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Laxmi Paikra vs Vijay Kumar Yadav And Anr on 11 May, 2018

1

NAFR

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

—- Appellant.

Versus

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

—- Respondents

—————————————————————————————————-

For Appellant : Mr. Rishi Mahobia, Advocate
For respondent No.1 : None
For respondent No.2t/State : M. Wasim Miyan, Panel Lawyer

Oral Judgment

(11-05-2018)

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,
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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
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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
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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.

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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

dismissed.

Sd/- Sd/-

Judge Judge

(Prashant Kumar Mishra) (Ram Prasanna Sharma)

Raju

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