The Chattisgarh High Court has held that merely because a victim is member of Scheduled Tribe community, it cannot be assumed that the accused was able to dominate her will to exploit her sexually.
The division bench of Justice Sanjay Kumar Agrawal and Justice Sachin Singh Rajput in an appeal modified the sentence of the accused to 10 years from 14 years considering the Supreme Court dictum in Vipul Rasikbhai Koli Jhankher v. State of Gujarat, 2022.
"Following the decision of the Supreme Court in Vipul Rasikbhai (supra) and considering the fact that the age of the appellant was 26 years on the date of the offence and further considering that minimum sentence for offence punishable under Section 376(2)(i) of IPC (prior to the amendment) was 10 years, we hereby award the sentence of 10 years to the appellant for offence punishable under Sections 376(2)(i) of IPC and Section 6 read with Section 5(i/k/m) of POCSO Act, in place of the sentence as awarded by the trial Court."
The appellant herein was convicted for offences punishable under Section 376(2)(i) of IPC (omitted by Amendment Act 22 of 2018 w.e.f. 21/04/2018), Section 6 read with Section 5(i/k/m) of Protection of Children from Sexual Offences Act, 2012 and Section 3(i)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, 'Act of 1989') and sentenced to undergo R.I. for 14 years with fine of Rs. 50000/- in default of payment of fine additional R.I. for 2 years and R.I. for 5 years with fine of Rs. 5000/- in default of payment of fine additional R.I. for 1 year, respectively, both the sentences runing concurrently.
The Counsel for appellant submitted that the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences as there is no evidence on record upon which his conviction could have been based.
He further submitted that appellant is in jail since 30/04/2013 and he has already completed sentence for more than 9 years, as such, in light of the decision rendered by the Supreme Court in the matter of Vipul Rasikbhai Koli Jhankher v. State of Gujarat1 , his sentence be reduced and he be sentenced to the period already undergone.
Contrary, the State Counsel argued that apparently the victim was a minor on the date of offence and she also belonged to Scheduled Tribes community, in that view of the matter, the sentence awarded by the trial Court is absolutely justified and it be maintained by dismissing the instant appeal.
The Court noted that the appellant has also been convicted for offence punishable under Section 3(1)(xii) of the Act of 1989 (prior to its amendment w.e.f. 26/01/2016), and therefore it must be proevd that the accused was in a position to dominate the will of a woman belonging to a Scheduled caste or Scheduled Tribe community and uses that position to exploit her sexually to which she would not have otherwise agreed.
Stating that the position to dominate means commanding and controlling position and the expression “sexual exploitation” includes sexual intercourse without consent, the Court observed that it is quite vivid that the Special Judge has 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 of 1989 has been committed because the victim was a member of Scheduled Tribes.
"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 and in absence of any separate evidence in this regard, the conviction of the appellant under Section 3(1) (xii) of the Act of 1989 deserves to be and is hereby set aside."
Social media is bold.
Social media is young.
Social media raises questions.
Social media is not satisfied with an answer.
Social media looks at the big picture.
Social media is interested in every detail.
social media is curious.
Social media is free.
Social media is irreplaceable.
But never irrelevant.
Social media is you.
(With input from news agency language)
If you like this story, share it with a friend!
0 Comments