim and the case of the prosecution are constant to the effect that when the victim had gone to the school, on the pretext that her father had called, the appellant took her along with him, disbrobed her and made her lie on the floor, touched her private part and thereby, committed wrong with her.

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Upon close scrutiny of the evidence, it appears that the statement of the victim given under Section 164 of the Cr.PC, has been found to be proved with regard to the offence committed by the appellant. Hence, the act committed by the appellant is squarely covered under Section 7 of the POCSO Act, which defines ‘sexual assault’ and the same reads thus :

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“7. Sexual Assault – Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact

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without penetration is said to commit sexual assault.”

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Since there is no clear evidence about penetration, the submission put-forth by learned counsel for the appellant that at the most, an offence under Section 7 of the POCSO Act would attract in the present case, appears to be logical and acceptable.

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The victim has categorically deposed that the appellant is well acquainted with the victim and her family members. Further, during trial, the Caste Certificate of the victim was obtained vide Ex.P/14 and the Revenue Register with regard to Caste Certificate was obtained vide Ex.P/15C. The victim used to call the appellant “ Mama ” i.e. Uncle (in village relation). The father of the victim categorically deposed that they belong to Gond Scheduled Tribe Community, which has been proved by PW-12 Shivshankar Sahu, Lecturer Panchayat. Further, in this regard, there is statutory presumption under Section 8 (c) of the Act, 1989, which reads thus :

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“Presumption as to offences - In a prosecution for an offence under this Chapter, if it is proved that -

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(a) xxx

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(b) xxx

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the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved.”

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For the foregoing discussion, we are of the view that the prosecution has successfully proved the charges under Section 363, 366 of the IPC and Sections 3(1)(w) of the Act, 1989. Since sexual assault punishable under Section 354 of the IPC is a scheduled offence, Section 3 (2)(v-a) of the Act, 1989 would also attract in the present case. When a person intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Case or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient’s consent, an offence under Section 3 (1) (w) of the Act, 1989 would be made out. Consequently, the conviction imposed on the appellant under the aforesaid Sections is maintained.

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Considering the nature of the evidence, which has been proved against the appellant, Section 8 of the POCSO Act attracts in the present case, for which, the offence is punishable upto 5 years and to attract Section 3(2)(v) of the Act, 1989, it is required that the offence must be committed under the Indian Penal Code punishable with

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imprisonment for 10 years or more.

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From the records, we find that the conviction under Section 376 of the IPC read with Section 6 of the POCSO Act for aggravated penetrative sexual assault has not been found proved against the appellant and the lesser offence of sexual assault is made out and proved against the appellant and an offence under Section 3(2)(v) of the Act, 1989 is also not made out.

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Consequently, the conviction and sentence imposed on the appellant under Sections 363 & 366 of the IPC is affirmed, whereas, conviction and sentence under Section 376 of the IPC read with Section 6 of the POCSO Act is set-aside and the same is altered to that of conviction under Section 8 of the said Act and the appellant is sentenced to undergo RI for 5 years. The appellant is also acquitted of the charge under Section 3(2)(v) of the Act, 1989. However, conviction and sentence imposed on the appellant under Sections 3(1)(w) and 3(2)(v-a) of the Act, 1989 is affirmed.

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It is made clear that the fine amount of Rs.5,000/- along with default stipulation imposed by the trial Court under Section 6 of the POCSO Act shall remain in tact and the same shall be treated to have been passed under Section 8 of the said Act. All the sentences shall run concurrently.

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Perusal of the impugned judgment reveals that the appellant has been in jail since 31.10.2017 till 16.12.2019 and from the date of impugned judgment till date he is in jail and thereby, the appellant has already completed more than 6 years. He be released forthwith if not required to be detained in any other case on his furnishing a personal bond in sum of Rs.25,000/- to the satisfaction of the trial Court. He shall appear before the Higher Court as and when directed. The bail bonds furnished by the appellant shall remain in operation for a period of six months in view of the provisions contained under Section 437-A of the Cr.P.C.

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Accordingly, the appeal is partly allowed.

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Sd/- Sd/-

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(Goutam Bhaduri) (Deepak Kumar Tiwari) Judge Judge

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Shyna

Kishun Yadav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Kishun Yadav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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