1 2025:CGHC:54114 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 266 of 2005 1 - Akhilesh Pandey (Died) (Abated). 2 - Charan @ Ramcharan S/o Bisahuram Aged About 44 Years Occupation Cultivation R/o Village Puta, Police Station Bango District - Korba Chhattisgarh 3 - Ratansai S/o Maniram Aged About 25 Years Occupation Cultivation R/o Village Puta, Police Station Bango District - Korba Chhattisgarh 4 - Dhansai S/o Vakilram Aged About 33 Years Occupation Cultivation R/o Village Puta, Police Station Bango District - Korba Chhattisgarh ... Appellants versus 1 - State Of Chhattisgarh Through Station House Officer Police Station Bango District - Korba (C.G.) ... Respondent For Appellants : Mr. Dashrath Kushwaha, Adv. For Respondent/State : Mr. Shailesh Kumar Puriya, Panel Lawyer. (Hon’ble Mr. Naresh Kumar Chandravanshi, J ) Judgment on Board 06/11/2025 1. This criminal appeal has been preferred against judgment of conviction and order of sentence dated 11.03.2005 passed by Special Sessions Judge (under Atrocity Act), Korba, District Korba (henceforth referred to as ‘Special Court’) in Special Sessions Case No. 30/2004, whereby the RUKHSAR BANO Digitally signed by RUKHSAR BANO Date: 2025.11.17 16:31:34 +0530 2 learned Special Judge, after holding the appellants/accused persons guilty, convicted and sentenced each of them in the following manner :- Conviction under Section Jail Sentence Fine Sentence Default stipulation 354/34, IPC RI for 1 year Rs.1000/- RI for 3 months 324/34, IPC RI for 1 year Rs.500/- RI for 2 months 3(1)(x), SC/ST Act, 1989 RI for 1 year Rs.1000/- RI for 3 months 2. The case of the prosecution, in brief, is that, on 11.04.1998, victim (PW-2) lodged zero FIR in Police Station Katghora, District Bilaspur (CG) under Sections 354, 34, 323 of IPC and Section 3 (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth referred to as ‘ the Act, 1989’) alleging therein that on 10.04.1998 at about 7-8 pm, when she along with her sons namely; Shiv and Krishna was returning to home after searching their buffalo and reached near the Dhaba, appellant No.1 - Akhilesh Pandey (now dead) insulted her naming her caste as she belongs to tribal community, abused her in filthy language, threw her on the ground by holding her hands and legs. The appellants Dhansai and Akhilesh Pandey bit her by teeth and assaulted on her private part. The appellant Akhilesh Pandey also assaulted on her head by means of knife. Other appellants also assaulted her. It is further alleged that her saree and blouse were torn and ornaments wore by her over nose and neck were also snatched by appellants. Since place of occurrence was within the jurisdiction of P.S. Bango, District Korba, therefore, zero FIR (Ex. P-2) was lodged in P.S. Katghora, subsequently, numbered FIR (Ex. P-12) was registered at P.S. Bango, District Korba against appellants. Victim was medically examined by Dr. H.D. Dahire (PW-1), 3 in which, vide MLC report (Ex. P-1), he opined that victim had sustained simple injuries 5 in numbers. Spot map (Ex. P-3) was prepared. Statements of witnesses under Section 161 of Cr.P.C. were recorded. Torn and blood stained saree, blouse and bra were seized from victim vide seizure memo (Ex. P-5). Appellant No.1 Akhilesh Pandey (now dead) and other appellants were arrested. After completion of investigation, a charge sheet under Sections 354, 324, 323, 34 of IPC and Section 3 (1)(xi) of the Act, 1989 was filed against the appellants before the Special Court. 3. Learned Special Court framed charges against the appellants/accused for the offence punishable under Sections 354, 294, 324 of the IPC and Section 3(1)(x) of the Act, 1989, who abjured their guilt and claimed trial. 4. So as to bring home the charges, the prosecution examined 5 witnesses. Statements of the appellants under Section 313 of the Cr.P.C. were recorded, in which, they denied all the incriminating circumstances appearing against them claiming themselves to be innocent and falsely implicated. They have further taken defence that since appellant Dhansai had lodged FIR bearing Crime No.34/98 against victim (PW-2), therefore, in order to protect herself from the same, she registered instant false case against them. They have examined one witness namely; Bhondlal Majhwar (DW-1) in their defence. 5. After appreciating the evidence adduced by the parties, learned trial Court convicted and sentenced the appellants as has been mentioned in opening paragraph of this judgment. Being aggrieved, the appellants 4 have preferred instant appeal. 6. During pendency of instant appeal, appellant No.1 Akhilesh Pandey was reported to be dead, therefore, appeal has been declared ‘abated’ in respect of him. 7. Learned counsel for the appellants would submit that there was prior dispute between victim (PW-2) and Ghorsai, as Ghorsai had given the land of victim to main accused Akhilesh Pandey, but he was not vacating that place. There was also dispute between them on account of use of water of waterfall. He would further submit that there was also dispute between victim and appellant Dhansai, therefore, Dhansai has lodged FIR bearing Crime No.34/98 against victim. The dispute occurred between victim and Dhansai on same day, has also been supported by Investigating Officer S.C. Raikwar (PW-4) and Asstt. Sub- Inspector S. D. Manikpuri (PW-5). He further submitted that only to escape from that case, victim lodged FIR of present case against appellants. He next submitted that victim herself has stated in her deposition that at the time of alleged incident, number of persons were present at Dhaba, but no independent witness has been examined by prosecution, rather, Thakur Prasad (PW-3) is only witness of alleged incident, but he is not an eye witness, rather he reached on the spot subsequent to the incident, thus, he is a hearsay witness. Learned counsel further submitted that only to exaggerate incident, victim herself tore her clothes, as such, in absence of any independent witness, deposition of victim cannot be relied upon, but learned trial Court, only on the basis of deposition of victim, has convicted and sentenced the appellants, which is perverse to the evidence available 5 on record. He lastly submitted that main accused of instant case was Akhilesh Pandey, who has died and other appellants were only present on the spot and they have not assaulted victim in any manner. Hence, he prays that this appeal may be allowed and appellants may be acquitted of all the said charges. 8. Per contra, learned counsel appearing for the State supported the impugned judgment. 9. I have heard learned counsel for the parties and perused the material available on record. 10. PW-2 is victim. She stated in her deposition that at the time of incident when she and her sons namely; Shiv and Krishna reached near the Dhaba of deceased appellant No.1 Akhilesh Pandey, he insulted her naming her caste and also provoked other accused persons. She has further stated that deceased accused Akhilesh Pandey and another appellant Dhansai held her braid, threw her on the ground, and also assaulted her by their legs and fist. Deceased accused Akhilesh Pandey climbed on her chest and tore her clothes. She has further stated that all the accused persons assaulted her and accused Akhilesh Pandey assaulted on her head by means of knife. 11. As per deposition of victim, at the time of incident, so many persons including the independent witnesses were present at Dhaba, but none of the independent witnesses present on the spot has been examined by the prosecution. Only one witness examined by the prosecution pertaining to the facts of the case is Thakur Prasad (PW-3), who is brother-in-law (देवर) of victim, who reached at the place of occurrence 6 subsequent to the incident on being called by Krishna (son of victim). Krishna is said to be witness present along with victim when alleged incident started, but he has not been examined by prosecution. 12. Numbered FIR (Ex. P-12), which was registered on the basis of zero FIR at P.S. Katghora, has been proved by Asstt. Sub-Inspector S.D. Manikpuri (PW-5). 13. Victim (PW-2) was examined by Dr. H.D. Dahire (PW-1) on the next day of incident i.e. 11.04.1998, in which, he found following injuries on the person of victim :- 1. Incised wound size 1.5x1/4 inches on Rt side of parieto- occipital region. 2. Swelling over occipital region of midline region. 3. Pain back of neck clinically tenderness on locally. 4. Pain in both side of front side of chest-clinically mild tenderness on locally. 5. Swelling over pubic region. He has further opined that injury no.1 was caused to victim by sharp edged weapon and others injuries were caused to her by hard and blunt object within 48 hours. He has admitted in cross-examination that those injuries could be caused on being fallen at rough surface and nature of injuries was simple. Though he has admitted that injuries sustained by the victim could be caused on being fallen on rough surface, but nothing has been suggested to the victim in her cross- examination by defence counsel that she had fallen somewhere on the date of incident or prior to her medical examination apart from alleged 7 incident, as has been narrated by victim in her deposition that appellants had assaulted her by legs and fists and appellant Akhilesh Pandey also assaulted her by means of knife, therefore, she had sustained injury on her head. Though defence witness Bhondlal Majhwar has stated in his deposition that victim had assaulted Dhansai and during that scuffle between them, she fell on the ground, as such, she had sustained injuries, but he is not found to be eye witness from the deposition of the victim, as no suggestion has been taken from her in this regard by defence counsel. Therefore, his deposition is not found to be relied upon. 14. Though as per deposition of SDO(P), Katghora S.C. Raikwar (PW-4 ) and ASI S.D. Manikpuri (PW-5), on 10.04.1998, Crime No.34/98 was lodged by appellant Dhansai against victim in P.S. Bango and it also appears that prior to instant incident, some dispute had occurred between victim and appellant Dhansai but from the cross-examination, it does not appear that alleged incident occurred at the same time or in other words, there was free fight between victim and appellants, as no suggestion has been taken in this regard. Therefore, only on the basis of aforesaid fact i.e. registration of Crime No.34/98 against victim by the appellant Dhansai, whole deposition of victim cannot be washed out. 15. Though Thakur Prasad (PW-3) is hearsay witness in respect of alleged incident and Krishna had not been examined by prosecution, but deposition of victim that appellants assaulted her by means of legs and fist, also gets support from medical examination of Dr. H.D. Dahire (PW-1), hence allegation of assault by appellants upon victim is found 8 proved, however injury sustained by the victim is found to be simple in nature. Since no any sharp edged weapon like knife or any other such article was seized from appellants, therefore, deposition of victim that deceased accused Akhilesh Pandey assaulted her by means of knife is not found reliable. Further, since victim had fallen in assault and Dr. H.D. Dahire (PW-1) has admitted that injury caused to the victim on her head could be caused on being fallen on rough surface, hence, finding recorded by Special Court that appellant Akhilesh Pandey caused injury to the victim by means of knife is not found to be sustainable. 16. As per deposition of victim, appellants had torn her clothes, which she was wearing and in alleged incident, her Fulli (nose-ring) and silver necklace wore by her were also lost and her bangles were also broken. Vide seizure memo (Ex. P-5), saree, blouse and bra were seized from victim. As per that seizure memo, 3 buttons of blouse were broken and bra was found to be in two piece. Allegation of assault upon victim is found proved on the basis of support of medical evidence, but since no independent witness present on the spot has been examined by the prosecution and it is also evident from deposition of victim (PW-2), SDO(P) S.C. Raikwar (PW-4) and ASI S.D. Manikpuri (PW-5) that there is prior dispute between victim and appellant Dhansai, FIR was also lodged by Dhansai against victim, from which, said incident occurred in same day, therefore, in absence of independent witness, allegation of molestation of victim and tearing her clothes cannot be held proved. Section 354 of IPC provides, minimum punishment of 1 year for such grievous offence, for that, prosecution ought to have adduced strong evidence, but in instant case, no such strong evidence 9 has been adduced by the prosecution to hold that alleged assault was made by appellants upon victim with intention to molest her or outrage her modesty, rather, it seems that since there is previous enmity between the parties, hence, victim has exaggerated the facts. 17. Since caste of victim has not been proved by prosecution by proving her caste certificate and it has also not been proved that appellants belong to which community, therefore, conviction of appellants for the offence under Section 3(1)(x) of the Act, 1989 cannot be held proved. 18. In view of above discussion, judgment of conviction of appellants passed by learned Special Court for the offence punishable under Section 354/34, IPC is not found to be sustainable as also conviction for the offence under Section 324/34 of IPC is also not found to be sustainable. Instead thereof, in view of the above discussion, offence under Section 323 of IPC is found proved against appellants. 19. So far as sentence part is concerned, both the parties are resident of tribal area Bango and there was previous enmity between them. This case is pending against appellants since year 1998. Appellants have already remained in jail for about 3 days, therefore, ends of justice would be served if they are sentenced for the offence under Section 323 of IPC for the period already undergone by them. 20. Accordingly, this appeal is partly allowed. Conviction and sentence of the appellants under Section 354/34 of IPC and Section 3(1)(x) of the Act, 1989 are set aside. The appellants are convicted for the offence punishable under Section 323/34 of IPC instead of Section 324/34 of IPC and they are sentenced for the period already undergone by them 10 i.e. for 3 days, as per certificate prepared by learned Special Court under Section 428 of Cr.P.C. appended with the judgment. 21. The Criminal Appeal is partly allowed to the extent indicated herein- above. 22. The appellants/accused are on bail. They need not surrender. The bail bonds furnished by each of the appellants/accused shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 23. Let a certified copy of this judgment along with the original record be transmitted to the Special Court concerned forthwith. Sd/- (Naresh Kumar Chandravanshi) Judge Rukhsar