Partly allowed

Sunil Yadav v. State of Chhattisgarh

Chhattisgarh HC21 Nov 2024CRA/890/2022

Case brief

AI extract

What is this about?

In an appeal against conviction for rape and offences under POCSO and the SC/ST Act, the High Court acquitted the appellant of the atrocity charge due to lack of proof regarding the offender's knowledge of the victim's caste, while reducing a life sentence to seven years' rigorous imprisonment based on Supreme Court principles.

What did the court decide?

Appellant acquitted of Section 3(2)(v) of the SC/ST Act; conviction for POCSO and IPC sections upheld but sentence reduced from life imprisonment to seven years' rigorous imprisonment.

Sunil Yadav Vs State of Chhattisgarh — Caste Atrocities | Chhattisgarh HC (2024)

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2024:CGHC:45839-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 890 of 2022

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Sunil Yadav S/o Ramlal Yadav Aged About 26 Years R/o Gram Badbattar Jaampara, Chowki Baaskot, P.S. Vishrampuri, District Kondagaon (C.G.)

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... Appellant

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versus

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GOURI MUDALIAR Digitally signed by GOURI MUDALIAR Date: 2024.12.03 17:14:44 +0530

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State Of Chhattisgarh Through- Police Station Vishrampuri District Kondagaon (C.G.) ... Respondent

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For appellant : Ms. Savita Tiwari, Advocate. For : Shri Nitansh Jaiswal, Panel Lawyer.

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Respondent/State

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Hon'ble Shri Ramesh Sinha, Chief Justice

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Hon'ble Shri Amitendra Kishore Prasad, Judge Judgement on Board

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Per Amitendra Kishore Prasad, J

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22/11/2024

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This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 17/05/2022, passed by the Additional Sessions Judge, FTC (POCSO) Kondagaon, District Kondagaon in POCSO Case No.47/2021 by which, the appellant herein has been convicted for the offence under Section 04 of POCSO r/w section 376 (1) of Indian Penal Code and u/s 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and sentenced to undergo life imprisonment and fine of Rs.1000/-, in

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default of payment of fine, to undergo 3 months RI and sentenced to undergo life imprisonment and fine of Rs.1000/-, in default of payment of fine, to undergo 3 months RI respectively with a direction to run the sentences concurrently.

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Case of the prosecution, in brief, is that on 10/01/2018 the complainant/victim filed a written report at Vishrampuri Police Station, stating that on 07/01/2018, around 7:00 pm, the accused/appellant Sunil Yadav, forcibly took her to a nearby house and committed rape. On the basis of complaint made by the victim, a case was registered against the accused under Sections 376 of Indian Penal Code and section 4 of the Protection of Children from Sexual Offences (POCSO) Act as well as Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the Act of 1989’). During the investigation, the accused was arrested on 30/03/2018. During the course of investigation, the statements of the complainant/victim and witnesses were recorded and a spot map was prepared. The property related to the incident was also seized and based on the spot inspection, report of the complainant/victim, sufficient evidence was found against the accused, Sunil Yadav, for committing the offence. Consequently, a charge sheet was filed against the appellant.

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In order to prove its case, the prosecution has examined as many as 11 prosecution witnesses and exhibited 20 documents. Statement of the appellant under Section 313 of the Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter.

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After appreciation of oral as well as documentary evidence

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produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in opening paragraph of this judgment. Hence this appeal.

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Learned counsel for the appellant would submit that the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence by recording a finding which is perverse to the record. She would also submit that the implication of the appellant in offence in question is not in accordance with law and even otherwise, at the time when the alleged offence was committed, in Section 4 of the POCSO Act, 2012, minimum sentence prescribed was 7 years which has been enhanced to 10 years by amendment and which has been made effective from 16.08.2019, therefore, at the most, 7 years sentence be awarded to the appellant for the offence under Section 4 of the POCSO Act, 2012. She would rely upon the decision of the Supreme Court in the matter of State of Uttar Pradesh v. Sonu Kushwaha reported in (2023) 7 SCC 475 to buttress her submission.

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On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt, but for minor omission and contradiction, the evidence of the prosecutrix and other witnesses are fully reliable. There are sufficient evidence available on record to hold that the appellant is guilty for the alleged offence and the learned trial Court was absolutely justified in passing the judgment of

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conviction and sentence against the appellant and the appeal filed by the appellant is liable to be dismissed.

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We have heard learned counsel for the parties and perused the record.

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From the evidence of the prosecution firstly, it has to be seen that whether on the date of incident i.e. on 7/01/2018 the prosecutrix was below 18 years of age or not?

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In order to decide the age of the prosecutrix, the prosecution has exhibited Ex.P-3 the birth certificate in which the date of birth of the prosecutrix was mentioned as 4/02/2001, as such, on the date of incident the prosecutrix was aged about 16 years 11 months and 3 days. Since the date of birth was mentioned on the basis of birth certificate and the same was not disputed by the defence, as such, the prosecution was able to prove the date of birth mentioned in the birth certificate.

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Now the next question would be whether the prosecution was able to prove the offence committed under Section 3(2)(v) of ‘the Act of 1989’?

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In order to hold that the appellant has committed the offence of rape upon the prosecutrix on the basis of this fact that the prosecutrix belongs to Scheduled Tribe as her caste is Gond which is a Scheduled Tribe as per caste certificate which is exhibited as Ex.P-2. Though the prosecutrix belongs to Gond caste a Scheduled Tribe, however from the evidence it has not

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come that the offence has been committed knowing that she belongs to Scheduled Tribe. The law in this regard is that in order to attract Section 3(2)(v) of ‘the Act of 1989’ the ingredients of Section 3 (2) (v) of ‘the Act of 1989’ is required to be fulfilled. Section 3(2)(v) of ‘the Act of 1989’ is reproduced here in below:-

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“3.Punishment for offences of atrocities-

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(1) 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

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(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 [knowing 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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From the evidence of all the witnesses including the evidence of prosecutrix PW-11, there is no such evidence to show that the offence has been committed only knowing that the prosecutrix belongs to Scheduled Tribe, neither in the written report nor in the FIR or in the evidence it has been stated by the prosecutrix and as such only on the basis that the prosecutrix belongs to Scheduled Tribe, appellant cannot be held guilty for offence punishable under Section 3(2)(v) of ‘the Act of 1989’.

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Accordingly, we hold that the prosecution has failed to prove the guilt of the appellant for the offence punishable under Section 3(2) (v) of ‘the Act of 1989’.

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Further question for consideration is that whether the appellant was the author of the crime in question?

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In this respect, we have gone through the evidence with utmost care and caution. From the written report lodged by the prosecutrix on 9/01/2018 Ex.P-7 in which the prosecutrix has clearly stated that on 7/01/2018 at about 7 pm, the appellant entered in the house of the prosecutrix, asked about the whereabouts of father and mother and when the prosecutrix has told that they were not in the house, he forcefully entered into the house and while pressing her mouth, has committed rape upon her, when she raised alarm, the appellant/accused tried to run away, however, he was caught hold by Ashu Lal and Chaitram who slapped him, but the appellant has escaped from the scene of the offence. Chaitram (PW-1) has specifically stated that upon hearing the cry of prosecutrix, when they went to her house, they found the prosecutrix, who complained about the offence committed by the appellant and they also found the appellant was hiding himself in the house of Kuber. He was cross-examined by the defence, however, he confirmed the statement and there is nothing to disbelieve him. PW-2 Surju Ram Sori is the brother of the prosecutrix, he has also confirmed that when he was watching TV in the house of Mankuram, Ashu Lal and Chaitram called him and they informed him about the incident. Dr. Khyati Sakshi (PW-3) who has conducted the MLC has stated that there were redness in the private part of the prosecutrix.

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It is trite law that in the rape case conviction can be held even only on the basis of evidence of the prosecutrix, if it transpires confidence. From the evidence of the prosecutrix as well as from the evidence of the other witnesses, it is apparent that it was the appellant who has committed offence punishable under Section 376 (1) of IPC.

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So far as the conviction part is concerned the conviction of appellant under Section 4 of the POCSO Act read with 376 (1) IPC, considering the age of the minor victim (PW-11) to be less than 18 years on the date of offence; medical evidence proved by Dr. Khyati Sakshi (PW-3) and also considering the other evidence available on record, the conviction of the appellant for offence under Section 4 of the POCSO Act, 2012 read with 376(1) of the IPC we confirm the same, however after considering the evidence set forth by the parties and further considering the fact that the offence has not been committed on the basis that the prosecutrix belongs to Scheduled Tribe (Gond) there is no whisper about the same neither in the written report, FIR nor in the statement made by the prosecution witnesses, as such, the appellant is acquitted of the offence punishable under Section 3 (2) (v) ‘the Act of 1989’.

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Now, the question would be whether, the learned trial Court is justified in awarding sentence for imprisonment of life to the appellant for having committed offence under Section 4 of the POCSO Act, 2012 or the same is on higher side and can be reduced, as contended by learned counsel for the appellant by

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placing reliance on a recent decision of the Supreme Court in the matter of Sonu Kushwaha (supra).

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In the matter of Sonu Kushwaha (supra) their Lordships of the Supreme Court finding the accused therein to be guilty of having committed aggravated penetrative sexual assault punishable under Section 06 of the POCSO Act, 2012 proceeded to convict him for the said offence and upon further finding that the minimum punishment prescribed for offence punishable under Section 06 of the POCSO Act, 2012 at the time when offence was committed i.e. prior to 16.08.2019, was 10 years’ RI, awarded him sentence for 10 years’ RI with fine of Rs.5,000/- and held in Para-11 to 15 as under:-

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“11. Section 6, as applicable before its substitution on 16-08-2019, read thus:

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"6. Punishment for aggravated penetrative sexual assault. Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine."

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On the date of the commission of the offence, rigorous imprisonment for ten years was the minimum sentence prescribed for the offence of aggravated penetrative sexual assault. From 16th August 2019, the minimum sentence has been enhanced to twenty years. However, the amended provision will not apply to this case as the incident has taken place prior to 16th August 2019.

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Surprisingly, the High Court has observed that Section

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5 was not applicable, and the offence committed by the respondent falls under the category of a lesser offence of penetrative sexual assault, which is punishable under Section 4 of the POCSO Act. Thus, the High Court committed an obvious error by holding that the act committed by the respondent was not an aggravated penetrative sexual assault. In fact, the Special Court was right in punishing the respondent under Section 6 and sentencing him to undergo rigorous imprisonment for ten years with a fine of Rs.5,000/.

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The POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8 and 10 of the POCSO Act for various categories of sexual assaults on children. Hence, Section 6, on its plain language, leaves no discretion to the Court and there is no option but to impose the minimum sentence as done by the Trial Court. When a penal provision uses the phraseology "shall not be less than.", the Courts cannot do offence to the Section and impose a lesser sentence. The Courts are powerless to do that unless there is a specific statutory provision enabling the Court to impose a lesser sentence. However, we find no such provision in the POCSO Act.

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Therefore, notwithstanding the fact that the respondent may have moved ahead in life after undergoing the sentence as modified by the High Court, there is no question of showing any leniency to him. Apart from the fact that the law provides for a minimum sentence, the crime committed by the respondent is very gruesome which calls for very stringent punishment. The impact of the obnoxious act on the mind of the victim-child will be life-long. The impact is bound to adversely affect the

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healthy growth of the victim. There is no dispute that the age of the victim was less than twelve years at the time of the incident. Therefore, we have no option but to set aside the impugned judgment of the High Court and restore the judgment of the Trial Court.

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Accordingly, the appeal is allowed. The impugned judgment and order dated 18th November 2021 passed by the High Court of Judicature at Allahabad in Criminal Appeal No.5415 of 2018 is quashed and set aside and the judgment and order dated 24th August 2018 passed by the learned 8^th Additional Sessions Judge, Special Judge POCSO Act, Jhansi in Special Session Trial No.134 of 2016 is restored. Accordingly, Criminal Appeal No.5415 of 2018 filed before the High Court stands dismissed. The respondent shall undergo rigorous imprisonment for ten years for the offence punishable under Section 6 of the POCSO Act and shall pay a fine of Rs.5,000/-.”

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Coming to the facts of the present case in the light of principles of law laid down by the Supreme Court in the matter of Sonu Kushwaha (supra), it is quite vivid that the date of incident is of 07/01/2018 and amendment in Section 4 of the POCSO Act, 2012 has been applicable w.e.f. 16.08.2019 by which for the offence under Section 4 of the POCSO Act, 2012 in which minimum sentence has been enhanced from 7 years to 10 years, as such, on the date of offence the minimum sentence was 7 years. So far as sentence awarded under Section 376(1) of IPC is concerned, by the Act 22 of 2018 the accused shall be punished with rigorous imprisonment of either decription for a term which shall not be 10

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years but which may extend to imprisonment for life and shall also be liable to fine. This substitution in the punishment under Section 376 (1) of IPC was incorporated w.e.f. 21/04/2018 and before 21/04/2018 the minimum sentence prescribed was seven years under Section 376 (1) of IPC. Since offence was committed on 07/01/2018, as such, the minimum sentence for offence under Section 376(1) of IPC would be seven years. Accordingly, we award sentence for the offence punishable under Section 4 of the POCSO Act, 2012 read with 376 (1) of IPC for a period of 7 years rigorous imprisonment by reducing it from imprisonment for life, but the fine amount imposed by the trial Court shall remain intact. However, in view of discussion made herein above, the appellant is acquitted for the offence punishable under Section 3 (2) (v) of ‘the Act of 1989’.

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This criminal appeal is partly allowed to the extent indicated herein-above.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be supplied to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment

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passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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Sd/- Sd/-

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(Amitendra Kishore Prasad) (Ramesh Sinha) Judge Chief Justice

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gouri

Sunil Yadav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Sunil Yadav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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