As regards conviction under Section 3 (1) (xii) of the
Special Act, the prosecution has not filed and proved any
document to show that the prosecutrix belongs to scheduled tribe
category. In his 313 Cr.P.C. statement the accused/appellant has
denied that he had the knowledge that the prosecutrix was a
member of scheduled tribe community. Furthermore, the
prosecution has not been able to prove that the accused/appellant
had dominated the will of the prosecutrix and used his position to
exploit her sexually simply because she belonged to the scheduled
tribe community. Being this, conviction under Section 3 (1) (xii) of
the Special Act is not in accordance with law and the appellant is
entitled for acquittal of the same.
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 568 of 2010
Bhalchand Tiwari
V
State Of Chhattisgarh
Dated:12/04/2016
Citation: 2016 CRLJ(NOC)265 Chh
This appeal is directed against the judgment and order dated
04.06.2010 passed by Sessions Judge (Atrocities) Bastar at
Jagdalpur, in Sessions Trial No. 131/2008 convicting the
accused/appellant under Sections 376 (1) IPC and 3 (1) (xii) of the
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act
(for short the “Special Act”) and sentencing him to undergo
rigorous imprisonment for ten years with fine of Rs. 1000/- u/s 376
(1) IPC and rigorous imprisonment for five years with fine of Rs.
1000/- u/s 3 (1) (xii) of the Special Act, plus default stipulations.
2. Case of the prosecution in brief is that on 15.7.2008 FIR (Ex.
P-13) was lodged by the prosecutrix (PW-8) alleging that on
11.7.2008 (Friday) she had gone to the house of her father to
attend a wedding ceremony and some days thereafter i.e. onSunday her husband Jagat Ram Mandavi and the accused/appellant
also came there to take her back. When she along with her
husband was going on the motorcycle of the accused/appellant, he
stopped the motorcycle near his house at village Bhumka and after
taking her husband inside told him that if they (prosecutrix and her
husband) wanted to give up liquor, observance of some rituals
(Pooja path) was to be done that very day. Accused/appellant also
asked her husband to get his father for the said ritual and after his
arrival he made both of them sit in a room and got the said ritual
done at about 7 in the evening and thereafter he gave them a
piece of red cloth, vermilion and coal pieces to be dropped at a
triangular path and move ahead without looking back. After her
husband and father-in-law got away, the accused/appellant asked
her to stay in his house for four days to light the lamp and clean
the place of ritual and saying that he took her to the Pooja room,
gave her coal pieces and vermilion to be thrown into the jungle.
When she refused to accompany him to jungle, maid servants of
the accused/appellant forced her to do so. Thereafter, at 8 PM she
went to the jungle along with the accused/appellant where under a
tree he made her lie and after removing her clothes committed
forcible sexual intercourse with her on the point of knife and
threatened her saying that if she disclosed the same to anyone,
entire observance of ritual would be futile and for that she kept
quiet. Second day also he took her to the jungle and did the same
act. On 14.7.2008 her husband came and took her back and on the
way she narrated the entire incident to him and after reaching
home to her mother-in-law also and then the report was lodged.Based on the said report, offences under Section 376/34 IPC and 3
(1) (xii) of the Special Act were registered against the
accused/appellant. She was medically examined on 16.7.2008 by
Dr. B.P. Ekka (PW-1) who gave her report Ex. P-1 stating that she
did not notice any external or internal injury on her body and no
definite opinion regarding forcible sexual intercourse could be
given. After completion of investigation, charge sheet was filed
against the present appellant and others for the offence punishable
under Sections 376/34 IPC and 3 (1) (xii) of the Special Act. Court
below however discharged the other accused persons and framed
the charges against the accused/appellant as mentioned above.
3. So as to hold the accused/appellant guilty, prosecution has
examined 08 witnesses in support of its case. Statement of the
accused/appellant was also recorded under Section 313 of the
Code of Criminal Procedure in which he denied the charges levelled
against him and pleaded his innocence and false implication in the
case.
4. After hearing the parties, the trial Court has convicted and
sentenced the accused/appellant as mentioned above in paragraph
No.1 of this judgment.
5. Counsel for the accused/appellant submits that she is not
pressing this appeal as far as conviction of the accused/appellant is
concerned and confines her argument to the sentence part thereof
only. She submits that as the appellant is in jail since 21.7.2008
and thereby completed the imprisonment of about 7 years and 6
months, taking a lenient view his jail sentence may be reduced to
the period already undergone.6. On the other hand, counsel for the respondent/State supports
the judgment impugned and submits that the findings recorded by
the Court below convicting and sentencing the accused/appellant
as has been mentioned above are strictly in accordance with law
and there is no infirmity in the same.
7. Heard counsel for the parties and perused the evidence on
record.
8. Prosecutrix (PW-2) has stated that when she had gone to
her father's house to attend the marriage of her younger brother,
accused/appellant also came there and asked her to accompany
him as her parents-in-law were not well but she refused to do so.
Thereafter, he again came there in the evening and on the same
pretext he took her with him to his house at village Palli on
motorcycle. The accused/appellant then is stated to have told her
husband that his wife (prosecutrix) and father were overpowered
by some evil spirit, and therefore asked him to go and get his
father. After her husband got back with his father, the
accused/appellant performed some ritual and after it was over he
sent her husband and father-in-law to go for immersing the
remnants of the ritual. According to her, when she asked the
accused to let her go, he told him to stay there for further four
days and clean the floor as it is for her the entire rituals were
arranged. The accused/appellant again made her sit for the pooja
and then he gave some rice, flower and coal pieces to be
immersed. After immersion when she got back, the other accused
persons namely Devchand and Pala confined her to a room for
pooja saying that the accused/appellant had come under theinfluence of divine power. Thereafter, accused/appellant gave her
rice to eat and then took her near a tree, removed her clothes and
committed forcible sexual intercourse with her and threatened her
saying that if she disclosed the incident to her husband and
parents-in-law, she would die naked. Accused/appellant then took
her to his house and offered food. Thereafter, he again took her to
a Mahua tree and committed forcible sexual intercourse with her
and then after leaving her there he got back. On the next day, she
went to her house and narrated the incident to her husband and
mother-in-law and then the report was lodged. In crossexamination
also this witness has stated the same thing as in the
examination-in-chief. Jagat Ram Mandavi (PW-3) – the husband of
the prosecutrix has stated that he along with his wife had gone to
the house of the accused/appellant for the observance of certain
rituals and as asked by the accused/appellant his father was also
brought there. After the ritual was over, the accused/appellant
gave him a piece of black cloth and asked him to immerse the
same and then move ahead whereas his wife (prosecutrix) was
asked to stay there for further four days. According to this witness,
he again went to the house of the accused in the next morning as
was asked by him and after pooja he took her with him and then
she told him that after taking her to a jungle the accused/appellant
removed her clothes and committed forcible sexual intercourse
with her twice. In cross-examination also this witness has stated
the same thing as in the examination-in-chief. Astari (PW-4) – the
father-in-law of the prosecutrix has stated the same thing as Jagat
Ram Mandavi (PW-3). According to him, his son told him that theaccused/appellant committed forcible sexual intercourse with the
prosecutrix in his house. Dr. B.P. Ekka (PW-1) is the witness who
medically examined the prosecutrix and gave her report Ex. P-1
stating that she did not notice any external or internal injury on her
body and no opinion regarding forcible sexual intercourse with her
could be given. Dr. Lekhan Juri (PW-6) is the witness who medically
examined the accused/appellant and gave his report Ex. P-2
stating that he was capable of performing sexual intercourse.
Rajesh Agrawal (PW-7) is the investigating officer who has duly
supported the case of the prosecution. Sandip Chandrakar (PW-8)
is the witness who assisted in the investigation.
9. Examination of the material available on record including
the evidence of the prosecutrix goes to show that the
accused/appellant allured the prosecutrix to his house on the
pretext of some rituals and then after taking her to the nearby
jungle in the night house committed forcible sexual intercourse
with her twice. Though there are some variations in the version of
the prosecutrix yet on material particulars such as commission of
forcible sexual intercourse with her, she remained absolutely
consistent. Evidence of the prosecutrix is corroborated by her
husband and father-in-law who had also been to the house of the
accused but got back in the evening as per the instructions of the
accused/appellant. There is no reason for this Court to disbelieve
the evidence of the prosecutrix as it appears to be consistent and
trustworthy. Court below has not committed any illegality in
convicting the accused/appellant under Sect9ion 376 IPC and the
same is hereby affirmed.10. As regards conviction under Section 3 (1) (xii) of the
Special Act, the prosecution has not filed and proved any
document to show that the prosecutrix belongs to scheduled tribe
category. In his 313 Cr.P.C. statement the accused/appellant has
denied that he had the knowledge that the prosecutrix was a
member of scheduled tribe community. Furthermore, the
prosecution has not been able to prove that the accused/appellant
had dominated the will of the prosecutrix and used his position to
exploit her sexually simply because she belonged to the scheduled
tribe community. Being this, conviction under Section 3 (1) (xii) of
the Special Act is not in accordance with law and the appellant is
entitled for acquittal of the same.
11. Thus conviction of the accused/appellant under Section
376 IPC is hereby maintained whereas he is acquitted of the charge
u/s 3 (1) (xii) of the Special Act.
12. As regards sentence, keeping in mind the fact that the
minimum sentence provided for the offence u/s 376 IPC is RI for
seven years and as the appellant has already remained in jail for
about seven years and six months, this Court deems it just and
proper to reduce the same to the period already undergone by
him. Order accordingly.
13. As the appellant is in jail, he be set free forthwith if not
required in any other case.
14. Appeal allowed in part.
Sd/-
(Pritinker Diwaker)
Print Page
Special Act, the prosecution has not filed and proved any
document to show that the prosecutrix belongs to scheduled tribe
category. In his 313 Cr.P.C. statement the accused/appellant has
denied that he had the knowledge that the prosecutrix was a
member of scheduled tribe community. Furthermore, the
prosecution has not been able to prove that the accused/appellant
had dominated the will of the prosecutrix and used his position to
exploit her sexually simply because she belonged to the scheduled
tribe community. Being this, conviction under Section 3 (1) (xii) of
the Special Act is not in accordance with law and the appellant is
entitled for acquittal of the same.
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 568 of 2010
Bhalchand Tiwari
V
State Of Chhattisgarh
Dated:12/04/2016
Citation: 2016 CRLJ(NOC)265 Chh
This appeal is directed against the judgment and order dated
04.06.2010 passed by Sessions Judge (Atrocities) Bastar at
Jagdalpur, in Sessions Trial No. 131/2008 convicting the
accused/appellant under Sections 376 (1) IPC and 3 (1) (xii) of the
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act
(for short the “Special Act”) and sentencing him to undergo
rigorous imprisonment for ten years with fine of Rs. 1000/- u/s 376
(1) IPC and rigorous imprisonment for five years with fine of Rs.
1000/- u/s 3 (1) (xii) of the Special Act, plus default stipulations.
2. Case of the prosecution in brief is that on 15.7.2008 FIR (Ex.
P-13) was lodged by the prosecutrix (PW-8) alleging that on
11.7.2008 (Friday) she had gone to the house of her father to
attend a wedding ceremony and some days thereafter i.e. onSunday her husband Jagat Ram Mandavi and the accused/appellant
also came there to take her back. When she along with her
husband was going on the motorcycle of the accused/appellant, he
stopped the motorcycle near his house at village Bhumka and after
taking her husband inside told him that if they (prosecutrix and her
husband) wanted to give up liquor, observance of some rituals
(Pooja path) was to be done that very day. Accused/appellant also
asked her husband to get his father for the said ritual and after his
arrival he made both of them sit in a room and got the said ritual
done at about 7 in the evening and thereafter he gave them a
piece of red cloth, vermilion and coal pieces to be dropped at a
triangular path and move ahead without looking back. After her
husband and father-in-law got away, the accused/appellant asked
her to stay in his house for four days to light the lamp and clean
the place of ritual and saying that he took her to the Pooja room,
gave her coal pieces and vermilion to be thrown into the jungle.
When she refused to accompany him to jungle, maid servants of
the accused/appellant forced her to do so. Thereafter, at 8 PM she
went to the jungle along with the accused/appellant where under a
tree he made her lie and after removing her clothes committed
forcible sexual intercourse with her on the point of knife and
threatened her saying that if she disclosed the same to anyone,
entire observance of ritual would be futile and for that she kept
quiet. Second day also he took her to the jungle and did the same
act. On 14.7.2008 her husband came and took her back and on the
way she narrated the entire incident to him and after reaching
home to her mother-in-law also and then the report was lodged.Based on the said report, offences under Section 376/34 IPC and 3
(1) (xii) of the Special Act were registered against the
accused/appellant. She was medically examined on 16.7.2008 by
Dr. B.P. Ekka (PW-1) who gave her report Ex. P-1 stating that she
did not notice any external or internal injury on her body and no
definite opinion regarding forcible sexual intercourse could be
given. After completion of investigation, charge sheet was filed
against the present appellant and others for the offence punishable
under Sections 376/34 IPC and 3 (1) (xii) of the Special Act. Court
below however discharged the other accused persons and framed
the charges against the accused/appellant as mentioned above.
3. So as to hold the accused/appellant guilty, prosecution has
examined 08 witnesses in support of its case. Statement of the
accused/appellant was also recorded under Section 313 of the
Code of Criminal Procedure in which he denied the charges levelled
against him and pleaded his innocence and false implication in the
case.
4. After hearing the parties, the trial Court has convicted and
sentenced the accused/appellant as mentioned above in paragraph
No.1 of this judgment.
5. Counsel for the accused/appellant submits that she is not
pressing this appeal as far as conviction of the accused/appellant is
concerned and confines her argument to the sentence part thereof
only. She submits that as the appellant is in jail since 21.7.2008
and thereby completed the imprisonment of about 7 years and 6
months, taking a lenient view his jail sentence may be reduced to
the period already undergone.6. On the other hand, counsel for the respondent/State supports
the judgment impugned and submits that the findings recorded by
the Court below convicting and sentencing the accused/appellant
as has been mentioned above are strictly in accordance with law
and there is no infirmity in the same.
7. Heard counsel for the parties and perused the evidence on
record.
8. Prosecutrix (PW-2) has stated that when she had gone to
her father's house to attend the marriage of her younger brother,
accused/appellant also came there and asked her to accompany
him as her parents-in-law were not well but she refused to do so.
Thereafter, he again came there in the evening and on the same
pretext he took her with him to his house at village Palli on
motorcycle. The accused/appellant then is stated to have told her
husband that his wife (prosecutrix) and father were overpowered
by some evil spirit, and therefore asked him to go and get his
father. After her husband got back with his father, the
accused/appellant performed some ritual and after it was over he
sent her husband and father-in-law to go for immersing the
remnants of the ritual. According to her, when she asked the
accused to let her go, he told him to stay there for further four
days and clean the floor as it is for her the entire rituals were
arranged. The accused/appellant again made her sit for the pooja
and then he gave some rice, flower and coal pieces to be
immersed. After immersion when she got back, the other accused
persons namely Devchand and Pala confined her to a room for
pooja saying that the accused/appellant had come under theinfluence of divine power. Thereafter, accused/appellant gave her
rice to eat and then took her near a tree, removed her clothes and
committed forcible sexual intercourse with her and threatened her
saying that if she disclosed the incident to her husband and
parents-in-law, she would die naked. Accused/appellant then took
her to his house and offered food. Thereafter, he again took her to
a Mahua tree and committed forcible sexual intercourse with her
and then after leaving her there he got back. On the next day, she
went to her house and narrated the incident to her husband and
mother-in-law and then the report was lodged. In crossexamination
also this witness has stated the same thing as in the
examination-in-chief. Jagat Ram Mandavi (PW-3) – the husband of
the prosecutrix has stated that he along with his wife had gone to
the house of the accused/appellant for the observance of certain
rituals and as asked by the accused/appellant his father was also
brought there. After the ritual was over, the accused/appellant
gave him a piece of black cloth and asked him to immerse the
same and then move ahead whereas his wife (prosecutrix) was
asked to stay there for further four days. According to this witness,
he again went to the house of the accused in the next morning as
was asked by him and after pooja he took her with him and then
she told him that after taking her to a jungle the accused/appellant
removed her clothes and committed forcible sexual intercourse
with her twice. In cross-examination also this witness has stated
the same thing as in the examination-in-chief. Astari (PW-4) – the
father-in-law of the prosecutrix has stated the same thing as Jagat
Ram Mandavi (PW-3). According to him, his son told him that theaccused/appellant committed forcible sexual intercourse with the
prosecutrix in his house. Dr. B.P. Ekka (PW-1) is the witness who
medically examined the prosecutrix and gave her report Ex. P-1
stating that she did not notice any external or internal injury on her
body and no opinion regarding forcible sexual intercourse with her
could be given. Dr. Lekhan Juri (PW-6) is the witness who medically
examined the accused/appellant and gave his report Ex. P-2
stating that he was capable of performing sexual intercourse.
Rajesh Agrawal (PW-7) is the investigating officer who has duly
supported the case of the prosecution. Sandip Chandrakar (PW-8)
is the witness who assisted in the investigation.
9. Examination of the material available on record including
the evidence of the prosecutrix goes to show that the
accused/appellant allured the prosecutrix to his house on the
pretext of some rituals and then after taking her to the nearby
jungle in the night house committed forcible sexual intercourse
with her twice. Though there are some variations in the version of
the prosecutrix yet on material particulars such as commission of
forcible sexual intercourse with her, she remained absolutely
consistent. Evidence of the prosecutrix is corroborated by her
husband and father-in-law who had also been to the house of the
accused but got back in the evening as per the instructions of the
accused/appellant. There is no reason for this Court to disbelieve
the evidence of the prosecutrix as it appears to be consistent and
trustworthy. Court below has not committed any illegality in
convicting the accused/appellant under Sect9ion 376 IPC and the
same is hereby affirmed.10. As regards conviction under Section 3 (1) (xii) of the
Special Act, the prosecution has not filed and proved any
document to show that the prosecutrix belongs to scheduled tribe
category. In his 313 Cr.P.C. statement the accused/appellant has
denied that he had the knowledge that the prosecutrix was a
member of scheduled tribe community. Furthermore, the
prosecution has not been able to prove that the accused/appellant
had dominated the will of the prosecutrix and used his position to
exploit her sexually simply because she belonged to the scheduled
tribe community. Being this, conviction under Section 3 (1) (xii) of
the Special Act is not in accordance with law and the appellant is
entitled for acquittal of the same.
11. Thus conviction of the accused/appellant under Section
376 IPC is hereby maintained whereas he is acquitted of the charge
u/s 3 (1) (xii) of the Special Act.
12. As regards sentence, keeping in mind the fact that the
minimum sentence provided for the offence u/s 376 IPC is RI for
seven years and as the appellant has already remained in jail for
about seven years and six months, this Court deems it just and
proper to reduce the same to the period already undergone by
him. Order accordingly.
13. As the appellant is in jail, he be set free forthwith if not
required in any other case.
14. Appeal allowed in part.
Sd/-
(Pritinker Diwaker)
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