CRIMINAL APPEAL 75 of 1996 on 17 July 1991

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HIQH COURT OF CHHATTXSGARN AT BILASPUR

(Hon. Mr. Justice Pritjnker Diwaker)Criminai Appeai No. 1038 of 1996

Shri Pawan Kesharwani,, counsel for the appellants.Shri Niraj Mehta, PL for the State.

CRIMINAL APPeALUNDER^ECTXON374X2)OETHECODE OF CRZIiZNAL PROCEDORE.

1U,IGI,G_M_EAT(03.03.2011)

This appeal is dlrected against the judgment and orderdated05.06.1994passedby Spedal Judge, Jagdalpur inSpecial Case No. 75 of 1996 convscting the accused/appeliantunder Sectlons 354 of IPC and sentencing him to undergorigorous imprlsonment for six months.

2. Brief facts of the case are that on 17.07.1991 FIR Ex.P-4was iodged by the prosecutrix (coujd not be examined as shedied duringpendency of the tna!)ajlegsngin jt that on16.07.1991whenshe was returning from JagdaSpurPolefactory aiong vvlth her friends Lachhns (not examined) andRaini(PW-4),theaccused/appeilantandtheacquittedaccusedBurandastoppedthemonthewayandafterthreateningher, the acquittedaccusedBuranda took hernearby pSace and committed forclble sexua! intercourse withher.After completlon of investlgation challan was flled on24.10.1991 under sectlon 376 (2) (g), 506 of IPC and 3 (1)(xi)oftheScheduledCastesandScheauledTribes(Preventlon of Atroclties) Act against the appellant and theacqultted accused Buranda Singh whereas the Court belowframed charoe aoalnst them undsr Sections 376 £2) fcg^ of !PG

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and 3 (1) (xi) of the Scheduled Castes and ScheduSed Tribes(Prevention of Atrocities) Act.

3. So as to hold the accused persons gultty^ prosecutionhas examined 09 witnesses jn support of Its case. Statementsof the accused persons were also recorded under section 313pf the Code of CriminaS procedure jn which they denied thecharges leveiied against them and pleaded their innocenceand false implicatjonIn the case, Apart from this.. threewitnesses nameSy Chinta Naidu (DW-1)., P. Appa Rao (DW-2)and RajpaS Bhawani (DW-3) have also been examined by thedefence in support of its case. persons gultty^ prosecutionhas examined 09 witnesses jn support of Its case. Statementsof the accused persons were also recorded under section 313pf the Code of CriminaS procedure jn which they denied thecharges leveiied against them and pleaded their innocenceand false implicatjonIn the case, Apart from this.. threewitnesses nameSy Chinta Naidu (DW-1)., P. Appa Rao (DW-2)and RajpaS Bhawani (DW-3) have also been examined by thedefence in support of its case.

4. After heanng the parties the tria) Court has acqujttedthe co-accused Buranda Slngh of a(S the offences whereas thepresent appeiiant has been though acqultted of the offenceunder Section376 (2) (g) of IPC and3 (1) (xi) of theScheduiedCastesandScheduledTribes(PreventionofAtrocities) Act butconvicted and sentenced him for theoffence under Section 354 of IPC,the co-accused Buranda Slngh of a(S the offences whereas thepresent appeiiant has been though acqultted of the offenceunder Section376 (2) (g) of IPC and3 (1) (xi) of theScheduiedCastesandScheduledTribes(PreventionofAtrocities) Act butconvicted and sentenced him for theoffence under Section 354 of IPC,

5. Contention of the Searned counsel for the appellant jsthatinabsenceofexamjnationof theDrosecutnx,.theappellant cannot be convicted for any oft'ence.He submitsthat Raini (PW-4) who was coming from the work place alongwsth the prosecutrix has not supported the prosecution caseand turned hostile, He further submits that the jncldent hadtaken place In dark and therefore question of jdentifying theaccused/appellant does not arise.6.On the other hand supporting the impugned judgment ithas beenarguedby thelearned State counsel that theconvictson of the accused/appellant Is jn accordance with lawbecauseItwashewhocaughtholdthehandof theDrosecutrix and therefore his eonviefelon Is fullv justified.

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7. Heard counsel for the parties and perused the materialavailable on record induding the judgment impugned.

8,Smt. Rainj (PW-4) though has been deciared hostile butIn her Court statement she has stated that on the date ofincident when she was returning from the work place i.e,Jagdalpur Pole factory along with the prosecutrix and oneLachhni..on the way In betweenUrna camp and Saimer. theaccused persons came there by motorcyde and the presentappeSlant caught hold the hand of the prosecutrix and onaccount of fear^ she ran away from the spot. At this stage thiswitnesshasbeendeclaredhostsle,Howeverincross-examination she has stated that she had never informed thepo!jce that it was the accused/appelSant who caught hoid thehand of the prosecutrix,Masan (PW-l) js a selzure witness ofEx. P-l by which underwear of the acqultted accused Burandawas seized has been dedared hostile.Dr, Smt, P. Bajpaj hadmedlcajSy examined the prosecutrix vldeEx.P-2.Dr,S.Biswash(PW-3)hadmedicallyexaminedtheacquittedaccused Buranda vlde Ex. P-3.Raila Bai (PW-5)^ mother ofthe prosecutrix has stated that the prosecutrix had jnformedher that the accused persons detained her on the way andthereaftertheacquittedaccusedBurandajnsultedher,Samdu(PW-6)whoisaseizure witness of Sari of theprosecutrix, has been dedared hostjle.Paklu (PW-7)^ grand-father of the prosecutrix has not stated anything against theaccusedpersons.A,S.I.TiSluSingh(PW-8),theInvestlgating Officer has supported the prosecutlon case,Dr.D. N. Thakur (PW-9) is a Radiologist who took the X-ray ofthe prosecutrix.

9. Minute examination of the evidence makes it clear thatsn the present case the prosecutrix could not be examined as

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she died during pendency of the trial on account of ailmentAs per the 164 Cr.P.C. and the case diary statement of theprosecutrix thereIsabsoiutelyhoailegationagatnst theaccused/appeljant about outraglng of her modesty by him.She has even not deposed that the appejlant caught hotd ofher handandhas slmply stated that the appellant wasthreatenlng her.Evensn the FIR/ the prosecutrix has notalleged anythjng against the appellant.Furthermore the mainaccused Buranda has already been acquitted by the TriaSCourt. Out of the two witnesses who are said to have comealong with the prosecutrix^ one is nameSy Rainl (PW-4) hasnotsupportedtheprosecutioncaseandturnedhostilewhereas the other namely Lachhln has not been examlned,

10. ThusoveraSi testlmony of theprosecutrjxdoes notinspire confjdence of this Court to uphoid the convjctlon of theaccused/appellant under Sectlon 354 of IPC and that being sobenefit of doubt must go in favour of the accused/appejjant,

11. In the result thjs appeai is aiSowed.The impugnedjudgmentandorder of theCourtbelowconvictjngandsentencing the appetlant under Section 354 of JPC is herebyset aslde and the appeSlant is acquitted.Since the appeltantis on bail.. his ball bonds stand dlscharged.

Sd/-Pritinker DiwakerJudge