Can’t Assume Accused Dominated Victim To Sexually Exploit Her Merely Because She Belongs To ST Community: Chhattisgarh High Court

The Chhattisgarh High Court has held that merely because victim belongs to Scheduled Tribes (ST) community, it cannot be assumed that accused dominated her will to sexually exploit her, an act which is punishable under Section 3(1)(xii) (as it stood before 2016 amendment) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act [‘the SC & ST Act’].While setting aside an order of conviction recorded under the aforesaid provision, a Division Bench of Justice Sanjay Kumar Agrawal and Justice Sachin Singh Rajput observed,“In our considered opinion, merely because the victim was a member of Scheduled Tribe community, it cannot be assumed that the appellant was able to dominate her will to exploit her sexually. Even otherwise, the charges framed against the appellant are very vague and the prosecution has not led any evidence to show that the appellant was in commanding and controlling position…”Prosecution CaseOn 22.04.2013, the accused-appellant committed sexual intercourse with the minor victim without her consent, being aware of the fact that she is a member of ST community. On 28.04.2013, the mother of the victim lodged an FIR stating the facts as narrated by her daughter. The police got the victim medically examined and in the MLC report, the doctor opined that the victim had undergone sexual assault. After due investigation, the chargesheet was filed.After taking into account the evidence on record, the Trial Court convicted the appellant for offences punishable under Section 376(2)(i) of IPC (unamended), Section 6 read with Section 5(i/k/m) of the Act of 2012 and Section 3(1)(xii) of the SC & ST Act, finding him guilty of the said offences. Being aggrieved, the accused preferred an appeal against the above order before the High Court.Court’s AnalysisAfter considering the entire evidence available on record, the Court formed the opinion that the Trial Court has rightly convicted the appellant for offences punishable under Sections 376(2)(i) of IPC (unamended) and Section 6 read with Section 5 (i/k/m) of the POCSO Act. However, it took into account the decision of the Supreme Court in Vipul Rasikbhai Koli Jhankher v. State of Gujarat, 2022 LiveLaw (SC) 288, wherein it was held that severity of sentence is not the only way to ensure justice for the victims. Having regard for the aforesaid decision, it considered the fact that the age of the appellant was only 26 years on the date of the offence and further acknowledging that minimum sentence for offence punishable under Section 376(2)(i) of IPC (prior to the amendment) was 10 years, it modified the sentence to 10 years.However, the Court expressed its reservation over the complicity of the appellant under Section 3(i)(xii) of the SC & ST Act, which provided, “Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, 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.”The Court said that as per the provision, it must be proved that the accused was in a position to dominate the will of a woman belonging to a SC or ST community and uses that position to exploit her sexually to which she would not have otherwise agreed.“The 'position to dominate' means 'commanding and controlling position'. The position of the accused coupled with the use of such position to exploit the victim women sexually are important criteria apart from the Caste/Tribe factor of the victim/accused”, it added.The Court noted that the trial court only recorded a finding that the offence of rape has been committed by the appellant upon the victim under Section 376 of IPC and thereafter, held that the offence under Section 3(1)(xii) of the Act has been committed because the victim was a member of ST community.The Bench outrightly rejected the aforesaid conclusion reached by the court below and made it clear that merely because the victim belonged to ST community, it cannot be assumed that the appellant was able to dominate her will to exploit her sexually. It said in absence of any separate evidence to show that the appellant was in fact in a position to dominate the will of the victim, the conviction of the appellant under Section 3(1)(xii) of the Act cannot be sustained and accordingly, it was set aside.Case Title: Suresh Ram Vishvakarma v. State of ChhattisgarhCase No.: Criminal Appeal No. 395 of 2014Citation: 2023 LiveLaw (Chh) 9Date of Judgment: February 28, 2023Counsel for the Appellant: Mr. Arvind Sinha, AdvocateCounsel for the Respondent: Mr. Avinash Singh, Counsel for the StateClick Here To Read/Download Judgment

Can’t Assume Accused Dominated Victim To Sexually Exploit Her Merely Because She Belongs To ST Community: Chhattisgarh High Court

Jyoti Prakash Dutta

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