Ashvel Walter Vs State of Chhattisgarh

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Page No.1 of 18 IN CRA-1912-2019 & CRA-595-2018

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Digitally signed by SAIFAN SAIFAN KHAN KHAN Date:2025.03.03 10:45:23 +0530

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2025:CGHC:9371-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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[Arising out of common impugned judgment dated 12.04.2018, passed in Special Criminal (Atrocities) Case No.07 of 2017 (State of Chhattisgarh v. Vikrant Pal @ Vikky and 02 others) by the Special Judge (Atrocities), North Bastar, Kanker (CG)]

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Criminal Appeal No. 1912 of 2019

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Vikrant Pal @ Vikky S/o Shri Rajesh Pal Aged About 21 Years R/o Village Dongripara, Bhanupratappur, District North Bastar Kanker Chhattisgarh, District : Kanker, Chhattisgarh

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--- Appellant (In Jail)

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Versus

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State Of Chhattisgarh Through Station House Officer, Police Station Durgukondal, District North Bastar Kanker Chhattisgarh, District : Kanker, Chhattisgarh

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--- Respondent

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[Cause-title taken from Case Information System (CIS)]

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For Appellant : Mr. C.R. Sahu, Advocate For Respondent : Mr. Arvind Dubey, Govt. Advocate

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AND

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Criminal Appeal No. 595 of 2018

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1. Ashvel Walter S/o Ashok Walter Aged About 25 Years R/o Village Balodgahan, Police Station Gurur District North Bastar Kanker Chhattisgarh, District : Kanker, Chhattisgarh

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2. Rajkumar Shori S/o Mohan Aged About 50 Years R/o Village Selegaon, Police Station Korar District North Bastar Kanker Chhattisgarh, District : Kanker, Chhattisgarh

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--- Appellants

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(On Bail)

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Page No.2 of 18 IN CRA-1912-2019 & CRA-595-2018

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Versus

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State Of Chhattisgarh Through Station House Officer, Police Station Durgukondal, District North Bastar Kanker Chhattisgarh, District : Kanker, Chhattisgarh

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--- Respondent

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[Cause-title taken from Case Information System (CIS)]

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For Appellants : Mr. P.K. Tulsyan, Advocate For Respondent : Mr. Arvind Dubey, Govt. Advocate

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board

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(24.02.2025)

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Sanjay K. Agrawal, J

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(1) Regard being had to the similitude of the questions of fact and law involved and being arising out of a common impugned judgment dated 12.04.2018, on the joint request of learned counsel for the parties, both these criminal appeals are clubbed together, heard together and are decided by this common judgment.

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(2) In these criminal appeals filed under Section 374(2) of Cr.P.C., total 03 accused-appellants, namely, Vikrant Pal @ Vikky (A-1) , Ashvel Walter (A-2) and Rajkumar Shori (A-3) are calling in question the legality, validity and correctness of a common impugned judgment of conviction and order of sentence dated 12.04.2018, passed in Special Criminal (Atrocities) Case No.07 of 2017 (State of Chhattisgarh v. Vikrant Pal @ Vikky and 02 others) by the Special Judge, constituted under the provisions of the

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Page No.3 of 18 IN CRA-1912-2019 & CRA-595-2018

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Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the “Act of 1989”), North Bastar, Kanker (CG), whereby they all have been convicted and sentenced as under:

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As regards Appellant- Vikrant Pal @ Vikky (A-1) :

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Conviction		Sentence
U/s. 363 of IPC	Rigorous with fine of payme imprison	imprisonment for 03 years of Rs.100/- and, in default nt of fine, additional rigorous ment for 06 months.
U/s. 366 of IPC	Rigorous with fine of payme imprison	imprisonment for 04 years of Rs.100/- and, in default nt of fine, additional rigorous ment for 06 months.
U/s. 376(2)(i) of IPC	Rigorous with fine of payme imprison	imprisonment for 10 years of Rs.100/- and, in default nt of fine, additional rigorous ment for 06 months.
U/s. 376(2)(n) of IPC	Rigorous with fine of payme imprison	imprisonment for 10 years of Rs.100/- and, in default nt of fine, additional rigorous ment for 06 months.
U/s. 3(2)(v) of the Act of 1989	Imprison Rs.100/- of fin imprison	ment for life with fine of and, in default of payment e, additional rigorous ment for 06 months.
U/s. 06 of Protection of	Rigorous	imprisonment for 10 years
Children from Sexual	with fine	of Rs.100/- and, in default
Offences Act, 2012 (for short the “POCSO Act”)	of payme imprison	nt of fine, additional rigorous ment for 06 months.

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As regards Appellants- Ashvel Walter (A-2) & Rajkumar Shori (A-

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3) :

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Conviction Sentence

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U/s. 363 of IPC Rigorous imprisonment for 03 years with fine of Rs.100/- and, in default of payment of fine, additional rigorous imprisonment for 06 months.

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(3) The case of the prosecution, in a nut-shell, is that on 17.10.2016, at about 09 AM in the morning, at Ghotiya, which comes within the ambit of Police Station Durgukondal, appellantVikrant Pal @ Vikky (A-1) firstly abducted minor victim (PW-01), aged about 15 years (i.e. less than 16 years), from lawful guardianship of her parents on the pretext of solemnizing marriage and took her to the house of accused/appellant- Ashvel Walter (A-2) & Rajkumar Shori (A-3) situated at Kochwahi and Balodgahan respectively and, thereafter, appellant- Vikrant Pal @ Vikky (A-1), who is neither the member of Scheduled Caste community nor the Scheduled Tribe, committed sexual intercourse with the victim (PW-01) time and again against her will and consent knowing fully well that she belongs to Scheduled Caste community and, thereby, said to have committed the aforesaid offences.

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(4) Further case of the prosecution is that initially when the victim (PW-01) got missing, her father (PW-12) lodged missing report (Ex.P/26C) and, pursuant to which, wheels of investigation started running, whereby FIR (Ex.P/26) was registered. However, when 14.11.2016, the victim (PW-01) returned to her house, information to that effect was given to the police vide Ex.P/28.

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Page No.5 of 18 IN CRA-1912-2019 & CRA-595-2018

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Thereafter, victim’s statement under Section 161 of CrPC was recorded vide Ex.P/21, whereas her statement under Section 164 of CrPC was recorded vide Ex.P/09. After obtaining necessary consent and permission for the purpose of medical examination of the victim (PW-01), she was subjected to medical examination, which was conducted by Dr. Priti Singh (PW-17). According to her MLC report (Ex.P/04), it has been opined that the victim (PW-01) has been subjected to sexual intercourse. Further, victim’s slide were prepared and handed-over to the police for analysis alongwith her undergarment, which were seized vide Ex.P/19 & Ex.P/08 respectively. The accused-appellants were arrested vide Ex.P/40 to Ex.P/42 respectively. Appellant- Vikrant Pal @ Vikky (A-1) was sent for medical examination and his MLC report is Ex.P/47 and, his semen slides alongwith undergarment were also seized vide Ex.P/20. The aforesaid seized articles were sent of chemical analysis and, as per FSL report (Ex.P/45) it has been opined that stains of human sperm and semen were found on the undergarment of the victim as also on that of the appellant.

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(5) Further, in order to ascertain the correct age of the victim (PW-01), her school mark-sheet (Ex.P/10A) and school admission register (Ex.P/32C) were obtained/seized, wherein her date of birth has been recorded as 03.04.2004, meaning thereby, on the date of offence the victim was minor aged about 15 years (less than 16 years). In order to verify caste of the victim (PW-01), her

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Page No.6 of 18 IN CRA-1912-2019 & CRA-595-2018

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caste certificate (Ex.P/07) was also seized vide Ex.P/05, wherein it has been stated that her caste is Gada, which comes under Scheduled Caste community. After the statement of witnesses were recorded and investigation is completed, the appellants were charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellants abjured their guilt and entered into defence by stating that they are innocent and has been falsely implicated.

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(6) The prosecution in order to prove its case examined as many as 23 witnesses and exhibited 51 documents, whereas the appellants in support of their defence, neither examined any witness nor exhibited any document.

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(7) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict appellant- Vikrant Pal @ Vikky (A-1) for offence punishable under Sections 363, 366, 376(2)(i), 376(2)(n) of IPC, under Section 3(2)(v) of the Act of 1989 and under Section 06 of the POCSO Act, whereas convicted appellants- Ashvel Walter (A-2) & Rajkumar Shori (A-3) for offence under Section 363 of IPC and sentenced them as mentioned in Para-02 of the impugned judgment, against which these 02 appeals have been preferred by the appellantsaccused questioning the impugned judgment of conviction and

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Page No.7 of 18 IN CRA-1912-2019 & CRA-595-2018

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order of sentence.

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(8) Mr. C.R. Sahu, learned counsel for appellant- Vikrant Pal @ Vikky (A-1) in CRA-1912-2019 would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences. In view of questions framed and answers given by the victim (PW-01) in her statement before the Court, the learned trial Court has erred in law while holding the appellant guilty for the offences in question. There are various omissions and contradiction in the statements of prosecution witnesses. Learned counsel vehemently submits that the appellant has not committed any offence with the victim knowing fully well that she belongs to Scheduled Caste community and, even otherwise, the caste certificate of the victim (Ex.P/07) has not been duly proved by the prosecution. As such, conviction of appellant- Vikrant Pal @ Vikky (A-1) for offence under Section 3(2)(v) of the Act of 1989 is liable to be set aside. Hence, the present appeal deserves to be allowed in full or in part.

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(9) Mr. P.K. Tulsyan, learned counsel appearing for appellantsAshvel Walter (A-2) & Rajkumar Shori (A-3) in CRA-559-2018 would submit that the learned trial Court is also absolutely unjustified in convicting the appellants for the offence under Section 363 of IPC. Learned counsel submits that the only allegation levelled against appellants- Ashvel Walter (A-2) & Rajkumar Shori (A-3) is that appellant- Vikrant Pal @ Vikky (A-1)

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Page No.8 of 18 IN

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CRA-1912-2019 & CRA-595-2018

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has kept the victim (PW-01) in their house and, for which, they have been convicted for offence under Section 363 of IPC. There is no evidence available on record to show that at any point of time appellants- Ashvel Walter (A-2) & Rajkumar Shori (A-3) have aided appellant- Vikrant Pal @ Vikky (A-1) in abducting the minor victim (PW-01) or they themselves have abducted the victim (PW-01). Therefore, their conviction for offence under Section 363 of IPC is liable to be set aside and, their appeal deserves to be allowed.

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(10) Per-contra , learned State counsel would submit that prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statement of the victim (PW-01), wherein she has clearly narrated the incident and implicated appellants herein to be the authors of the crime in question, coupled with other evidence available on record, the trial Court has rightly convicted all the appellants for the offences mentioned hereinabove. Thus, both the appeals are liable to be dismissed.

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

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(12) Since the learned trial Court has convicted appellantVikrant Pal @ Vikky (A-1) for offences under Sections 363, 366,

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Page No.9 of 18 IN CRA-1912-2019 & CRA-595-2018

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376(2)(i), 376(2)(n) of IPC, under Section 3(2)(v) of the Act of 1989 and under Section 06 of the POCSO Act and, whereas, convicted appellants- Ashvel Walter (A-2) & Rajkumar Shori (A-3) for offence under Section 363 of IPC, therefore, we will consider the appeal of appellant- Vikrant Pal @ Vikky (A-1) separately qua appeal of appellants- Ashvel Walter (A-2) & Rajkumar Shori (A-3).

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Appeal of appellant- Vikrant Pal @ Vikky (A-1) being CRA1912-2019 :

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(13) In the case at hand, considering the statement of the victim (PW-01), wherein she has clearly narrated the incident in question and implicated appellant- Vikrant Pal @ Vikky (A-1) to be the author of the crime by stating that on 17.10.2016, firstly appellant- Vikrant Pal @ Vikky (A-1) called her to his house and, on the pretext of solemnizing marriage, committed sexual intercourse with her against her will and consent and, thereafter, took her to the house of Rajkumar Shori (A-3) situated at Village Kochwahi. The victim (PW-01) has also stated that in the house of Rajkumar Shori (A-3) at Kochwahi, appellant- Vikrant (A-1) had kept her for 05 days and committed repeated sexual intercourse with her and, thereafter, took her to the house of Ashvel Walter (A2) at Village Balodgahan and where also appellant- Vikrant (A-1) had committed repeated sexual intercourse with her. The aforesaid statement of the victim (PW-01) has duly been supported by her father (PW-12), who reported the matter to the police and lodged FIR. Further, the victim (PW-01) was also subjected to

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lengthy cross-examination, but she remained consistent in her version and, therefore, her testimony inspires confidence and can be relied upon to hold the appellant guilty for the offence in question. The said version of the victim (PW-01) is also supported by medical and forensic evidence available on record i.e. (i) MLC report of the victim (Ex.P/04), wherein it has clearly been opined that the victim (PW-01) is subjected to sexual intercourse, which is duly supported by the statement of Dr. Priti Singh (PW-17), who has medically examined the victim (PW-01) and (ii) FSL report (Ex.P/45), wherein it has been opined that stains of human sperm/semen were found on the undergarment of the victim (PW01) as also on the undergarment of appellant- Vikrant (A-1). Further, according to victim’s (PW-01) school mark-sheet (Ex.P/10A) and her school admission register (Ex.P/32C), her date of birth has been recorded as 03.04.2004, meaning thereby, on the date of offence the victim (PW-01) was minor aged about 15 years (i.e. less than 16 years). As such, on the basis of aforesaid evidence available on record, the findings recorded by the learned trial Court in holding appellant- Vikrant Pal @ Vikky (A-1) guilty for offence punishable under Section 363, 366, 376(2)(i), 376(2)(n) of IPC and under Section 06 of the POCSO Act is strictly in accordance with law. We do not find any illegality or perversity in the said finding recorded by the learned trial Court and, for which, he has rightly been convicted and sentenced. Accordingly, we

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hereby affirm the said finding.

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(14) Now the question would be whether the learned trial Court is justified in convicting appellant- Vikrant Pal @ Vikky (A-1) for offence under Section 3(2)(v) of the Act of 1989, for which, he has been sentenced for imprisonment for life, as contended by learned counsel for the appellant ?

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(15) In order to answer this plea, it would be relevant to take note of the fact that the date of incident in the instant case is 06-07 moths prior to 21.12.2016, whereas Section 3(2)(v) of the Act of 1989 was amendment w.e.f. 26.01.2016 by Act 1 of 2016. Prior to its amendment w.e.f. 26.01.2016, Section 3(2)(v) stood as under:

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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 Scheduled Tribe -

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(i) to (iv) 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

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such member, shall be punishable with imprisonment for life and with fine;”

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Prior to its amendment w.e.f. 26.01.2016, the unamended portion of Section 3(2)(v) was:

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“ on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member ”

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After the amendment, the substituted portion of Section 3(2)

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(v) is:

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“ knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member. ”

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(16) The unamended provision of Section 3(2)(v) of the Act of 1989 came to be considered before the Supreme Court in the matter of Patan Jaman Vali v. State of Andhra Pradesh 1 wherein their Lordships have held that it has to be established by the prosecution on the basis of evidence adduced that the accused has committed sexual intercourse/crime on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe community 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 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,

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1 AIR 2021 SC 2190

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CRA-1912-2019 & CRA-595-2018

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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 inter-sectional nature of oppression PW2 faces, it becomes difficult 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 sufficient to sustain a conviction…

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60. xxx xxx xxx

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

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(17) After the amendment to the provision of Section 3(2)(v) of the Act of 1989, the wording of the substituted portion is “ knowing that such person is a member of a Scheduled Caste or a Scheduled

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Tribe or such property belongs to such member ”. The word “knowing” has been defined in the Black’s Law Dictionary, Eighth Edition, Page 888, — “1. Having or showing awareness or understanding; well-informed. 2. Deliberate; conscious".

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(18) In the matter of Shashikant Sharma & Ors. v. State of Uttar Pradesh & Anr.2 , Section 3(2)(v) of the Act of 1989 came to be considered before their Lordships of the Supreme Court, wherein it has been held that in order to commit offence punishable under Section 3(2)(v) of the Act of 1989 (as amended), there must be allegation that the accused not being a member of Scheduled Caste or Scheduled Tribe committed an offence under the provision of IPC punishable with imprisonment for 10 years or more on a member of Scheduled Caste or Scheduled Tribe knowing that such person belongs to the said community.

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(19) Bearing in mind the aforesaid principle of law laid down by their Lordships of the Supreme Court qua Section 3(2)(v) (as amended w.e.f. 26.01.2016), it is quite vivid that from the entire material available on record, it is evident that no legally admissible evidence has been led to prove that appellant- Vikrant Pal @ Vikky (A-1) has committed sexual intercourse with the victim (PW-01) knowing fully well that she belongs to Scheduled Caste community. Section 3(2)(v) of the Act of 1989 (as amended) can be pressed into service only if it is proved beyond reasonable doubt

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2 2023 SCC Online SC 1599

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that the offence has been committed on a member of Scheduled Caste or Scheduled Tribe community knowing that such person belongs to the said community. Though caste certificate (Ex.P/07) has been exhibited by the prosecution and the victim (PW-01) in her statement has stated that she belongs to Scheduled Caste community, where as the appellant belongs to Yadav community, but she did not state that the appellant knew that she is a member of Scheduled Caste community. Further, the learned trial Court also did not record any specific finding in terms of Section 3(2)(v) (as amended w.e.f. 26.01.2016) that appellant- Vikrant (A1) had well informed knowledge that the victim (PW-01) is member of Scheduled Caste community and committed the offence in question. Moreover, the caste certificate of the victim (Ex.P/07) has also not been proved by any independent witnesses and it is not clear as to which authority has issued the said certificate. Therefore, for the aforesaid reasons, the prosecution could have brought legal evidence on record to show that appellant- Vikrant Pal @ Vikky (A-1) had well informed knowledge that victim (PW-01) belongs to Scheduled Caste community, which they miserably failed to do so. As such, having regard to the language of Section 3(2)(v) of the Act of 1989 as it stood after its amended w.e.f. 26.01.2016 and further the prosecution must have led separate evidence to demonstrate that appellant- Vikrant Pal @ Vikky (A-1) has committed the offence in question knowing fully well the caste

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identity of the victim (PW-01), in light of the decision of Shashikant Sharma (supra), the conviction of appellant- Vikrant Pal @ Vikky (A-1) for offence punishable under Section 3(2)(v) of the Act of 1989 and the sentence of imprisonment for life, as awarded by the trial Court, is liable to be set aside. We hereby hold accordingly.

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Appeal of appellants- Ashvel Walter (A-2) & Rajkumar Shori (A- : 3) being CRA-559-2018

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(20) In the present case, appellants- Ashvel Walter (A-2) & Rajkumar Shori (A-3) have been convicted for offence under Section 363 of IPC on the allegation that appellant- Vikrant Pal @ Vikky (A-1), who abducted the minor victim (PW-1), had taken her to the houses of appellants- Ashvel Walter (A-2) & Rajkumar Shori (A-3) situated at Kochwahi and Balodgahan respectively. However, from the entire evidence available on record, the prosecution has not been able to establish that appellants- Ashvel Walter (A-2) & Rajkumar Shori (A-3) had helped appellantVikrant Pal @ Vikky (A-1) in the course of abduction of the victim (PW-01) or they themselves have abducted the victim (PW-01) from lawful guardianship of her parents. Even, the victim (PW-01) in her statement before the Court nowhere states that appellantsAshvel Walter (A-2) & Rajkumar Shori (A-3) were involved in her abduction by appellant- Vikrant Pal @ Vikky (A-1). As such, in absence of any evidence relating to kidnapping against appellantsAshvel Walter (A-2) & Rajkumar Shori (A-3) and having regard to

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the language of Section 363 of IPC, we are of the considered opinion that charge for offence under Section 363 of IPC against appellants- Ashvel Walter (A-2) & Rajkumar Shori (A-3) does not borne out from the record and, therefore, they are liable to be acquitted of the said charge on the basis of benefit of doubt. We hereby hold accordingly.

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(21) Concludingly, this Court order as under:

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(i) the conviction and their respective sentences of appellant- Vikrant Pal @ Vikky (A-1) for offences under Sections 363, 366, 376(2)(i), 376(2)(n) of IPC and under Section 06 of the POCSO Act, as awarded by the learned trial Court, are hereby affirmed being well merited;

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(ii) the conviction and sentence of appellantVikrant Pal @ Vikky (A-1) for offence punishable under Section 3(2)(v) of the Act of 1989, as imposed upon him by the learned trial Court, is hereby set aside;

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(iii) the conviction and sentence of appellantsAshvel Walter (A-2) & Rajkumar Shori (A-3) for offence under Section 363 of IPC is hereby set aside. They are acquitted of the said charge on the basis of benefit of doubt. Since appellants- Ashvel Walter (A-

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& Rajkumar Shori (A-3) are reported to be on bail, therefore, they need not to surrender. However, their bail bonds shall remain in force for a further period of 06 months in view of provision contained under Section 437-A of CrPC.

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(22) Consequently, CRA-1912-2019 is partly allowed , whereas CRA-595-2018 is allowed, to the extent indicated herein-above.

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(23) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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s@if

Ashvel Walter v. State of Chhattisgarh

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Ashvel Walter v. State of Chhattisgarh

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