Shivkumar @ Baleshwar Yadav vs. The State Of Chhattisgarh

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.4502 OF 2025
(@ SPECIAL LEAVE PETITION (CRIMINAL) NO.14625 OF 2024)



Shivkumar @ Baleshwar Yadav …Appellant(s)

VERSUS

The State of Chhattisgarh …Respondent(s)


J U D G M E N T

K.V. Viswanathan, J.
1. Leave granted.
2. The present appeal calls in question the correctness of
the judgment dated 16.06.2023 passed by the High Court of
Chhattisgarh at Bilaspur in Criminal Appeal No.9/2020. By the
said judgment, the High Court confirmed the conviction and
sentence as imposed on the appellant by the Special Judge
(SC/ST Act), Surajpur, District Surajpur, Chhattisgarh in
Session Case No.33/2018. The Trial Court, by its judgment
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dated 22.10.2019, convicted the appellant for offences
punishable under Sections 363, 366, 506 and 376 of the Indian
Penal Code, 1860 (for short the “IPC”), Section 4 of the
Protection of Children from Sexual Offences Act, 2012 (for
short the “POCSO”) and Section 3(2)(v) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (for short the “SC/ST Act”), and sentenced him as
under:-

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3. We have heard Mr. Kaushal Yadav, learned counsel for
the appellant and Mr. Rishabh Sahu, learned Deputy Advocate
General for the State. We have also perused the records,
including the original Trial Court records.
THE CASE OF THE PROSECUTION: -
4. On 14.05.2018, PW-1, the father of the prosecutrix,
lodged a report at Police Station Pratappur, District Surajpur,
Chhattisgarh (Ext.P1), stating that his daughter “P”, a minor,
had on 10.05.2018 at 8.00 pm served food to everyone inside
the house. Thereafter, she left the house saying that she will
return. When she did not return, a search was carried out, but
she could not be found. The father suspected that the
appellant would have lured away “P”. An offence under
Section 363 of IPC was registered and investigation was
carried out and “P” was recovered. On questioning, it was
found that the appellant had lured her away by promising
marriage and after taking her forcibly subjected her to sexual
intercourse. Offences under Sections 366, 376 and 506 IPC
and Section 4 of the POCSO Act were added. Since the victim
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belonged to the Scheduled Caste, Section 3(2)(v) of the SC/ST
Act was also added. Medical examination was carried out of
“P”. Statements of complainant and witnesses were recorded.
The marksheet, caste certificate and the school admission
register ( Dakhil Kharij Register) were seized. Chargesheet
was filed against the accused.
5. Charges were framed against the accused by order
dated 05.09.2018 and with the accused pleading not guilty, the
case was set down for trial. The prosecution examined 19
witnesses and marked exhibits.
6. The prosecution case mainly revolves around the
evidence of PW-2 – the victim, PW-1 – the complainant, PW-9
– the school teacher, who made available the school records
for proof of age, and PW-10 – the Doctor.

EVIDENCE OF VICTIM: -
7. PW-2 categorically deposed that she knew the appellant;
that she had left the house to serve food to her grandfather
who lived a little away from their house; that the appellant who
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was hiding near the Sendhwar tree, grabbed her, pressed her
mouth and threatened to kill her when she tried to scream.
The victim clearly deposed that the appellant told her that she
will be made his wife and after grabbing her took her to the
forest. At the forest he undressed her and forcibly committed
sexual intercourse. The victim deposed that the appellant
took her to the house of her maternal uncle in village
Dumariya and left her there. That she stayed at the house of
her maternal uncle and the appellant returned to take her, at
which point the police met them and brought them to the
Police Station Paratappur. She further deposed that she
belonged to the Scheduled Caste (caste name disclosed by
her is withheld in this judgment). The victim deposed that she
disclosed the incident to her aunt PW-3 – Dhankunwar.
Though she was subjected to a searching cross-examination,
nothing was elicited to dilute her testimony. It should also be
noticed herein that on 25.05.2018 vide Ext.P8 her statement
under Section 164 of the Code of Criminal Procedure, 1973
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was recorded which is corroborated by her deposition in
material particulars.
EVIDENCE OF FATHER – THE COMPLAINANT (PW-1)
AND THE GRANDFATHER (PW-4): -

8.
PW-1, the father of the victim, corroborates the
prosecution story. He deposes that they were having dinner
when the victim left to serve food to his father (victim’s
grandfather). The victim did not return and then he lodged
the report and informed the police about his suspicion on the
appellant. For some strange reason, the prosecutor treated
the complainant as hostile and sought permission to put
leading questions. In the cross-examination by the public
prosecutor, PW-1 deposed as under:-
“It is correct to say that on the next day when I went to
the house of accused Baleshwar in village Durati and
asked about his whereabouts I come to know that
Baleshwar was not present in my house. His mother-
father were present in his house, they told that he had
gone to work. While giving statement to the Police I
had told that I did not met Baleshwar when I went to his
house. Witness himself states that on that day I met
Baleshwar in the evening. It is incorrect to say that on
the next day in the evening I did not met Baleshwar. It
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is correct to say that I did not met Baleswhar and in
suspicion while lodging report I told the name of
accused Baleshwar in the report.”

9. We are at a loss to understand as to why the witness was
treated as hostile in the first place? We are frequently coming
across cases where the prosecutor, for no ostensible reason,
wants to treat the witnesses hostile and the Court
indiscriminately grants permission. It is well settled, by
judgments of this Court, that before a witness can be declared
hostile and the party examining the witnesses is allowed to
cross-examine, there must be some material to show that the
witnesses are not speaking the truth or has exhibited an
element of hostility to the party for whom he is deposing. No
doubt, the circumstances under which the Court will exercise
the discretion under Section 154 of the Evidence Act, 1872
(Section 157 of the Bharatiya Sakshya Adhiniyam (BSA), 2023)
and permit the party calling the witness to put any question
which might be put in cross-examination by the adverse party
will depend on the facts and circumstances of each case.
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However, this Court has held that the contingency of cross-
examining the witness by the party calling, is an extraordinary
phenomenon and permission should be given only in special
cases. Small or insignificant omissions cannot be the basis for
treating the witnesses hostile and the Court before exercising
its discretion must scan and weigh the circumstances properly
and ought not to exercise its discretion in a casual or routine
manner.
1
10. In Sri Rabindra Kumar Dey Vs. State of Orissa , this
Court held as under: -
“10. Before proceeding further we might like to state
the law on the subject at this stage. Section 154 of the
Evidence Act is the only provision under which a party
calling its own witnesses may claim permission of the
court to cross-examine them. The section runs thus:
“The Court may, in its discretion permit the person
who calls a witness to put any question to him which
might be put in cross-examination by the adverse
party.”
The section confers a judicial discretion on the court
to permit cross-examination and does not contain
any conditions or principles which may govern the
exercise of such discretion. It is, however, well-
settled that the discretion must be judiciously and
properly exercised in the interests of justice. The
law on the subject is well-settled that a party will not

1
(1976) 4 SCC 233
Page 8 of 22


normally be allowed to cross-examine its own
witness and declare the same hostile, unless the
court is satisfied that the statement of the witness
exhibits an element of hostility or that he has resiled
from a material statement which he made before an
earlier authority or where the court is satisfied that
the witness is not speaking the truth and it may be
necessary to cross-examine him to get out the truth.
One of the glaring instances, in which this Court
sustained the order of the court in allowing cross-
examination was where the witness resiles from a
very material statement regarding the manner in
which the accused committed the offence.
In Dahyabhai Chhaganbhai Thakker v. State of
Gujarat [AIR 1964 SC 1563 : (1964) 7 SCR 361, 368, 369,
370 : (1964) 2 Cri LJ 472] this Court made the following
observations:
“Section 154 does not in terms, or by necessary
implication confine the exercise of the power by the
court before the examination-in-chief is concluded or to
any particular stage of the examination of the witness. It
is wide in scope and the discretion is entirely left to the
court to exercise the power when the circumstances
demand. To confine this power to the stage of
examination-in-chief is to make it ineffective in practice.
A clever witness in his examination-in-chief faithfully
conforms to what he stated earlier to the police or in the
committing Court, but in the cross-examination
introduces statements in a subtle way contradicting in
effect what he stated in the examination-in-chief. If his
design is obvious, we do not see why the court cannot,
during the course of his cross-examination, permit the
person calling him as a witness to put questions to him
which might be put in cross-examination by the adverse
party.
Broadly stated, the position in the present case is that
the witnesses in their statements before the police
attributed a clear intention to the accused to commit
murder, but before the court they stated that the
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accused was insane and, therefore, he committed the
murder.”
A perusal of the above observations will clearly indicate
that the permission to cross-examine was upheld by this
Court because the witnesses had categorically stated
before the police that the accused had committed the
murder but resiled from that statement and made out a
new case in evidence before the court that the accused
was insane. Thus it is clear that before a witness can be
declared hostile and the party examining the witness is
allowed to cross-examine him, there must be some
material to show that the witness is not speaking the
truth or has exhibited an element of hostility to the party
for whom he is deposing. Merely because a witness in
an unguarded moment speaks the truth which may
not suit the prosecution or which may be favourable
to the accused, the discretion to allow the party
concerned to cross-examine its own witnesses
cannot be allowed. In other words a witness should
be regarded as adverse and liable to be cross-
examined by the party calling him only when the
court is satisfied that the witness bears hostile
animus against the party for whom he is deposing or
that he does not appear to be willing to tell the truth.
In order to ascertain the intention of the witness or
his conduct, the Judge concerned may look into the
statements made by the witness before the
Investigating Officer or the previous authorities to
find out as to whether or not there is any indication
of the witness making a statement inconsistent on a
most material point with the one which he gave
before the previous authorities. The court must,
however, distinguish between a statement made by
the witness by way of an unfriendly act and one
which lets out the truth without any hostile intention.

11. It may be rather difficult to lay down a rule of
universal application as to when and in what
circumstances the court will be entitled to exercise
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its discretion under Section 154 of the Evidence Act
and the matter will largely depend on the facts and
circumstances of each case and on the satisfaction
of the court on the basis of those circumstances.
Broadly, however, this much is clear that the
contingency of cross-examining the witness by the
party calling him is an extraordinary phenomenon
and permission should be given only in special
cases. It seems to us that before a court exercises
discretion in declaring a witness hostile, there must
be some material to show that the witness has gone
back on his earlier statement or is not speaking the
truth or has exhibited an element of hostility or has
changed sides and transferred his loyalty to the
adversary. Furthermore, it is not merely on the basis
of a small or insignificant omission that the witness
may have made before the earlier authorities that
the party calling the witness can ask the court to
exercise its discretion. The court, before permitting
the party calling the witness to cross-examine him,
must scan and weigh the circumstances properly
and should not exercise its discretion in a casual or
routine manner.”

2
11. Similarly, in Gura Singh Vs. State of Rajasthan , this
Court held as under: -
“13. We deprecate the manner in which the prayer
was made by the Public Prosecutor and permission
granted by the trial court to cross-examine Jarnail
Singh (PW 2) allegedly on the ground of his being
hostile. On facts we find that the said witness was
wrongly permitted to be cross-examined. It was only
on a post-event detail that he did not concur with the
suggestion made by the Public Prosecutor. That single

2
(2001) 2 SCC 205
Page 11 of 22


point, in our opinion, was too insufficient for the Public
Prosecutor to proclaim that the witness made a volte-
face and became totally hostile to the prosecution.
Otherwise also, the permission granted and utilised
for cross-examination was limited to the extent of the
time of lodging the first information report (Exhibit P-
2). There is no reason to disbelieve PW 2 who is
closely related to the appellant and has no reason to
falsely implicate, particularly when no inducement,
threat or promise is allegedly given or assured.”

12. It is also clear from the above judgments that merely
because a witness is declared hostile does not make him
3
unreliable. As held in Bhagwan Singh Vs. State of Haryana .
“8. We have carefully perused the evidence of Jagat
Singh, who was examined in the trial after more than a
year of detection of the case. The prosecution could
have even avoided requesting for permission to cross-
examine the witness under Section 154 of the Evidence
Act. But the fact that the court gave permission to the
prosecutor to cross-examine his own witness, thus
characterising him as, what is described as a hostile
witness, does not completely efface his evidence. The
evidence remains admissible in the trial and there is no
legal bar to base a conviction upon his testimony if
corroborated by other reliable evidence. We are
satisfied in this case that the evidence of Jagat Singh, but
for whose prompt assistance the case would not have
seen the light of day and whose statement had
immediately been recorded by the D.S.P., is amply
corroborated by other evidence mentioned above to
inspire confidence in his testimony. Apart from that the
fact of recovery of the gold coins in the pocket of the
appellant gave a seal of finality to the truth of the charge

3
(1976) 1 SCC 389
Page 12 of 22


against the appellant. If Jagat Singh had accepted the
bribe he would have been guilty under Section 161 IPC.
There is, therefore, clear abetment by the appellant of
the offence under Section 161 IPC and the ingredients of
Section 165-A IPC are established against him.”

13. PW-4, the grandfather of the victim confirms the fact that
the victim came to his house in the night along with food and
after serving food left for her house. He deposed that the next
morning, he came to know that the victim was missing. In
cross, he states that the Sandhwar tree was near his house at a
distance of 20 feet and that if anyone shouts near the tree, it
will be heard in his house. He states that no one screamed in
the night that day.
14. The panch witnesses - PW-5 and PW-6 did not support the
prosecution story.
15. PWs - 3, 7 and 8 – aunts of the victim were examined.
Since nothing turned out from their evidence, they are not
discussed in detail.
PROOF OF AGE OF MINOR VICTIM: -
16. PW-9 is the material witness whose deposition is crucial
to ascertain the age of the victim. He is the teacher at the
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Government Primary School, SarnaparaMarhatta P.S.
Pratapppur, District Surajpur (C.G.). PW-9 deposes that on
the demand of the DSP, who came to the school, he gave the
admission register of the school. The admission register is
192 pages and admissions were mentioned in Sl. Nos. 1 to 281.
The victim’s name was mentioned at Sl. No. 209 and the date
of birth was shown as 15.09.2004. The admission register and
the certificate given regarding the fact of the date of birth
were seized under Ext.P-11. In court, the admission register
was marked as Article B/C. In cross examination, PW-9
deposed that the father of the victim did not produce any
document regarding the date of birth. First in cross, the
witness deposed that the father of the victim has not
mentioned the date of birth at the time of admission but
immediately the witness himself stated that the father
mentioned her age as six years on the date of the admission.
17. We have seen Ext.P-11 which attests to the factum of the
seizure. We have also seen Article B/C marked by PW-9. The
first entry is at Sl. No. 207 and the victim’s entry occurs at 209.
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The admission register has 13 columns containing serial no.,
student’s name, father or guardian’s name and address,
mother’s name, caste or religion, local address, if parents or
guardian is residing outside the city, student’s date of birth,
date of admission, class admitted, date of leaving the school,
the class in which the student was when she left the school,
reason for leaving the school and special details. The entry at
Serial No. 209 has the victim’s name, the name of father and
mother. They all tally. The date of birth is mentioned as
15.09.2004 (in both words and figures). The date of admission
is 01.07.2011 and the victim was admitted that day in the first
class. The victim left the school on 02.04.2016, after passing
the fifth standard.
18. The evidence of the father PW-1, the evidence of the
teacher PW-9 and the school admission register seized under
Ext.P-11 and marked by PW-9, inspires confidence in us to
hold that the victim as on the date of the incident, namely,
14.05.2018 was a minor. We have no reason to disbelieve the
finding of the trial Court and the High Court having
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independently considered the evidence and perused the trial
court records

4
19. In State of Chhattisgarh Vs. Lekhram , this Court held as
under: -
“12 . A register maintained in a school is admissible in
evidence to prove date of birth of the person concerned
in terms of Section 35 of the Evidence Act. Such dates of
births are recorded in the school register by the
authorities in discharge of their public duty. PW 5, who
was an Assistant Teacher in the said school in the year
1977, categorically stated that the mother of the
prosecutrix disclosed her date of birth. The father of the
prosecutrix also deposed to the said effect.
13. The prosecutrix took admission in the year 1977. She
was, therefore, about 6-7 years old at that time. She was
admitted in Class I. Even by the village standard, she
took admission in the school a bit late. She was married
in the year 1985 when she was evidently a minor. She
stayed in her in-laws' place for some time and after the
“gauna” ceremony, she came back. The materials on
record as regards the age of the prosecutrix were,
therefore, required to be considered in the
aforementioned backdrop. It may be true that an entry
in the school register is not conclusive but it has
evidentiary value. Such evidentiary value of a school
register is corroborated by oral evidence as the same
was recorded on the basis of the statement of the mother
of the prosecutrix.”

14. Only because PW 3 the father of the prosecutrix
could not state about the date of birth of his other

4
(2006) 5 SCC 736
Page 16 of 22


children, the same, by itself, would not mean that he had
been deposing falsely. We have noticed hereinbefore,
that he, in answer to the queries made by the counsel for
the parties, categorically stated about the year in which
his other children were born. His statement in this behalf
appears to be consistent and if the said statements were
corroborative of the entries made in the register in the
school, there was no reason as to why the High Court
should have disbelieved the same. We, therefore, are of
the opinion that the High Court committed a serious
error in passing the impugned judgment. It cannot,
therefore, be sustained. It is set aside accordingly.

MEDICAL EVIDENCE :-
20. Dr. Suchita Nirmala Kindo (PW-10) was examined on
behalf of the prosecution. She examined the victim on
16.05.2018. She clearly deposes that there was a cut injury on
hymen of victim at 6 O’ clock position and fresh blood was
coming. In her opinion, that would indicate that forceful
intercourse was committed. She prepared two slides of
vaginal discharge and handed them over to the constable.
She also deposed that on the same day, the constable
produced one green colour underwear and finding semen
like strains, she handed over the underwear to the lady
constable. In cross-examination, she was asked about the
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time when the hymen injury was caused. In answer to that, she
stated that repeated sexual intercourse was committed with
the victim and hence the time of the hymen injury cannot be
determined. She denied the suggestion that bleeding would
stop if sexual intercourse is not committed with the victim for
4-5 days. She deposed that no external injury was found on
the body of the victim. Vide Ext.P-14, the sealed packet
containing the underwear and the slide were seized. Vide
Ext.P-20, the prosecution claimed that the underwear of
skyblue colour owned by the accused with semen stains were
seized. Under Ext.P-22, the Superintendent wrote a letter to
the Joint Director, Regional Forensic Laboratory enclosing the
slides, the green underwear of the prosecutrix and the
skyblue underwear of the accused-appellant. The report Ex-
P-24 of the Joint Director indicated presence of semen and
human sperm in all the three seized material. We have also
seen the evidence of PW-14, PW-15, PW-16, PW-17 and PW-
18 and we are satisfied with regard to the chain of custody of
the above-seized material.
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APPLICABILITY OF SC/ST ACT :-
21.
PW-13 clearly deposes to the effect that the victim
belongs to Scheduled Caste and produced Ext.P-7 in proof of
the caste certificate. PW-2, the victim has clearly deposed that
she belongs to Scheduled Caste and the accused knew about
her caste before the incident. The incident is of 14.05.2018,
i.e. after the amendment to Section 3(2)(v) on 26.01.2016. The
amended Section 3(2)(v) reads as under:-
“3. (2) Whoever, not being a member of a
Scheduled Caste or Scheduled Tribe-

(v) commits any offence under the Indian Penal
Code (45 of 1860) punishable with imprisonment for
a term of ten years or more against a person or
property knowing that such person is a member of
a Scheduled Caste or a Scheduled Tribe or such
property belongs to such member, shall be
punishable with imprisonment for life and with
fine.”

5
22. In Patan Jamal Vali vs. State of A.P. , this Court noticed
the amendment made to the Act and held that post the
amendment, the threshold of proving that the crime was

5
(2021) 16 SCC 225
Page 19 of 22


committed on the basis of the caste identity was decreased
and mere knowledge of the caste of the victim was sufficient
to sustain the conviction.
23. Further, Section 8 of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Amendment Act,
2015 reads as under:-
“ 8. Presumption as to offences .—In a prosecution for
an offence under this Chapter, if it is proved that—

( a ) the accused rendered any financial assistance in
relation to the offences committed by a person
accused of, or reasonably suspected of, committing,
an offence under this Chapter, the Special Court shall
presume, unless the contrary is proved, that such
person had abetted the offence;

( b ) a group of persons committed an offence under this
Chapter and if it is proved that the offence committed
was a sequel to any existing dispute regarding land or
any other matter, it shall be presumed that the offence
was committed in furtherance of the common intention
or in prosecution of the common object.

( c ) the accused was having personal knowledge of the
victim or his family, the Court shall presume that the
accused was aware of the caste or tribal identity of the
victim, unless the contrary is proved.”

24. Section 8(c) of the SC/ST Act clearly indicates that the
acquaintance of the accused with the family of the victim is
enough to presume that the accused was aware of the caste
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and identity of the victim, unless proved otherwise. In the
present case, the evidence on record clearly establishes that
the accused was well acquainted with the victim and her
family prior to the incident and was fully aware of their caste
status. PW-1 categorically stated that the accused was their
neighbour and used to frequently visit their house, which
initially made him suspicious that he might have been
involved in the abduction of his daughter. PW-2 (Victim)
further affirmed that the accused knew her caste even before
the incident. Similarly, PW-4 (Grandfather) in cross-
examination confirmed that the accused used to come to their
village and work as a labourer. These consistent statements of
the prosecution witnesses collectively demonstrate that the
accused had prior familiarity with the family and knowledge
of their caste, which satisfies the requirement under Section
3(2)(v) of the SC/ST Act. Nothing has been brought on record
to rebut the presumption and as such, we are fully convinced
that even Section 3(2)(v) of the SC/ST Act is clearly attracted.
Page 21 of 22


25. The above discussion clearly brings out the fact that the
victim was kidnapped (Section 363 IPC), for the purpose of
illicit intercourse (Section 366 IPC), was subjected to forcible
intercourse (Section 376 of IPC and Section 4 of the POCSO),
criminal intimidation (Section 506 IPC) and all this with the
knowledge that the victim was a member of the Scheduled
Caste (Section 3(2)(v), of the SC/ST Act).
26. In view of the above, we find no good reason to interfere
with the concurrent judgments convicting the accused and
sentencing him for the various offences, details of which have
been set out hereinabove. The appeal is hence dismissed.



……….........................J.
[ B.V. NAGARATHNA ]



……….........................J.
[ K. V. VISWANATHAN ]

New Delhi;
th
14 October, 2025
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