HIGH COURT OF CHHATTISGARH, BILASPUR
DB: Honorable Mr. Justice Prashant Mishra
Hon’ble Mr. Justice Ram Prasanna Sharma
ACQA No. 33 of 2013
• Laxmi Paikra D/o Shri Shivcharan Sai Aged About 20 Years R/o
Village Mathpahad, Ps Bagbhar, Distt. Jashpur Chhattisgarh
1. Vijay Kumar Yadav S/o Madhusudhan Yadav aged about 28
Years R/o Village Ludeg, PS Pathalgaon, Distt. Jashpur C.G.
2. The State of Chhattisgarh Through Ps Bagbhar, Distt. Jashpur
C.G. , District : Jashpur, Chhattisgarh
For Appellant : Mr. Rishi Mahobia, Advocate
For respondent No.1 : None
For respondent No.2t/State : M. Wasim Miyan, Panel Lawyer
Per Ram Prasanna Sharma, J.
This acquittal appeal is preferred against the judgment
dated 7-2-2013 passed by the Special Judge (Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989, Jashpur in Special Criminal Case No. 30 of 2011,
wherein the trial Court has acquitted the respondent No.1 for
commission of offence under Section 376(1) of IPC, 1860 and
Sections 3(i)(xii) 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for
short, “the Act, 1989”) and Section 146 read with Section 196
of the Motor Vehicles Act, 1988 (for short, “the Act, 1988”).
2. In the present case, prosecutrix is PW/9. As per
prosecution case, prosecutrix is a member of Scheduled Tribe
whereas respondent No.1 is not a member of Scheduled
Caste or Scheduled Tribe. It s alleged that since 5-7-2009
respondent No.1 made promise to prosecutrix that he would
marry her, but denied to marry her. On 16-6-2011 a report
was lodged by the prosecutrix against respondent No.1 in the
Police Station. The matter was investigated and during
investigation, statements of the witnesses under Section 161
of the Code of Criminal Procedure, 1973 (for short ‘the Code’)
were recorded. After investigation, charge sheet was filed
against the respondent No.1. The respondent No.1 pleaded
innocence and thereafter the trial was conducted. After
examination of the witnesses, statement of the respondent
No.1 was recorded under Section 313 of the Code. After
hearing the parties, the trial Court acquitted the respondent
No.1 as aforementioned.
3. Learned counsel for the appellant would submit that
version of the prosecutrix and other witnesses established
the guilt of respondent No.1, but the trial Court came to
conclusion on the basis of surmises and conjectures which is
liable to be set aside.
4. We have heard learned counsel for the parties and
perused the material available on record.
5. Prosecutrix (PW/9) is aged 20 years and she was major
on the date of incident. As per version of this witness, on 5-7-
2009 she was waiting for Bus near the shop of the respondent
No.1 to go to her home. When the Bus came, she boarded the
Bus and at the same time respondent No.1 also boarded the
Bus and took her forcefully from the Bus. He made her seated
on his motor-cycle and they reached to village Chiknipani. As
per version of this witness, respondent committed sexual
intercourse with her. She further deposed that from 5-7-
2009 respondent committed intercourse with her many
times on the pretext of marriage and when she asked him to
marry her on 11-5-2011 respondent assured to marry her at
village Kotibera, but when they reached to village Kotibera
respondent denied to marry her on 16-6-2011. In her cross
examination she admitted that she did not raise any alarm at
the first instance when she alighted the Bus alongwith the
respondent (para 17). She further deposed that she made
physical relation with the respondent frequently and relation
between them continued for two years.
6. Now the point for consideration is whether respondent
committed sexual intercourse with prosecutrix without her
consent or against her will.
7. From the statement of the prosecutrix, it is clear that
she made physical relation with respondent for two years and
from her statement it is not established that the act is
performed without her consent or against her will, therefore,
offence under Section 376 of IPC is not established.
8. Section 3(1)(xii) of the Act, 1989 applies when a person
being in a position to dominate the will of a woman belonging
to a Scheduled Caste or a Scheduled Tribe uses that position
to exploit her sexually to which she would not have otherwise
agreed. For establishing the position to dominate, fiduciary
relation has to be established like guardian and ward, teacher
and student, master and servant, patient and doctor and so
on. No fiduciary relation is established as both prosecutrix
and respondent appear to be common people of the locality.
In absence of fiduciary relation, dominating position of
respondent No.1 is not established. It is established that
physical relation was maintained by them for a long time with
consent, therefore, offence under Section 3(1)(xii) of the Act,
1989 is not established.
9. Section 3(2)(v) of the Act, 1989 applies only when any
offence under the Indian Penal Code punishable with
imprisonment for a term of ten years or more is committed.
In the present case, no such commission of offence is
established. As per record, the respondent was having
insurance policy of the vehicle in question, therefore, offence
under Section 146 read with Section 196 of the Motor Vehicles
Act, 1988 is also not established.
10. Considering all the facts and circumstances of the case,
we are of the view that the finding arrived at by the trial
Court is based on relevant facts and proper marshaling of the
evidence and it cannot be said that the finding of the trial
Court is based on irrelevant facts or extraneous matter,
therefore, it would not be proper for us to disturb the finding
recorded by the trial Court.
11. Accordingly, the appeal is liable to be and is hereby
(Prashant Kumar Mishra) (Ram Prasanna Sharma)