Cr.A. No. 1016 of 2002
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1016 of 2002
Reserved on : 12/07/2018
Delivered on : 08/08/2018
Kalu Ram Sahu S/o Dharamu Ram Sahu, aged 29 years, R/o Kopra, P.S.
Rajim, District Raipur (C.G.)
State of Chhattisgarh
For Appellant : Shri C.R. Sahu, Advocate
For Respondent/State : Shri Avinash K. Mishra, Panel Lawyer
Hon’ble Shri Justice Gautam Chourdiya, J
1. This appeal arises out of the judgment of conviction and order of sentences
dated 02.09.2002 passed by the Special Judge, under the Scheduled Castes and
Sessions Trial No. 50/2002, whereby, the appellant stands convicted and
sentenced as under:-
Under Section 452 of the Indian Rigorous imprisonment for
Penal Code (hereinafter referred one year and pay a fine of Rs.
to as the ‘IPC’) 500/- and in default of
payment to further undergo
rigorous imprisonment for two
Under Section 3(1) (xi) of the Rigorous imprisonment for
Scheduled Castes and one year and pay a fine of Rs.
Scheduled Tribes (Prevention of 500/- and in default of
Atrocities) Act, 1989 (hereinafter payment to further undergo
referred to as the ‘Special Act’) rigorous imprisonment for two
Both the sentences to run concurrently
2. Case of the prosecution, in breif, is that a First Information Report (FIR –
Cr.A. No. 1016 of 2002
Ex.-P/1) lodged by the prosecutrix/complainant (PW-1) on 08.01.2002 at 11:55 AM
against the accused that on 07.01.2002, at about 8:00 PM, she was in her house
and her husband was gone Aarang. When she was alone in her house, the
accused entered in her house and he demanded match-stick for smoking bidi, this
was refused by the prosecutrix, then he caught hold of her hands and told her to go
inside. Thereafter, she crying, then suddenly the accused gaged her mouth and
started pulling her saree and blouse. Thereafter, the prosecutrix removed his hand
from her mouth and crying for help. Then Sirwa Bai (PW-4), Taasin Bai (PW-3),
Sunetin Bai (PW-2) and Dhanuj Yadav came there and seeing accused-Kalu
running from there. She stated that the accused had entered her house with an
intention to outrage her modesty.
3. Spot map was prepared by P.C. Sharma, DSP (PW-5), Caste-certificate for
the prosecutrix (PW-1) was seized under Ex.-P/3. During investigation, statements
of the witnesses- Sunetin Bai (PW-2) vide Ex.-P/4, Taasin Bai (PW-3) vide Ex.-D-2
and Sirwa Bai (PW-4) vide Ex.-D3 including the prosecutrix (PW-1) vide Ex.-D-1
were recorded under Section 161 of Cr.P.C.
4. After investigation, the charge-sheet was filed against the accused/appellant
while framing the charges, the trial Judge framed the charge under Section 452 of
5. So as to hold the accused/appellant guilty, the prosecution examined 6
witnesses in all. Statement of the accused was also recorded under Section 313 of
Cr.P.C. in which he denied the circumstances appearing against him in the
prosecution case, pleaded innocence and false implication. In his defence,
accused/appellant examined one Meghsing (DW-1).
Cr.A. No. 1016 of 2002
6. The trial Court after hearing the counsel for the parties and considering the
material available on record, by the impugned judgment convicted and sentenced
the accused/appellant as mentioned in para- 1 of this judgment, hence this appeal.
7. Learned counsel for the appellant submitted that no ingredients of offence
was proved by the prosecution under Section 452 IPC. He further submitted that
the author of caste-certificate (Ex.-P/3) was not examined by the prosecution and in
the statement of prosecutrix and other witnesses, they have not stated that the
prosecutrix belongs to scheduled caste. He also submitted that no opportunity of
cross-examination was available to appellant regarding the caste certificate of the
prosecutrix because the author of the certificate has not been examined by the
prosecution. He argued that the trial Court has failed to consider the statements of
the witnesses, which is without corroborating the material particulars of the case.
He further argued that contradictory statements have given by witnesses because
there is enmity between the accused and Shiva Bai which were not considered by
the learned trial Court. He submitted the trial Court has mis-appreciated the entire
evidence on record and the findings are bad in law and perverse, therefore, the
judgment of conviction and sentences are liable to be set aside.
8. On the other hand, learned Panel Lawyer appearing on behalf of the State
opposes these arguments and supports the judgment impugned. It has been
argued by the State counsel that the conviction of the appellant/accused is in
accordance with law and there is no infirmity in the same.
9. Firstly, I consider the caste of the prosecutrix (PW-1)
10. PW-1 – prosecutrix/complainant stated, in para-1, that ” eSa tkfr ls lghl
gksdj ?kfl;k gWaw” but, in her statement, there is no any word has come that she
belongs to scheduled caste category. Even PW-2 – Sunetin Bai also stated, in
Cr.A. No. 1016 of 2002
para-1, about the caste of the prosecutrix that the prosecutrix is ” tkfr ls lghl
gksdj ?kfl;k gS”. PW-3 – Taasin Bai also stated that the caste of the prosecutrix is
ghasiya. In the evidence of PW-1, PW-2 and PW-3, there is no any word has come
in their evidence that the prosecutrix belongs to scheduled caste category. The
prosecution has failed to prove the caste-certificate of the prosecutrix by authentic
evidence and the author of the caste certificate has not been examined by the
11. Ex.-P/3 is the caste certificate of the prosecutrix, but she is not author of that
certificate. Caste certificate was given by the Gram Panchayat, Kopra. That
certificate was prepared by Sarpanch-Shivkumar, but the prosecution has not
examined the Sarpanch and prosecution has failed to produce Shivkumar who
given caste certificate to the prosecutrix (PW-1) and on what basis it was issued.
There is no evidence about the caste of the prosecutrix that she belongs to
scheduled caste. So it is very difficult to say that the prosecutrix belongs to
scheduled caste category and the Sarpanch was duly authorized or not to issue
that certificate, therefore, prosecution has failed to prove this fact beyond all
reasonable doubt. In the given facts and circumstances, the conviction of the
12. Now I shall examine the evidence of prosecutrix (PW-1), Sunetin Bai (PW-2),
Taasin Bai (PW-3) and Sirwa Bai (PW-4).
13. PW-1 – prosecutrix/complainant stated that on the date of incident i.e.
07.01.2002 at about 8:00 PM, she was alone in her house, the accused/appellant
came her house and demanded match-stick for smoking bidi, she refused to give it.
She also stated that the accused had come her house with an intention to outrage
her modesty. On this, she crying, the accused caught hold of her hands and
gagged her mouth and started pulling her saree and his hand entered inside the
blouse and caught her breast. Thereafter, she crying, at that time Sunetin Bai (PW-
Cr.A. No. 1016 of 2002
2), Taasin Bai (PW-3) came there. Seeing PW-2 and PW-3, the accused ran away
from there. On next day immediately, the prosecutrix lodged the FIR (Ex.-P/1).
There is no major contradiction or omission in the Court evidence, in police
statement (Ex.-D-1) of the prosecutrix, even also in FIR (Ex.-P/1) proved by the
prosecutrix. Her statement is trustworthy and supports the evidence of independent
witness- Sirwa Bai (PW-4) and other witnesses. Prompt FIR was lodged on the next
day morning by the prosecutrix.
14. PW-2 – Sunetin Bai, PW-3 – Taasin Bai and PW-4 – Sirwa Bai also narrated
this fact in the night about 9.00 PM, crying of prosecutrix was heard, they came
back from their home and the prosecutrix was narrated that the accused caught
hold of her hands. It is clearly proved that the accused was entered into the house
of the prosecutrix for demanding match-stick for smoking bidi and suddenly
accused caught hold of her hands and started pulling her saree and blouse to
outrage her modesty. PW-4 – Sirwa Bai also clearly stated that on crying of the
prosecutrix, she came out from her home and saw the accused-Kalu running away
from the house of the prosecutrix and the prosecutrix narrated to her that accused
was catching her hand and the prosecutrix was also abusing the accused. There is
no reason to disbelieve the evidence of PW-2, PW-3 and PW-4 which supports the
evidence of prosecutrix (PW-1).
2), Taasin Bai (PW-3) and Sirwa Bai (PW-4), they stated that on crying of
prosecutrix, when they came out from their house, the accused- Kalu was running
away from the house of the prosecutrix, then the prosecutrix told them that the
accused had entered her (prosecutrix) house, caught hold of her hand with an
intention to outrage her modesty and started pulling her saree and blouse. PW-2,
PW-3 and PW-4 have seen the accused-Kalu running away from the house of the
prosecutrix. There are no major contradictions in the court evidence and 161
16. Appellant/accused examined DW-1 – Meghsingh who stated that the
accused and the husband of the prosecutrix both are having good relations and
working together. Prosecution examined PW-4 – Sirwa Bai. This witness (PW-4)
stated that she has no enmity with the accused/appellant.
17. In his defence, the accused/appellant stated that the prosecutrix/complainant
had demanded Rs.500/- from him, but he refused to give money and he also
alleged that there is enmity between him and Shiva Bai, therefore he has been
falsely implicated in this case. Accused examined one Meghsing (DW-1) who has
also stated that the husband of the prosecutrix and the accused both are having
cordial relations, but there is enmity between accused and Shiva Bai, neighbour of
the prosecutrix. In this case, Shiva Bai was not examined by the prosecution.
18. In the present case, prosecution has failed to prove that the prosecutrix
belongs to scheduled caste category and also looking to the evidence and material
available on record that the appellant had entered the house of the prosecutrix with
an intention to assault or use criminal force to the prosecutrix, intending to outrage
or knowing it to be likely that he will thereby outrage her modesty and or has
committed house trespass in order to commit offence punishable with
imprisonment. Therefore, it was proved that the accused/appellant has committed
19. For offence under Section 452 IPC, the essential ingredients for conviction
under this section is that it is necessary to prove that the appellant committed
house trespass after making preparation for causing hurt etc., but, in the instant
case, there is no such proof of having made preparation for causing hurt etc. and
the prosecution is failed to prove it. Only the appellant/accused has committed
house trespass to commit offence punishable under Section 451 IPC.
Cr.A. No. 1016 of 2002
20. It is also noted that the appellant was 29 years of young offender on the date
of incident and he in jail for 11 days and there is no criminal antecedent against the
appellant and presently he is on bail. Considering the totality of the circumstances
and the fact that offence occurred in the year 2002 and about more than 15 years
have elapsed, this Court is of the opinion that and the ends of justice would be
served, if the appellant/accused is sentenced to the period already undergone by
him. It is ordered accordingly. However, the fine amounts of Rs.3000/- under
imposed on the appellant/accused which was payable to the
21. For the foregoing reasons and discussions, the appeal is partly allowed.
Conviction and sentences awarded to the accused/appellant are set aside and he
reduced to the period already undergone and the appellant/accused is directed to
pay the above fine amount to the prosecutrix/complainant as compensation, failing
which, the appellant shall serve rigorous imprisonment for two months.
22. It is also stated that the accused/appellant is on bail since 18.10.2002,
therefore, his bail bonds shall continue for a period of six months from today in view
of the provisions of Section 437-A of Cr.P.C.