1 2025:CGHC:52968 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 884 of 2008  Santa @ Sanat Tiwari, S/o Renuka Prasad Tiwari, Caste Brahman, aged around 32 years, R/o village Jaitgiri, P.O. Bakawand, P.S. Nagarnar, District Bastar (C.G.). ... Appellant versus  State of Chhattisgarh Through Police Station AJAK, Jagdalpur, District Bastar C.G. ... Respondent For Appellant : Ms. Manisha Yadav, Advocate. For Respondent/State : Ms. Sunita Sahu, P.L. Hon'ble Smt. Justice Rajani Dubey Judgment On Board 30/10/2025 1. This appeal arises out of the judgment of conviction and order of sentence dated 06.09.2008 passed by the learned Sessions Judge (Atrocities), Bastar at Jagdalpur (C.G.) in Sessions Trial No.186/2007 convicting and sentencing the accused/appellant as under :- Conviction Sentence U/s 294 of IPC and 3(1)(x) R.I. for 03 years and to pay fine 2 of SC/ST Act. of Rs.1,000/-, in default of payment of fine amount to undergo additional R.I. for 05 months. U/s 354 of IPC and 3(1) (xi) of SC/ST Act R.I. for 05 years and to pay fine of Rs.1,000/-, in default of payment of fine amount to undergo additional R.I. for 05 months. U/s 323 of IPC R.I. for 06-06 months. 2. The prosecution story, in brief, is that on 05.10.2007 at around 1.00 pm, when mother of prosecutrix (PW-3), who is member of Scheduled Tribes, was returning to her house after discharging her duty from the hospital, the accused/appellant met her near her house and said that he would commit rape with her and her daughter prosecutrix (PW-2), went to her house following her uttering filthy language. At the relevant time, prosecutrix (PW-2) who was present in the house, restrained the accused/appellant from doing so but the accused/appellant caught hold of her left hand and threw her on the ground saying that he would commit sex with her. Thereafter, Prosecutrix (PW-2) yelled and upon hearing her cries, her uncle Nand Kishore (PW-4) who reside beside her house, came and tried to intervene the matter, caught hold the accused/appellant and pulled him, then the accused/appellant told him that as to why he came and assaulted him with stone over his left eye and caused injury. Further case of the prosecution is that, when 3 this incident was going on, Raymati (PW-5), grand-mother of prosecutrix, also came there to intervene the incident and restrained the accused/appellant but he also threw her (PW- 5) on the ground resulting injury in her right knee. Thereafter, the report of the incident was made by prosecutrix (PW-2) at police station – Bakawand on same day at around 4.30 pm, on the basis of which, and FIR (Ex.P-1) was lodged against the accused/appellant by Puran Singh Baghel (PW-1) – Head Constable. During investigation, nazri naksha was prepared vide Ex.P-3. Broken pieces of bangles and unbroken piece of bangle were seized from the courtyard of the prosecutrix (PW-2) vide Ex.P-2. Injured prosecutrix (PW-2), Raymati (PW-5) and Nand Kishore (PW-4) were sent for medical examination to Community Health Center, Bakawand, where they were examined by Dr. S.R. Korram (PW-06) who noticed two scratch mark with pain on left forearm of prosecutrix (PW-2), one abrasion on right knee of Raymati (PW-5) and slight blood was coming from left eye, margin of which irregular with laceration in the size of ½ inch x ½ inch x ½ inch on Nand Kishore (PW-4) and gave his report under Ex.P-4, P-5 and P-6 respectively. Statement of the witnesses were recorded under Section 161 of Cr.P.C. and after completing the usual investigation, charge sheet under 4 Sections 354, 323, 294 of IPC and Section 3(1)(xi) of the SC/ST Act was filed against the accused/appellant before the jurisdictional Court. 3. After filing of the charge sheet, the trial Court framed the charges against accused/appellant under Sections 294, 323, 354 of IPC, Sections 3(1)(xi) and 3(1)(x) of the SC/ST Act, to which he abjured his guilt and prayed for trial. 4. So as to hold the accused/appellant guilty, the prosecution examined as many as 09 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. One defence witness namely Manbahal Singh (DW-1) was also examined in the case. 5. The learned trial Court after hearing counsel for the respective parties and considering the material available on record, has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, this appeal. 6. Learned counsel for the accused/appellant submits that the impugned judgment of conviction and order of sentence is illegal, perverse, arbitrary and unwarranted to the evidence available on record. The learned trial Court has erred in only taking into consideration those piece of evidence which are 5 culpiratory to the appellant and discording those piece of evidence which are inculpiratory to the appellant, which is against the principle of criminal procedure and practice. Learned counsel also submits that no offence much less offence under SC/ST Act is made out against the appellant as the prosecution has not produced any valid and legal document proving the fact that the complainant party belong to schedule tribe community. The prosecution has failed to prove the caste of the prosecutrix and the learned trial Court did not appreciate oral and documentary evidence available on record in its true perspective while recording the finding of conviction. Learned counsel further submits that if this Court finds the offence under Sections 294, 354 and 323 of IPC proved against the appellant, then prayer for undergoing the sentence may be considered considering the fact that the incident took place in the year 2007 i.e. about 18 years back, the appeal is pending since 2008, the appellant at the time of incident was aged around 32 years and by now he is aged about 50 years, and he remained in jail for 2 months and 14 days. 7. On the other hand, supporting the impugned judgment it has been argued by the learned State counsel that conviction of the accused/appellant is in accordance with law and there is no infirmity in the same. 6 8. Heard learned counsel for the parties and perused the material available on record. 9. As regards conviction of the appellant under Section 3(1)(x) and 3 (1)(xi) of the SC/ST Act, it is apparent from the record of the learned trial Court that the prosecution did not file caste certificate of the prosecutrix issued by the competent authority, and only filed certificates of the Sarpanch which are unexhibited, wherein it has been written that the prosecutrix (PW-2), Raymati Raymati (PW-5) and Nand Kishore (PW-4) comes within the category of Scheduled Tribes, but the learned trial Court only on the basis of evidence of Prosecutrix (PW-2) that she belongs to Halba caste (Scheduled Tribe) recorded the finding that the Prosecutrix (PW-2) belongs to the member of Scheduled Tribe (Halba caste). In question Nos. 1 and 2 of the statement of appellant recorded under Section 313 of Cr.P.C., the learned trial Court asked the appellant that prosecutrix (PW-2), her mother (PW-3), her uncle Nand Kishore (PW-4) and Raymati (PW-5) recognized him but the appellant replied to the aforesaid questions that ‘he did not know’. Thus, it was the duty of the prosecution to prove the fact that prosecutrix (PW-1) belongs to the member of Scheduled Tribe by producing the caste certificate duly issued by the competent authority, but the learned trial Court 7 did not appreciate this fact and convicted the appellant for the offence under Section 3(1)(x) and 3(1)(xi) of the SC/ST Act. Such finding of the learned trial Court convicting the appellant under the Special Act is not sustainable in law and his conviction under Sections 3(1)(x) and 3(1)(xi) of SC/ST Act is set aside and he is acquitted from the said charges. 10. As regards conviction of appellant under Sections 294, 354, and 323 of IPC, mother of prosecutrix (PW-3) has stated that when she was returning to her house from hospital after discharging her duty, the accused/appellant met her near her house and said that he would take her and her daughter (PW-2) and would commit sexual intercourse with them and reached her house following her uttering filthy language. She has also stated that at the relevant time, her daughter prosecutrix (PW-2) was present in the house. The appellant also caught hold of her (PW-2) hand and she restrained the accused/appellant from doing so then the accused/appellant threw her on the ground saying that he would commit sex with her. Thereafter, Prosecutrix (PW-2) yelled and upon hearing her cries, Nand Kishore (PW-4) who reside beside her house, came and tried to intervene the matter whom the accused/appellant also assaulted with stone and caused injury. In cross-examination, this witness remained firm and nothing could be elicited by the defence to discredit her 8 testimony especially to the fact that the appellant did not entered the house of prosecutrix, caught hold of her hand, threw her and PW-5 on ground, did not assaulted PW-4 with stone and uttered filthy language. 11. The evidence of mother of prosecutrix (PW-3) is well corroborated by the evidence of Prosecutrix (PW-2), her uncle Nand Kishore (PW-4) and her grand-mother Rayti (PW-5) who have categorically stated against the appellant. Nand Kishore (PW-4) has stated that when he intervened the matter, he was assaulted by the appellant with stone on his left eye. After the incident, the injured (PW-2, PW-4 and PW-5) were sent for medical examination to CHC, Bakawant, where they were examined by Dr. S.R. Korram (PW-6) who found :- two scratch mark with pain on left forearm of prosecutrix (PW-2), one abrasion on right knee of Raymati (PW-5) and slight blood was coming from left eye, margin of which irregular with laceration in the size of ½ inch x ½ inch x ½ inch on Nand Kishore (PW-4) and gave his report under Ex.P-4, P-5 and P-6 respectively. 12. Close scrutiny of the evidence, in particular the statement of Prosecutrix (PW-2) whose evidence is dully corroborated by the evidence of PW-3, PW-4 and PW-5, makes it clear that on 05.10.2007 at around 1.00 pm, the accused/appellant came to mother of prosecutrix (PW-3) and said that he 9 would commit rape with her and her daughter prosecutrix (PW-2) and uttered filthy language. When the appellant was restrained by prosecutrix (PW-2) he caught hold of her left hand and threw her on the ground saying that he would commit sex with her and upon hearing the cries of prosecutrix (PW-2), her uncle Nand Kishore (PW-4) came and tried to intervene the matter whom the appellant also assaulted with stone over his left eye and caused injury. The learned trial Court also after appreciating oral and documentary evidence has rightly convicted the appellant under Sections 294, 354 and 323 of IPC. This Court finds no reason to interfere with the said findings and therefore, the same is hereby affirmed. 13. The only question which arises for consideration by this Court is as to what would be the appropriate sentence to be imposed upon the accused/appellant. 14. Considering the overall facts and circumstances of the case, in particular the fact that the incident occurred 18 years ago, the appeal is pending since 2008, the appellant at the time of incident was aged around 32 and by now he is aged around 50 years, he has already remained in jail for about 02 months & 14 days, this Court is of the opinion that no useful purpose would be served in sending him back to jail at this stage and the ends of justice would be served if he is 10 sentenced to the period already undergone by him. 15. In the result, the appeal is partly allowed. Conviction of the appellant under Sections 3(1)(x) and 3(1)(xi) of the SC/ST Act is set aside and while maintaining conviction of the accused/appellant under Sections 294, 354 and 323 of IPC, his jail sentence is reduced to the period already undergone by him. 16. The appellant is already on bail. Keeping in view the provisions of Section 437-A Cr.P.C. (481 of the B.N.S.S.), the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 17. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Rajani Dubey) JUDGE pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.10.31 16:59:51 +0530