Chattisgarh High Court
State Of Chhattisgarh vs Puneshwar Yadav on 23 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
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2026:CGHC:18594
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 718 of 2016
Puneshwar Yadav S/o Chhabilal Yadav, Aged About 32 Years R/o Village
Donar - Deori, Police Station And Post Kurud, Civil And Revenue District
Dhamtari Chhattisgarh, Chhattisgarh
--- Appellant
versus
State Of Chhattisgarh Through Police Station Kurud, Civil And Revenue
District Dhamtari Chhattisgarh , Chhattisgarh
--- Respondent
For Appellant : Mr. Kunal Das, Advocate
For Respondent/State : Mr. Nitansh Jaiswal, Deputy Govt. Advocate
ACQA No. 7 of 2021
State Of Chhattisgarh Through The Police Station Kurud, Dhamtari District-
Dhamtari (Cg.), District : Dhamtari, Chhattisgarh
---Petitioner
Versus
Puneshwar Yadav S/o Chhabi Lal Yadav Aged About 32 Years R/o Village-
Donar-Devari, P.S. Kurud, District- Dhamtari (C.G.), District : Dhamtari,
Chhattisgarh
VED --- Respondent
PRAKASH
DEWANGAN
Digitally signed
by VED PRAKASH For Appellant/State : Mr. Nitansh Jaiswal, Deputy Govt. Advocate
DEWANGAN
Date: 2026.05.05
17:27:49 +0530
For Respondent : Mr. Kunal Das, Advocate
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Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
23/04/2026
1. Both these appeals, namely, Acquittal Appeal No. 07 of 2021
preferred by the State of Chhattisgarh and Criminal Appeal No. 718
of 2016 preferred by the appellant-accused Puneshwar Yadav, arise
out of Crime No. 418/2015 and the common judgment of conviction
and order of sentence dated 12.05.2016 passed by the learned
Special Judge, SC/ST (Prevention of Atrocities) Act, Dhamtari, in
Special Sessions Trial No. 05/2016. As both the appeals emanate
from the same judgment, they are being heard analogously and are
being decided by this common judgment.
2. Both these appeals arise out of the judgment dated 12.05.2016,
passed by the learned Special Judge, Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, Dhamtari (C.G.), in
Special Sessions Trial No. 05/2016, whereby the appellant/accused
Puneshwar Yadav has been convicted and sentenced in the following
manner:
Conviction Sentence
Section 354 of IPC R.I. for 03 years and fine of Rs.
1,000/-, in default of payment of
fine, additional S.I. for 03 months.
Section 3(1)(xi) of the Scheduled R.I. for 03 years and fine of Rs.
Castes and Scheduled Tribes 1,000/-, in default of payment of
(Prevention of Atrocities) Act, fine, additional S.I. for 03 months.
1989.
All the sentences are directed to run concurrently.
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******* It is pertinent to note that by the same impugned judgment,
the appellant/accused stood acquitted of the charges leveled under
Sections 376 and 506-B of the IPC and Sections 3(1)(xii) and 3(2)(v)
of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (in short 'SC/ST Act'), against which the State
has filed the acquittal appeal.
3. The prosecution case, in brief, is that on 28.10.2015, at about 2:00
PM, the victim (PW-5) had gone to her newly constructed house
situated in Village Donar-Devari for the purpose of cleaning. After
cleaning, she proceeded to a nearby bore-well to take a bath. While
returning to the house to keep a bucket, the accused, Puneshwar
Yadav, approached her on the pretext of seeing the newly
constructed house and followed her inside. It is alleged that once
inside, the accused caught hold of the victim, forcibly dragged her
into a room, and committed sexual intercourse with her against her
will. When the victim raised alarm and threatened to inform her
husband, the accused allegedly extended a threat to her life. At that
juncture, the husband of the victim (PW-6), reached the spot, upon
which the accused fled from the scene. The victim thereafter narrated
the incident to her husband, and a report was lodged at Police
Station Kurud, on the basis of which the First Information Report
(Exhibit P-8) was registered for offences under Sections 376 and 506
of the IPC and Section 3(1)(xii) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
4. During the course of investigation, the spot map (Exhibit P-10) was
prepared. The victim consented to her medical examination and was
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examined by Dr. Heena Ahmed (PW-2), who prepared the medical
report (Exhibit P-3). The accused was arrested vide arrest memo
(Exhibit P-14) and was medically examined by Dr. J.P. Diwan (PW-1),
whose report is Exhibit P-1. The Saree and Petticoat of the victim
were seized vide seizure memo (Exhibit P-5), and the underwear of
the accused was seized vide seizure memo (Exhibit P-6). The seized
articles were sent for forensic examination, and the FSL report
(Exhibit P-16) was obtained. The caste certificate of the victim
(Exhibit P-7) was also seized vide seizure memo (Exhibit P-11).
During further investigation, Section 3(2)(v) of the SC/ST Act was
added.
5. Statements of the witnesses were recorded under Section 161 of the
Code of Criminal Procedure. Upon completion of investigation, a
charge-sheet was filed before the Judicial Magistrate First Class,
Dhamtari, who committed the case to the Court of the Special Judge
(SC/ST Act), Dhamtari for its trial. The learned Trial Court framed
charges against the accused under Sections 376 and 506-B of the
IPC and Sections 3(1)(xii) and 3(2)(v) of the SC/ST Act. The accused
abjured guilt and claimed to be tried.
6. In order to bring home the charges, the prosecution examined 08
witnesses. The statement of the accused under Section 313 of the
Code of Criminal Procedure was recorded, wherein he denied all
incriminating circumstances, pleaded innocence, and claimed false
implication. The defence did not adduce any evidence.
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7. Upon appreciation of the oral and documentary evidence, the learned
Trial Court, by the impugned judgment, acquitted the accused of the
charges under Sections 376 and 506-B of the IPC and Sections 3(1)
(xii) and 3(2)(v) of the SC/ST Act. However, the accused was
convicted for the offence under Section 354 of the IPC and Section
3(1)(xi) of the SC/ST Act and sentenced accordingly. Aggrieved
thereby, the State has preferred Acquittal Appeal No. 07 of 2021, and
the accused has preferred Criminal Appeal No. 718 of 2016. Both
these appeals are, therefore, before this Court.
8. Mr. Nitansh Jaiswal, learned counsel appearing for the State (in
ACQA No. 07 of 2021) would submit that the learned trial Court has
erred in acquitting the respondent/accused of the charge under
Sections 376 and 506-B (506 Part-II) of the IPC. It is submitted that
the testimony of the victim (PW-5) is consistent and inspires
confidence with regard to the use of force and absence of consent. It
is a settled principle of law that conviction in cases of sexual assault
can be based on the sole testimony of the victim if it is found to be
trustworthy. The Trial Court, according to the State, has failed to
appreciate that minor discrepancies or absence of physical injuries
do not discredit the testimony of the victim. It is further submitted that
the presence of PW-6 at the spot, who is the husband of the victim,
and his statement that he saw the accused fleeing from the spot
lends corroboration to the version of the victim. In the FSL report
(exhibit P-16), semen and sperm were found on the vaginal slides of
the victim and semen slide of the appellant. The prompt lodging of
the report also corroborates the allegation made by the victim against
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the appellant. The learned trial Court merely on the basis of absence
of injuries on the body of the victim acquitted the accused from the
offence of Section 376 of IPC and convicted under Section 354 of
IPC, whereas there is positive evidence that, she was subjected to
rape by the appellant. Hence, the acquittal of the accused under
Sections 376 and 506-B of the IPC and Sections 3(1)(xii) and 3(2)(v)
of SC/ST Act is liable to be set aside and he may be convicted for the
said offences.
9. Learned State counsel would also submit that the conviction of the
appellant under Section 354 of IPC instead of Section 376 of IPC is
without any foundation and based on misappreciation of evidence.
When the victim specifically alleged the offence of rape and the
ingredients of the offence of rape has been satisfied, there is no
reason to convict the accused for the offence under Section 354 of
IPC. Likewise, there is no reasoning for convicting the accused for
the offence under Section 3(1)(xi) of SC/ST Act, instead of Section
3(1)(xii) and 3(2)(v) of SC/ST Act. Therefore, in view of the acquittal
appeal filed by the State, in which the State claimed for conviction of
the appellant under Section 376 of IPC and 3(1)(xii) and 3(2)(v) of
SC/ST Act, the CRA No. 718 of 2016 filed by the appellant against
his conviction under Sections 354 of IPC and 3(1)(xi) of the SC/ST
Act is liable to be disposed of.
10. In reply, Mr. Kunal Das, learned counsel appearing for the appellant-
Puneshwar Yadav in CRA No. 718 of 2016 and respondent in ACQA
No. 7 of 2021 opposes the submissions made by the learned State
counsel and submits that the learned trial Court has erred in
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convicting the appellant for the offence under Section 354 of IPC and
3(1)(xi) of SC/ST Act. From the evidence of the victim (PW-5) and
also from the evidence of her husband (PW-6), no offence as alleged
against him are made out. There is no injury found on the body of the
victim and there is no sign of any protest. The evidence of the victim,
her husband and other witnesses are full of omissions and
contradictions and they are inconsistent. The learned trial Court has
not found the offence of Section 376 of the IPC or Section 3(1)(xii)
and Section 3(2)(v) of SC/ST Act proved against the accused and
thus the ingredients of the offence of Section 354 of IPC or 3(1)(xi) of
SC/ST Act are missing. There is no charge framed under the said
offences by the learned trial Court and in absence of specific charge,
the accused cannot be held guilty. The victim is a married lady and
presence of semen and sperm in her vaginal slides is quite possible
and in absence of any DNA report to match the semen and sperm of
the vaginal slides with that of the accused's semen and sperm, the
same cannot be considered to be a clinching evidence against the
accused. The conduct of the victim is highly suspicious and sufficient
to hold that no offence as alleged by her was taken place. There is
no sign of any protest or injury found on the body of the victim, which
makes her evidence doubtful, therefore, the conviction and sentence
of the appellant is liable to be set aside.
11. He would also submit that the learned trial Court by giving him benefit
of doubt acquitted the accused from the offence of Section 376 of
IPC and Sections 3(1)(xii) and 3(2)(v) of SC/ST Act. In the appeal
against acquittal, the law is well settled that the scope of interference
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in an acquittal appeal is very limited and unless it is found that the
view taken by the trial Court is perverse, it is not permissible to
interfere with the finding of acquittal, even if two views are possible,
therefore, by giving the accused benefit of doubt, the view which was
in his favour have been taken into consideration by the learned trial
Court and therefore, there is no merit in the acquittal appeal filed by
the State and the same is liable to be dismissed.
12. We have heard learned counsel for the respective parties in both the
appeals and considered their rival submissions made herein above
and also gone through the records of the trial court with utmost
circumspection.
ACQA No. 7 of 2021
13. The question for consideration is whether the learned trial Court has
rightly acquitted the accused of the charges under Sections 376,
506-B of IPC and Sections 3(1)(xii) and 3(2)(v) of the SC/ST Act
despite the presence of testimony of the victim (PW-5) along with
other materials available on record.
14. This is an appeal against the judgment of acquittal filed by the State.
The appellate courts are required to keep in mind that the trial Court
had the advantage of looking at the demeanor of the witnesses and
observing their conduct in the Court specially in witness box and also
required to keep in mind that even at that stage, the accused was
entitled to benefit of doubt. The doubt should be such as, a
reasonable person would honestly and conscientiously entertained
as to the guilt of the accused.
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15. The Supreme Court in C. Antony v. Raghavan Nair, AIR 2003 SC
182 has held that unless the High Court arrives at definite conclusion
that the findings recorded by trial Court are perverse, it would not
substitute its own view on a totally different perspective.
16. The Supreme Court in Ramanand Yadav v. Prabhunath Jha, AIR
2004 SC 1053 has held that the appellate Court in considering the
appeal against judgment of acquittal is to interfere only when there
are compelling and substantial reasons for doing so. If the impugned
judgment is clearly unreasonable and relevant and convincing
materials have been unjustifiably eliminated in the process, it is a
compelling reason for interference.
17. The scope of interference in appeal against the judgment of acquittal
is well settled. In Tota Singh and another v. State of Punjab, AIR
1987 SC 1083 the Supreme Court has held in para 6 as under:-
"6...........the mere fact that the Appellate Court is
inclined on a reappreciation of the evidence to
reach a conclusion which is at variance with the
one recorded in the order of acquittal passed by
the Court below will not constitute a valid and
sufficient ground for setting aside the acquittal.
The jurisdiction of the appellate Court in dealing
with an appeal against an order of acquittal is
circumscribed 11 by the limitation that no
interference is to be made with the order of
acquittal unless the approach made by the lower
Court to the consideration of the evidence in the
case is vitiated by some manifest illegality or the
conclusion recorded by the Court below is such
which could not have been possibly arrived at by
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any Court acting reasonably and judiciously and
is, therefore, liable to be characterised as
perverse. Where two views are possible on an
appraisal of the evidence adduced in the case
and the Court below has taken a view which is a
plausible one, the Appellate Court cannot legally
interfere within an order of acquittal even if it is of
the opinion that the view taken by the Court
below on its consideration of the evidence is
erroneous."
18. While exercising the appellate jurisdiction against judgment of
acquittal the High Courts or the appellate Courts are fully empowered
to appreciate and reappreciate the evidence adduced on behalf of
the parties while reversing the judgment of the trial Court. The
appellate Court is required to discuss the grounds given by the trial
Court to acquit the accused and then to dispel those reasons.
19. The question for consideration before us is whether the respondent
committed rape on the victim, knowing fully well that she belongs to
the Scheduled Caste category?
20. Rape has been defined in Section 375 of the IPC as follows:
"375. Rape.-- A man is said to commit "rape" if
he--
(a) penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person;
or
(b) inserts, to any extent, any object or a part of
the body, not being the penis, into the vagina, the
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urethra or anus of a woman or makes her to do
so with him or any other person; or
(c) manipulates any part of the body of a woman
so as to cause penetration into the vagina,
urethra, anus or any part of body of such woman
or makes her to do so with him or any other
person; or
(d) applies his mouth to the vagina, anus, urethra
of a woman or makes her to do so with him or
any other person,
under the circumstances falling under any of the
following seven descriptions:
First. Against her will.
Secondly. Without her consent.
Thirdly. With her consent, when her consent has
been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt.
Fourthly. With her consent, when the man knows
that he is not her husband and that her consent is
given because she believes that he is another
man to whom she is or believes herself to be
lawfully married.
Fifthly. With her consent when, at the time of
giving such consent, by reason of unsoundness
of mind or 13 intoxication or the administration by
him personally or through another of any
stupefying or unwholesome substance, she is
unable to understand the nature and
consequences of that to which she gives consent.
Sixthly. With or without her consent, when she is
under eighteen years of age.
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Seventhly. When she is unable to communicate
consent.
Explanation 1. For the purposes of this section,
"vagina" shall also include labia majora.
Explanation 2. Consent means an unequivocal
voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal
communication, communicates willingness to
participate in the specific sexual act:
Provided that a woman who does not physically
resist to the act of penetration shall not by the
reason only of that fact, be regarded as
consenting to the sexual activity.
Exception 1. A medical procedure or intervention
shall not constitute rape.
Exception 2. Sexual intercourse or sexual acts by
a man with his own wife, the wife not being under
fifteen years of age, is not rape."
21. In the light of aforesaid dictum and proposition of law, we have
examined the evidence adduced on behalf of the prosecution.
22. The victim has been examined as PW-5 in the present case. She
stated in her evidence that she belongs to Gond caste and the
appellant knew her caste. On 28.10.2015, she had gone to her new
house at about 11:00 a.m. for its cleaning and after its cleaning she
had gone to hand-pump to take a bath. When she returning back to
her house, the appellant came there had entered into her house,
when she asked him to came out from the house, as she was to
locked her house, the accused dragged her inside towards the
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kitchen, she raised an alarm and protested. Despite her protest and
made efforts to get out from the clutches, she could not succeed and
the accused committed rape upon her forcefully. At the same time,
after hearing her commotion, her husband came there and caught
hold the accused, but he after pushing him, fled away from the place.
She informed the incident to her husband and other family members
and thereafter lodged the FIR, which is exhibit P-8. She was sent for
her medical examination to the hospital and police proceedings were
started. In cross-examination she stated that, in the hand-pump,
except her there was no villager present. She has no relation with the
accused. After taking a bath at hand-pump, when she was returning
to her new house, the accused entered into her house ahead of her.
At that time also, she raised alarm as to why he entering into her
house, but he does not come out. She has a bucket in her hand, but
could not make any assault, because the accused caught hold her
both the hands. The defence has given a suggest that, when she
was inside her house, she herself called the accused, which she
denied. In further cross-examination, she stated that she could not
disclose as to the length of time for which the accused committed
rape upon her. She voluntarily stated that she consistently raising her
alarm as 'bachao-bachao'. In para 11, 13, 14, 15 and 16, the defence
has given a suggestion that she herself called the accused inside the
house and forced him to make physical relation with her, but it is the
accused, who denied for the same and at the same time, when the
accused coming out from her house, her husband came there and
saw the accused there.
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23. Though some minor discrepancies in the FIR was also suggested,
but she explained the same. From the evidence of the victim, the
accused could not be able to extract any material which makes her
evidence doubtful. From the suggestion given by the defence in her
cross-examination, clearly spells about commission of the sexual
intercourse by the accused with the victim. The defence have
suggested that it was the victim, on whose instance the sexual
intercourse was performed by the accused, which she denied. In her
evidence, she consistently stated that she was raising alarm, the
appellant caught hold her both the hands, therefore, she could not
protested and after commission of the offence, he went away from
the place. After hearing her alarm, her husband came there and after
pushing her husband, the accused fled away.
24. The Hon'ble Supreme Court in the matter of Balusudan Khalde v.
State of Maharashtra, 2023 SCC Online, 355, has held that:-
"32. We noticed that in the cross-examination of
the original first informant, PW 1 Asgar Shaikh
(Exh.7), few suggestions were put to him by the
defence counsel. We quote the relevant part of
the cross-examination of the first informant:
"The attack on us was sudden. The first
blow was hit on my head. I was assaulted
severely on the head. Due to assault, I
suffered a bleeding injury. It is not true that
I felt giddy due to assault. Yes I however
suffered pain. At that time, I did not feel that
I should save my life. I did not feel that I
should run away or I should try to hide
myself. I went towards the side of Lohiya
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Nagar Police Chowkey. I did feel that I was
being assaulted without any reason. Abbas
was screaming while he was being
assaulted. ..."
33. We are of the view from the aforesaid that the
suggestions put by the defence counsel in the
cross-examination of the eyewitnesses
establishes the presence of PW 1 Asgar Shaikh
at the scene of offence and the factum of assault
could also be said to have been admitted. The
reply to the suggestions answers the submission
canvassed by the learned counsel for the
appellants that PW1 Asgar Shaikh should not be
believed or relied upon as there is nothing on
record to indicate that he was an injured
eyewitness. The defence could be said to have
admitted the presence of PW Asgar Shaikh.
When the aforesaid part of the cross-examination
of PW1 Asgar Shaikh was brought to the notice of
the defence counsel, he submitted that a
suggestion put by defence counsel to a witness in
his cross-examination has no evidentiary value
and even if the same is incriminating in any
manner would not bind the accused as the
defence counsel has no implied authority to admit
the guilt of the facts incriminating the accused.
34. According to the learned counsel such
suggestions could be a part of the defence
strategy to impeach the credibility of the witness.
The proof of guilt required of the prosecution
does not depend on the satisfaction made to a
witness.
35. In Tarun Bora alias Alok Hazarika v. State of
Assam reported in 2002 Cri. LJ 4076, a three
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Judge Bench of this Court was dealing with an
appeal against the order passed by the
Designated Court, Guwahati, in TADA Sessions
case wherein the appellant was convicted under
Section 365 of the IPC read with Section 3(1) and
3(5) of the Terrorists and Disruptive Activities
(Prevention) Act, 1987.
36. In Tarun Bora case, this Court, while
considering the evidence on record took note of a
suggestion which was put to one of the witnesses
and considering the reply given by the witness to
the suggestion put by the accused, arrived at the
conclusion that the presence of the accused was
admitted. We quote with profit the following
observations made by this Court in paragraphs
15, 16 and 17 resply as under:
"15. The witness further stated that during
the assault, the assailant accused him of
giving information to the army about the
United Liberation Front of Assam (ULFA).
He further stated that on the third night he
was carried away blind-folded on a bicycle
to a different place and when his eyes were
unfolded, he could see his younger brother-
Kumud Kakati (P.W.- 2) and his wife Smt.
Prema Kakati (P.W.-3). The place was
Duliapather, which is about 6-7 kms. away
from his village Sakrahi. The witness
identified the appellant-Tarun Bora and
stated that it is he who took him in an
ambassador car from the residence of
Nandeswar Bora on the date of the
incident.
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16. In cross-examination the witness stated
as under:
"Accused Tarun Bora did not blind my eyes
nor he assaulted me."
17. This part of cross-examination is
suggestive of the presence of accused
Tarun Bora in the whole episode. This will
clearly suggest the presence of the
accused-Tarun Bora as admitted. The only
denial is the accused did not participate in
blind-folding the eyes of the witness nor
assaulted him."
37. In Rakesh Kumar alias Babli v. State of
Haryana reported in (1987) 2 SCC 34, this Court
was dealing with an appeal against the judgment
of the High Court affirming the order of the
Sessions Judge whereby the appellant and three
other persons were convicted under Section 302
read with Section 34 of the IPC. While
reappreciating the evidence on record, this Court
noticed that in the cross-examination of the PW 4,
Sube Singh, a suggestion was made with regard
to the colour of the shirt worn by one of the
accused persons at the time of the incident. This
Court taking into consideration the nature of the
suggestion put by the defence and the reply
arrived at the conclusion that the presence of the
accused namely Dharam Vir was established on
the spot at the time of occurrence. We quote the
following observations made by this Court in
paragraphs 8 and 9 respectively, as under:
"8. PW 3, Bhagat Singh, stated in his
examination-in-chief that he had identified
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the accused at the time of occurrence. But
curiously enough, he was not cross-
examined as to how and in what manner he
could identify the accused, as pointed out
by the learned Sessions Judge. No
suggestion was also given to him that the
place was dark and that it was not possible
to identify the assailants of the deceased.
9. In his cross-examination, PW 4, Sube
Singh, stated that the accused Dharam Vir,
was wearing a shirt of white colour. It was
suggested to him on behalf of the accused
that Dharam Vir was wearing a shirt of
cream colour. In answer to that suggestion,
PW 4 said: "It is not correct that Dharam Vir
accused was wearing a shirt of cream
colour and not a white colour at that time."
The learned Sessions Judge has rightly
observed that the above suggestion at
least proves the presence of accused
Dharam Vir, on the spot at the time of
occurrence."
38. Thus, from the above it is evident that the
suggestion made by the defence counsel to a
witness in the cross-examination if found to be
incriminating in nature in any manner would
definitely bind the accused and the accused
cannot get away on the plea that his counsel had
no implied authority to make suggestions in the
nature of admissions against his client.
39. Any concession or admission of a fact by a
defence counsel would definitely be binding on
his client, except the concession on the point of
law. As a legal proposition we cannot agree with
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the submission canvassed on behalf of the
appellants that an answer by a witness to a
suggestion made by the defence counsel in the
cross-examination does not deserve any value or
utility if it incriminates the accused in any
manner."
25. PW-6 is the husband of the victim, he stated in his evidence that on
the date of incident, at about 2:00 p.m. when he had gone to his old
house, he was being informed that, his wife had gone to new house
for its cleaning. When he went towards his new house, he saw the
clothes of his wife near hand-pump and when he proceeded towards
his new house, he heard the commotion of his wife. He saw the
accused committing rape upon his wife and he got them separated,
and thereafter the accused fled away from the place. His wife
informed about the incident and then after informing his parents, they
had gone to police station for lodging of the report. In his cross-
examination, he stated that the accused did not visit his house and
he is not acquainted with him. He denied the suggestion given by the
defence that, when he reached to his new house, the accused was
standing on the gate and his wife informed him that she called him.
He also denied that, his wife has not informed about any incident of
rape and he forced her to lodge report against the accused. He also
denied the suggestion that, his wife is having love affair with the
accused and also denied that he witnessed the incident and
therefore, he made false report by pressurizing his wife.
26. The learned trial Court ignoring the contents of the evidence of PW-5
and PW-6, only on the basis of the fact that no injury has been found
20
on the body of the victim and the semen and sperms were not found
on the clothes of the accused, acquitted the accused from the
offence of Section 376 of IPC, but has convicted the accused for
outraging her modesty. The reason for acquitting the accused from
the offence under Section 376 of IPC is only that, no injuries were
found on the body of the victim.
27. It is well settled that the absence of injuries on the body of the victim
is not sufficient to acquit the accused from the offence of Section 376
of the IPC, as has been held by the Hon'ble Supreme Court in the
matter of State of U.P. v. Chhoteylal, AIR 2011 SC 697. In para 25
Hon'ble Supreme Court has held as under:
"25. Although the lady doctor PW-5 did not find
any injury on the external or internal part of body
of the prosecutrix and opined that the prosecutrix
was habitual to sexual intercourse, we are afraid
that does not make the testimony of the
prosecutrix unreliable. The fact of the matter is
that the prosecutrix was recovered almost after
three weeks. Obviously the sign of forcible
intercourse would not persist for that long period.
It is wrong to assume that in all cases of
intercourse with the women against will or without
consent, there would be some injury on the
external or internal part of the victim. The
prosecutrix has clearly deposed that she was not
in a position to put up any struggle as she was
taken away from her village by two adult males.
The absence of injuries on the person of the
prosecutrix is not sufficient to discredit her
evidence; she was a helpless victim. She did not
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and could not inform the neighbours where she
was kept due to fear."
28. Similarly, dealing with the identical issue in the matter of Dastgir
Saab v. State of Karnataka, 2004 (3) SCC 106, the Hon'ble
Supreme Court has held that:
"26. Injury on the body of the person of the victim
is not a sine qua non to prove a charge of rape.
Absence of injury having regard to overwhelming
ocular evidence cannot, thus, be the sole criterion
for coming to a conclusion that no such offence
had taken place."
29. PW-2, Dr. Heena Ahmed, who medically examined the victim, though
has not found any external injuries on the body of the victim, but she
prepared two vaginal slides of the victim and given it to the police for
its chemical examination. She also gave her MLC report (exhibit P-3)
and query report (exhibit P-4) and sent the clothes of the victim for its
chemical examination.
30. PW-1, Dr. J.P. Diwan, who medically examined the accused, has
found him capable to perform sexual intercourse. He prepared the
semen slides of the accused and given it to the police for its chemical
examination.
31. In the FSL report (exhibit P-16), the semen and sperms were found
on the vaginal slide of the victim (article-C) and semen slide of the
accused (article-E), which also corroborates the evidence of the
victim that she was suffered by the offence of rape.
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32. In the Indian society refusal to act on the testimony of the victim of
sexual assault in the absence of corroboration as a rule, is adding
insult to injury. A girl or a woman in the tradition bound non-
permissive society of India would be extremely reluctant even to
admit that any incident which is likely to reflect on her chastity had
ever occurred. She would be conscious of the danger of being
ostracized by the society and when in the face of these factors the
crime is brought to light, there is inbuilt assurance that the charge is
genuine rather than fabricated. Just as a witness who has sustained
an injury, which is not shown or believed to be self-inflicted, is the
best witness in the sense that he is least likely to exculpate the real
offender, the evidence of a victim of sex offence is entitled to great
weight, absence of corroboration notwithstanding. A woman or a girl
who is raped is not an accomplice. Corroboration is not the sine qua
non for conviction in a rape case. The observations of Vivian Bose, J.
in Rameshwar v. The State of Rajasthan, AIR 1952 SC 54 were:
"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge...".
33. A victim of a sex-offence cannot be put on par with an accomplice.
She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is 23 attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the victim. There is no rule of law or practice incorporated in the Indian Evidence Act, 1872 (in short 'Evidence Act') similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the victim it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the victim must necessarily depend on the facts and circumstances of each case. But if a victim is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the victim does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.
34. The Supreme Court in the matter of Ranjit Hazarika v. State of Assam, AIR 1998 SC 635 has held that the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. It must not be 24 overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice.
35. The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of NCT of Delhi, 2012 (8) SCC 21 held as under:-
"22. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner 25 of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
36. Upon hearing learned counsel for the parties and perusing the record, the central issue that arises for consideration is whether the appreciation of evidence by the trial Court suffers from such infirmity or perversity as would justify interference in an appeal against acquittal.
37. It is a settled principle of law that though an appellate Court should exercise caution in interfering with a judgment of acquittal, such restraint does not bar interference where the findings of the trial 26 Court are perverse, manifestly unreasonable, or founded on a misappreciation of material evidence.
38. The prosecution case primarily rests upon the testimony of the victim (PW-1). A careful examination of her statement under Section 164 Cr.P.C., and deposition before the trial Court indicates that her version on the core aspects of the incident remains broadly consistent, particularly regarding the occurrence, the nature of the act, and the identity of the accused/respondent.
39. The defence has highlighted certain omissions and contradictions.
However, the legal position is that minor inconsistencies which do not go to the root of the matter cannot be treated as fatal to the prosecution case. The Court is required to assess whether such discrepancies materially affect the credibility of the witness.
40. The contention that the victim is not a "sterling witness" must be examined in light of the principles laid down by the Supreme Court. A "sterling witness" is one whose testimony is wholly reliable, consistent, and inspires confidence without reservation. In the present case, while certain variations exist, the core narrative of the victim does not appear to have been shaken in cross-examination. The alleged discrepancies must be tested against the overall consistency and inherent probability of her version. The absence of material contradictions on the essential ingredients of the offence may weigh in favour of treating her testimony as reliable, though not necessarily flawless.
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41. It is also a settled principle that conviction can be based on the sole testimony of the victim if it is found trustworthy and of sufficient quality. Corroboration, though desirable in some cases, is not a rule of law.
42. From perusal of the impugned judgment, it does not disclose any reason for acquittal from the offence under Section 376 of the IPC and conviction under Section 354 of IPC, except for the reason that no injuries were found on the body of the victim. As has been held earlier that the absence of injuries on the body of the victim, itself is not sufficient to discredit the evidence of the victim, the consideration of the learned trial Court is found perverse on the facts and evidence available on record.
43. In an appeal against acquittal, if two views are reasonably possible on the evidence, the view favouring the accused ordinarily prevails. However, if the trial Court has ignored material evidence or its conclusions are not supported by the record, the appellate Court would be justified in reappreciating the evidence. Accordingly, the determination would ultimately depend on whether the testimony of the victim, read as a whole and in conjunction with other evidence, inspires sufficient confidence to displace the presumption of innocence reinforced by the acquittal.
44. The reasoning adopted by the trial Court in disbelieving the prosecution case, in the opinion of this Court, suffers from misappreciation of material evidence and undue emphasis on minor 28 discrepancies, while overlooking the consistent core narrative of the victim and the corroborative medical and oral evidence.
45. In an appeal against acquittal, though interference is circumscribed, it is equally well-settled that where the findings of the trial Court are perverse or based on an erroneous appreciation of evidence, the appellate Court not only has the power but the duty to correct such findings. In the present case, the view taken by the trial Court does not appear to be a reasonably possible view on the evidence available on record.
46. This Court is therefore of the considered opinion that the prosecution has been able to establish its case beyond reasonable doubt that the accused committed rape upon the victim and he is guilty for the offence under Section 376 of the IPC and the conviction of the appellant for the offence under Section 354 of IPC suffers from perversity.
47. So far as the acquittal of the accused from the offence of Section 506-B of the IPC is concerned, the evidence of the victim (PW-5) is corroborates with her report (exhibit P-8). In the FIR (exhibit P-8) she disclosed that when she protested and raised alarm, the accused threatened her not to raise alarm otherwise he would kill her and thereafter he committee rape upon her. The similar statement made by her in her deposition that the accused threatened her with dire consequences and to kill her and committed rape upon her. The defence could not rebut such part of her evidence in her cross- examination. The learned trial Court has acquitted the accused from 29 the offence of Section 506-B of IPC by holding that the real intention to threat the victim should be there, which is missing in the present case. However, looking to the evidence of the victim, her husband and other piece of evidence available on record, the manner in which the offence is said to have been committed, consistent statement of the victim about threat to kill her, if she raised any alarm, clearly demonstrates the intention of the appellant that he was intended to commit the offence of rape and if the victim protested, she was being killed in order to settle his lust, therefore, the acquittal of the accused from the offence under Section 506-B of the IPC also found perverse and by setting aside the said finding, the accused is also liable for conviction under Section 506-B (506 Part-II) of the IPC.
48. So far as the offence under Sections 3(1)(xii) and 3(2)(v) of SC/ST Act is concerned, the provisions of Section 3(1)(xii) has been amended by the Act No.1 of 2016 w.e.f. 26.01.2016 and the new provision of Section 3(1)(a) to (zc) have been substituted. The present offence alleged to have been committed on 28.10.2015 and therefore, the unamended provision of SC/ST Act, prior to 26.01.2016 would be applicable in the case. Section 3(1)(xii) of the unamended SC/ST Act as on 28.10.2015 (on the date of present incident) was as under:-
"3(1)(xii)- Being in a position to dominate the will of a 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."30
49. Likewise, Section 3(2)(v) of the SC/ST Act was also amended by the said Amendment Act of 2016 w.e.f. 26.01.2016 and prior to its amendment as on the date of present incident i.e. on 28.10.2015, it was as under:-
"3(2)(v)- Commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of 10 years or more against a person or property on the ground that such person is a member of scheduled caste or a scheduled tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine."
50. When we examine the evidence available on record, we do not find any sufficient ground for conviction of the accused under Section 3(1)
(xii) and 3(2)(v) of the SC/ST Act. Even we do not find any clinching evidence with respect to the offence of Section 3(1)(xi) of SC/ST Act, for which the learned trial Court has convicted the accused. Section 3(1)(xi) provides that "assault or uses force to any woman belonging to a scheduled caste or scheduled tribe with intent to dishonour or outrage her modesty".
51. In the present acquittal appeal preferred by the State, upon a reappraisal of the entire evidence on record, this Court finds no infirmity in the findings recorded by the learned trial Court insofar as acquittal of the accused under Sections 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is concerned. To attract the ingredients of Section 3(1)(xii), it must be established that the accused was in a position to dominate 31 the will of the victim, a member of a Scheduled Caste or Scheduled Tribe, and that such position was consciously used to sexually exploit her in circumstances where she would not have otherwise consented. Similarly, for Section 3(2)(v) of SC/ST Act, there must be cogent evidence to show that the offence was committed on the ground that the victim belonged to a Scheduled Caste or Scheduled Tribe. In the present case, the prosecution has failed to adduce reliable and convincing evidence to satisfy these essential ingredients. Mere allegation of sexual assault, in absence of proof of caste based targeting or dominance coupled with exploitation, would not ipso facto attract the provisions of the Atrocities Act. Accordingly, the finding of the trial Court acquitting the accused for the offence under Section 3(1)(xii) and 3(2)(v) of SC/ST Act remains undisturbed on its own merits, no case is made out to interfere with the acquittal under the provisions of the SC/ST Act.
CRA No. 718 of 2016
52. When the appellate Court, upon reappreciation of evidence, allows the acquittal appeal preferred by the State and records a finding of guilt against the accused for the graver offence under Section 376 of the IPC, the conviction earlier recorded by the trial Court under Section 354 of the IPC cannot survive independently. The reason is doctrinal as well as practical: Section 354 IPC is a lesser and included offence in comparison to the offence of rape under Section 376 IPC, and once the act of rape is held to be proved beyond reasonable doubt, the finding of mere outraging of modesty stands subsumed in the higher offence.
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53. In such circumstances, the criminal appeal preferred by the accused challenging his conviction under Section 354 IPC does not require an independent adjudication on merits. Rather, it is liable to be disposed of as having been rendered infructuous or merged with the finding recorded in the acquittal appeal. Consequently, while allowing the State's appeal and convicting the accused under Sections 376 and 506-B (506 Part-II) of IPC, we set aside the conviction and sentence under Section 354 IPC, not on the ground of innocence, but on account of its merger into the graver conviction.
54. Accordingly, the appeal filed by the accused (CRA No. 718 of 2016) deserves to be disposed of by holding that in view of his conviction under Section 376 IPC recorded in the connected acquittal appeal, the conviction under Section 354 IPC no longer survives and stands set aside, and the sentence shall be governed by the conviction recorded for the offence under Section 376 IPC.
55. In view of the aforesaid analysis of the entire evidence available on record, this Court finds that the essential ingredients required to constitute the offences under Sections 3(1)(xii) and 3(2)(v) of the SC/ST Act are conspicuously absent. There is no cogent and reliable material to establish that the accused was in a position to dominate the will of the victim and had exploited such position for sexual purposes, nor is there any evidence to demonstrate that the alleged offence was committed on the ground that the victim belonged to a Scheduled Caste or Scheduled Tribe. Furthermore, even with regard to the conviction recorded by the learned trial Court under Section 3(1)(xi) of the SC/ST Act, this Court does not find any clinching 33 evidence to prove that the accused assaulted or used criminal force against the victim with the specific intent to dishonour or outrage her modesty on account of her caste. In absence of proof of such foundational facts, mere commission of an offence against a woman belonging to a Scheduled Caste or Scheduled Tribe would not ipso facto attract the provisions of the SC/ST Act. Consequently, the conviction of the accused under Section 3(1)(xi) of the SC/ST Act is unsustainable in the eyes of law and deserves to be set aside.
56. In view of the foregoing analysis, the Acquittal Appeal No. 07 of 2021 preferred by the State deserves to be and is hereby allowed in part. The acquittal of the respondent/accused from the offences punishable under Sections 376 and 506-B (506 Part-II) of the IPC is set aside, and he is hereby convicted for the said offences. The conviction and sentence imposed by the trial Court under Section 354 IPC is set aside, the same having merged into the graver offence under Section 376 IPC. The acquittal of the accused under Sections 3(1)(xii) and 3(2)(v) of the SC/ST Act is affirmed, and the conviction under Section 3(1)(xi) of the SC/ST Act is also set aside.
57. Consequently, the Criminal Appeal No. 718 of 2016 preferred by the accused stands disposed of in terms of the above findings, holding that the earlier conviction under Section 354 IPC no longer survives in view of the conviction under Section 376 IPC.
58. Accordingly, the accused- Puneshwar Yadav is held guilty for the offence punishable under Sections 376 and 506-B (506 Part-II) of the IPC and sentenced in the following manner:-
34
Conviction Section
Under Section 376 of IPC Rigorous imprisonment for 10 years
with fine of Rs. 1000/-, in default of
payment of fine, further rigorous
imprisonment for one month.
Under Section 506-B (506 Rigorous imprisonment for 03 years Part-II) of IPC with fine of Rs. 1000/-, in default of payment of fine, further rigorous imprisonment for one month.
Both the sentences are directed to run concurrently.
59. The appellant is reported to be on bail. He shall be taken into custody to serve the sentence as awarded by this Court. The accused/ respondent is directed to surrender before the concerned trial Court within a period of 04 weeks from today to serve the sentence imposed upon him by this Court, failing which the trial Court shall take him into custody for execution of the sentence. A compliance report shall be submitted to this Court thereafter.
60. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
ved