In a significant development, we see how the Chhattisgarh High Court has in a recent, remarkable, refreshing and rational judgment titled Jagsen vs The State of Chhattisgarh in CRA No. 973 of 2012 with CRA No. 1130 of 2012 pronounced as recently as on September 8, 2022 has reiterated that merely because the accused knew the caste identity of the victim, the same cannot be made a basis for convicting him under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The Court also added that the prosecution will have to lead separate evidence to show that the act of violence happened because of a caste based bias against the victim. Let there be no doubt on this as the Court has laid down so very explicitly.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Shri Sanjay K Agrawal for a Division Bench of the Chhattisgarh High Court comprising of himself and Hon’ble Shri Sachin Singh Rajput sets the ball rolling by first and foremost putting forth in para 1 that, “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.”
To put things in perspective, the Division Bench then envisages quite aptly in para 4 that, “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.”
As it turned out, the Division Bench then mentions in para 5 that, “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.”
Needless to state, the Division Bench then observes in para 6 that, “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.”
To be sure, the Division Bench then states in para 9 that, “Heard counsel for the parties at length and went through the evidence on record with utmost care and caution.”
It is worth noting that the Division Bench then specifies aptly in para 10 that, “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.”
Quite ostensibly, the Division Bench then mandates in para 11 holding that, “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.”
Most significantly, the Division Bench then minces no words to hold unequivocally in para 17 what constitutes the real cornerstone of this notable judgment wherein it is held most sagaciously that, “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.”
Furthermore, the Division Bench then propounds in para 18 that, “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.”
To sum it up, the Division Bench then directs in para 19 that, “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.”
Finally, the Division Bench then concludes by holding in para 20 that, “Appeals are thus allowed in part.”
In a nutshell, the Chhattisgarh High Court has minced just no words to reiterate unambiguously that mere knowledge of victim’s caste does not attract SC/ST Act unless offence committed on basis of caste identity. The Court also made it pretty clear that it is inevitable that the prosecution has to mandatorily prove by separate evidence that the act of violence happened because of a caste based bias against the victim. Very rightly so!