Bhagmaniya @ Sandhya Singh Vs State of Chhattisgarh

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2025:CGHC:15545

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Digitally signed by INDRAJEET SAHU Date: 2025.04.07 17:34:42 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 450 of 2025

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NAFR

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1 - Bhagmaniya @ Sandhya Singh D/o Late Jamuna Ram Aged About 38 Years Permanent Resident Of Village- Bonga, Police Station And TahsilPratappur, District- Surajpur (C.G.)

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... Appellant

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versus

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1 - State of Chhattisgarh Through The Station House Officer, Police StationAmbikapur, District- Surguja (C.G.)

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2 - Dayaram Khairwar @ Shubham S/o Late Koshiram Khairwar Aged About 45 Years R/o Village- Barbaspur, Police Station- Akaltara, District- JanjgirChampa (C.G.)

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3 - Shavnam Parvin W/o Mahmood Mobin Aged About 43 Years R/o Husaininagar, Ghutrapara, Police Station- Ambikapur, District- Surguja (C.G.) 4 - Mahmood Aalam Mobin S/o Mohd. Nashir Ahmad Aged About 40 Years R/o Husaininagar, Ghutrapara, Police Station- Ambikapur, District- Surguja (C.G.)

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... Respondent(s)

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For Appellant : Shri V.K. Pandey, Advocate. For State : Shri Jitendra Shrivastava, Govt. Advocate.

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Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board

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02.04.2025

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1 . Pursuant to the order dated 05.03.2025, the victim appears before the court through virtual mode from the concerned DLSA and raised objection in granting relief to the appellant.

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2 . This Criminal Appeal has been preferred by the appellant under Section 14(A)(1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, the SC/ST Act) against order dated 05.02.2025 passed by the Special Judge (Scheduled Caste & Scheduled Tribe Prevention of Atrocities Act) Surguja, place Ambikapur, in Special Sessions Case (Atrocities) No. 26/2022 whereby the remaining part of the application filed by the appellant under Section 216 of CrPC is decided.

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3 . Brief facts of the case are that, the appellant is an accused in the offence of Crime No.278/2022 registered at police station Ambikapur, Surguja for the offence under Sections 376(2)(n), 376-D, 294, 506, 109, 115 and 120-B IPC. 3(2)(v) of SC & ST Act and Section 67 and 67-A of the Information Technology Act, 2000. The said FIR was registered against the accused persons on the written complaint made by the victim on 31.03.2022 with the allegation that in the year, 2019 when the victim was residing in the house of co-accused Nurjahan Nusrat, the other accused persons Shabnam, Alam, Nurjahan and Nusrat insisted her to go to the accused Shubham Khairwar who is an occultist (Tantrik) and he in need of virgin girl for performing exorcism and thereafter the said accused Shubham Khairwar committed rape upon her with the help of co-accused Shabnam and Alam by administering certain intoxicating drugs which continued up to a week. They also got obscene video of their act and all the accused persons including present appellant Sandhya Singh have sexually exploited her.

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4 . On the written complaint made by victim, FIR has been registered and after investigation charge sheet was filed on 13.05.2022 before the trial

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court. In the charge sheet there were six accused persons namely Dayaram Khairwar @ Shubham, Shabnam Parveen, Mehmood Alam Mobin, Sandhya Singh, Nurjaha @ Pinky and Musrat Ali. In the proceeding, the Special Judge Atrocities, Surguja place at Ambikapur, framed charge against the present appellant Smt. Sandhya Singh for the offence under Section 376 (2)(n), 509-B, 294,109,120-B,506-II IPC and Section 3(2)(v) of SC&ST Act on 03.01.2023. On 17.03.2023 the present appellant filed an application under Section 216 CrPC with an averment that the actual name of appellant Sandhya Singh is Bhagmaniya D/o Jamuna Ram, R/o village Bonga, Tehsil Pratappur, District, Surajpur and she belongs to Gond Caste and despite that police has recorded FIR in the name of Sandhya Singh and instead of arresting Sandhya Singh, they have arrested the present appellant who is Bhagmaniya by saying that she is Sandhya Singh. Despite her protest that she is not Sandhya Singh, the police authority arrested and detained her in jail. It is also averred in the application that the appellant being the Tribal lady belonging to Gond Caste and despite that the charge for the offence under Section 3(2)(v) of SC&ST Act has been framed stating that she does not belong to Scheduled Caste or Scheduled Tribe. Therefore, the charge framed by the trial court is required to be amended. Along with application, the appellant has submitted social status certificate and testimonials which was in the name of Bhagmaniya or in the name of Ku. Bhanumati.

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5. The said application filed by the appellant Smt. Sandhya Singh under Section 216 CrPC was considered on 17.03.2023 itself and the trial court has amended and deleted the charge of Section 376(2)(n) of IPC

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against the present appellant Smt. Sandhya Singh and other accused persons Shabnam Parveen, Mahmood Alam Mobin, Smt. Nurjahan @ Pinky and Musrat Ali. On 17.03.2023 another application under Section 293 CrPC was filed by the present appellant Sandhya Singh before the trial court for inquiry of the social status of the present appellant and the same was kept pending by the trial court for its reply and further proceeding. The said application under Section 293 CrPC was decided by the trial court on 05.02.2023. On 05.02.2023 itself the trial court also decided the second part of her application filed under Section 216 CrPC. Another application under Section 216 CrPC was filed by the prosecution on 25.03.2023 which was also considered on 05.02.2023 and all these three applications have been decided together by the trial court.

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6. While considering the application under Section 293 CrPC filed by the appellant, the trial court has held that appellant is claiming that she is not Sandhya Singh but is Bhagmaniya however no satisfactory evidence has been produced by the appellant and in all those documents filed along with application, there is no mention that her name is Bhagmaniya @ Sandhya Singh. In all those testimonials, the name of Bhagmaniya D/o Jamuna Das and caste Gond was mentioned. Even in the domicile certificate and Adhar Card, the name of Bhagmaniya D/o Jamuna Prasad is mentioned and it is no where mentioned her name as Bhagmaniya @ Sandhya Singh or even her husband’s name as Sandeep Singh. The trial court has also considered that inquiry with respect to her Adhar Card and her thumb impression as well as iris scanner examination is also not found tenable in the

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present case and observed that it is for the appellant to prove her case during cross examination of the witnesses that actually she is Bhagmaniya or Sandhya Singh. Accordingly, the second part of the application under Section 216 CrPC has also been dismissed by the trial court which is under challenge in present appeal.

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7. Learned counsel for the appellant would submit that the appellant belongs to Scheduled Tribe and before proceedings in the case her caste is to be determined by the High Powered Caste Scrutiny Committee and the trial court cannot proceed with the case until the social status of the appellant is to be determined by the competent authority. She has filed sufficient document that she is not Sandhya Singh but is Bhagmaniya Bai and belongs to Scheduled Tribe community despite that charge has been framed against her for the offence under Section 3(2)(v) of the SC&ST Act. Further, by the impugned order the charge has again amended and a new charge of Section 109/376(2)(n) of IPC have been added without giving any opportunity of hearing before amending the charge. When she is not Sandhya Singh, but is Bhagmaniya Bai and belongs to ST Community, before proceeding with the case proper enquiry was needed, yet the trial court has amended the charge and proceeded in the case against the appellant also. Therefore, the impugned order is liable to be set aside. He would reply upon the judgment passed by the co-ordinate Bench of this court in Prabhu Nath Bharti Vs. State of MP & Others, 2007(3)CGLJ-461 and Ku. Madhuri Patil and Another Vs. Additional Commissioner Tribal Development and Others, 1994(6)SSC 241.

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8. On the other hand, the counsel for the State opposes the submissions made by the counsel for the appellant and would submit that during the entire investigation nowhere it comes that present appellant is Bhagmaniya Bai. It is an afterthought defence taken by the appellant that she is not Sandhya Singh but is Bhagmaniya Bai. The claim of the appellant requires evidence which is to be done at the time of trial and cross examination of the witnesses. Even in the arrest memo she is arrested as Sandhya Singh. When she moved her bail application before the co-ordinate Bench of this court in Criminal Appeal No.1053 of 2022, she has not disclosed that her name is Bhagmaniya Bai and not Sandhya Singh or even she has not claimed her name as Bhagmaniya @ Sandhya Singh and filed her bail application in the name of Sandhya Singh S/o Sandeep Singh. It is for the first time that on 17.03.2023 she raised her claim by making an application under Section 216 CrPC before the trial court. The entire material annexed with the charge sheet clearly reflects that she is raising an afterthought defence based on incorrect document which relates to some other person and to take undue advantage of those documents she is claiming herself to be Bhagmaniya. He would also submit that the trial court has ample power to amend/delete/add the charges at any time before passing the judgment and while exercising its power under Section 216 CrPC the charges have been amended and the appellant has every right to defend her case during cross examination of the witnesses. Therefore, at this stage it cannot be said that a wrong person is being prosecuted by the prosecution agency or wrong charge

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has been framed against her. Therefore, there is no merit in her petition and the same is liable to be dismissed.

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9. I have heard learned counsel for the parties and perused the material annexed with the petition.

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10. The core issue involved in the case is that the appellant is claiming that she is Bhagmaniya Bai and not Sandhya Singh and for that she filed certain testimonials and other documents that she is Bhagmaniya Bai and belongs to Scheduled Tribe community. From perusal of arrest memo as well as the other documents annexed with the charge sheet and also from perusal of copy of the order passed in CRA No. 1053 of 2022 by the co-ordinate bench of this court on 12.12.2022 it reflects that nowhere the appellant had claimed that she is Bhagmaniya and not Sandhya Singh prior to 17.03.2023. It is only when she moved an application on 17.03.2023, she claimed that she is Bhagmaniya. Whether or not her claim is genuine, it has to be tested at the time of recording evidence of the parties. Only on the basis of certain testimonials and other documents it cannot be held at this stage that she is Bhagmaniya Bai and not Sandhya Singh and police has arrested a wrong person in the name of Sandhya Singh. The identification of the person is also to be decided at the time of recording evidence of the witnesses. Further, it is not a forum where the social status or caste of present appellant is to be determined or inquired. When there is no prima facie evidence found by the prosecution agency that present appellant belongs to Scheduled Tribe community and considering that she is Sandhya Singh, they have arrested her and filed charge sheet and in furtherance thereof charges have also been

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framed against her. There are prima facie evidence in the charge sheet that Sandhya Singh is being prosecuted for the alleged offence and it is the defence of the appellant which has to be established during trial of the case that she is not Sandhya Singh but is Bhagmaniya and belongs to Scheduled Tribe community.

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11. The judgment cited and relied upon by the counsel for the appellant in cases of Prabhu Nath Bharti and Ku. Madhuri Patil (Supra) relates to service matter in which the caste of the petitioners or caste/social status of the person can be investigated by the High Powered Caste Scrutiny Committee, but it is not the dispute herein and it is the forum where trial of an offence is concerned.

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12. This court does not find any ground which warrants interference in the impugned order passed by the trial court. The appellant is at liberty to take all her defence during the course of trial and her defence cannot be considered at the time of framing of charge particularly the defence taken by the appellant requires evidence.

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13. Consequently, the appeal fails and is hereby dismissed.

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Sd/(Ravindra Kumar Agrawal) Judge

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inder

Bhagmaniya @ Sandhya Singh v. State of Chhattisgarh

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Bhagmaniya @ Sandhya Singh v. State of Chhattisgarh

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