1 2025:CGHC:18913 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 835 of 2008 Shailesh Kumar @ Budali Gupta S/o Ram Kakhan Gupta, R/o Vill.- Baradar, Police Station-Balrampur,Distt. Sarguja (CG) ... Appellant versus State Of Chhattisgarh through Station House Officer, Police Station – Balrampur, Distt. Sarguja (CG) ... Respondent For Appellant : Mr. Basant Kaiwartya and Mr. SP Sannat, Advocates. For Respondent : Mr. Devesh G. Kela, Panel Lawyer. Hon'ble Smt. Justice Rajani Dubey, J Judgment on Board 25/04/2025 Challenge in this appeal is to the legality and validity of the judgment of conviction and order of sentence dated 26.8.2008 passed by the Special Sessions Judge constituted under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, Surguja at Ambikapur (CG) in Special Sessions Case No. 18/2008 2 whereby the appellant stands convicted under Section 3(1)(xi) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short “the Act of 1989”) and sentenced to undergo RI for six months, pay a fine of Rs.200/-, in default thereof to suffer additional RI for one month. 02. Case of the prosecution, in brief, is that on 23.1.2006 at around 4 pm when the prosecutrix, a member of scheduled tribe, was near her house with her sister, the accused/appellant came there and asked for sexual favours. When the prosecutrix refused, he came closer to her and started pressing her breasts and dragging her towards the kitchen garden. However, on hue and cry being raised by the prosecutrix, the accused left her and fled from the spot. She thereafter informed about the incident to her parents and other persons and lodged a report at the police station. After completion of investigation, the police filed charge sheet under Section 354 of IPC and Section 3(1)(xi) of the Act of 1989 followed by framing of charges accordingly by learned trial Court which were abjured by the accused and he prayed for trial. 03. In order to substantiate its case the prosecution examined 08 witnesses in all. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 3 04. After hearing 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. 05. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the material available on record. The written report Ex.P/1 was not submitted by the prosecutrix but by her father and grand-father. There are material contradictions and omissions in the statements of the prosecution witnesses. As regards offence under the Act of 1989, the prosecution has utterly failed to prove caste of the prosecutrix in accordance with law and as such, no offence under this Act is made out against the appellant. He submits that looking to the nature and quality of evidence adduced by the prosecution and the conduct of the prosecutrix, it appears that there was affair between the accused and the prosecutrix but as they were seen by PW-7 Smt. Budhni, a false report was lodged against the appellant. Therefore, the impugned judgment being not sustainable in law is liable to be set aside and the appellant be acquitted of all the charges by giving him benefit of doubt. 06. On the other hand, learned counsel for the State opposing the contention of the appellant submits that the learned trial Court upon minute appreciation of oral and documentary evidence has rightly convicted and sentenced by the appellant by the impugned judgment 4 which calls for no interference by this Court. Therefore, the present appeal being without any substance is liable to be dismissed. 07. Heard learned counsel for the parties and perused the material available on record. 08. It is clear from the record of learned trial Court that the appellant was charged under Section 3(1)(xi) of the Act of 1989, in the alternative under Section 354 of IPC, and after appreciation of oral and documentary evidence, learned trial Court held him guilty under Section 3(1)(xi) of the Act and sentenced as mentioned in para 1 of this judgment. 09. From the impugned judgment it is clear that on the issue of caste of the prosecutrix, the learned trial Court relied upon the statements of the prosecutrix, her father and grand-father who stated that they belong to Uraon community and the statement of retired Tehsildar PD Lakda who issued temporary caste certificate (Ex.P/11) to the prosecutrix on 25.5.2006. 10. As regards the offence under Section 3 (1) (xi) of the Act of 1989, it transpires from the record of the learned trial Court that the prosecution has produced caste certificate (Ex.P/11), perusal of which goes to show that it was temporary, valid for only 6 months, and was issued on 25.5.2006 i.e. after the incident which took place on 23.1.2006. 5 11. 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. order dated 15.05.2024, passed in Criminal Appeal No. 648 of 2004, 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 is 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: (1) for seeking admission in an education institute. (2) for applying for a Government job. 6 (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 time frame 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. 12. Further, this Court in the matter of Meghnath Vs. State of 7 Chhattisgarh [ Cr.A. No.822/2002 dated 24.06.2024], referring the decision of Hon’ble Apex Court in the matter of Kumari Madhuri Patil Vs. Additional Commissioner, Tribal Development reported in AIR 1995 SC 94, held in paras 11 and 12 as under :- “11. The Hon’ble Supreme Court in the matter of Ku. Madhuri Patil (supra) which has been followed by this court in the case of Pilla Bai (supra). Supreme Court in Ku. Madhuri Patil (supra) has specifically observed 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 that officer at Taluk or Mandal Level. 12. Considering the overall material and evidence available on record, in the light of the matter of Ku. Madhuri Patil (supra), it is found that the Caste Certificate vide (Ex.P-3) of the complainant was issued by the Village- Sarpanch (PW-6) who is not a competent authority to issue caste certificate. Therefore, the conviction of the appellant for the offence punishable under Section 3 (1) (x) of S.C. and S.T. (Prevention of Atrocities Act) is not found proved beyond reasonable doubt and the same is liable to be set aside.” 13. In view of the aforesaid judgments of High Court of Madhya Pradesh and this Court, if the facts and evidence of the present case 8 are looked into, it is found that the caste certificate of the prosecutrix was issued after the occurrence of incident and it was valid for only six months. It has nowhere come in evidence as to under what exceptional circumstances such temporary caste certificate was issued to the prosecutrix. In the light of above judgment Babulal and Meghnath (supra), in the instant case, it is clear that caste certificate (Ex. P/11) was issued by the Tahsildar after the date of incident in a revenue case. However, learned Trial Court relied on temporary/provisional caste certificate, which was issued after more than four months of the incident by the Tahsildar only for a period of six months and convicted the appellant for offence under Section 3(1)(xi) of Act of 1989. Thus, conviction of the accused/appellant under Section 3 (1)(xi) of Act of 1989 is not sustainable and the same is hereby set aside. However, considering the evidence of the prosecutrix (PW-1) wherein she has categorically stated that on the date of incident while she was sitting outside her house with her sister, the accused/appellant came there, caught hold of her hand, pressed her breasts and asked for sexual favours and that her statement is duly supported by PW-2, PW-5 and PW-6 who are father, mother and grand-father of the prosecutrix respectively, this Court is of the opinion that the act committed by the appellant makes him liable for conviction under Section 354 of IPC. 14. At this stage, learned counsel for the appellant submits that the appellant was on bail during trial as also during pendency of this appeal, he never misused the liberty, he has no criminal record and 9 remained in jail for 16 days, therefore, he may be sentenced under Section 354 of IPC to the period already undergone by him. 15. Considering the facts and circumstances of the case, the fact that the incident took place in the year 2006, the appellant has no criminal antecedents; while on bail during trial as also during pendency of this appeal he did not misuse the liberty granted to him, this Court is of the opinion that no fruitful purpose would be served in sending the appellant back to jail at this stage and the ends of justice would be served if he is sentenced under Section 354 of IPC to the period already undergone by him. 16. In the result, the appeal is allowed in part. While setting aside conviction and sentence of the appellant under Section 3(1)(xi) of the Act of 1989, he is held guilty under Section 354 of IPC and is sentenced to the period already undergone by him. He is reported to be on bail, therefore, his bail bonds shall remain in operation for a period of six months in view of provisions of Section 481 of BNSS, 2023. Sd/ (Rajani Dubey) Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2025.04.28 15:36:12 +0530