Sant Kumar Yadav Vs State of Chhattisgarh

Sant Kumar Yadav, S/o Bharat Lala Yadav, aged about 19 years, R/o Ahirapara, Village Sumerpur, Police Station Ramanujnagar, District Surajpur, (Chhattisgarh)

¶10

... Appellant/ (On Bail)

¶11

Versus

¶12

State of Chhattisgarh, through Police Station Ramanujnagar, District Surajpur, (Chhattisgarh)

¶13

... Respondent

¶14

For Appellant : Mr. RK Jain, Advocate For Respondent : Dr. SK Dewangan, Panel Lawyer

¶15

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

¶16

Judgment on Board (14.07.2026)

¶17

Sanjay K. Agrawal, J

¶18

(1) This criminal appeal filed by the accused-appellant under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 06.11.2019, passed in Sessions Trial No.60/2018, by the Addl. Sessions Judge (FTC), Surajpur (CG), whereby he has been convicted and sentenced as

¶19

Page No.2 of 8 IN CRA-1671-2019

¶20

under:

¶21

Conviction		Sen	tence
U/s. 363 of IPC	Rigorous fine of payment imprison	imprisonm Rs.500/- of fine, ment for 0	ent for 07 years with and, in default of additional rigorous 3 months.
U/s. 366 of IPC	Rigorous fine of payment imprison	imprisonm Rs.500/- of fine, ment for 0	ent for 10 years with and, in default of additional rigorous 3 months.
U/s. 376AB of IPC	Imprison with fine payment imprison	ment for of Rs.50 of fine, ment for 0	life (till rest of life) 0/- and, in default of additional rigorous 3 months.
U/s. 06 of Protec Children from	tion of Sexual Imprison with fine	ment for of Rs.50	life (till rest of life) 0/- and, in default of
Offences Act, (PCSO Act)	2012 payment imprison	of fine, ment for 0	additional rigorous 3 months.

¶22

(2) The case of the prosecution, in short, is that on 09.09.2018, at about 16:00 hours, in the house of the complainant (PW-02), at Village Sumerpur, which comes within the ambit of Police Station Ramanujnagar, District Surajpur (CG), the accused-appellant, firstly abducted minor victim (PW-01) and thereafter committed sexual intercourse with her against her will and consent knowing fully well that she is a minor girl and, thereby, said to have committed the aforesaid offences.

¶23

(3) The further case of the prosecution is that when father of the victim (PW-03) reported the matter to the police by submitting written complaint (Ex.P/04), FIR (Ex.P/05) was registered against the appellant and wheels of investigation started running, in which,

¶24

Page No.3 of 8 IN CRA-1671-2019

¶25

spot map was prepared. After obtaining necessary consent, the victim (PW-01) was subjected to medical examination, which was conducted by Dr. Rashmi Kumar (PW-12) and, as per her MLC report (Ex.P/13), it has been opined that hymen was found ruptured and her vaginal swab/slides were prepared and handed over to police for further examination. The accused-appellant was arrested and his underwear was seized vide Ex.P/07 and the undergarment of the victim was also seized vide Ex.P/08. The seized articles were sent for chemical examination. As per FSL report (Ex.P/19), it has been opined that in all the seized articles i.e. vaginal swab/slide of the victim, her undergarment and appellant’s underwear, stains of human sperm and semen were found. Further, in order to ascertain correct age of the victim (PW-01), copies of Dakhila Khariz Register (Ex.P/15C) and Declaration Register (Ex.P/16C) were obtained/seized and, according to which, it was revealed that the victim was minor on the date of offence. Thereafter, statements of witnesses were recorded and, after due investigation, the appellant was 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 appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

¶26

(4) The prosecution in order to prove its case examined as many as

¶27

13 witnesses and exhibited 19 documents, whereas the appellant in

¶28

Page No.4 of 8 IN CRA-1671-2019

¶29

support of his defence has neither examined any witness nor exhibited any documents.

¶30

(5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence punishable under Sections 363, 366, 376AB of IPC as also under Section 06 of the POCSO Act, 2012 and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellantaccused questioning the impugned judgment of conviction and order of sentence.

¶31

(6) Mr. RK Jain, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence. In view of questions framed and answers given by the victim (PW-03) in her statement before the Court, the learned trial Court has erred in law while holding the appellant guilty for the offences in question. Even, the witnesses of the prosecution has not at all supported the case of the prosecution and turned hostile. Learned counsel vehemently argued that though in the FSL report (Ex.P/19) it has been opined that in all the seized articles i.e. vaginal swab/slide of the victim, her undergarment and appellant’s underwear, stains of human sperm and semen were found, but in light of the decision of the Supreme Court in the matter of Krishna Kumar Malik v. State of Haryana1 , in absence of semen

¶32

1 (2011) 7 SCC 130

¶33

Page No.5 of 8 IN CRA-1671-2019

¶34

matching or DNA profiling, the same is of no use to the prosecution. The medical evidence also does not support the case of the prosecution. As such, the appellant is entitled for acquittal on the basis of benefit of doubt and present appeal deserves to be allowed.

¶35

(7) Per-contra, learned State counsel would submit that the 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-03), wherein she has clearly narrated the incident and implicated appellant herein to be the author of the crime in question, coupled with other evidence available on record i.e. MLC report of the victim (Ex.P/13), the trial Court has rightly convicted the appellant for the offence mentioned herein-above. As such, the present appeal is liable to be dismissed.

¶36

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

¶37

(9) In the case at hand, admittedly, the age of the victim (PW-01) was 08 years on the date of offence, however, in her statement before the Court she has not supported the case of the prosecution at all, indeed, stated that no incident happened with her and she has been declared hostile. Even on being asked the leading question, she has not supported the case of the prosecution and remain firm on her

¶38

Page No.6 of 8 IN CRA-1671-2019

¶39

version. Victim’s mother (PW-02) has also been examined and she has also not supported the case of the prosecution by stating that while playing the victim (PW-01) well down and suffered injuries and, thereafter, she was taken to the hospital and, similarly, on being asked the leading question, she remain consistent in her version and declared hostile. Further, father of the victim has also been examined as PW-03 and he has also not supported the case of the prosecution and remain consistent in his version that while playing the victim fell down and suffered injuries in her abdomen area. He has also stated that he has not made any statement with regard to sexual intercourse being committed on the victim by the appellant before the police.

¶40

(10) Moreover, grand-father of the victim has been examined as PW-04 and he has also not supported the case of the prosecution and maintained his version that while playing the victim (PW-01) fell down and suffered injuries. Similarly, uncle of the victim, namely, Manoj Yadav (PW-05) and grand-mother of the victim (PW-06) has also been examined before the learned trial Court, but they have also not supported the case of the prosecution. Even otherwise, Dr. Rashmi Kumar (PW-12) who has conducted medical examination of the victim, though opined in MLC report (Ex.P/13) that hymen of the victim was found ruptured, but she has not elaborated anything else about the victim (PW-01) with regard to the incident in question. As such, medical evidence is also not clear in the present case to hold

¶41

Page No.7 of 8 IN CRA-1671-2019

¶42

the appellant guilty of the offence in question. It is held accordingly.

¶43

(11) So far as forensic evidence is concerned, though in the FSL report (Ex.P/19) it has been opined that in all the seized articles i.e. vaginal swab/slide of the victim, her undergarment and appellant’s underwear, stains of human sperm and semen were found, but no DNA profiling or matching of semen of the appellant with that found on the of the victim (PW-01) was conducted in the present case. In Krishan Kumar Malik (supra), their Lordships of the Supreme Court have clearly held that it has become necessary for the prosecution to get in for DNA test in such types of cases, facilitating the prosecution to prove its case against the accused. It has also been held that the prosecution could have resorted to the procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarment of the prosecutrix to make a foolproof case, but they did not do so, thus, they must face the consequence. As such, in light of the above legal position, though in the FSL report (Ex.P/19) it has been opined that stains of human sperm/semen were found on the vaginal swab/slide of the victim, her undergarment and appellant’s underwear, but since the prosecution has failed to conduct any DNA profiling or matching of semen of the appellant with that found on the undergarment and slide of the victim (PW-01), the forensic evidence is also of no help to the prosecution in the present case. It is held accordingly.

¶44

(12) In view of foregoing analysis, we are unable to hold that the

¶45

Page No.8 of 8 IN CRA-1671-2019

¶46

prosecution has been able to prove its case beyond all reasonable doubt and, in absence of which, the learned trial Court is unjustified in convicting the appellant for offences under Sections 363, 366, 376AB of IPC as also under Section 06 of the POCSO Act, 2012 being the author of the crime in question in light of the findings recorded in the impugned judgment and same are liable to be set aside.

¶47

(13) Accordingly, we hereby set aside the conviction so recorded and the sentence so awarded by the trial Court to the appellant vide the impugned judgment dated 06.11.2019. The appellant is acquitted of the charges under Sections 363, 366, 376AB of IPC as also under Section 06 of the POCSO Act, 2012 on the basis of benefit of doubt. The appellant is reported to be on bail, therefore, he need not to surrender. However, his bail bond shall remain in force for a further period of six months in view of the provision contained in Section 437-A of the CrPC.

¶48

(14) This criminal appeal is allowed.

¶49

(15) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned for necessary information and action, if any.

¶50

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

¶51

s@if

Sant Kumar Yadav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Sant Kumar Yadav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Smt. Priyanka Sinha Vs Pradeep Sinha

M/S Jai Ambay Flour Mill Vs State of Chhattisgarh

Dinesh Kumar Vs Smt. Radhika

Manoj Kumar Chandane Vs State of Chhattisgarh

Narsingh Yadav @ Shera Vs State Of Chhattisgarh

Sudhir Agrawal Vs Union of India