1 2025:CGHC:53179-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1475 of 2019 Judgement reserved on : 21.08.2025 Judgment delivered on : 31.10.2025 Ajay Kumar Barik S/o Dewaro Barik, Aged About 26 Years, R/o Village Temri, Police Station- Saraipali, District- Mahasamund, Chhattisgarh. ... Appellant versus State of Chhattisgarh Through Chowki Baloda, Police Station- Saraipali, District Mahasamund, Chhattisgarh ...Respondent/State For Appellant : Mr. H. B. Agrawal, Senior Advocate assisted by Ms. A. Sandhya Rao, Advocate For State : Ms. N. K. Kashyap, PL Hon'ble Smt Justice Rajani Dubey, J. Hon’ble Shri Justice Amitendra Kishore Prasad, J. C A V Judgment Per, Rajani Dubey , Judge 1. This appeal is directed against the impugned judgment of conviction and order of sentenced dated 25.09.2019 passed by learned Special Judge, SC & ST Act (Prevention of Atrocities) Act, 1989, Mahasamund, District- Mahasamund, C.G. in Special (Atrocities) S.T. No. H-23/2017, whereby and whereunder, the appellant has been held guilty of commission of offence and sentenced as described below:- Conviction Sentence Under Section 376 (2) (n) of R.I. for life with fine amount of Rs. Digitally signed by AMIT PATEL 2 IPC read with Section 3 (2) (v) of SC & ST Act (Prevention of Atrocities) Act, 1989 2000/-, in default of payment of fine, to undergo additional R.I. for two months. 2. The case of the prosecution, as unfolded from the impugned judgment and the records of the case, is that the accused/appellant has committed sexual intercourse with the complainant/prosecutrix prior to one and half year from 17.04.2017 on the false pretext of marriage and thereby she became pregnant. After being known of her pregnancy, she confessed to having an affair with accused- Ajay Barik. On 13-04-2017, when she went to accused's house, his family members suggested to take another man's name. On 16-04-2017, they agreed to accept her as their daughter-in-law in the village panchayat meeting, however, on 17-04-2017, they expelled her from the house and they left that house, therefore, she filed a written complaint (Ex. P/1) at Police Outpost- Baloda. Based on this, an FIR (Ex.P/2) was lodged at Police Outpost- Baloda as zero number. After obtaining her consent letter (Ex.P/3), her medical examination was conducted. Further case of the prosecution is that as per seizure memo (Ex.P/4), caste certificate of the complainant/prosecutrix (Ex.P/5) was seized, spot map (Ex.P/6), was prepared, medical examination of the accused was conducted, DNA test of the prosecutrix and her child was conducted, witnesses were examined and their case diary statements were recorded and the accused was arrested. 3. After completion of due and necessary investigation, charge-sheet was led before the jurisdictional Magistrate who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellant for alleged commission of offence under Section 376 (2) (n) of IPC and Section 3 (2) (v) of The 3 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant having abjured guilt was subjected to trial. 4. In order to establish the charges against the appellant, the prosecution has examined as many as 14 witnesses including the prosecutrix. The statement under Section 313 of Cr.P.C. of the appellant has been recorded, in which he denied the incriminating charges leveled against him and pleaded his innocence that he has been falsely implicated in this case. However, one witness adduced by him in his defence. 5. After hearing learned counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence this appeal. 6. Assailing correctness and validity of the impugned judgment of conviction and order of sentence, learned Senior Counsel appearing for the appellant contended that the impugned judgment and sentence passed by learned trial Court is bad, illegal, contrary to the facts and law. The appellant has not committed any forcible sexual intercourse with the prosecutrix on the contrary as per para 9 of impugned judgment, there was admission of prosecutrix herself that she used to call the accused over phone whenever she got the chance as they both were in love with each other, she used to fix the time of their meeting so the appellant could come carefully. Moreover, frequently in the toilet (sauchalaya) situated at backyard (badi) of her house, they used to establish physical relationship. It is also contended that both of them used to express their feelings by writing love letters, therefore, the prosecutrix being consenting party, no charges is made out for convicting the appellant for the aforesaid offences. Also, admittedly, though there being many rooms in her house, she used to sleep with her parents. Her parents came to know about her pregnancy, when she went to the appellant’s house 4 to reside with him and the prosecutrix herself admitted that she established physical relationship with her own free will as she was in love with him. Further, it is also clear that there is delay of lodging in F.I.R. by the complainant/ prosecutrix (PW-01) i.e., after passage of one and half year of the said incident and also no satisfactory explanation was offered by the complainant/prosecutrix(PW-01) regarding the same. Therefore, the impugned judgment is liable to be set aside and the appellant deserves to be acquitted of the aforesaid charges. In support of his contention, he has relied upon the judgements passed by the Hon’ble Apex Court in the matters of Anurag Soni vs. State of Chhattisgarh 1 and upon the judgment passed by this Court in the matter of Rajkumar Agariya vs. The State of Chhattisgarh.2 7. Ex adverso, learned counsel for the State opposes the submissions of learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after minutely appreciating the oral and documentary evidence, rightly convicted the appellant for the alleged offence and the impugned judgment of conviction and order of sentence needs no interference by this Court. In support of her contention, she has relied upon the judgement passed by the Hon’ble Apex Court in the matter of State of U.P. vs. Naushad 3 8. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the learned trial Court with utmost circumspection and carefully as well. 9. It is evident from record of learned Trial Court that it framed charges against the appellant for offence under Section 376 (2) (n) of IPC and 1. (2019) 13 SCC 1 2. CRA No. 57 of 2022 3. (2013) 16 SCC 651 5 Section 3 (2) (v) of SC & ST Act (Prevention of Atrocities) Act, 1989. Learned Trial Court after minutely appreciating the oral and documentary evidence convicted the appellant for the aforesaid offence and sentenced as mentioned in inaugural para of this judgment. 10. PW-1, the prosecutrix has deposed that accused is from her neighborhood, so she knows him since childhood. They were in love affair, when she was studying Class-Xth in the year 2014. They used to talk to each other on mobile phone, and their affair grew, the accused Ajay Barik had established physical relations with her saying that he would marry her only and no one else. After a while, the accused obtained consent of her for having sexual intercourse with her as he frequently made attempts to convince her by keeping her under misconception that he would marry her, and the accused/appellant got succeeded in convincing her for the same, as such she became pregnant. When she apprised the accused regarding her pregnancy, he said that he will look after her. However, five months have rolled by since the accused/appellant made commitment to her, then she told him that now she is 5 months’ pregnant, then the accused/appellant invited her to his home for residing. Thereafter, on 14.04.2017, she went to reside at his home. On 16.04.2017, her family members convened a meeting and the father of the accused also attended the said meeting and accepted her as his daughter-in-law, however the villagers gave a subsequent date i.e., 17.04.2017 to father of the accused so that the accused along with his family attends the meeting, contrary to that neither the accused nor his family members attended the said meeting and on the same day i.e., 17.04.2017 the accused coaxed her by saying let's go to the court for performing marriage and he made her sit on his motorcycle, drove to some extent and then he pushed her from the motorcycle and fled from there, she then screamed, her parents came and his family members too fled. Therefore, she lodged a written complaint before the police outpost vide Ex. 6 P/1 and F.I.R. was lodged vide Ex.P/2, wherein she admitted her signature on A to A part. She further deposed that she belongs to Binjhwar caste and falls under Scheduled Tribe. The police had seized her caste certificate (Ex.P/5) as per seizure memo Ex. P/4. 11. The prosecution has filed a caste certificate (Ex. P/5) of the prosecutrix (PW-1) which was issued by concerned Tahsildar on 17.11.2017 and was valid for only six months as it is a temporary caste certificate. Perusal of the caste certificate goes to show that it was issued after occurrence of incident. As per prosecution, the incident took place prior to one and half year from 20.04.2017 and the F.I.R. (Ex. P/2) was lodged on 20.04.2017, whereas the caste certificate was issued on 17.11.2017 by Tahsildar on temporary basis. Thus, it is quite apparent from the said certificate that it was obtained after lodging an F.I.R by the prosecutrix. 12. While dealing with the issue where the caste certificate was issued after the occurrence of incident, the High Court of Madhya Pradesh observed in the matter of Babulal Patel Vs. The state of M. P.4 order dated 15.05.2024, held in paras 6,7 & 8 as under:- 6. The learned trial court has convicted the accused for the offence of Section 3(1)(x) of the Act and for this, reliance has been placed upon the provisional caste certificate of complainant, marked as Ex.P-2. It was issued by Tahsildar on 18.12.2002 and contents thereof reveal that it was issued temporarily while the incident of the present case occurred on 8.12.2002, therefore, it is clear that this provisional caste certificate was obtained from Tahsildar after the date of incident. 7. The circular issued by General Administration Department of Madhya Pradesh Government dated 30.6.2001 with No.F.7-32/2000/s very relevant here because it came into existence prior to the issuance of provisional certificate of Ex. P-2 in this case. This circular makes it clear that the practice of issuing provisional caste certificate is being stopped henceforth and only in exceptional circumstances, the provisional caste certificate would be issued. Those exceptional circumstances have also been discussed in the circular itself and they are: 4. CRA No. 648 of 2004 7 (1) for seeking admission in an education institute. (2) for applying for a Government job. (3) for appearing in an interview. (4) for applying in a Government scheme. Under only these four exceptional conditions and that too when the caste certificate is required immediately, the provisional caste certificate was supposed to be issued; for it an application is duly supported with the affidavit and the reason of urgency was to be made. The circular further clarifies that the validity period of this caste certificate would be maximum six months and all such cases in which provisional caste certificate is issued shall be enquired into within the prescribed timeframe and if the applicant is not found to be entitled to the certificate, his provisional caste certificate would be cancelled. 8. The above discussed circular was in enforcement when the provisional caste certificate of complainant, marked as Ex.P-2, was issued by Tahsildar. This caste certificate was issued to prove the caste of complainant in a criminal case. Obviously, the purpose of issuing this provisional caste certificate was not covered under the circular of 30.6.2001. Thus, the learned trial court was in error in relying upon the caste certificate of Ex.P-2 which was issued in flagrant violation of the existing circular of Madhya Pradesh Government dated 30.6.2001. In the light of this observation, it is held that the caste of complainant was not duly proved in the case by any credible document. 13. Keeping in view of the aforesaid judgment of High Court of Madhya Pradesh and the facts and circumstances of the present case, the possibility of procuring the certificate after the incident to implicate the accused/ appellant in a graver offence under the SC & ST Act (Prevention of Atrocities) Act, 1989 cannot be ruled out, thus the prosecution has failed to prove beyond reasonable doubt that the prosecutrix belongs to scheduled tribe community, as such, no offence under the SC & ST Act (Prevention of Atrocities) Act, 1989 is made out against the appellant. 14. PW-1, the prosecutrix has clearly admitted this fact that she was having love affair with the appellant. As per the prosecutrix, in cross-examination, she admitted the suggestion of defence that they used to write love letter to each other. In para 11, she admitted this fact that the physical relations between them were consensual as she was in love affair with the appellant and she stated that the physical relations were made in dark night in the 8 toilet (Sauchalaya) which is situated in the backyard (badi) of her house. In para 12, she admitted this fact that she used to call the accused over phone whenever she got the chance, she used to fix the time of their meeting. Mostly, they used to meet at the toilet (Sauchalaya) situated at backyard of her house, where they used to establish physical relationship. Further, she admitted this fact that she used to open the door of backyard (badi) and used to go toilet, giving signals to the appellant so that he could enter, accordingly, the accused used to come and they used to talk and established physical relationship and then both of them used to go to their respective homes. 15. Prosecutrix (PW-1) stated that she gave her consent for D.N.A. test vide Ex. P/8 and also gave consent for sampling of blood vide Ex. P/9. As per D.N.A. Report (Ex.P/13), the accused is a biological father of the prosecutrix’s child. 16. As per the prosecutrix (PW-1), when she was pregnant by 05 months, the appellant invited her to his home to reside. Then,she went to reside at his home on 14.04.2017. On 16.04.2017, her family members convened a village panchayat meeting where father of the accused/appellant was present and accepted her as his daughter-in-law. 17. PW-2, father of the prosecutrix has stated that her daughter resided with the appellant at his home for about 04 days. While his daughter was residing at the house of the accused, he gathered the villagers for a village panchayat meeting and also invited the father of the accused, Sarpanch and other members. The father of the accused had stated in that meeting that he would agree to whatever decision be made and he had stated that he would call a meeting of the village on the next day, but he did not call the meeting on the next day and the accused made her daughter sit on his motorcycle, drove to some extent and then he pushed her from the same in front of his 9 home and fled from there to his maternal uncle’s home, situated at village Kunchipali (Orissa). 18. PW-3 Rajesh Bagh, who is the Panch of village has also supported the allegations of prosecutrix and her father and has stated that village panchayat meeting was convened, in that meeting invited the father of the accused. As in the said meeting, the prosecutrix and the accused were not present, then villagers took decision to convene the meeting on next day, but the next day meeting could not be convened and the accused fled and he made the prosecutrix sit on his motorcycle, drove to some extent and then he pushed her from the same in front of her (prosecutrix) home and fled from there. 19. PW-4 Fakiro Bagh has also supported the allegation of the prosecutrix and her father by stating that in village meeting, the accused did not come and fled. PW-5 Khir Sindhu Nayak has stated that the people of the village were present in the meeting, father of the accused had come and was saying that accused/Ajay was not at home, he has gone to his maternal uncle's home, the girl has come and is residing at his house since last 3-4 days. The villagers told him to call Ajay. Subsequently, accused/Ajay Barik came home, he made prosecutrix sit on his motorcycle, drove to some extent and then he pushed her in front of her house from the same and fled from there and his father was also leaving the house. 20. Prosecutrix's father caught accused/Ajay's father and brought him and again a meeting was held in the village. In the said meeting, Ajay's father said that Ajay has fled. Then the village’s council, accused/Ajay's uncle, and others went to his maternal uncle's village to bring back the appellant and they found that the accused fled from there as well. When everyone returned, the accused's father said, "Okay, let the girl stay in their house 10 until the appellant/accused arrives.". Thereafter, family members of the prosecutrix lodged the report at police station. 21. It is apparent from statement of prosecutrix (PW-1) and her conduct that she was a consenting party to the act of the appellant and the prosecution has not filed any document with regard to the age of the prosecutrix. 22. PW-10 Dr. Smt. C.K. Rohalledar estimated the age of prosecutrix (PW- 1) as 20 years and in the F.I.R. (Ex. P/2) also, the age of the prosecutrix written as 20 years in the year 2017. 23. So, as per prosecution, prior to one and half year of date of lodging of F.I.R. i.e., 20.04.2017, she attained the age of majority and D.N.A. Report (Ex. P/13) has proved this fact that the appellant/accused is the biological father of prosecutrix’s child. As per the prosecutrix (PW-1), she gave her consent for sexual intercourse on the assurance of accused that he would marry her. 24. It has been held and observed by the Hon’ble Apex Court in the matter of Anurag Soni (supra) in paras 12 and 14 as under:- “ 12.The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said 11 to have committed the rape as defined under Section 375 IPC and can be convicted for the offence under Section 376 IPC. 14. 14. Considering the aforesaid facts and circumstances of the case and evidence on record, the prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promise/promise to the prosecutrix to marry her and on such false promise he had physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 IPC.” 25. In the light of above, in the present case also, it is apparent that the accused fled from the village’s meeting and he took the prosecutrix along with him on his motorcycle, but later on he pushed her from the motorcycle in front of her house and fled to his maternal uncle’s home, which is situated in Orissa. Thus, it is quite evident that he continued to give fake commitment/false promise and allured the prosecutrix to give her consent for physical relations without any intention of marriage. So, the prosecution has successfully proved this fact that the consent given by the prosecutrix was based on misconception of fact and therefore, the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of IPC and the accused is liable to be convicted for offence under Section 376 of IPC. 12 26. Further, it has been held and observed by the Hon’ble Apex Court in the matter of Anurag Soni (supra) in para 20 as under:- 20. In view of the above and for the reasons stated above, we are of the opinion that both the courts below have rightly convicted the appellant-accused under Section 376 IPC. We also maintain the conviction of the appellant-accused under Section 376 IPC. However, in the facts and circumstances of the case and the request made by the learned counsel appearing on behalf of the appellant- accused, the sentence of 10 years' RI awarded by the courts below is hereby reduced to seven years' RI, the minimum which was prescribed at the relevant time of commission of offence under Section 376 IPC. Consequently, the present appeal is partly allowed to the aforesaid modification in the sentence only. 27. On the basis of the aforesaid discussions, the appeal is allowed in part. Conviction of the appellant under Section 376 (2) (n) of IPC read with Section 3 (2) (v) of SC & ST Act (Prevention of Atrocities) Act, 1989 and the sentence awarded thereunder by learned trial Court are hereby set aside and instead he is held guilty under Section 376 (1) of IPC and sentenced to R.I. for 07 years and pay to fine of Rs. 1,000/-, in default thereof, to suffer additional R.I. for 01 month. The fine amount, if any, already been deposited shall be adjusted accordingly. 28. Needless to state that the appellant shall be entitled for set-off of the detention period already undergone by him under Section 468 of Bharatiya 13 Nagarik Suraksha Sanhita, 2023. The impugned judgment of conviction and order of sentence is modified to the above extent only. 29. The appellant is reported to be on bail, therefore, his bail bond stands cancelled and he be taken into custody to serve out the remaining part of his sentence. 30. The Trial Court’s record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Copy of this judgment be also sent to the concerned Jail Superintendent for information and necessary compliance. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) JUDGE JUDGE AMIT PATEL