2025:CGHC:6853 HIGH COURT OF CHHATTISGARH, BILASPUR Cr.A.No. 408 of 2005 Ram Mani Upadhyay, S/o. Ram Kishor Upadhyay, aged about 42 years, Occupation – Buisness, R/o. – Near Sarva Mangla Mandir, KoirbaThana – Kusmunda, District - Korba (C.G.) ---- Appellant Versus State of Chhattisgarh, through – Station House Officer, Police Station – Korba, District – Korba (C.G.) --- Respondent ______________________________________________________________________ For the Appellant : Shri Sanjay Patel, Advocate. For State / Respondent : Ms. M. Asha, P.L.. ______________________________________________________________________ Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board 16/04/2025 1. This appeal has been filed under section 374 (2) of the Code of Criminal Procedure, 1973 (for short CrPC) by the appellant, being aggrieved by the judgment dated 21/04/2005 passed in Special Session Trial No. 04/2004 by the Special Sessions Judge, Korba, District – Korba (C.G.). 2. By the impugned judgment, the appellant has been convicted and sentenced in the following manner:- Conviction Sentence Under Section 323 of Indian Penal Code, 1860 Rigorous Imprisonment of Six months and fine of Rs.500/- in default of payment of fine 01 month Additional R.I. Under Section 3(1)(10) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Rigorous Imprisonment of One year and fine of Rs.1000/- in default of payment of fine 01 month Additional R.I. ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.05.23 15:57:12 +0530 -2- 3. Fact of the case, in nutshell is that on 26/09/2003 complainant – Dooj Bai (PW-2) along-with her two and a half years child had gone to Sarwamangla Temple to get a receipt for Jyoti Kalash where she purchased coconut from the shop of the accused/appellant and kept her Chappal and Leather bag in the shop of the appellant and went to perform the Pooja at Temple. As complainant – Dooj Bai (PW-2) was knowing the appellant from earlier as she used to purchase coconut from his shop was kept by her in his shop. After taking receipt of Rs.325/- from the Temple for Jyoti Kalash. She came back to the shop of the accused/appellant and found that her Chappal and Bag was missing. On being asked in respect to bag and Chappal, the appellant in fit of anger filthily abused her and also abused her in the name of Caste. Komal Sahu and Jeevan Patel (PW – 6) came on the spot who saw the incident. Advice was given to the appellant and thereafter the complainant came back to her home and narrated the incident to her husband. Thereafter she lodged report on 27/09/2003 to the Police Station – AJK, Korba. On the basis of which FIR was registered for the offence punishable under sections 294 and 323 of the IPC under Crime No. 33/2003 Vide Ex.P/2. The complainant was sent for medical examination who was examined by Dr. A. K. Tiwari (PW-3) vide Ex.P/4. Domicile and Caste certificate was seized. Statement of the witnesses were recorded. 4. On completion of investigation, charge-sheet was filed before the J.M.F.C., Korba who committed the case to the learned trial court. 5. On 01/10/2004, Civil District of Korba came into being and therefore, the case was made over to the trial Court. 6. The appellant was charged for an offence punishable under sections 294, 323 of the IPC and 3(1)(10) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘’Special Act). The appellant denied the charges and claimed to be tried. 7. Prosecution has examined 07 witnesses and exhibited as many as 05 documents. -3- two defense witnesses DW-1 and DW-2 were examined. 8. The statement of the appellant under section 313 of the Cr.P.C. was recorded in which he pleaded false implication on account of business of rivalry with the priest of Sarvmangla Temple and Laxmikant. 9. The learned trial court after appreciation of evidence available on record, convicted and sentenced the appellant as stated above in paragraph - 2 of the impugned judgment which led to filing of this appeal. 10. 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 appellant has been falsely implicated on account of business of rivalry with the priest of Sarvmangla Temple and Laxmikant. The complainant – Dooj Bai (PW-2) is used as a tool to falsely implicate the appellant. He further submits that even otherwise, the prosecution was not able to prove the Caste of the appellant as the Caste certificate though according to seizure memo vide Ex.P/3 was said to have been seized but the same was not exhibited. The learned trial court committed an error of law in relying upon the seizure memo particularly when the Caste certificate was not brought on record and even from the seizure memo it appears to have been issued by the ‘Parshad’ (Corporator) which is not the competent authority to issue the certificate, in light of the judgment of Hon’ble Supreme Court in case of Kumari Madhuri Patil Vs. Addl. Commissioner reported in (1994) 6 SCC 241 and also judgment of this Court in case of Pilla Bai and ors. Vs. State of Chhattisgarh reported in 2023 (3) CGLJ Page 1. Hence, he submits that the conviction of the appellant under Special Act is bad in Law and requires to be set aside. So far as the conviction of the appellant under section 323 of the IPC learned counsel for the appellant submits that though the complainant has stated against the appellant and she was also examined by the Doctor. However, the same could not be relied upon, as the appellant been falsely implicated and the appellant is used as a tool. Alternatively he submits that in the event if the -4- appellant is acquitted under the Special Act and convicted under section 323 of the IPC, as the incident has occurred on 26/09/2003 and the appellant has faced the lis for all these years. He was granted bail by the learned trial Court and after conviction his sentence was also suspended by this Court and during this period he never misuse the liberty. The appellant is not a habitual offender and no criminal history. He submits that the conviction under section 323 of the IPC with fine only and he remained in jail for five days and looking to this mitigating circumstances, the sentence awarded under section 323 of the IPC may be reduced to the period already undergone. 11. Per contra, State Counsel support the judgment impugned and submits that the case is prove beyond reasonable doubt, even if the Caste certificate is not brought on record or exhibited, but from the seizure memo it can be gathered that the Caste certificate was seized and the finding recorded by the learned trial Court with regard to conviction of the appellant under the ‘Special Act’ is well merited which does not required any interference. She further submits that the Dooj Bai (PW-2) deposed against the appellant and her statement is also corroborated by the statement of Dr. Arun Kumar Tiwari (PW-3). Therefore, looking to the over-tact of the appellant no leniency should be shown to the appellant including reduction of the sentenced. 12. I have heard learned counsel for the parties, considered their rival submission and also perused the appended documents. 13. First issue which is posed before this Court as to whether the conviction of the appellant under provisions of ‘Special Act’ can stand the scrutiny of this Court or not. Surprisingly, no Caste certificate of the complainant - Dooj Bai (PW-2) was placed on record. Learned trial Court has held that it can be presumed that the assault was made by the appellant to the prosecutrix who belonged to the Scheduled Caste and which is also proved by the fact that the appellant knew the complainant – Dooj Bai (PW-2). Therefore, the finding was recorded against the -5- appellant for conviction under the Special Act. This finding appears to be erroneous and misconceived. Firstly, the prosecution beyond reasonable doubt is required to establish that the complainant was of Scheduled Caste. The best piece of evidence could have been the Caste certificate issued in her favour by the competent authority. The Hon’ble Court in case of Kumari Madhuri Patil (supra) has held that the application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level. 14. This Court in case of Pilla Bai (Supra) has held 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 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.” 15. The seizure memo indicates that the Caste certificate of the appellant was issued by the local Corporator who is not competent to issue such certificate. The learned Trial Court paid much emphasis to the fact that the appellant knew the complainant- Dooj Bai (PW-2) and therefore under an assumption held that the offence was committed under the ‘Special Act but in her statement under section -6- 313 of the CrPC., question with regard to the Caste of the complainant, the appellant has given the answer as he does not know meaning thereby it cannot be said that the appellant was knowing the Caste of the appellant. Considering this aspects of the matter, the finding arrived by the learned trial Court with regard to conviction of the appellant under Special Act is absolutely perverse and liable to be set aside. Therefore conviction of the appellant under section Special Act hereby set aside and he is acquitted from this charge. 16. This leads to the question as to whether the conviction of the appellant under section 323 of the IPC is correct or not. The learned Counsel for the appellant tried to persuade this Court as that the appellant was falsely implicated on account of business rivalry with priest of the Temple and Laxmikant. The complainant (PW-2) in her deposition before the learned trial Court has vividly described the happening of the incident she stated that appellant assaulted and pushed her and assaulted her with the stick which was hit on her stomach and back. She made a report Ex.P/2 immediately. She was taken to the Hospital. She has further deposed that the incident was told by her to her husband and 2-3 other person Laxmikant Trivedi and Vimal Sahu. She further deposed that she was taken to the hospital for medical examination. She further deposed that at that time she was pregnant and as a result of the injury, her miscarriage took place. In her examination-in-chief she was also stated that she was filthily abused and also in the name of Caste. In her cross-examination, she was stated that the said fact was made in Ex.P/2, however it is not mentioned the reason is unknown and she cannot tell the reason. He has further stated that at the time of lodging of the report. She has informed that she was carrying pregnancy but if it is not mentioned in the report she cannot tell the reason though she denied the suggestion that on account of rush and scuffling, she fell down. She admitted that Police person have got signature on 2-3 papers and what was written on that she could not see. From her statement it appears that is major omission in her report Ex.P/2. The factum of her being pregnant is -7- missing in the Ex.P/2. The witness Laxmikant (PW-1) who was stated that Dooj Bai (PW-2) was saying to the appellant that she is pregnant don’t do that and when the Dooj Bai (PW-2) came before her she saw 2-3 injury on her person and scratch mark on her face. Thereafter, she asked him to take to the Police Station then he went to lodge the report he was declared hostile. Thereafter in his cross- examination he has admitted that she has told the Police that appellant started to scuffle, however those statement is not mentioned in his Police statement Ex.D/1 and he cannot tell the reason. He also stated that the Dooj Bai informed him that she was pregnant and the same was stated to the Police if it is missing in the Police statement the reason he cannot tell. He also admitted that on the same day the incident was narrated by Dooj Bai she had gone tot he Police Station. He admitted that he was not there at the time of incident and later on he had gone there. He appears to be a hearsay witness. From perusal of these two witnesses it appears that according to these witnesses injury were found on the person of the appellant and she was carrying pregnancy also. The incident was occurred on 26/09/2003 and the report was lodged on 27/09/2003 and she was examined by the Dr. Arun Kumar Tiwari (PW-3) who found no external injury in the person of the PW-2 gave his report Ex.P/4. One independent witness Jeevan (PW-6) who has said to be eye-witness have not supported the case of the prosecution and was declared hostile and he is denied that the Dooj Bai (PW-2) ask her that the appellant is filthily abusing her. One other witness Vimal Kumar (PW-7) deposed that the appellant was abusing the Dooj Bai (PW-2) in the name of Caste as a result of which some scratches were there on the face of the PW-2. She asked this witness to take her to the Hospital and before that to lodge a report. After lodging report he went to his work. In the cross-examination he admits that on the date of incident they had gone to lodge the report to the Police Station. He also admitted that Police had not recorded his statement and if any statement appended in the case it is wrong. -8- 17. Analysis of this witnesses it is surfaced on record, that the incident is said to have occurred in the vicinity of the temple. It is also apparent that the appellant has a shop where the complainant PW-2 purchased coconut, it appears that some scuffle may have occurred during this period but the statement of Dooj Bai (PW-2), Laxmikant (PW-1) and Vimal Kumar (PW-7) is of the fact that certain injuries where found, however report was lodged on the next day i.e. 27/09/2003. As submitted by the complainant Dooj Bai (PW-2 ) she was carrying pregnancy and as result of the assault, she suffered miscarriage but this factum is totally missing in the medical report of the prosecutrix/complainant complainant – Dooj Bai (PW- 2) Ex.P/4. The doctor has not found any injury and on the person of the (PW-2). It appears that the complainant (PW-2) is making exaggerated statement and there are majority of omission in her Court and the Police statement. Though every omission is not fatal to the prosecution but if the omission is material which affects the result of the case and which goes to the root of the case, may some time give rise to the suspicion of the prosecution case. 18. Manoj Kumar Yadav (DW-1) who deposed that the incident was about at 12:00 PM and women came from the temple and remove her Chappal. At that time the appellant had gone to Korba to purchase the goods and the children were sitting in the shop, thereafter the said women started shouting in the shop asking for the Chappal, the children says that they are not aware of it. Rajesh Yadav (DW-2) also deposed in the same line. From the statement of these two witness it appears that the dispute arose on account of missing ‘Chappal’ of the appellant and according to the case of the prosecution and statement of Dooj Bai (PW-2) she kept the ‘Chappal’ in the shop of the appellant whereas these witnesses stated above it is possibility that small quarrel between the appellant and PW-2 was given ‘go-by- color’ to implicate the appellant in the crime. Therefore this Court is of the opinion that PW-1, PW-2 and PW-4 are not witnesses who can be termed to be reliable and appellant deserved to be extended benefit of doubt. -9- 19. As a result, appeal is allowed. The impugned judgment is hereby set aside. The appellant is acquitted from all charges. 20. Since the appellant is reported to be on bail, his bail bond shall remain in force for a period of six months from today in view of the provision of Section 481 of BNSS, 2023. 21. The record be sent back to the trial Court along with a copy of this judgment for necessary compliance and information. Sd/- (Sachin Singh Rajput) Judge Ashish