1 2025:CGHC:50793-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No.1576 of 2018 1 - Munnaram Nag, S/o Chamra Ram Nag, Aged About 25 Years, R/o Mohanbeda, Police Station Makdi, District Kondagaon, Chhattisgarh Appellant (s) versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station Makdi, District Kondagaon, Chhattisgarh Respondent(s) For Appellant (s) : Ms. Smriti Shrivastava, Advocate For Respondent(s) : Mr. Ankur Kashyap, PL Hon’ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Amitendra Kishore Prasad Judgment on Board 13.10.2025 Per Ramesh Sinha, C.J. 1. In pursuance of the bailable warrant issued by this Court dated 24.06.2025, the appellant is present along with her counsel Digitally signed by R NIRALA 2 Ms. Smriti Shrivastava and she has identified him. The presence of the appellant be marked. 2. With the consent of learned counsel for the parties, the matter is heard finally. 3. The present appeal is directed against the judgment of conviction and order of sentence dated 13.09.2018 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Kondagaon, District Kondagaon in Session Trial No.90/2016, whereby the appellant has been convicted under Sections 366 & 376 (2) (<) of IPC and Section 3 (2) (v) of SC/ST (Prevention of Atrocities) Act and sentenced to undergo RI for 10 years and fine of Rs.200/-, life imprisonment and fine of Rs.200/- and life imprisonment and fine of Rs.200/-, respectively, with default stipulations. All the sentences shall run concurrently. 4. The prosecution case, in brief, is that the appellant was the neighbor of the prosecutrix and they knew to each other from their childhood. Prior to one year of the incident, the appellant took the prosecutrix to various places and on the pretext of marriage committed sexual intercourse with her for one year but due to fear and shame, the prosecutrix did not disclose the incident to anybody. The case of the prosecution further is that on 15.08.2016, the prosecutrix came to her home from her school and there was nobody at home, during which the 3 appellant came there and told that he loves her and thereafter eloped the prosecutrix with him on bicycle on his uncle’s house at Village Jodekera, where they stayed there for one day and the appellant committed sexual intercourse with her, thereafter he took her to Kanker, Dhamtari, where also the appellant committed sexual intercourse with her and whenever the prosecutrix told him to drop her to her house, he always denied. Subsequently, the father of the prosecutrix (PW-1) lodged missing report of her at the police station concerned and on 16.09.2016, she was recovered on 17.09.2016 as per recovery memo (Ex-P/2). After investigation, charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellant, as mentioned in para 1 of the judgment. 5. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. The learned trial Court has failed to appreciate that the first information report was lodged after more than 1 year of the incident. The learned trial Court has also failed to appreciate that the prosecutrix is a major lady and there was love affair between the appellant and the prosecutrix (PW-2) and she 4 went herself along with the appellant at several places and did not raise any protest. The learned Trial Court has failed to appreciate that the prosecution has not produced any reliable and cogent evidence to show that the prosecutrix belongs to member of Scheduled Tribe Community, despite the same the appellant has been convicted under the SC/ST (Prevention of Atrocities) Act. Therefore, the appeal deserves to be allowed. 6. Per contra, learned State counsel supports the impugned judgment and submits that the appellant abducted the prosecutrix and committed sexual intercourse with her for a long time, as such he committed the serious offence. He further submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal is liable to be dismissed. 7. Heard learned counsel for the parties and perused the material available on record. 8. It is evident from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 363, 366 & 376 (2) (Dha) of IPC, Section 6 of POCSO Act and Section 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act against the appellant and after appreciation of oral and documentary evidence, the learned Trial Court convicted and sentenced the 5 appellant, as mentioned in para 1 of the judgment. 9. As per prosecution, at the time of incident, the prosecutrix was below 18 years of age. The prosecutrix (PW-2) stated that her date of birth is 29.03.2003. In the cross-examination, she admitted that she has stated her date of birth as per the date of birth mentioned in her school certificate. The father of the prosecutrix (PW-1) did not state anything regarding the same, whereas the mother of the prosecutrix was not examined by the prosecution before the learned Trial Court. 10. PW-9 Devnarayan Bhandari, Head Master of Primary School Dongarsilati stated that he is posted in this school since 2006 and as per the dakhil kharij register, the date of birth of the prosecutrix is 29.03.2003. The said register was seized by the police as seizure memo (Ex-P/10). In the cross-examination, he denied this suggestion of the defence that the date of birth of the prosecutrix was not written by him, but he admitted that the birth certificate regarding the date of birth of the prosecutrix was not asked. He self stated that the date of birth of the prosecutrix was mentioned as per the transfer certificate of the previous year. 11. The Hon’ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment as under: 6 "40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P. held as follows:- “The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the 7 Constitution, as in that case the accused may unjustly be convicted.” 12. The Hon’ble Apex Court in the matter of P. Yuvaprakash (supra) held in para 18 as under:- “18. Reverting to the facts of this case, the headmaster of M’s School, CW- 1, was summoned by the court and produced a Transfer Certificate (Ex.C-1). This witness produced a Transfer Certificate Register containing M’s name. He deposed that she had studied in the school for one year, i.e., 2009-10 and that the date of birth was based on the basis of the record sheet given by the school where she studied in the 7th standard. DW-2 TMT Poongothoi, Headmaster of Chinnasoalipalayam Panchayat School, answered the summons [2012] 9 SCR 224 served by the court and deposed that ‘M’ had joined her school with effect from 03.04.2002 and that her date of birth was recorded as 11.07.1997. She admitted that though the date of birth was based on the birth certificate, it would normally be recorded on the basis of horoscope. She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. It is stated earlier on the same issue, i.e., the date of birth, Thiru Prakasam, DW-3 stated that the birth register pertaining to the year 1997 was not available in the record room of his office.” 13. In light of the above principle, it is unequivocal that in the case in hand, no concrete evidence was produced by the prosecution regarding the age of the prosecutrix and even the mother of the prosecutrix was not examined before the learned Trial Court, whereas the father of the prosecutrix has not stated anything regarding the age of the prosecutrix, as such 8 the prosecution has failed to prove the age of the prosecutrix below 18 years of age at the time of incident, as such the learned Trial Court has rightly given a finding that on the date of incident, the prosecutrix was not below 18 years of age. 14. Now we have to consider as to whether the accused abducted the prosecutrix and committed sexual intercourse with the prosecutrix without her consent. 15. The prosecutrix (PW-2) stated that on 15.08.2016, when she returned to her home from school, nobody was at the home, thereafter she had gone to the house of the appellant for charging her mobile and she left her mobile there, thereafter in the evening at about 4 pm, she again went to the house of the appellant for taking her mobile phone, where the appellant was also there and asked her to go to Village Jodekera due to some work and also told that they will return back after sometime, thereafter she went with the appellant to Village Jodekera to his uncle’s house where he kept her for 3 days. She told him to drop her to her home, but he did not do, thereafter he took her to Village Koregaon Gutadihi where they stayed for 2 days and committed sexual intercourse with her. After 2 days, the appellant took her to Dhamtari where she and the appellant used to do labour work in the rice mill and stayed there for one week and there also he committed sexual 9 intercourse with her, thereafter he dropped her at Keshkal from where she went to her home and told the entire incident to her parents. Thereafter her brother-in-law (jija) took her to police station and got lodged report against the appellant. She also stated that she belongs to the Gond Community which comes under the Scheduled Tribe. In the cross-examination, she admitted that she and the appellant used to visit each other’s house. She also admitted that she is in love with the appellant. She herself went with the appellant to Village Jodekera on her own will. She also admitted that the policemen did not read out her statement and told the same to her. 16. PW-1 father of the prosecutrix stated that on 15.08.2016 when he along with his wife and elder daughter came to the home, his daughter i.e. the prosecutrix was not at home and they waited for her till evening, thereafter they enquired about her from neighbors and relatives, but did not find her. After 2-3 days, they came to know that the appellant is also not at home, thereafter they enquired about him, upon which his family members told that he has gone to Village Dharli. After 3- 4 days he lodged a missing report at the Police Station Maakdi and after about 1 month her daughter came to the home and told him that the appellant had taken her to Village Jodekera and various other places. He came to know from her wife that the appellant committed sexual intercourse with her daugther. 10 In the cross-examination, he admitted that his house and the house of the appellant are located nearby. He also admitted that he lodged the report against unknown person. After one month when her daughter came to the home, she told that she and the appellant were working together. He also admitted that the prosecutrix did not tell him that the appellant committed wrong with her. 17. PW-3 Deenu Markam, brother-in-law of the prosecutrix stated that after about one month of the incident, the prosecutrix met him on the way and told the entire incident to him, thereafter he took her to police station and lodged the report against the appellant. In the cross-examination, he admitted that he came to know about the incident through her father-in-law. 18. PW-6 elder sister of the prosecutrix stated that the appellant had taken her sister to Village Jodekera for getting married and after one month when she came back, she told that the appellant had taken her forcefully to various places and committed sexual intercourse with her. In the cross- examination, she stated that the prosecutrix told her that she did not have had any problem and she was living well with the appellant. She also stated that the policemen did not read out her statement to her. 19. PW-8 Dr. Reeta Gedam stated that on 18.09.2016 she 11 examined the prosecutrix and did not find any internal or external injuries on the body of the prosecutrix and hymen was old ruptured. She also did not find symptoms of recent sexual intercourse and no definite opinion can be given regarding the same. In the cross-examination, she admitted that if a forcible sexual intercourse is attempted with any woman, then injuries may come in her private part. 20. A close scrutiny of the statement of the witnesses specially statement of the prosecutrix clearly shows that she is consenting party to the act of the appellant and she herself admitted that she was in love affair with the accused and she went with the accused on her own sweet will and did not raise any alarm. The prosecution has also failed to prove the age of the prosecutrix below 18 years of age at the time of incident and the prosecutrix herself admitted that she went with the accused on her own sweet will, as such she is consenting party to the act of the appellant, thus the prosecution has failed to prove this fact that the accused abducted the prosecutrix forcefully and committed sexual intercourse with her. Even otherwise, the report of sexual assault was lodged after one year of the incident and missing report was lodged against unknown person, whereas the father of the prosecutrix categorically stated that the appellant was also missing as such he had assumption that she might have eloped with him, 12 nonetheless he did not lodge report against the appellant initially. Apart from it, the mother of the prosecutrix was also not examined by the prosecution before the learned Trial Court. Thus, the finding recorded by the learned Trial Court regarding abduction and sexual intercourse is not sustainable. 21. As regards offence under Section 3 (2) (v) of the Act, 1989, it is unambiguous that the prosecutrix (PW-2) and the father of prosecutrix (PW-1) have clearly stated that they belong to Gond Community which falls under the Scheduled Tribe Category and the prosecution has also filed temporary caste certificate of the prosecutrix (Ex-P/1) in this regard, but the officer who issued the said caste certificate was not examined by the prosecution. 22. The Hon’ble Supreme Court in the matter of Raju @ Umakant vs The State of Madhya Pradesh, reported in 2025 INSC 615, held in paras 40 to 44 as under:- 40. The Court went on to hold in Patan Jamal Vali (supra) as under: “59. … … As we have emphasized before in the judgment, an intersectional lens enables us to view oppression as a sum of disadvantage resulting from multiple marginalised identities. To deny the protection of Section 3(2)(v) on the premise that the crime was not committed against an SC & ST person solely on the ground of their caste identity is to deny how social inequalities function in a cumulative fashion. It is to render the experiences 13 of the most marginalised invisible. It is to grant impunity to perpetrators who on account of their privileged social status feel entitled to commit atrocities against socially and economically vulnerable communities. This is not to say that there is no requirement to establish a causal link between the harm suffered and the ground, but it is to recognise that how a person was treated or impacted was a result of interaction of multiple grounds or identities. A true reading of Section 3(2) (v) would entail that conviction under this provision can be sustained as long as caste identity is one of the grounds for the occurrence of the offence. In the view which we ultimately take, a reference of these decisions to a larger Bench in this case is unnecessary. We keep that open and the debate alive for a later date and case.” (Emphasis supplied) 41. Earlier, in the same judgment, dealing with the situation where oppression operated at an intersectional fashion, this Court held in “54. The key words are “on the ground that such person is a member of an SC or ST”. The expression “on the ground” means “for the reason” or “on the basis of”. The above provision (as it stood at the material time prior to its amendment, which will be noticed later) is an example of a statute recognising only a single axis model of oppression. As we have discussed above, such single axis models require a person to prove a discrete experience of oppression suffered on account of a given social characteristic. However, when oppression operates in an intersectional fashion, it becomes difficult to identify, in a disjunctive fashion, which ground was the basis of oppression because often multiple grounds operate in tandem. Larrisa Behrendt, an aboriginal legal scholar from Australia, has poignantly stated the difficulty experienced by women facing sexual assault, who are marginalised on different counts, to identify the source of their oppression: “When an Aboriginal woman is the victim of a sexual assault, how, as a black woman, does she know whether it is because she is hated as a 14 woman and is perceived as inferior or if she is hated because she is Aboriginal, considered inferior and promiscuous by nature?” [Larissa Behrendt, “Aboriginal Women and the White Lies of the Feminist Movement : Implications for Aboriginal Women in Rights Discourse”, 1 Australian Feminist Law Journal 1 (1993), p. 35.]” (Emphasis supplied) 42. Section 3(2)(v) has since been amended (amended on 26.01.2016) and in the amended form it 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;” 43. The Court notices in Patan Jamal Vali (supra) that the amendment has decreased the threshold of proving that the crime was committed on the basis of the caste identify to a threshold where mere knowledge is sufficient to threshold a conviction. The Court also noticed that presumption in Section 8 which provided that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise. 44. Reverting to the facts of this case, we find that there was no evidence to bring the case within the threshold of Patan Jamal Vali (supra). There is no evidence whatsoever to establish the fact that the victims caste identity was one of the grounds for the occurrence of the offence. In the absence of any evidence attracting the offence of Section 3(2) (v), we are constrained to record an acquittal for the appellant from the charge of Section 3(2)(v) of the 1989 Act.” 23. In the present case also, there is no evidence adduced by 15 the prosecution that the victim’s caste identity was one of the ground for occurrence of the offence. In absence of any evidence attracting Section 3 (2) (v) of the Act, 1989, we are of the opinion that the offence under Section 3 (2) (v) of the Act is not made out against the appellant. Thus, the finding recorded by the learned Trial Court in this regard is not sustainable. 24. Consequently, the appeal is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges under Sections 366 & 376 (2) (<) of IPC and Section 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act. 25. The appellant is reported to be on bail. 26. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- before the court concerned forthwith, 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 aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 27. The Trial Court’s record along with the copy of this judgment 16 be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Amitendra Kishore Prasad) (Ramesh Sinha) Judge Chief Justice Nirala