\ S>?nCCSDO-»<3[ T¥NII.€-ff) ^ ,^5-EaCt) ^SHS" 50-T2517Z.€ EDI-JDS^H^M^^¥5ad^^"rTVNI?a%D*„,,-....._--• »^?^ ^ * TJrC<^ HSSO^Id VJ.HOVM .SD SJW.S SHI. 'tSNSaNOdSSt ?> ^JM sns^SA ^< ^' (a* w) •W^S¥9 '4^T^- ST G ^BUJ»5%N'is'<S ^TpUttJnM ©6<TTTAo/y '^^^qSTM .r@^u^t[S ^<3T:d. T-?tlS o/g 'Sj^sA 2£ ©B^'VHHSINZ^TY !>T.NVrT''r!3dd¥ / . so809op0do i 96 6T 30 9, c^- ^\ 'ON rT'fcTSdd^,f r?VMTl€yD :H.n<2"f¥c%!?'J'V' 'HSMVHd ¥JU-IO¥N SO ^¥F,nCO H&IH 3HT ^T' . Wi, t HIQH COURT OF CHHATTXSGARN AT BILASPUR (Hon. Mr. Justice Pritjnker Diwaker) Criminai Appeai No. 1038 of 1996 APPELLANTS RESPONDENT VERSUS Ajay Mjshra State of Madhya Chhattisgarh Shri Pawan Kesharwani,, counsel for the appellants. Shri Niraj Mehta, PL for the State. CRIMINAL APPeALUNDER^ECTXON374X2)OETHE CODE OF CRZIiZNAL PROCEDORE. 1U,IGI,G_M_EAT (03.03.2011) This appeal is dlrected against the judgment and order dated 05.06.1994 passed by Spedal Judge, Jagdalpur in Special Case No. 75 of 1996 convscting the accused/appeliant under Sectlons 354 of IPC and sentencing him to undergo rigorous imprlsonment for six months. 2. Brief facts of the case are that on 17.07.1991 FIR Ex.P-4 was iodged by the prosecutrix (coujd not be examined as she died during pendency of the tna!) ajlegsng in jt that on 16.07.1991 when she was returning from JagdaSpur Pole factory aiong vvlth her friends Lachhns (not examined) and Raini (PW-4), the accused/appeilant and the acquitted accused Buranda stopped them on the way and after threatening her, the acquitted accused Buranda took her nearby pSace and committed forclble sexua! intercourse with her. After completlon of investlgation challan was flled on 24.10.1991 under sectlon 376 (2) (g), 506 of IPC and 3 (1) (xi) of the Scheduled Castes and Scheauled Tribes (Preventlon of Atroclties) Act against the appellant and the acqultted accused Buranda Singh whereas the Court below framed charoe aoalnst them undsr Sections 376 £2) fcg^ of !PG -^^ \:^'^ "^tN^^Bt-t^v 1 '•%^^y -2.- and 3 (1) (xi) of the Scheduled Castes and ScheduSed Tribes (Prevention of Atrocities) Act. 3. So as to hold the accused persons gultty^ prosecution has examined 09 witnesses jn support of Its case. Statements of the accused persons were also recorded under section 313 pf the Code of CriminaS procedure jn which they denied the charges leveiied against them and pleaded their innocence and false implicatjon In the case, Apart from this.. three witnesses nameSy Chinta Naidu (DW-1)., P. Appa Rao (DW-2) and RajpaS Bhawani (DW-3) have also been examined by the defence in support of its case. 4. After heanng the parties the tria) Court has acqujtted the co-accused Buranda Slngh of a(S the offences whereas the present appeiiant has been though acqultted of the offence under Section 376 (2) (g) of IPC and 3 (1) (xi) of the Scheduied Castes and Scheduled Tribes (Prevention of Atrocities) Act but convicted and sentenced him for the offence under Section 354 of IPC, 5. Contention of the Searned counsel for the appellant js that in absence of examjnation of the Drosecutnx,. the appellant cannot be convicted for any oft'ence. He submits that Raini (PW-4) who was coming from the work place along wsth the prosecutrix has not supported the prosecution case and turned hostile, He further submits that the jncldent had taken place In dark and therefore question of jdentifying the accused/appellant does not arise. 6. On the other hand supporting the impugned judgment it has been argued by the learned State counsel that the convictson of the accused/appellant Is jn accordance with law because It was he who caught hold the hand of the Drosecutrix and therefore his eonviefelon Is fullv justified. •„.- ^s^ ^^^rKi^ 7. Heard counsel for the parties and perused the material available on record induding the judgment impugned. 8, Smt. Rainj (PW-4) though has been deciared hostile but In her Court statement she has stated that on the date of incident when she was returning from the work place i.e, Jagdalpur Pole factory along with the prosecutrix and one Lachhni.. on the way In between Urna camp and Saimer. the accused persons came there by motorcyde and the present appeSlant caught hold the hand of the prosecutrix and on account of fear^ she ran away from the spot. At this stage this witness has been declared hostsle, However in cross- examination she has stated that she had never informed the po!jce that it was the accused/appelSant who caught hoid the hand of the prosecutrix, Masan (PW-l) js a selzure witness of Ex. P-l by which underwear of the acqultted accused Buranda was seized has been dedared hostile. Dr, Smt, P. Bajpaj had medlcajSy examined the prosecutrix vlde Ex.P-2. Dr, S. Biswash (PW-3) had medically examined the acquitted accused Buranda vlde Ex. P-3. Raila Bai (PW-5)^ mother of the prosecutrix has stated that the prosecutrix had jnformed her that the accused persons detained her on the way and thereafter the acquitted accused Buranda jnsulted her, Samdu (PW-6) who is a seizure witness of Sari of the prosecutrix, has been dedared hostjle. Paklu (PW-7)^ grand- father of the prosecutrix has not stated anything against the accused persons. A, S. I. TiSlu Singh (PW-8), the Investlgating Officer has supported the prosecutlon case, Dr. D. N. Thakur (PW-9) is a Radiologist who took the X-ray of the prosecutrix. 9. Minute examination of the evidence makes it clear that sn the present case the prosecutrix could not be examined as -.4- she died during pendency of the trial on account of ailment As per the 164 Cr.P.C. and the case diary statement of the prosecutrix there Is absoiutely ho ailegation agatnst the accused/appeljant about outraglng of her modesty by him. She has even not deposed that the appejlant caught hotd of her hand and has slmply stated that the appellant was threatenlng her. Even sn the FIR/ the prosecutrix has not alleged anythjng against the appellant. Furthermore the main accused Buranda has already been acquitted by the TriaS Court. Out of the two witnesses who are said to have come along with the prosecutrix^ one is nameSy Rainl (PW-4) has not supported the prosecution case and turned hostile whereas the other namely Lachhln has not been examlned, 10. Thus overaSi testlmony of the prosecutrjx does not inspire confjdence of this Court to uphoid the convjctlon of the accused/appellant under Sectlon 354 of IPC and that being so benefit of doubt must go in favour of the accused/appejjant, 11. In the result thjs appeai is aiSowed. The impugned judgment and order of the Court below convictjng and sentencing the appetlant under Section 354 of JPC is hereby set aslde and the appeSlant is acquitted. Since the appeltant is on bail.. his ball bonds stand dlscharged. Sd/- Pritinker Diwaker Judge