1 2025:CGHC:17168 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 230 of 2007 1 - Narmada Prasad S/o Ganga Ram Yadav, aged about 38 years, resident of village - Kolbirra, P.S.Pendra, District-Bilaspur, ... Appellant(s) versus 1 - State Of Chhattisgarh through District – Magistrate, Bilaspur (CG) ... Respondent(s) For Appellant (s) : Shri Suraj Patel and Shri Satish Patel, Advocates For Respondent / State : Ms. Nandkumari Kashyap, Panel Lawyer ({Hon’ble Shri Justice Sachin Singh Rajput}) Judgment on Board 15/04/2025 This appeal under Section 374 of the CrPC has been filed aggrieved by impugned judgment of conviction and order of sentence dated 28/02/2007 in special criminal case No.56/2006 passed by the Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short ‘the Act of 1989’), Bilaspur, CG by which the appellant has been convicted and sentenced in the following manner - Conviction Sentence U/s 341 of IPC S.I. for 1 month fine of Rs.500 (in default 7 2 days additional S.I.) U/S 294 of IPC S.I. for 1 month and fine Rs.500 (in default 7 days additional S.I.) U/s 3 (1) (x) of the Act of 1989 S.I. for 6 months and fine of Rs.1,000/- (in default 1 month R.I.) All the sentence to run concurrently 2. Case of the prosecution in brief is that on the date of incident i.e. 05/02/2006 at about 6 PM, complainant–Human Singh along with his mates Shyamlal (PW2) and Ramlal (PW3) were returning to the village on the motor cycle. The appellant was standing on the road in front of his house at village– Kolbira. He stopped the complainant and asked as to why the harmonium is not being sent, upon which, the complainant replied that they use to play the harmonium, so why should they send it to his house. On this, the appellant filthily abused the complainant with obscene words and also in the name of caste, threatened of dire consequences. The incident was witnessed by K.R.Jangde (PW5) and Nanku Yadav etc. Report (Ex.P/1) was lodged at Police Station– Kotmi. Crime was registered and investigation was set on motion. Spot map (Ex.P/2) was prepared. Caste certificate of the complainant was seized. Statement of the witnesses were recorded. The appellant was arrested vide arrest memo (Ex.P/5). After due investigation, charge sheet was filed. The appellant was charged for offence punishable under Section 341 of IPC, 294 of IPC and 3 (1) (x) of the Act of 1989 who denied the charges and claimed to be tried. 3. The prosecution examined as many as 7 witnesses and exhibited 6 documents. One defence witness Amar Singh (DW1) was examined. The appellant was examined under Section 313 of CrPC in respect of the incriminating circumstances against him. He took a defence that the complainant was caught by the appellant on illegal transportation of wood and he also borrowed money from the complainant Human Singh and therefore, he has been falsely implicated. Relying upon the evidence of the prosecution and after examining the documents and evidence, learned Trial Court held the appellant guilty of commission of offence as described above. 3 4. Learned counsel for the appellant submits that the prosecution was not able to bring home the guilt of the appellant beyond reasonable doubt. He submits that the caste of the complainant has not been proved in accordance with law. The caste certificate was issued by the Tahsildar who is not the competent authority to issue such certificate. Learned trial Court in his judgment also doubted the procedural irregularity, however, still convicted the appellant under the provisions of the Act of 1989. He submits that there was previous enmity between the appellant and the complainant, therefore, they have falsely implicated the appellant. He placed reliance on the judgment in the case of Ku. Madhuri Patil v. Addl. Commissioner, Tribal Development reported in AIR 1995 SC 94 and Pilla Bai and ors. v. State of Chhattisgarh reported in (2023) 3 CGLJ 1. Therefore, he prays that the appeal may be allowed and the appellant may be acquitted of all the charges. Alternatively, he submits that in the event, the appellant is acquitted of the charges under the Act of 1989 as the maximum sentence on other offences is of one month and he has already remained in jail for 9 days and he has already paid the fine amount, the sentence may be reduced to the period already undergone by him. 5. Per contra, learned State counsel submits that on due assessment of the evidence, the finding has been recorded by the trial Court, therefore, the appeal has no merits and is liable to be dismissed. 6. Heard learned counsel for the parties and perused the records. 7. The first question as to whether the prosecution has been able to bring home the guilt of the accused under the Act of 1989. In order to prove the offence, the prosecution has exhibited the caste certificate (Ex.P/3) issued by the Tahsildar. This Court dealing with the identical facts situation, relying upon various judgments, particularly of the Hon’ble Supreme Court in the case of Ku. Madhuri Patil (supra) in the case of Pilla Bai (supra) has 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 Kumari Madhuri Patil (supra) which laid down the forum and procedure for issuance of / assailing caste certificate and the 4 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 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.” 8. Apart from this, it has to be seen whether the overt act of the appellant was with intention to humiliate the complainant. Considering the valuation of the evidence available on record and in view of the above-stated judgment of Hon’ble Supreme Court, this Court is unable to hold that the prosecution was able to prove the offence under the Act of 1989 against the appellant beyond reasonable doubt, therefore, the appellant is acquitted from that charge. 9. Now this leads to the 2nd question whether the conviction of the appellant under Section 294 IPC and 341 IPC can sustain to the scrutiny of this Court. In this regard, the statement of the complainant is very material who very categorically deposed the happening of the incident. Learned trial Court on the basis of above, found the appellant guilty and the finding recorded by the trial Court does not appear to be perverse. Therefore, appellant’s conviction under Section 294 and 341 of IPC is maintained. 10. This leads to the 3rd question as to whether the sentence awarded by the trial Court can be reduced to the period already undergone by the appellant. Hon’ble Supreme Court in the case of State of Madhya Pradesh Vs. Udham and Ors. (2019) 10 SCC 300 has examined how the quantum of sentence should be imposed upon the conviction and held in Paragraphs 12 & 13 as under:- “12. Sentencing for crimes has to be analyzed on the touch stone of three tests viz., crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, 5 antisocial or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list). 13. Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach. 11. There is no minimum sentence awarded under Section 294 and 341 of IPC. 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 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. 12. The incident had occurred on 05/02/2006. At the time of incident, the appellant / accused was aged about 38 years. He was granted bail by this Court and it is not brought to the notice of this Court that he has ever misused the liberty. Nothing adverse was brought to the notice of this Court that presence of the appellant would be detrimental to the society. The possibility of his reform cannot be ruled out. Considering the entire facts and circumstances of the case and the law laid down in the above stated judgment of Hon’ble Supreme Court, the sentence awarded under Section 294 and 341 of IPC is reduced to period already undergone by the appellant. 13. Consequently, the present criminal appeal is allowed in part to the extent as indicated above. Appellant is said to be on bail during the pendency of the appeal. 6 His bail bonds shall be kept alive for six months as per provisions of Section 481 of Bhartiya Nagrik Suraksha Sanhita, 2023. The records of the trial Court with copy of this judgment be sent back for information and compliance. Sd/- ({Sachin Singh Rajput}) JUDGE Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.04.17 17:09:23 +0530