Chattisgarh High Court
Dbb vs State Of Chhattisgarh on 24 March, 2026
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal, Rajni Dubey
Page No.1 of 19
IN
CRA-1057-2021 & CRA-1418-2021
Digitally 2026:CGHC:14066-DB
SAIFAN signed by
KHAN SAIFAN
NAFR
KHAN
HIGH COURT OF CHHATTISGARH AT BILASPUR
[Arising out of a common judgment dated 24.11.2021, passed in
Special Sessions Case No.03/2018 (State of Chhattisgarh v. Karan
Singh Rajput and others) by the Special Judge (SC/ST Act) Mungeli
(CG)]
Criminal Appeal No. 1057 of 2021
Karan Singh Rajput, S/o- Moujiram Rajput, aged about 38 years, R/o
Village-Dhodhapur, Police Station-Pathariya, Tahsil- Pathariya,
District- Mungeli (Chhattisgarh)
--- Appellant
Versus
State of Chhattisgarh, through Station House Officer, Police
Station-Pathariya, Tahsil- Pathariya, District- Mungeli
(Chhattisgarh)
--- Respondent
-------------------------------------------------------------------------------------------------
For Appellant : Mr. Jameel Akhtar Lohani, Advocate
For Respondent : Mr. Amit Buxy, Dy. Government Advocate
For Complainant : Mr. Hemant Kesharwani, Advocate
Amicus Curiae : Mr. Sharad Mishra, Advocate
————————————————————————————————-
WITH
Criminal Appeal No. 1418 of 2021
DBB
—Appellant
Versus
1 – State of Chhattisgarh, through- the Station House Officer, Police
Station, Pathariya, District- Mungeli (Chhattisgarh)
2 – Karan Singh Rajput, S/o Maujiram Rajput, aged about 38 years,
R/o Dhondhapur, P.S. Pathariya, District- Mungeli (Chhattisgarh)
— Respondents
Page No.2 of 19
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CRA-1057-2021 & CRA-1418-2021
————————————————————————————————-
For Appellant : Mr. Hemant Kesharwani, Advocate
For Respondent No.1 : Mr. Amit Buxy, Dy Government Advocate
For Respondent No.2 : Mr. Jameel Akhtar Lohani, Advocate
————————————————————————————————-
Division Bench
Hon’ble Shri Justice Sanjay K. Agrawal and
Hon’ble Smt. Justice Rajni Dubey
Judgment on Board
(24.03.2026)
Sanjay K. Agrawal, J
(1) Regard being had to the similitude of the questions of fact and
law involved and being arising out of a common impugned judgment
dated 24.11.2021, on the joint request of learned counsel for the
parties, both these appeals are clubbed together, heard together and
being disposed of by this common judgment.
(2) CRA-1057-2021 has been filed under Section 374(2) of CrPC at
the instance of the accused-appellant, namely, Karan Singh Rajput
(A-1), is questioning the legality, validity and correctness of the
impugned judgment of conviction and order of sentence dated
24.11.2021, passed in Special Sessions Case No.03/2018 (State of
Chhattisgarh v. Karan Singh Rajput and others) by the Special
Judge, constituted under the provisions of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the
“Act of 1989”) Mungeli (CG), whereby he has been convicted and
sentenced as under:
Conviction Sentence U/s. 376 of IPC Rigorous imprisonment for 10 years with Page No.3 of 19 IN CRA-1057-2021 & CRA-1418-2021 fine of Rs.2,000/- and, in default of payment of fine, additional rigorous imprisonment for 01 month. U/s. 294 of IPC Rigorous imprisonment for 01 month. U/s. 323 of IPC Rigorous imprisonment for 03 months. U/s. 342 of IPC Rigorous imprisonment for 03 months. U/s. 506 of IPC Rigorous imprisonment for 06 months.
U/s. 3(2)(v) of the Act of Imprisonment for life with fine of
1989 Rs.2,000/- and, in default of payment of
fine, additional rigorous imprisonment for
01 month.
U/s. 3(1)(r) of the Act of Rigorous imprisonment for 04 years with
1989 fine of Rs.1,000/- and, in default of
payment of fine, additional rigorous
imprisonment for 15 days.
U/s. 3(1)(s) of the Act of Rigorous imprisonment for 04 years with
1989 fine of Rs.1,000/- and, in default of
payment of fine, additional rigorous
imprisonment for 15 days.
[All the sentences are directed to run concurrently]
(3) Whereas, CRA-1418-2021 has been filed under Section 374(2)
of CrPC at the instance of the victim (PW-02), challenging the same
impugned judgment dated 24.11.2021 on the ground that since its a
case where ingredients for offence under Section 376D of IPC is
clearly made out, the conviction of accused-appellant, namely, Karan
Singh (A-1) be converted to 376D of IPC instead of 376 of IPC and
he be sentenced for at least 20 years RI instead of 10 years RI.
(4) The case of the prosecution, in short, is that in the intervening
night of 27-28.12.2017, at Village Dhodhapur, which comes within
the ambit of Police Station- Pathariya, District Mungeli (CG),
accused-appellant herein, namely, Karan (A-1) alongwith to other
acquitted co-accused, namely, Kuleshwar Rajput (A-2) and Jitendra
Page No.4 of 19
IN
CRA-1057-2021 & CRA-1418-2021
Rajput (A-3), in furtherance of their common object, committed
sexual intercourse with the victim (PW-02) one by one and, further,
committed marpeet with her and, knowing fully well that victim
(PW-02) belongs to Scheduled Castes community, abused her with
filthily/obscene words in public place and also threatened her to kill
and, thereby, committed the aforesaid offences.
(5) It is also the case of the prosecution that after the incident,
when victim (PW-02) reported the matter to the police, FIR (Ex.P/4)
was registered by the police and wheels of investigation started
running, in which, spot map and panchnama were prepared vide
Ex.P/02 and Ex.P/03. Victim’s statements under Section 161 of CrPC
was recorded vide Ex.P/09 & Ex.P/10. The victim was also subjected
to medical examination, which was conducted by Dr. S. Praveen (not
examined) and, accordingly, to MLC report (Ex.P/23) four injuries
were found over the body of the victim. Slides of the victim (PW-02)
were also prepared and handed over the police for analysis, which
were seized vide Ex.P/19. Pieces of orange color bangles were also
seized from the place of incident vide Ex.P/13. The seized articles
were sent for chemical examination, and as per FSL report (Ex.C-1),
stains of human sperm/semen were found on the slides of the victim
(PW-02). Further, caste certificate of the victim (PW-02) (Ex.P/17)
was also seized vide Ex.P/08. Further, victim’s statement under
Section 164 of CrPC was also recorded vide Ex.P/07. The accused
persons were arrested vide Ex.P/21, Ex.P/26 & Ex.P/27 respectively.
Page No.5 of 19
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CRA-1057-2021 & CRA-1418-2021
After due investigation, all the accused persons were charge-sheeted
for the offences 376, 376D, 294, 506, 323, 342, 34 of IPC as also
under Section 3(2)(v), 3(2)(r) & 3(2)(s) of the Act of 1989 in the
competent criminal Court having jurisdiction, which was thereafter
committed to the Court of Sessions for hearing and trial in
accordance with law, in which, the accusd persons abjured their
guilt and entered into defence by stating that they are innocent and
have been falsely implicated.
(6) The prosecution in order to prove its case examined as many
as 17 witnesses and exhibited 30 documents apart from FSL report
(Ex.C-1), whereas the accused persons in support of their defence
neither examined any witness nor exhibited any documents.
(7) The learned trial Court after appreciating the oral and
documentary evidence available on record, though acquitted co-
accused, namely, Kuleshwar Rajput (A-2) and Jitendra Rajput (A-3)
for the aforesaid offences, but proceeded to convict the
accused/appellant herein, namely, Karan Singh (A-1) for the offence
punishable under Section 376, 294, 506, 323, 342 of IPC as also
under Section 3(2)(v), 3(2)(r) & 3(2)(s) of the Act of 1989 and
sentenced him as mentioned in Para-2 of this judgment, against
which CRA-1057-2021 has been preferred by the appellant-accused
questioning the impugned judgment of conviction and order of
sentence and CRA-1418-2021 has been preferred by the victim (PW-
02) seeking enhancement of the conviction and sentence awarded to
Page No.6 of 19
IN
CRA-1057-2021 & CRA-1418-2021
appellant- Karan (A-1).
(8) Before proceedings further, it is important to mention here
that the victim (PW-02) has also preferred Acquittal Appeal
No.229/2021 before this Court challenging the judgment of acquittal
of co-accused- Kuleshwar Rajput (A-2) and Jitendra Rajput (A-3) for
the aforesaid offences (S. 376 IPC), but the same stood dismissed
vide order dated 21.04.2022 being meritless.
(9) Mr. Jameel Akhtar Lohani, learned counsel for the appellant-
Karan Singh (A-1) in CRA-1057-2021 would submit that the learned
trial Court is absolutely unjustified in convicting the appellant for
the aforesaid offences. He also submits that though victim (PW-02)
has been medically examined and her MLC report is Ex.P/19, but
the doctor who has medically examined the victim, namely, S.
Praveen has not been examined to prove the MLC report (Ex.P/19)
for the reasons best known to the prosecution and, in absence of
which, the same cannot be relied upon. Furthermore, as per FSL
report (Ex.C-1), though stains of human sperm were found on the
slide of the victim (PW-02), but in absence of DNA profiling or semen
matching with the semen of the appellant, the same is fatal to the
case of the prosecution in light of decision of the Supreme Court in
Krishan Kumar Malik v. State of Haryana 1. Even otherwise, the
officer i.e. Tehsildar, Pathariya who has issued caste certificate
(Ex.P/17) has also been examined, instead thereof, Deputy Collector,
1 (2011) 7 SCC 130
Page No.7 of 19
IN
CRA-1057-2021 & CRA-1418-2021
namely, Raj kumar Tamboli (PW-08) has been examined, but he was
not posted as Tehsildar Pathariya at the relevant point of time when
caste certificate (Ex.P/17) was issued and he has also stated that he
didn’t know the person/officer who issued caste certificate (Ex.P/17).
As such, for the aforesaid reasons, the conviction of appellant-
Karan Singh (A-1) is bad in law and he deserves to be acquitted of
the aforesaid charges and his appeal is liable to be allowed.
(10) Per-contra, learned State counsel would submit that the
prosecution has been able to prove the offence beyond reasonable
doubt by leading evidence of clinching nature. It is further
submitted on behalf of the respondent-State that in view of
statements of prosecution witnesses coupled with other evidence
available on record, the trial Court has rightly convicted the
appellant- Karan Singh (A-1) for the offence under Section 376, 294,
506, 323, 342 of IPC as also under Section 3(2)(v), 3(2)(r) & 3(2)(s) of
the Act of 1989 and, therefore, the his appeal is liable to be
dismissed.
(11) Mr. Hemant Kesharwani, learned counsel appearing for the
victim (PW-02) also supported the arguments putforth by learned
counsel for the State and prays for dismissal of CRA-1057-2021 filed
by appellant- Karan (A-1). Further, learned counsel in CRA-1418-
2021 submits that since its a case where ingredients for offence
under Section 376D of IPC is clearly made out, the conviction of
accused-appellant, namely, Karan Singh (A-1) be converted to 376D
Page No.8 of 19
IN
CRA-1057-2021 & CRA-1418-2021
of IPC instead of 376 of IPC and he be sentenced for at least 20
years RI instead of 10 years RI.
(12) Mr. Sharad Mishra, learned Amicus Curiae also submits that
in the present case though the accused persons have been charge-
sheeted for offence under Section 376D of IPC, but the learned trial
Court did not framed the said charge against the accused persons
and on the basis of the statement of the victim (PW-02), where she
specifically stated that it is appellant- Karan (A-1) who has only
committed sexual intercourse with her and other two accused
persons, namely, Kuleshwar Rajput (A-2) and Jitendra Rajput (A-3)
were only caught hold of her, has acquitted the two accused-
Kuleshwar Rajput (A-2) and Jitendra Rajput (A-3) and, against
which, the acquittal appeal filed by the victim (PW-02) before this
Court being ACQA-229-2021 has also been dismissed vide order dt.
21.04.2022 on merits and, as such, the judgment of acquittal of two
accused persons have attained finality in absence of any further
challenge, offence under Section 376D of IPC is not made out in the
present case and the conviction of appellant- Karan (A-1) for offence
under Section 376 of IPC, as awarded to him by the learned trial
Court, cannot be altered to one under Section 376D of IPC and its
respective sentence for 10 years RI cannot be enhanced to 20 years
RI.
(13) We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the records
Page No.9 of 19
IN
CRA-1057-2021 & CRA-1418-2021
with utmost circumspection.
CRA-1057-2021
(14) In the present case, admittedly, charge under Section 376D of
IPC was framed against accused-appellant- Karan Singh (A-1) and
two acquitted co-accused, namely, Kuleshwar Rajput (A-2) and
Jitendra Rajput (A-3), however, Kuleshwar Rajput (A-2) and
Jitendra Rajput (A-3) have been acquitted by the learned trial Court
vide impugned judgment dt. 24.08.2018. In order to convict
appellant- Karan (A-1) the learned trial Court has relied upon the
statement of victim (PW-02) as well as forensic and medical
evidence. So far as medical evidence is concerned, it is the case of
the prosecution that after the incident the victim (PW-02) was
medically examined and her MLC report is Ex.P/23, but the doctor,
namely, S. Praveen has not been examined to prove the said MLC
report for the reasons best known to the prosecution. Similarly,
though as per FSL report (Ex.C-1) stains of human sperm were
found on the slide of the victim (PW-02), but in light of the decision
of the Supreme Court in Krishan Kumar Malik (supra) wherein it
has been held that it has become necessary for the prosecution to go
in for DNA test in such type of cases, facilitating the prosecution to
prove its case against the accused. It has also been held that the
prosecution has to resort the procedure of getting the DNA test or
analysis and matching of semen of the appellant with that found on
the undergarments of the prosecutrix to make it a foolproof case, but
Page No.10 of 19
IN
CRA-1057-2021 & CRA-1418-2021
they did not do so, thus they must face the consequences and
observed in Para-43 & 44 as under:
“43. With regard to the matching of the semen, we find
it from Taylor’s Principles and Practice of Medical
Jurisprudence, 2nd Edn. (1965) as under:-
“Spermatozoa may retain vitality (or free motion)
in the body of a woman for a long period, and
movement should always be looked for in wet
specimens. The actual time that spermatozoa may
remain alive after ejaculation cannot be precisely
defined, but is usually a matter of hours. Seymour
claimed to have seen movement in a fluid as much
as 5 days old. The detection of dead spermatozoa in
stains may be made at long periods after emission,
when the fluid has been allowed to dry. Sharpe
found identifiable spermatozoa often after 12
months and once after a period of 5 years. Non-
motile spermatozoa were found in the vagina after
a lapse of time which must have been 3 and could
have been 4 months.”
Had such a procedure been adopted by the prosecution,
then it would have been a foolproof case for it and
against the appellant.
44. Now, after the incorporation of Section 53 (A) in the
Criminal Procedure Code, w.e.f. 23.06.2006, brought to
our notice by learned counsel for the respondent State,
it has become necessary for the prosecution to go in for
DNA test in such type of Crl. A. @S.L.P. (Crl.) No.8021
of 2009 cases, facilitating the prosecution to prove its
case against the accused. Prior to 2006, even without
the aforesaid specific provision in the Cr.P.C. the
prosecution could have still resorted to this procedure of
getting the DNA test or analysis and matching of semen
of the appellant with that found on the undergarments
of the prosecutrix to make it a fool proof case, but they
did not do so, thus they must face the consequences.”
(15) The principles of law laid down in Krishan Kumar Malik
Page No.11 of 19
IN
CRA-1057-2021 & CRA-1418-2021
(supra) has been followed with approval in Veerendra v. State of
Madhya Pradesh2 and Chotkau v. State of Uttar Pradesh 3. However,
in the present case, neither DNA test nor the process for matching
the semen found on the vaginal slides of the victim to that of with
the semen of the appellant- Karan (A1), has been conducted by the
prosecution and, in absence of which, the evidence of FSL report is
of no help to the prosecution and same cannot be relied upon to hold
the appellant guilty for the offence of rape. Furthermore, to base the
conviction of the appellant, learned trial Court has also taken into
consideration the statement of the victim (PW-02) and, as such, the
question is as to whether the testimony of victim (PW-02) is of
sterling quality?
(16) The Supreme Court in the matter of State of MP v. Dayal
Sahu4 has clearly held that non-examination of doctor and non-
production of doctor’s report would not be fatal to the case of the
prosecution if statement of prosecutrix and other prosecution
witness inspire confidence and held in Para-14 as under:
“14. A plethora of decisions by this Court as referred to
above would show that once the statement of prosecutrix
inspires confidence and accepted by the courts as such,
conviction can be based only on the solitary evidence of
the prosecutrix and no corroboration would be required
unless there are compelling reasons which necessitate
the courts for corroboration of her statement.
Corroboration of testimony of the prosecutrix as a2 (2022) 8 SCC 668
3 (2023) 6 SCC 742
4 (2005) 8 SCC 122
Page No.12 of 19
IN
CRA-1057-2021 & CRA-1418-2021condition for judicial reliance is not a requirement of law
but a guidance of prudence under the given facts and
circumstances. It is also noticed that minor
contradictions or insignificant discrepancies should not
be a ground for throwing out an otherwise reliable
prosecution case. Non-examination of doctor and non-
production of doctor’s report would not cause fatal to the
prosecution case, if the statements of the prosecutrix
and other prosecution witnesses inspire confidence. It is
also noticed that the Court while acquitting the accused
on benefit of doubt should be cautious to see that the
doubt should be a reasonable doubt and it should not
reverse the findings of the guilt on the basis of
irrelevant circumstances or mere technicalities.”
[Emphasis Supplied]
(17) Now, in light of the above quoted principle we will proceed to
examine the statement of the victim (PW-02). The victim (PW-02) is
a married and deserted woman aged about 29 years and she has
clearly stated that on the date of offence, in the night, when she has
gone to answer the call of nature, three accused persons came there
and caught of hold her and committed sexual intercourse with her
one by one. However, in para-18 on being asked she only stated that
appellant- Karan (A-1) has committed sexual intercourse with her
and remaining two accused- Kuleshwar Rajput (A-2) and Jitendra
Rajput (A-3) did not commit sexual intercourse with her, indeed,
they were only caught holding her hands, legs and mouth. The
victim (PW-02) was subjected to lengthy cross-examination, but
nothing could be extracted from her to hold that appellant- Karan
(A-1) did not commit sexual intercourse with her on the date of
offence. Even, FIR was also lodged by the victim promptly on the
Page No.13 of 19
IN
CRA-1057-2021 & CRA-1418-2021
next day at about 07 PM vide Ex.P/04 and her statements under
Sections 161 of CrPC were also recorded on 28.12.2017 & 29.12.2017
vide Ex.P/9 & Ex.P/10 and pieces of bangles were also recovered
from the spot on 29.12.2017 vide Ex.P/13 and further spot map was
also prepared on 29.12.2017 vide Ex.P/05. Accordingly, in the
considered opinion of this Court, though medical and forensic
evidence could not be proved in accordance with law, but the
statement of victim (PW-02) is of sterling quality and, therefore, it is
held that the learned trial Court has rightly convicted the appellant
for offences under Sections 376, 294, 506, 323, 342 of IPC.
(18) Now the next question for consideration would be whether the
learned trial Court is justified in convicting the appellant- Karan
Singh (A-1) for offences under Section 3(2)(v), 3(1)(r) & 3(1)(s) of the
Act of 1989 ?
(19) In order to prove the aforesaid offences, the prosecution has
relied upon the caste certificate (Ex.P/17). The said caste certificate
has been issued on 28.01.2012 by Tehsildar, Pathariya and, in order
to prove the said caste certificate (Ex.P/17) the prosecution has
examined Deputy Collector- Rajkumar Tamboli (PW-08), whereby he
stated that from September, 2012 to July, 2015 he was posted as
Tehsildar, Pathariya and he specifically stated that he did not issue
caste certificate (Ex.P/17) and even he did not know the officer who
has issued caste certificate (Ex.P/17). As such, caste certificate
(Ex.P/17) has not been proved by the prosecution beyond all
Page No.14 of 19
IN
CRA-1057-2021 & CRA-1418-2021
reasonable doubt and except this nothing has been brought on
record to prove the said caste certificate of the victim or she belongs
to Scheduled Caste community.
(20) Even otherwise, the Chhattisgarh Scheduled Castes,
Scheduled Tribes and other Backward Classes (Regulation of Social
Status Certification) Rules, 2013 (for short the “Rules of 2013”) came
into effect on 02.09.2013 and according to Rule 09 the Competent
Authority after receiving application under sub-rule (1) of Rule 13
and conducting an inquiry under Rule 8 and in case where himself is
not an inquiry officer, after satisfying himself with the annexed
documents and Report of the inquiry officer, within one month from
the date of receipt of application, shall issue the social status
certificate in prescribed form for SC, ST, OBC community. However,
the State Government has issued circular dated 22.08.2013, which
reads as under:
“5- l{ke izkf/kdkjh rFkk vihyh; izkf/kdkjh%
5-1 vf/kfu;e] 2013 dh /kkjk 2 ds [k.M ¼[k½ ds varxZr bl foHkkx dh
vf/klwpuk fnukad 22 vxLr] 2013 ds }kjk lkekftd izkfLFkfr
izek.k&i= tkjh djus gsrq l{ke vf/kdkfj;ksa dks ?kksf”kr fd;k x;k gSA
5-2 ‘kS{kf.kd dk;kZsa ds fy, ljiap ,oa okMZ ik”kZnksa dks vLFkkbZ lkekftd
izkfLFkfr izek.k&i= tkjh djus dk vf/kdkj fn;k x;k gSA ‘kS{kf.kd
dk;ksZa ds vykok vU; dk;kZsa gsrq rglhynkj] vfrfjDr rglhynkj rFkk
uk;c rglhynkjksa dks vLFkkbZ lkekftd izkfLFkfr izek.k&i= tkjh djus
dk vf/kdkj fn;k x;k gSA
5-3 LFkkbZ lkekftd izkfLFkfr izek.k&i= tkjh djus dk vf/kdkj
dysDVj] vij dysDVj] fMIVh dysDVj] vuqfoHkkxh; vf/kdkjh ¼jktLo½
dks iznku fd;k x;k gS ijarq lkekU; rkSj ij mDr dk;Z vuqfoHkkxh;
vf/kdkjh ¼jktLo½ ds }kjk gh fd;k tkosxkA tgka dk;Z vf/kd gS ogka
dysDVj fdlh fMIVh dysDVj dks Hkh fdlh fo’ks”k {ks= ds fy,
Page No.15 of 19
IN
CRA-1057-2021 & CRA-1418-2021lkekftd izkfLFkfr izek.k&i= tkjh djus ds dke lkSai ldsaxsA
5-4 vf/kfu;e] 2013 dh /kkjk 2 d s [k.M ¼d½ ds varxZr l{ke
vf/kdkfj;ksa ds vkns’kksa ls vlarq”V vkosndksa dks vihy djus ds izko/kku
ds rgr vihyh; vf/kdkjh ?kksf”kr fd, x, gSaA bl foHkkx dh
vf/klwpuk fnukad 22 vxLr] 2013 ds }kjk gh rglhynkj] vfrfjDr
rglhynkj rFkk uk;c rglhynkjksa ds vkns’k ds fo:) vuqfoHkkxh;
vf/kdkjh ¼jktLo½] fMIVh dysDVj rFkk vuqfoHkkxh; ¼jktLo½ ds vkns’k
ds fo:) vij dysDVj@dysDVj rFkk vij dysDVj@dysDVj ds
vkns’k ds fo:) vij vk;qDr@laHkkxh; vk;qDr dks vihyh;
vf/kdkjh ?kksf”kr fd;k x;k gSA ”
(21) As such by virtue of aforesaid circular, the competent
authority, as mentioned in Rule 9 to issue caste certificate, is Sub-
Divisional Officer (Revenue). In the present case, the date of offence
is 27.12.2017 and caste certificate (Ex.P/17) has been issued to the
victim (PW-02) on 28.01.2012 and, as per aforesaid circular dated
22.08.2013, the SDO (R) was the competent authority to issue the
caste certificate to the victim (PW-02), but the Tehsildar has issued
the same to the victim on 28.01.2012, who was not competent
authority at the relevant point of time. Therefore, the caste
certificate (Ex.P17) cannot be relied upon under the facts and
circumstances of the present case that too when caste certificate
(Ex.P/17) of the victim has not been proved by the examining
witness. As such, it is not proved beyond responsible doubt on the
date of offence the victim (PW-02) belongs to Scheduled Caste
Community and, in absence of which, the learned trial Court is
unjustified in convicting the appellant- Karan (A-1) for offences
under Sections 3(2)(v), 3(1)(r) & 3(1)(s) of the Act of 1989 and same
Page No.16 of 19
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CRA-1057-2021 & CRA-1418-2021
is liable to the set aside. We hereby hold accordingly.
(22) Consequently, the conviction and their respective sentences of
appellant- Karan Singh Rajput (A-1) for offences under Section 376,
294, 506, 323, 342 of IPC, as awarded to him to by the learned trial
Court, are hereby affirmed being well merited, whereas, the
conviction and their respective sentences of appellant- Karan Singh
Rajput (A-1) for offences under Section 3(2)(v), 3(1)(r) & 3(1)(s) of the
Act of 1989 are hereby set aside and the appellant- Karan Singh (A-
1) is acquitted of the said charges on the benefit of doubt.
CRA-1418-2021
(23) The victim (PW-02) has preferred this appeal stating, inter-
alia, that since three accused persons committed sexual intercourse
with her on the date of offence, therefore, its a case where offence
under Section 376D of IPC is made out and conviction of accused-
appellant, namely, Karan Singh (A-1) be converted to 376D of IPC
instead of 376 of IPC and he be sentenced for at least 20 years RI
instead of 10 years RI. However, though in the present case all the
accused persons have been charge-sheeted for offence under Section
376D of IPC, but the learned trial Court did not frame the charge
under Section 376D of IPC against the accused persons, indeed,
framed charge under Section 376 of IPC only and, further, on the
basis of the statement of the victim (PW-02), where she specifically
stated that it is appellant- Karan (A-1) who has only committed
Page No.17 of 19
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CRA-1057-2021 & CRA-1418-2021
sexual intercourse with her and other two accused persons, namely,
Kuleshwar Rajput (A-2) and Jitendra Rajput (A-3) have only caught
hold of her, the learned trial Court has even acquitted two accused-
Kuleshwar Rajput (A-2) and Jitendra Rajput (A-3) for offence under
Section 376 of IPC and, against which, the acquittal appeal filed by
the victim (PW-02) before this Court being ACQA-229-2021 has also
been dismissed vide order dt. 21.04.2022 on merits and, as such, the
judgment of acquittal of two accused persons have attained finality
in absence of any further challenge. Consequently, in absence of
framing of charge under Section 376D of IPC by the learned trial
Court, opportunity of defence has also not been granted to the
accused person, therefore, the appellant- Karan Singh (A-1) cannot
be convicted for offence under Section 376D of IPC that too when
other two co-accused persons have already been acquitted by the
learned trial Court for offence under Section 376 of IPC. As such, the
conviction of appellant- Karan (A-1) for offence under Section 376 of
IPC, as awarded to him by the learned trial Court, cannot be altered
to one under Section 376D of IPC and its respective sentence for 10
years RI cannot be enhanced to 20 years RI.
(24) The Supreme Court in the matter of Chintambaramma and
another v. State of Karnataka5 has held as under:
“16. We find that Charge 3 against the appellants was
that Accused 4 and 5 have conspired with the
appellants by receiving money. However, both the5 (2019) 17 SCC 208
Page No.18 of 19
IN
CRA-1057-2021 & CRA-1418-2021courts have found the charge of conspiracy as not
proved. Whether, in these circumstances, the
appellants could be convicted for an offence under
Section 302 IPC even without there being charge to
this effect?
17. The question as to whether omission to frame an
alternative charge under Section 302 IPC is an
illegality that cuts at the root of the conviction and
makes it invalid or whether it is a curable
irregularity, has been examined by this Court from
time to time. One of the first judgments is Willie
(William) Slaney v. State of M.P. [Willie (William)
Slaney v. State of M.P., AIR 1956 SC 116 : 1956 Cri LJ
291] wherein the Constitution Bench explained the
concept of prejudice caused to the accused and failure
of justice to vitiate trial in terms of present Section
464 of the Code. It was held as under : (AIR p. 121,
para 6)
“6. Before we proceed to set out our answer and
examine the provisions of the Code, we will pause to
observe that the Code is a code of procedure and,
like all procedural laws, is designed to further the
ends of justice and not to frustrate them by the
introduction of endless technicalities. The object of
the Code is to ensure that an accused person gets a
full and fair trial along certain well-established and
well-understood lines that accord with our notions
of natural justice.
If he does, if he is tried by a competent court, if he
is told and clearly understands the nature of the
offence for which he is being tried, if the case
against him is fully and fairly explained to him and
he is afforded a full and fair opportunity of
defending himself, then, provided there is
substantial compliance with the outward forms of
the law, mere mistakes in procedure, mere
inconsequential errors and omissions in the trial
are regarded as venal by the Code and the trial is
not vitiated unless the accused can show
Page No.19 of 19
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CRA-1057-2021 & CRA-1418-2021substantial prejudice. That, broadly speaking, is the
basic principle on which the Code is based.””
(25) Undisputedly, in the present case, charge for offence under
Section 376D of IPC has not been framed by the learned trial Court,
indeed, charge under Section 376 of IPC was farmed against the
appellant and, therefore, it would be impermissible to convict and
award sentence to the accused- Karan for offence under Section
376D of IPC more particularly in view of the fact that other two
accused persons, namely, Kuleshwar Rajput (A-2) and Jitendra
Rajput (A-3) have been acquitted from the learned trial Court and
their order of acquittal has further been affirmed by this Court and
same has attained finality. Accordingly, I do not find any merit in
the appeal preferred by the victim (PW-02) seeing enhancement of
the sentence awarded to the accused- Karan (A-1).
(26) Consequently, CRA-1057-2021 preferred by the accused- Kaan
Singh Thakur (A-1) is partly allowed to the extent indicated herein
above, whereas CRA-1418-2021 filed by the victim (PW-02) is hereby
dismissed being meritless.
(27) Let a certified copy of this judgment along with the original
record be transmitted to the trial Court concerned and also a copy of
this judgment be sent to the concerned Superintendent of Jail where
the appellant- Karan Singh Thakur (A-1) is lodged and suffering jail
sentence, forthwith for information and necessary action, if any.
sd/- sd/-
(Sanjay K. Agrawal) (Rajni Dubey)
Judge Judge
s@if