Page No.1 of 16 IN CRA-527-2019 2025:CGHC:4416-DB AFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 527 of 20 19 [Arising out of judgment dated 26.02.2019, passed in Sessions Case No.01 of 2017 (State of Chhattisgarh v. Kamlesh Patel), by the Special Judge (SC/ST Act), Kondagaon (C.G.)] Kamlesh Patel, Son of Shri Mahadev Patel, aged about 37 years, Resident of Village Gattipalna Mararpara, Police Station Farasgaon, District Kondagaon (Chhattisgarh) ---- Appellant (On Bail) Versus State of Chhattisgarh, through the Station House Officer, Police Station Farasgaon, District Kondagaon (Chhattisgarh) ---- Respondent ----------------------------------------------------------------------------------------------- For Appellant : Mr. Rishi Rahul Soni, Advocate/Panel Lawyer appointed through CG High Court Legal Services Committee For Respondent : Mr. Rahul Tamaskar, Govt. Advocate ----------------------------------------------------------------------------------------------- Division Bench Hon'ble Mr. Ramesh Sinha, Chief Justice and Hon'ble Mr. Ravindra Kumar Agrawal, Judge Judgment on Board (24.01.2025) Per: Ramesh Sinha, CJ (1) Invoking criminal appellate jurisdiction of this Court enshrined under Section 374(2) of the Code of Criminal Procedure (for brevity “CrPC”), the accused-appellant herein is calling in question legality, validity and correctness of impugned judgment of conviction and SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.01.31 11:54:38 +0530 Page No.2 of 16 IN CRA-527-2019 order of sentence dated 26.02.2019, passed in Sessions Case No.01 of 2017 (State of Chhattisgarh v. Kamlesh Patel), by the Special Judge, constituted under the provision of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for brevity the “Act of 1989”) Kondagaon (CG), whereby he has been convicted and sentenced as under: Conviction Sentence U/s. 3(2)(v) of the Act of 1989 Imprisonment for life with fine of Rs.500/- and, in default of payment of fine, additional rigorous imprisonment for 03 months. U/s. 376(1) of IPC Rigorous imprisonment for 10 years with fine of Rs.500/- and, in default of payment of fine, additional rigorous imprisonment for 03 months. U/s. 325 of IPC Rigorous imprisonment for 03 years with fine of Rs.100/- and, in default of payment of fine, additional rigorous imprisonment for 01 month. [All the sentences are directed to run concurrently] (2) The case of the prosecution, in short, is that on 05.10.2017 at about 05:00 PM in the evening, at Gattipalna Nursery, which comes within the ambit of Police Station Farasgaon, the accused-appellant, who is neither a member of Scheduled Caste community nor Scheduled Tribe, but knowing fully well that the victim (PW-04) belongs to Scheduled Tribe community, committed sexual intercourse/rape with her against her will and consent and, further, caused grievous injury to her and, thereby, said to have committed Page No.3 of 16 IN CRA-527-2019 offences under Sections 376(1) & 325 of IPC and also under Section 3(2)(v) of the Act of 1989. (3) Further case of the prosecution is that when victim (PW-04) herself reported the matter to the police by stating that on 05.10.2017, she had gone to Nursery for picking woods and, at about 04:00 PM, while she was taking rest below Sagon Tree, the appellant-accused suddenly came over there, who firstly inserted one towel/cloth into her mouth and, thereafter, committed rape with her and, further, when the said towel/cloth was taken out from victim’s mouth, one of her teeth plucked off. On the basis of aforesaid report, FIR (Ex.D/02) being Crime No.98/2017 for offence under Section 354 & 324 of IPC was registered against the appellant and wheels of investigation started running, in which, spot map was prepared. The victim (PW-04) was subjected to medical examination, which was conducted by Dr. Jyotirmay Prabhavali (PW-02) and, according to victim’s MLC report (Ex.P/01) two injuries were found over her body, one is simple in nature and another is grievous in nature. Further, victim’s statement under Section 164 of CrPC was also recorded. The accused-appellant was arrested vide Ex.P/09. In order to verify caste of the victim, her provisional caste certificate (Ex.P/07) was also seized vide Ex.P/08, wherein it has been stated that her caste is Gond, which is a Scheduled Tribe community. One teeth of the victim on her production was also seized vide Ex.P/03. After statement of witnesses were recorded and investigation is Page No.4 of 16 IN CRA-527-2019 completed, the appellant was charge-sheeted for offences under Section 354 & 325 of IPC as also under Section 3(1)(b)(i)(c) of the Act of 1989 in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 08 witnesses and exhibited 11 documents, whereas the appellant in support of his defence, though not examined any witness, but exhibited 02 documents. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence punishable under Sections 376(1) & 325 of IPC as also under Section 3(2)(v) of the Act of 1989 and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Rishi Rahul Soni, learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences, as the prosecution has failed to prove the same beyond reasonable doubt. He further submits that the appellant has not committed any Page No.5 of 16 IN CRA-527-2019 offence of rape with the victim (PW-04). There are major omissions and contradiction in the statement of the victim (PW-04) as also in other prosecution witnesses. The victim, who is a lady of 50 years has not made any allegation of rape with her by the appellant either in her statement recorded under Section 161 of CrPC or in her 164 statement. Learned counsel vehemently argued that a perusal of victim’s statement recorded under Section 164 of CrPC would show that she has only alleged that the appellant has tried to commit rape with her and, in course of which, she suffered injury. The victim has nowhere stated that the appellant has committed rape with her and only while recording her court’s statement she for the first time alleged that the appellant has committed rape with her, which is nothing but just an afterthought in order to falsely implicate the appellant. (7) Learned counsel for the appellant also submits that the learned trial Court on 04.01.2018 has initially framed charges under Section 354 & 325 of IPC as also under the provisions of the Act of 1989 against the appellant, for which, the appellant has also been charge-sheeted by the investigating agency, but the learned trial Court subsequently, on 09.07.2018 i.e., on a later point of time, has framed fresh charges against the appellant for offence under Section 376(1) & 325 of IPC as also under Section 3(2)(v) of the Act of 1989, only on the basis of victim’s subsequent statement, which also creates a doubt on the case of the prosecution. Learned Page No.6 of 16 IN CRA-527-2019 counsel also argued that neither medical evidence nor forensic evidence is available in the present case in order to connect the appellant with the offence of rape with the victim. In the MLC report (Ex.P/01), only two injuries were found over the body of the victim (PW-01), out of which one is simple and another is grievous in nature. Learned counsel further submits that there is no evidence available on record to show that the appellant has committed any offence with the victim (PW-04) knowing fully well that she belongs to Scheduled Tribe community and, therefore, the conviction and sentence of the appellant is liable to be set aside and he deserves to be acquitted from all the charges. Hence, the present appeal deserves to be allowed in toto. (8) Per-contra, learned State counsel would submit that prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statements of the victim (PW-04), wherein she has clearly narrated the incident and implicated appellant herein to be the author of the crime in question, coupled with other evidence available on record, the trial Court has rightly convicted the appellant for the offences mentioned herein above. Thus, the present appeal is liable to be dismissed. (9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the Page No.7 of 16 IN CRA-527-2019 records with utmost circumspection. (10) In the case at hand, the learned trial Court has convicted the appellant for offences under Section 376(1), 325 of IPC and under Section 3(2)(v) of the Act of 1989, therefore, we deem it appropriate to consider each of the offences one by one. As regards offence under Section 376(1) of IPC: (11) In this regard, though the victim (PW-04) in her court’s statement has stated that on the date and time of the offence while she was in the Nursery and taking rest under Sagon Tree, the appellant came over there, dropped her on the ground and sat over her chest, inserted one cloth in her mouth and committed rape with her and, thereafter, ran away from the spot. The victim (PW-04) has also stated that while the appellant has inserted cloth in her mouth, one of her teeth plucked off. However, the said version of the victim (PW-04) does not born out from her statement recorded under Section 164 of CrPC, wherein she has only stated that on the date and time of the offence while she was taking rest under Sagon Tree at Nursery, the appellant came and tried to commit rape with her and, during the course of which, she suffered injuries, as the appellant inserted one cloth in her mouth, due to which, one of her teeth plucked off. The victim (PW-04) has nowhere stated in her statement recorded under Section 164 of CrPC that the appellant has committed sexual intercourse/rape with her. Furthermore, the victim (PW-04) in her statement recorded under Section 161 of CrPC Page No.8 of 16 IN CRA-527-2019 (Ex.D/01) also has not made any categorical allegation of appellant having committed rape with her. Therein also she has only stated that the appellant firstly dropped her on the ground, sat over her chest and inserted one cloth in her mouth, but somehow she managed to remove the said cloth from her mouth and made hue and cry for her escape, upon which, the Guards of the Nursery reached to the spot, seeing whom, the appellant ran away from the spot. It is also important to notice here that the FIR (Ex.D/02), which is lodged at the instance of the victim (PW-04), nowhere states about commission of rape on her by the appellant. As such, the allegation of rape appears to be an afterthought. Therefore, it would be unsafe and risky to hold the appellant guilty for offence of rape with the victim (PW-04) only on the basis of her court’s statement, more particularly, when neither the medical evidence nor any forensic evidence is available in the present case to support her allegation of rape on the appellant. Consequently, the learned trial Court is absolutely unjustified in holding the appellant guilty for having committed offence under Section 376(1) of IPC and, same is liable to be set aside. We hereby hold accordingly. (12) Now the question would be in light of the allegations levelled by the victim (PW-04) what offence would be made out against the appellant? (13) The victim (PW-04) while lodging FIR (Ex.D/02) has not uttered a word relating to allegation of rape against the appellant, Page No.9 of 16 IN CRA-527-2019 indeed, she only alleged that the appellant, on the date and time of the incident, has tried to outrage her modesty and, during such attempt, the appellant caught hold her and inserted one piece of cloth in her mouth, due to which, one of her teeth plucked off. Further, the victim (PW-04) in her statement recorded under Section 161 of CrPC (Ex.D/01) also, has not made any allegation of rape against the appellant, infact she has only made allegation of outraging her modesty or even attempt to commit the offence by the appellant is made. However, the victim (PW-04) in her court’s statement has made allegation of rape against the appellant by stating that on the date and time of the offence while she was in the Nursery and taking rest under Sagon Tree, the appellant came over there, dropped her on the ground and sat over her chest, inserted one cloth in her mouth and committed rape with her and, thereafter, ran away from the spot. This piece of evidence of the victim (PW-04) appears to be exaggerated evidence to that of her statement recorded under Section 161 of CrPC as also the FIR (Ex.D/02). Although the statement of the victim (PW-04) under Section 164 of CrPC has also been recorded, but the same has not been relied upon either by the prosecution or by the defence. Yet from the FIR (Ex.D/02) and victim’s statement under Section 161 of CrPC (Ex.D/01), there is no allegation of rape against the appellant. Had the victim been subjected to forceful intercourse, there is no reason for her for not disclosing the said incident to the police at the Page No.10 of 16 IN CRA-527-2019 time of lodging of the report as well as at the time of recording her statement under Section 161 of CrPC. Therefore, from the entire evidence of the victim (PW-04) it appears that she infact was not subjected to rape by the appellant rather the appellant has committed the offence of outraging her modesty, which is punishable under Section 354 of IPC. As such, instead for offence under Section 376(1) of IPC, the appellant is liable to be convicted for offence under Section 354 of IPC. We hereby hold accordingly. As regards offence under Section 325 of IPC: (14) So far as offence under Section 325 of IPC is concerned, the victim (PW-04) in her statements recorded under Sections 161 & 164 of CrPC as also in her court’s statement has specifically and repeated stated that during the course of incident she suffered injuries, which aspect has also in conformity with the medical evidence available on record in shape of MLC report (Ex.P/01) of the victim, wherein it has clearly been mentioned that only two injuries were found over the body of the victim (PW-01), out of which one is simple and another is grievous in nature, which is duly supported by Dr. Jyotirmay Prabhavali (PW-01), who medically examined the victim (PW-04). Moreover, the victim (PW-04) has also stated that during the course of incident while the appellant has inserted cloth in her mouth, one of her teeth plucked off, which broken teeth she has submitted before the police and same was seized vide property seizure memo (Ex.P/03). As such, on the basis of aforesaid material Page No.11 of 16 IN CRA-527-2019 available on record it can safely be concluded that during the course of incident the appellant has caused injuries to the victim (PW-04) and, therefore, the learned trial Court has rightly convicted the sentenced the appellant for offence under Section 325 of IPC. We hereby hold accordingly. As regards offence under Section 3(2)(v) of the Act of 1989: (15) Now the question would be whether the learned trial Court is justified in convicting the appellant for offence under Section 3(2)(v) of the Act of 1989, for which, he has been sentenced for life imprisonment ? (16) In order to answer this plea, it would be relevant to take note of the fact that the date of incident in the instant case is 05.10.2017, whereas Section 3(2)(v) of the Act of 1989 was amendment w.e.f. 26.01.2016 by Act 1 of 2016. Prior to its amendment w.e.f. 26.01.2016, Section 3(2)(v) stood as under: “3. Punishment for offences of atrocities - (1) xxx xxx (2) Whoever, not being a member of a Scheduled Caste or Scheduled Tribe - (i) to (iv) xxx xxx (v) commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such Page No.12 of 16 IN CRA-527-2019 member, shall be punishable with imprisonment for life and with fine;” Prior to its amendment w.e.f. 26.01.2016, the unamended portion of Section 3(2)(v) was: “on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member” After the amendment, the substituted portion of Section 3(2)(v) is: “knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member.” (17) A bare perusal of the above quoted provision would show that a person can be held guilty for offence under Section 3(2)(v) of the Act of 1989 if he commits any offence under the Indian Penal Code (IPC) punishable with imprisonment for a term of ten years or more against a person or property. In the present case, in light of the observation made by us in the above paragraphs, the appellant has been held guilty for having committed offence under Section 354 of IPC, for which, the maximum sentence of 05 years has been prescribed and, therefore, offence under Section 3(2)(v) of the Act of 1989 is also not made out against the appellant, as he has not found guilty for any offence under the IPC punishable with imprisonment for a term of ten years or more against a person or property. As such, the conviction of the appellant for offence Page No.13 of 16 IN CRA-527-2019 punishable under Section 3(2)(v) of the Act of 1989 and the sentence of imprisonment for life, as awarded by the trial Court, is also liable to be set aside. We hereby hold accordingly. (18) At this stage, it has been informed by learned counsel appearing for the appellant that as per the information received from the High Court Legal Services Committee, though the appellant was granted bail by this Court on 23.07.2019, but on account of his inability to furnish bail bonds and surety, he remained in jail uptill 14.07.2022, meaning thereby the appellant in the present case remained in jail from 11.10.2017 to 14.07.2022 i.e. for more than 04 years 09 months, therefore, he be sentenced to the period already undergone by him for having committed offence under Section 354 of IPC. (19) In the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in (1977) 3 SCC 287 Hon’ble Supreme Court has observed that If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in Para 9 as follows: “9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel Romilly, critical of the brutal penalties in the then Britain, said in 1817 : “The laws of England are written in blood”. Alfieri has suggested : 'society prepares the crime, the criminal commits it'. George Nicodotis, Director of Criminological Research Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If it is thus plain that crime is a pathological aberration. that the criminal can ordinarily be redeemed. that the State has to rehabilitate rather than Page No.14 of 16 IN CRA-527-2019 avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : “If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences'.” (20) Considering the submissions made by learned counsel for the appellant and also in view of the aforesaid law laid down by the Hon’ble Supreme Court in Mohammad Giasuddin case (supra) and further considering the fact that the appellant is suffering from mental illness and he has already undergone agony of criminal lis, as he remained in jail for more than 4 year and 9 months, thus, this Court is of the opinion that ends of justice would meet if the appellant is sentenced for the period already undergone by him for having committed offence under Section 354 of IPC. (21) Concludingly, in view of foregoing analysis, the conviction and their respective sentence of the appellant for offence punishable under Section 376(1) of IPC as also under Section 3(2)(v) of the Act Page No.15 of 16 IN CRA-527-2019 of 1989, as imposed upon him by the learned trial Court, are hereby set aside. Instead of offence under Section 376(1) of IPC, the appellant is convicted for offence under Section 354 of IPC and, for which, he is sentenced to the period already undergone by him. Further, the conviction and sentence of the appellant for offence under Sections 325 of IPC is hereby affirmed/upheld and same shall remain as it is being well merited. Since the appellant is reported to be on bail and he remained in jail for a period of 04 years 09 month, therefore, he need not to surrender, but his bail bonds/personal bonds shall remain in force for a period of six months in view of provision contained under Section 437-A of CrPC. (22) Consequently, this criminal appeal is partly allowed to the extent indicated herein-above. (23) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned for information and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice s@if Page No.16 of 16 IN CRA-527-2019 HEAD NOTE (I) On the basis of evidence available on record, if it appears that incident of outraging the modesty of the victim took place, the accused cannot be convicted under Section 376 (1) of the IPC, as the same would fall within the ambit of Section 354 of IPC. vfHkys[k ij miyC/k lk{; ds vk/kkj ij ;fn ,slk yxrk gS fd] ihfM+rk ds yTtk Hkax dh ?kVuk ?kVh gS] rks vfHk;qDr dks Hkkjrh; n.M lafgrk dh /kkjk 376 ¼1½ ds varxZr nks"kfl) ugha fd;k tk ldrk] D;ksafd ;g Hkkjrh; n.M lafgrk dh /kkjk 354 dh ifjf/k esa vkrk gSA (II) For the purpose of Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, if an accused has committed any offence under the IPC and, the punishment of the said offence, as provided in IPC, is less than 10 years, offence under Section 3(2)(v) would not be made out against him. vuqlwfpr tkfr vkSj vuqlwfpr tutkfr;ka ¼vR;kpkj fuokj.k½ vf/kfu;e 1989 dh /kkjk 3(2)(v) ds iz;kstukFkZ] ;fn fdlh vfHk;qDr us Hkkjrh; n.M lafgrk ds rgr~ vijk/k fd;k gS rFkk mDr vijk/k ds fy;s Hkkjrh; n.M lafgrk esa izko/kkfur n.M 10 o"kZ ls de gks rks] mlds fo:) /kkjk 3(2)(v) ds rgr~ vijk/k ugha cusxkA