Surguja C.G v. • State of Chhattisgarh Through P.S. Ajak, Ambikapur, Dist: Surguja C.G
Case Details
1 2025:CGHC:9195 NAFR AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.02.25 14:42:02 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 921 of 2004 • Jai Narayan S/o Ram Vishal Dubey, aged about 26 years, Occupation Agriculture, R/o Kuruwa, Police Station Bishrampur, Dist : Surguja C.G. ... Appellant. Versus • State of Chhattisgarh Through P.S. Ajak, Ambikapur, Dist: Surguja C.G. ... State/Respondent. For Appellant : Shri Rishi Rahul Soni, Advocate. For State : Shri Devesh G. Kela, Panel Lawyer. Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board 21/02/2025 1. Assailing the validity, correctness and judicial propriety of the judgment dated 12.10.2004 passed in Special Sessions Case No.41/2003 by Special Judge constituted under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Ambikapur, Sarguja Chhattisgarh (for short “trial Court”), 2 this Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) has been filed.
Facts
2. By the impugned judgment, the learned trial Court convicted the appellant under Sections 3(1)(x) and 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “the Act, 1989”) and was sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.500/-. The appellant has also been convicted under Section 324 of Indian Penal Code, 1860 (for short “IPC”) and sentenced to undergo rigorous imprisonment for two years. Though in the operating portion of the judgment, the appellant was not imposed with any fine for offence under Section 324 of the IPC, however, it was observed that in default of payment of total fine of Rs.1,000/-, the appellant shall undergo four months additional simple imprisonment. 3. The appellant was charged for an offence punishable under Section 3(1)(x) of the Act, 1989 and Section 324 of IPC and Section 3(1)(xi) of the Act, 1989 read with Section 354 of IPC. 4. Case of the prosecution in brief is that prosecutrix (PW-1) is a student of Class-X, who on the date of incident i.e. 07.09.2002 at about 4 pm was returning back from her school on bicycle. When she reached near the shop of one Basant Gupta in Kenapara, the appellant came and asked her to stop but ignoring that, prosecutrix proceeded ahead. Then, the appellant ran and held the bicycle of prosecutrix as also her hands and by saying caste 3 of the prosecutrix (“उराईन”) bit her cheeks and stated to have outraged her modesty. Prosecutrix shouted the name of her Aunt {Badi Maa - Dulari Bai (PW-8)}, who came to stop the appellant, however, the appellant tried to assault her also. Appellant also pressed the chest of prosecutrix (PW-1) during this course, as a result, school dress of the prosecutrix got torn. The Report was lodged by the prosecutrix (PW-1) with the Police Station, Bishrampur at 8:30 pm. Based on the said report, the said police station registered Crime No.0/02 under Section 354, 323 of IPC and Section 3(1)(xi) of the Act, 1989. Prosecutrix (PW-1) and appellant were medically examined. The Caste certificate (Ex.P/9) of the prosecutrix was obtained from Sarpanch of village panchayat Kurwa and for further investigation, the case was forwarded to Special Police Station, Ambikapur where Crime No.100/02 was registered. The said police station, after due investigation, filed the charge-sheet before the Chief Judicial Magistrate, Ambikapur, who in turn committed the matter to the trial Court. 5. Prosecution in order to prove its case examined as many as 12 witnesses and exhibited 9 documents (Ex.P/1 to Ex.P/9). Statement of the appellant under Section 313 Cr.PC was recorded, in which, he pleaded innocence and false implication. Two defence witnesses were also examined. 6. Learned trial Court on the basis of evidence and material placed before it, convicted and sentenced the appellant as stated above. 7. Learned counsel for the appellant vehemently argued that the 4 prosecution has not been able to prove the case against the appellant beyond reasonable doubt. Learned counsel further submits that the conviction of the appellant under the provisions of the Act, 1989 cannot be sustained as the caste certificate placed on record is issued by Sarpanch, Kurwa who is not the competent authority to issue such caste certificate. Apart from this, learned counsel upon reading from the statements of PW-5 and PW-6 submits that the incident had occurred on account of the fact that the appellant was inclined to sit on the bicycle of the prosecutrix to
Legal Reasoning
15. While dealing with an identical situation, this Court in the case of Pilla Bai v. State of Chhattisgarh (Cr. A. No.340/2004), vide order dated 05.01.2023, relying upon the judgment in the case of Kumari Madhuri Patil And Another Vs. Addl. Commissioner, Tribal Development And Others {AIR 1995 SC 94} observed as under: “21. The procedure for issuance of caste certificate has been well prescribed by the Hon'ble Supreme Court in the matter of Ku. Madhuri Patil (supra) which laid down the forum and procedure for issuance of/assailing caste certificate and the status of candidate. Thus, in view of the aforesaid dictum of Hon'ble the Supreme Court, the aforesaid caste certificate has no evidentiary value, as it has not been issued by incompetent authority and the 9 prosecution has failed to discharge his burden to prove the caste as discussed above. Apart from this, from the perusal of evidence available on record, it is evident that the appellants have not abused the complainants in filthy language knowing that they belong to Scheduled Tribe Community. This can be fortified from the bare perusal of the statement of the victim Rupnath”. 16. Perusal of caste certificate (Ex.P/9) also indicates that it was issued after the date of incident. Therefore, in the considered opinion of this court, prosecution has failed to prove the caste of the prosecutrix beyond reasonable doubt, therefore the appellant cannot be convicted under Section 3(1)(x) and 3(1)(xi) of the Act, 1989. Therefore, appellant’s conviction under Section 3(1)(x) and 3(1)(xi) of the Act, 1989 are hereby set aside. 17. Now, this leads me to the second submission as to whether in place of Section 3(1)(xi) of the Act, 1989, the appellant can be convicted under Section 354 of IPC and his conviction under Section 324 of the IPC requires any modification. Prosecutrix, in her statement, vividly described the incident and specifically stated that on the way she was stopped by the appellant and she was bitten by him on her cheeks and her modesty was outraged. Though, counsel for the appellant submitted that statement of eye-witnesses are not in consonance with the statement of PW- 1/prosecutrix, however, it is settled position that if the statement of prosecutrix inspires confidence and the same is of sterling quality, the conviction can sustain. 18. In the case at hand, as stated above, the vivid description of the 10 incident was categorically stated by the prosecutrix and her statement is also corroborated by the statement of Dr. PK Sharma (PW-9) who found injuries (Ex.P/4) on the prosecutrix as: 1) multiple abrasion/bruse present, oval in shape, in the left cheek in two rows, reddish brown in colour looking like teeth bite mark, size 1cm x 1/2cm to 1/2cm x 1/2cm, 2) prosecutrix complained about pain in head, however, no external injury seen 3) prosecutrix complained pain on right side of neck, however, no external injury seen. Therefore, the submission of counsel for the appellant that the appellant is entitled to acquittal deserves to be rejected and conviction of appellant under Section 324 of the IPC is maintained and instead of Sections 3(1)(x) and 3(1)(xi) of the Act, 1989, he is convicted under Section 354 of IPC. 19. Now the third question arises for consideration is as to whether sentence awarded to the appellant by trial Court can be reduced to the period already undergone or what would be the adequate sentence to be imposed in facts and circumstances of the case. Hon’ble Supreme Court in the matter of Deo Narain Mandal v. State of UP {(2004) 7 SCC 257} observed the same in paragraph 8, which is as under: “8. This brings us to the next question in regard to the reduction of sentence made by the High Court. In criminal cases awarding of sentence is not a mere formality. Where the statute has given the court a choice of sentence with maximum and minimum limit presented then an element of discretion is vested with the court. This discretion can not be exercised arbitrarily or whimsically. It will have to be exercised taking into consideration the gravity of offence, 11 the manner in which it is committed, the age, the sex of the accused, in other words the sentence to be awarded will have to be considered in the background of the fact of each case and the court while doing so should bear in mind the principle of proportionality. The sentence awarded should be neither excessively harsh nor ridiculously low.” 20. Hon’ble Supreme Court in case of State of MP v. Ghanshyam Singh {(2003) 8 SCC 13}, held as under:- “13. criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges, in essence, affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread. 14. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to 12 be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. 15. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCGDautha v. State of Callifornia {: 402 US 183 : 28 L.D. 2711} that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.” 21. While determining the quantum of punishment various factors needs to be considered. Nature and gravity of offence, penalty provided for the offence, manner of commission of offence, proportionality between crime & punishment, character of the offender, age and sex of the offender, antecedents if any, possibility of reforms, impact of crime on society etc. are some of the relevant consideration in determining the quantum of punishment. Court has to strike a balance between crime and 13 punishment. Possibility of reform is an important mitigating factor while imposing appropriate sentence. Undue sympathy should not be given only because of long drawn pendency of criminal proceedings. 22. The incident had occurred on 07.09.2002 and the appellant was aged about 26 years at that point of time and now he must have reached to a mature age. He was granted bail by this Court and it is not brought to the notice of this Court that he ever misused that liberty. Nothing adverse was brought to the notice of this Court that presence of the appellant is detrimental to the society. The possibility of his reform cannot be ruled out. Appellant has already paid the fine imposed upon him. 23. Considering the mitigating circumstances as stated above and the case laws relied by learned counsel for the appellant as also the fact that appellant remained in jail for 9 days, this Court is of the view that ends of justice would be served if the sentence imposed upon the appellant is reduced to the period already undergone by him.
Arguments
go ahead. Learned counsel further submits that appellant had no intention to outrage the modesty of the prosecutrix knowing fully well that she belongs to Scheduled Tribes category. Learned trial Court has erred in holding that the prosecutrix belongs to Scheduled Tribes and appellant belongs to General caste. Learned counsel further submits that the trial Court might have relied upon the answer given by the appellant to Question No.1 with regard to the caste of the prosecutrix, which cannot be read as an evidence as it is not recorded on oath and cannot be used to record the said finding. To buttress his contention, learned counsel places reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Indrakunwar v. The State of Chhattisgarh in Criminal Appeal No.1730 of 2012 {2023 LiveLaw (SC) 932} and in the judgments passed by the High Court of Madhya Pradesh at Jabalpur in the matter of Roshan Lal 5 v. The State of Madhya Pradesh in Criminal Appeal No.2286 of 2005, as also in the matter of Gyan Singh @ Kallu Singh v. The State of Madhya Pradesh in Criminal Appeal No.1213 of 2006. Apart from this, learned counsel submits that statement of the prosecutrix is not credible and conviction cannot be sustained on a statement where the story put forth by the prosecutrix is not corroborated by the eye-witnesses. Lastly, learned counsel submits that the appellant has remained in jail for about 10 days, whereas in the matter of Gyan Singh (supra), only one day sentence was awarded to the accused, therefore this Court may partly allow this appeal and in case of this appeal being dismissed, sentence awarded to the appellant may be reduced to period already undergone by him. 8. Per contra, Shri Devesh G. Kela, learned State counsel strongly opposes the submission made by counsel for the appellant and submits that the learned trial Court meticulously examined the evidence brought before it in its proper perspective and the finding recorded by the trial Court cannot be said to be perverse or contrary to the evidence. Learned counsel also submits that the appellant had knowledge of the caste of the prosecutrix and therefore, even if the caste certificate has been issued by the Sarpanch, Kurwa, it would hardly make any difference. The statement of the prosecutrix is sufficient enough to hold appellant guilty of the offence and as such, the appeal has no merit and is liable to be dismissed. 6 9. I have heard learned counsel for the parties, considered their rival submissions and perused the record. 10. The first question which comes for determination before this Court is as to whether the prosecution was able to prove guilt of the appellant under the provisions of the Act, 1989. In paragraph 2 of the impugned judgment, the learned trial Court observed that there is no dispute with regard to the fact that the prosecutrix belongs to Scheduled Tribes category and the appellant belongs to General category. Though, no specific reasons to arrive to this conclusion was mentioned in the impugned judgment, however, it appears that while answering the Question No.1 with regard to the caste of the prosecutrix, the appellant has given the answer in positive, therefore it appears that it may have prompted the learned trial Court to come to a conclusion that the caste of the prosecutrix is admitted. In this context, whether any answer given by the appellant in his statement under Section 313 of Cr.P.C. can be read against him is dealt by the Hon’ble Supreme Court in the matter of Indrakunwar (supra) in which provisions have been culled out at Para 31, 34.7, 34.8 and 34.9, which read as under:- “31. The above discussion was only to point out that the right to privacy is inviolable. Unfortunately, the view taken and the language adopted by both the Courts below lays to waste such a right inherent in the convict-appellant. It is apparent that the guilt has been placed on her without any solid foundation thereto since no relationship of any nature whatsoever could be established between her and the deceased child discovered in the dabri. The conclusion drawn is simply on the basis that the convict-appellant was 7 a woman living alone and had been pregnant (as admitted in the statement under 313 CrPC). This, in the Court's view, was in itself suspect since she had been ‘deserted’ by her husband. 34.7 This statement cannot form the sole basis of conviction and is neither a substantive nor a substitute piece of evidence. It does not discharge but reduces the prosecution's burden of leading evidence to prove its case. They are to be used to examine the veracity of the prosecution's case. 34.8 This statement is to be read as a whole. One part cannot be read in isolation. 34.9 Such a statement, as not on oath, does not qualify as a piece of evidence under Section 3 of the Indian Evidence Act, 1872; however, the inculpatory aspect as may be borne from the statement may be used to lend credence to the case of the prosecution.” 11. In case of Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) {AIR 2010 SC 2352}, Hon’ble Apex Court held that the answer given by the accused to the question put under Section 313 Cr.P.C. are not per se evidence because firstly, they are not on oath, and secondly, they are not subjected to cross- examination. It is nevertheless subject to consideration by the court to the limited extent of drawing an adverse inference against such accused for any false answers given voluntarily and to provide an additional/missing link in the chain of circumstances. 12. Further, it has been held by the Apex court in Ashok Kumar v. State of Haryana {(2010) 12 SCC 350} that conviction cannot be based merely on the statements made under Section 313 Cr.P.C. The proper use of this examination is to give opportunity to the 8 accused to explain and appreciate the evidence led by prosecution either to accept or reject it. Any admission made under Section 313 Cr.P.C. cannot act as a substitute for the evidence of prosecution. 13. In the case at hand, in light of the above authorities, this Court is of the opinion that despite having been given an answer in positive with regard to the caste of the prosecutrix, prosecution was under an obligation to prove the caste of the prosecutrix beyond reasonable doubt. 14. Perusal of record indicates that caste certificate of the prosecutrix (Ex.P/9) was issued by Sarpanch, Kurwa who was examined as PW-12 to prove the fact. The Law is no longer res integra in order to prove the caste of the prosecutrix, the caste certificate has to be issued by a competent authority.
Decision
24. In the result, conviction and sentence imposed upon the appellant under Sections 3(1)(x) and 3(1)(xi) of the Act, 1989 are set aside, however, conviction imposed upon the appellant under Section 324 of IPC is maintained. Further, the appellant is convicted under Section 354 of IPC and sentenced to the period already undergone by him. 25. Bail bonds be kept alive for a period of 6 months in view of 14 Section 481 of the Bharatiya Nagrik Suraksha Sanhita, 2023. 26. Copy of this judgment along with record be sent back to the trial Court concerned for information and necessary compliance. 27. The Appeal thus party allowed. Sd/- (Sachin Singh Rajput) Judge Avinash