Chattisgarh High Court
Bholaram And Anr vs State Of Chhattisgarh on 8 September, 2022
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 973 of 2012
• Jagsen S/o Ramcharan Kanwar Aged About 23 Years R/o
Villagenawaparakala, Ps Darima, Distt. Surguja, Chhattisgarh
---- Appellant
Versus
• State Of Chhattisgarh Through The Ps Darima, Distt. Surguja,
Chhattisgarh --- Respondent
WITH
CRA No. 1130 of 2012
1. Bholaram S/o Netram Dhobi Aged About 26 Years R/o Village
Nawaparakala, PS Darima, Distt. Surguja C.G.
2. Ramkumar S/o Sukhlal Lohar Aged About 24 Years R/o Village
Nawaparakala, PS Darima, Distt. Surguja (Ambikapur),
Chhattisgarh --- Appellants
Versus
• State Of Chhattisgarh Through The PS Darima, Distt. Surguja C.G.
---Respondent
-----------------------------------------------------------------------------------------------------
For Appellants : Shri Hariom Rai, Advocate on behalf
of Mr. Jitendra Shrivastava, Advocate
For Respondent/State : Shri Animesh Tiwari, Dy. A.G.
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Sachin Singh Rajput, JJ
Judgment On Board
(08.09.2022)
Sanjay K. Agrawal, J.
1. Since both these appeals arise out of the same judgment dated
18.10.2012 passed by the Special Judge, Surguja (Ambikapur) in Special
Case No.75/2008, they are being disposed of by this common judgment.
2. The accused/appellant Jagsen in Criminal Appeal No. 973 of 2012
has been convicted and sentenced as described hereunder:-
Conviction Sentence
341 of the Indian Penal SI for 1 month and fine of Rs.500/-, in
Code. default of payment of fine to further
undergo SI for 7 days.
363 of the Indian Penal RI for 3 years and fine of Rs.500/-, in
Code. default of payment of fine to further
undergo RI for 1 month.
366 of the Indian Penal RI for 5 years and fine of Rs.1000/-, in
Code. default of payment of fine to further
undergo RI for 6 months.
354 of the Indian Penal RI for 2 years and fine of Rs.1000/-, in
Code. default of payment of fine to further
undergo RI for 3 months.
3. The accused/appellants Bhola Ram & Ramkumar in Criminal
Appeal No. 1130 of 2012 have been convicted and sentenced as
described hereunder:-
Conviction Sentence
341 of the Indian Penal Code. SI for 1 month and fine of Rs.500/-, in
default of payment of fine to further
undergo SI for 7 days.
363 of the Indian Penal Code. RI for 3 years and fine of Rs.500/-, in
default of payment of fine to further
undergo RI for 1 month.
366 of the Indian Penal Code Life imprisonment and fine of
(no sentence), however, Rs.1000/-, in default of payment of
sentence imposed under fine to further undergo RI for 6
Section 3 (2) (v) of the months.
Scheduled Castes and
Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
354 of the Indian Penal Code RI for 2 years and fine of Rs.1000/-, in
(no sentence), however, default of payment of fine to further
sentence imposed under undergo RI for 3 months.
Section 3 (1) (xi) of the
Scheduled Castes and
Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
4. Case put-forth by the prosecution in brief is that on 01.04.2008
when the victim/complainant (PW-3) - then studying in class 9 was
going to Kalyanpur along with her friend Santoshi Paikra (PW-2) on
bicycle to write her exams, all the accused/appellants stopped her on
the way and knowing her to be the member of scheduled tribe took her
towards a rivulet and started pressing her hands and breasts. It is
alleged that when she raised hue and cry, the accused/appellants
abused her filthily and also threatened her of being killed if she did not
allow them to do bad work. In the meanwhile, Trilochan (not examined)
and Santoshi (PW-2) reached there and on seeing them the
accused/appellants ran away. Victim/complainant narrated the entire
incident to her family members and on 11.04.2008 she accompanied
them to the Police Station where FIR (Ex.P-1) was lodged. Spot map was
prepared, accused persons were arrested on 24.04.2008 and the caste
certificate of the victim/complainant issued by Naib Tehsildar as well as
the mark-sheet mentioning her date of birth as 01.04.1991 were
obtained. After completion of investigation, charge-sheet was filed
against the appellants under Sections 354, 341, 294, 506-B, 363, 366-A,
34 IPC. Against accused/appellants Bholaram and Ramkumar the charge
under Sections 341, 363 IPC, 3 (2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act (for short the "Special
Act") in the alternative under Section 366 IPC, Section 3(1)(xi) of the
Special Act, in the alternative u/s 354 IPC, under sections 294 and 506
(Part-II) IPC followed by framing of charge under the same Section.
Against accused/appellant Jagsen the charge u/s 341, 363, 366, 354, 294
and 506 (Part-II) IPC was framed. The appellants however abjured the
guilt and pleaded for trial.
5. So as to prove the involvement of the accused/appellants in the
crime in question, prosecution has examined as many as 05 witnesses.
Statements of the accused/appellants under Section 313 Cr.PC were also
recorded in which they pleaded their innocence and false implication in
the case. Accused/appellant Ramkumar has stated in his statement
recorded under Section 313 CrPC that there was love affair between him
and the victim/complainant and that as the discussion for their marriage
came to the notice of her family members tension between the families
prevailed and ultimately father of the victim/complainant got him
arrested. One defence witness namely Bharan Ram Paikra (DW-1) has
also been examined in support of the case of accused/appellant
Ramkumar. This witness has stated that father of accused/appellant
Ramkumar had told him that the victim/complainant and accused
Ramkumar wanted to marry. According to him, as accused Ramkumar
belonged to other caste, father of the victim/complainant did not want
his daughter to marry him.
6. After hearing the parties and going through the material available
on record including the evidence of the witnesses, learned Special Judge
has convicted and sentenced the accused/appellants as described in
preceding paragraphs of this judgment. Hence these appeals.
7. Learned counsel for the appellants submits that the offence under
Section 363 IPC is not made out against the accused/appellants as in the
charge framed it is not mentioned that the victim/complainant was
below 18 years of age at the time of incident which is a sine qua non to
hold the accused guilty under this Section. He further submits that
merely on the basis of sole testimony of the victim/complainant (PW-3),
it would not be safe to convict the accused/appellants under Section 366
IPC. He submits that there is no evidence to show that the
accused/appellants kidnapped the victim/complainant with an intent to
force or seduce her to illicit intercourse, and being so, the offence under
Section 366 IPC is also not made out. According to the counsel for the
appellants, in view of the decision of the Apex Court in the matter of
Patan Jaman Vali v. The State of Andhra Pradesh reported in 2021
SCC OnLine SC 343, the offence under Section 3(2)(v) of the special
Act is also not made out. He further submits that the ingredients of the
offence under Section 354 IPC read with section 3 (1)(xi) of the Special
Act are also not attracted to the case in hand and therefore, the appeal
deserves to be allowed.
8. On the other hand, learned counsel appearing for the State
supports the judgment impugned and submits that the findings recorded
by the Special Judge holding the accused/appellants guilty as described
here-in-above being based on proper appreciation of the evidence on
record are fully justified and do not call for any interference in these
appeals.
9. Heard counsel for the parties at length and went through the
evidence on record with utmost care and caution.
10. Though charge under Section 363 IPC has been framed against the
appellants, there is no mention in it that on the date of incident the
victim/complainant was below 18 years of age. To establish the charge
of kidnapping as per the requirement of Section 361 IPC, the prosecution
is required to prove (i) that the girl was below 18 years of age on the
date of incident (ii) that the girl kidnapped was in the keeping of lawful
guardianship (iii) that the accused enticed the girl out of such keeping,
and (iv) that the accused did so without the consent of lawful guardian.
If the charge framed by the Special Court is seen, it is not reflected
therein that the victim girl was below 18 years of age. Prosecution has
not brought any oral or documentary evidence on record to show that on
the date of incident the age of the victim was below 18 years. The
record however shows that the incident took place on 01.04.2008, the
victim was examined before the trial Court on 25.09.2008 where her
status has been shown as married. Though her date of birth has been
shown as 01.04.1991 yet in the absence of any evidence on record, it
would be unsafe for this Court to hold her as minor on the date of
incident particularly when there is no mention of her age in the charge
to be below 18 years. It was for the prosecution to plead and prove that
the victim girl was under 18 years of age on the date of incident which is
a sine qua non to convict the appellant for the offence under Section 363
IPC because unless it is so proved, no case of kidnapping is made out.
Prosecution could have proved the age of the victim in accordance with
Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules,
2007 but it has miserably failed in doing so.
11. However, it is clearly established from the statements of Santoshi
Paikra (PW-2) and the victim (PW-3) that the appellants wrongfully
confined the victim, touched her private part, pressed her breasts with
an intent to outrage her modesty and thus committed the offence
punishable under Sections 341 and 354 IPC read with Section 3 (1) (xi)
of the Special Act. In this view of the matter, the conviction of the
appellants under Section 363 IPC is set aside. Conviction of
accused/appellants Bholaram and Ramkumar under Sections 341 and
354 IPC read with Section 3 (1) (xi) of the Special Act is hereby
maintained. Likewise, conviction of accused/appellant Jagsen u/s 341
and 354 IPC is also maintained.
12. Next question to be decided is whether the conviction under
Section 366 IPC read with 3 (2)(v) of the Special Act is justified or not?
13. To constitute an offence under Section 366 IPC it is necessary for
the prosecution to prove that the accused induced the complainant-
woman or compelled her by force to go from any place, that such
inducement was by deceitful means, that such abduction took place with
the intent that the complainant may be seduced to illicit intercourse as a
result of her abduction. Mere abduction does not bring an accused under
the ambit of this penal section. Since the offence of kidnapping has not
been proved by the prosecution and for that conviction of the
accused/appellants under Section 363 IPC has already been set aside in
the preceding paragraphs, their conviction under Section 366 IPC cannot
be sustained and therefore it is also set aside.
14. Another question to be decided is whether the conviction of
appellants Bholaram and Ramkumar under Section 3 (2)(v) of the Special
Act is justified or not?
15. Section 3(2)(v) of the SC and ST (Prevention of Atrocities) Act,
1989 prior to its amendment w.e.f 26.01.2016 by SC and ST Act
(Prevention of Atrocities) Act, 2015, stood as under:
'3. Punishment for offences of atrocities-
(1) xxx xxx xxx
(2) Whoever, not being a member of a Scheduled Caste or
a Scheduled Tribe,-
(I) to (iv) xxx xxx xxx
(v) commits any offence under the Indian Penal Code
punishable with imprisonment for a term of ten years or more
against a person or property on the ground 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;"
16. The Supreme Court in the matter of Patan Jaman Vali v. State
of Andhra Pradesh noticing Section 3(2) (v) of the Act of 1989
(unamended) considered the issue of proving the offence under Section
3(2)(v) of the Act of 1989 against a person on the ground that such
person is a member of Scheduled Caste or Scheduled Tribe or such
property belongs to such member and held that it is to be established by
the prosecution on the basis of evidence at the trial and held as under:-
"58. We agree with the Sessions Judge that the
prosecution's case would not fail merely because PW1
did not mention in her statement to the police that
the offence was committed against her daughter
because she was a Scheduled Caste woman.
However, there is no separate evidence led by the
prosecution to show that the accused committed the
offence on the basis of the caste identity of PW2.
While it would be reasonable to presume that the
accused knew the caste of PW2 since village
communities are tightly knit and the accused was also
an acquaintance of PW2's family, the knowledge by
itself cannot be said to be the basis of the commission
of offence, having regard to the language of Section
3(2)(v) as it stood at the time when the offence in the
present case was committed. As we have discussed
above, due to the intersectional nature of oppression
PW2 faces, it becomes difficult to establish what led
to the commission of the offence - whether it was her
caste, gender or disability. This highlights the
limitation of a provision where causation of a wrongful
act arises from a single ground or what we refer to as
the single axis model.
59. It is pertinent to mention that Section 3(2)(v) was
amended by the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Amendment Act,
2015, which came into effect on 26 January 2016. The
words "on the ground of" under Section 3(2)(v) have
been substituted with "knowing that such person is a
member of a Scheduled Caste or Scheduled Tribe".
This has decreased the threshold of proving that a
crime was committed on the basis of the caste
identity to a threshold where mere knowledge is
sufficient to sustain a conviction.
61. However, since Section 3(2)(v) was amended and
Clause (c) of Section 8 was inserted by Act 1 of 2016
with effect from 26 January 2016 these amendments
would not be applicable to the case at hand. The
offence in the present case has taken place before the
amendment, on 31 March 2011. Therefore, we hold
that the evidence in the present case does not
establish that the offence in the present case was
committed on the ground that such person is a
member of a SC or ST. The conviction under Section
3(2)(v) would consequently have to be set aside."
17. The two appellants namely Bholaram and Ramkumar have
admitted in their statements recorded under Section 313 CrPC that they
knew that the victim was a member of Scheduled Tribe community and
since the offence was committed on 01.04.2008 i.e. prior to the
amendment inserted on 26.01.2016 it was entirely for the prosecution to
establish and prove that the offence was committed just because the
victim was a member of Scheduled Tribe community. In view of the
evidence adduced by the prosecution, it is apparent that it has miserably
failed to prove that the appellants Bholaram and Ramkumar committed
the offence under Sections 341 and 354 IPC on the basis of caste
identity of the victim. There is no separate evidence led on behalf of the
prosecution to establish that the appellants committed the offence on
the basis of caste identity of the victim. While it can be presumed that
the appellants knew that the victim belonged to scheduled tribe
community as the victim and the accused persons were the residents of
the same village, but mere knowledge of the same cannot be said to be
the basis of conviction for the offence and it had to be proved by the
prosecution by leading separate evidence as held by their Lordships of
the Supreme Court in the matter of Patan Jaman Vali (supra). In
absence of any such independent evidence led by the prosecution
establishing that the appellants wrongfully confined the victim and
outraged her modesty only on the ground that she belonged to
Scheduled Tribe community, we are of the considered opinion that
learned Trial Court was unjustified in convicting the appellants Bholaram
and Ramkumar for the charge under Section 3 (2) (v) of the Special Act.
Accordingly, their conviction for offence punishable under Section 3 (2)
(v) of the Special Act is hereby set aside.
18. As far as sentence part is concerned, the sentence of RI for one
month and fine of Rs. 500/- each awarded by the Trial Court under
Section 341 IPC is hereby maintained. As regards sentence of RI for two
years with fine of Rs. 1000/- each awarded under Section 354 IPC read
with Section 3 (I) (xi) of the Special Act, it is stated at bar that accused
Bholaram and Ramkumar remained in jail for a total period of 239 days
which comes to 07 months and 29 days whereas accused Jagsen
remained in jail for 189 days which comes to more than 06 months, and
considering the fact that nothing has been pointed out by the
prosecution that they misused the liberty granted to them by way of
suspension of their sentence and releasing them on bail or that their
conduct during that period was in any manner detrimental to the
society, we are of the considered opinion that the sentence imposed on
them under this Section can be reduced to the period already
undergone. Order accordingly.
19. In sum and substance, conviction of accused Ramkumar and
Bholaram under Sections 363 and 366 IPC read with 3(2)(v) of the
Special Act is set aside and they are acquitted of the said charges. Their
conviction under Sections 341 and 354 IPC read with section 3 (1)(xi) of
the Special Act is maintained. Likewise, conviction of accused/appellant
Jagsen u/s 363 and 366 IPC is set aside and he is acquitted of the charge
under these sections. His conviction u/s 341 and 354 IPC is however
maintained. Sentence imposed on them is however reduced to the
period already undergone as computed above. Since the appellants are
already on bail, their bail bonds stand discharged.
20. Appeals are thus allowed in part.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
Jyotishi
