Poshan Kumar Verma Vs State of Chhattisgarh

1. The present criminal appeal under Section 374(2) of CrPC has been preferred by appellants against the judgment of conviction and order of sentence dated 29.01.2007 passed by in Special Sessions Trial No. 8/2005 whereby the learned Special Judge, Raipur, convicted and sentenced the

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appellants as under :

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u/s 366(A) of IPC : RI for 2 years and fine of Rs.2000/-, in default of payment of fine, additional RI for 3 months

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Digitally A signed by ANNAJEE A RAO ANNAJEE RAO

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U/s 3(1)(xii) of the Scheduled :	RI for 2 years and fine of Rs.2000/-
Castes and Scheduled Tribes	and in default of payment of fine,
(Prevention of Atrocities) Act, 1989	additional RI for 6 months.

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However, by the said impugned judgment the learned trial Court acquitted the appellant u/s 363, 376 of IPC read with section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act by giving benefit of doubt.

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2. The prosecution story in brief is that on 24.10.2004 at about 7.00 p.m., the prosecutrix had gone to the market for purchasing some goods and thereafter she did not come back to her house. The father searched for the victim and when her whereabout could not be traced, he filed a missing report in Police station Kharora, on the basis of which, FIR was registered. On 07.11.2004, the appellant and prosecutrix reached the police station. During the course of investigation, the prosecutrix was medically examined and the statements of witnesses were recorded. On completion of investigation, charge sheet was filed.

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3. The prosecution has examined in total 17 witnesses to prove its case. Thereafter the accused was examined u/s 313 CrPC wherein he pleaded innocence and false implication. The accused also examined two witnesses on his behalf to defend the case. After evaluating the evidence and facts on record, the learned Trial Court vide impugned judgment, convicted and sentenced the appellants for the offence, as mentioned above. Hence this appeal.

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4. Learned counsel for the appellant argues that the victim (PW-1) is a consenting party and the prosecution has failed to prove that the prosecutrix was below 18 years of age on the date of incident i.e., 24/10/2004. He

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further submits that there is no evidence led by the prosecution to prove that the appellant has sexually exploited the victim by dominating her will merely on the basis of caste. Therefore, the conviction of the appellant is not justified. He prays that the impugned judgment be quashed and the appellant be acquitted.

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5. Per contra, learned State Counsel supports the impugned judgment and submits that after considering the facts and evidence, the learned trial Court has rightly convicted the appellants, which needs no interference.

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6. I have heard learned counsel for the parties and have also perused the records.

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7. The victim (PW-1) has clearly admitted in her evidence that she and the appellant studied in the same school. There was a dance party in their village in which the appellant also participated. They used to meet each other. When she went with the appellant, she took along Salwar-Kurta-copy etc. because it might be needed for the dance programme. They travelled from village Asaunda to Tilda, Nagpur, again Tilda, Banaras etc where they lived as husband and wife. They also told the owner of the rented house that they were husband and wife. She also used to pay the rents etc. She has further stated that she never tried to run away nor she ever complained about the appellant despite people meeting her in public places. She further states that she did not file any police report. She also stayed at the house of the appellant's relatives but did not make any complaint. On the basis of all these facts emerged from her statement, it is clear that the victim (PW-1) was a consenting party.

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8. The victim (PW-1) herself was unable to tell her date of birth. Her mother (PW-2) and father (PW-3) were also unable to tell her date of birth. The father (PW-3) has produced the victim's date of birth certificate as Exhibit P-7 on the record which was prepared after the incident on 07/11/2004. No witness has been examined to prove the veracity of that document. It is not clear on what basis the victim's date of birth has been recorded in that certificate prepared after the incident because the father (PW-3) who presented it was himself unable to tell the victim's date of birth. In such a situation, the date of birth 13/06/1988 shown in the birth certificate Exhibit P-7 is not found to be duly certified and it is not proved beyond doubt that the age of the victim was less than 18 years on the date of incident i.e. 24/10/2004.

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9. The point required to be determined by this Court is whether the offence under Section 3(1)(xii) of the Act, 1989 is, prima facie, made out against the appellant, therefore, it is relevant to reproduce the provisions of sub-clause (xii) of Clause (1) of Section 3 (as it stood before 2016 amendment) which reads thus :

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“3. Punishments for offences of atrocities. -- “(1). Whoever, not being a member of a Scheduled Caste or Scheduled Tribe,--

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

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10. The victim herself has not stated in her court statement which caste she belongs to. She has also not stated which category she belongs to. The victim has also not clearly stated that the appellant knew her caste and category beforehand. In this case, Naib Tehsildar Baleshwar Ram (PW-13)

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has said that the caste certificate (Ex.P-18) has been issued on the request of the victim's father, according to which, the caste of the appellant is Gond and category is Scheduled Tribe. This certificate has not been challenged by the appellant's side. This establishes that the victim is a woman of Scheduled Tribe category.

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11. In view of the above discussion, it is clear that it has not been proved that the appellant sexually exploited the victim inasmuch as the the victim was a consenting party. Further this fact has also not been proved that she is a minor below 18 years of age. There is no such fact emerged from the statement of the victim on the basis of which it can be said that the appellant dominated her on the basis of caste and sexually exploited her only on the basis of caste. The Division Bench of this Court in Suresh Ram Vishvakarma v. State of Chhattisgarh decided on 28 th February, 2023 held that just because the victim belongs to the ST community it cannot be assumed that the accused dominated her will to sexually exploit her, an act which is punishable under Section 3(1)(xii) (as it stood before 2016 amendment) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

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12. In the above situation, the offence is also not found to be proved. Hence the impugned judgment of conviction and order of sentence is set aside and the appellant is acquitted of the offence u/s 366(A) of IPC and section 3(1)(xii) of the Special Act.

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13 . In the result, the appeal is allowed.

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14. The appellant is on bail. He is not required to surrender in this case. His bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of Cr.P.C.

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15. Let a certified copy of this judgment along-with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any.

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Sd/(Sanjay Kumar Jaiswal) Judge

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R a o

Poshan Kumar Verma v. State of Chhattisgarh

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Poshan Kumar Verma v. State of Chhattisgarh

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