H Appellants HIGH COURT OF CHHATTISGARH ATBILASPUR SB: HON'BLE SHRI R.N. CHANDRAKAR., J Criminal Appeal No. 1560 of 2000 Vinod Yadav Respondent Vs. The State of Chhattisgarh. POSTFORPRONOXJNCEKiIENTOF JUDGMENT Sd/- R.N. Chandrakar Judge Sd/- JO -9-2009 .,^ HIGH COURT OF CHHARTTISGARHAT BILASPUR Criminal Appeal No. 1560 of 2000 Appellant Vinod Yadav S/o. Ganda Rai Yadav, aged 26 years, occupation Driver, r/o. Kurekela, Police Station Chhal, District Raigarh (CG). Versus Respondent State of M.P. (now CG), through District Magistrate, Raigarh (CG). CrLminal appeal u/S. 374 (2) ofthe_Criminal Procedure Code (SB: Hon'ble Mr. Ranganath Chandrakar, J.) Present: Shri H.S. Patel, counsel for the appellant. Shri A.V. Sridhar, Panel Lawyer for the State. JUDGMENT (Delivered on this \o -Vs day of September, 2009) 1) The instant appeal has been preferred by the appellant against the judgment ofconviction and order of sentence dated 10-5-2000 passed by the Special Judge, Raigarh (Constituted under SC/ST Prevention of Atrocities Act) in Special Case No. 40 of 1998, whereby the accused/appellant has been convictedunder Section 354 of the IPC and sentenced to undergo R.l. for six months. (2) The case of the prosecution, in brief, is that on 6-8-1998 at about 6.00 p.m. prosecutrbc went to the house of Sukhsen for searching the labour. When shewas returning to her house, on the way, the accused/appellant met her and caught hold of her h.ands and pressed her chest with an intention tooutrage her modesty. She made outcry and on hearing the cries, Pardeshi and Dukali came tothe place ofincident. Onseeingthem, the accused fled awayfromthe spot. ..After reaching the house, the prosecutrix narrated the whole incident to /£"% ~\ ~3»SSS'9&. 1 •-5®Btfg, '!f^.. *s is. her parents. Thereafter, on 7-8-1998 the prosecutrix lodged the report against accused/appellant in Police Station, Chhal, Dist. Raigarh. On the basis of the aforesaid report, a case was registered at zero against the accused/appellant for offencepunishable under Section 354 ofthe IPC and underSection 3 (i) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Thecase, being found within jurisdiction of AJK Police Station, Raigarh, was sent there for registration and investigation of the offence. (4) After completion of investigationi/chargesheet was filed in the court of Special Judge, Raigarh, who framed charges under Section 354 of the IPCand under Section 3 (i)(xi) ofthe Act. The accused abjured the guilt. The learned Special Judge, after due trial, acquitted the accused/appellant of the charge under Section 3 (i)(xi) of the Act and convicted under Section 354 of the 1PC and sentenced the accused/appellant as irientioned in para 1 ofthejudgment. (5) Learned counsel appearing for the appellant submits that the impugned conviction and sentence is contrary to law and the evidence available on record. The court below erred in holding that the appellant committed an offence under Section 354 of the IPC. The independent witnesses Sukhsen (PW/3) and Dukalu (PW/4) and Pardeshi (PW/5) have not supported the prosecution case. The prosecution was unable to prove the necessary ingredient to attract the offenceunder Section 354 of the IPC. Thereare contradictions and omissions in the FIR as well as in the statements of the prosecutrix, therefore, the trial Court ought to have held that the prosecution witnesses have improved their statements to secure conviction and sentence. Therefore, considering all the above facts, the conviction and sentence be set aside and the appellant be acquitted of the charge. In the alternative, learned counsel submits that the appellant has already servedthe sentence more than 50 days and the case was presented before the trial Court on 6-8-1998 and since then 11 years have elapsed, therefore, the sentence may be reduced to the period already undergone by him. 6) In oppugnation, learned 6ounselappearing for the respondenVState argued the case in support of the impugned order of the special court. 7) In order to prove the guilt against the accused/appellant the prosecution examined seven witnesses. ' 8) PW/1 Leelavati, the prosecutrix stated in her deposition that on the date of incident she went to call her grand'/mother for doing the agricultural work and when she was returning to her house, on the way, the accused/appellant caught hold of her right hand and pressed her chest. On this she made oufcry and her parents came there. She further stated that hearing her outcry, Pardeshi (PW/5) and Dukalu (PW/3) came there. She reported the matter to PoliceStation Chhal, which is Ex.P/1. In v.iew oftheFIR and the gtatement of the prosecutrix under Section 161 of theCr.P.C, there are contradictions and omissions. , 9) PW/2 Shakuni Ram, father of the prosecutrix corroborated the version of prosecutrix and stated that hearing the outcry of his daughter, rushed to the spot and made enquiry. Theprosecutrix stated that accused/appellant caught and pressed her. Atthattime Sukhsen, Pardeshi and Dukalu were also present there. 10) PW/3 Sukhsen denied the whole story and stated that on the date of incident he was not present in his house. He further stated that the Police enquired him but he told. the Police to know nothing about the incident. This witness was declared hostile. He was put to the leading questions in which also he denied his previous statement given to the Police and in his cross examination he admitted that at 6.00 p.m. the persons used to pass through the lane. 11) PW/4 Dukalu statedin his deposition that the prosecutrix came to his house making outcry and on asking she stated that the accused/appellant was trying to interrupt her and except this, nothing was stated by her. When he went there, nobodywas found. 12) PW/5 Pardeshi stated in his deposition that on the date of incident he was at his house and hearing th'e outcry of prosecutrix he came out and asked her. The prosecutrix stated him that the accused/appellant was attempting to catch (Khinchatani) her. She did npt narrate him, how he attempted to catch her. He further statedthat he did notsee the accused/appellant there. This witness was declared hostile. 13) PW/6 Nakul Singti, the Station House Officer, Police Station Chhal statedin his deposition that on 7-8-1998 he registered the FIR (Ex.P/1) on the basisof oral report given by the prosecytrix. The report was recorded as it was narrated by the prosecutrix. In his cross examination, he admitted that at the time of lodging the FIR (Ex.P/1) the facts that she had gone to call her grand mother for doing agricultural work, the accused ap|)ellant caught hold of her right hand ahd her parents came to the spoton hearing her outcry, were not narrated by the prosecutrix. 13) PW/7 A. Sai Manohar, the then SDO (P) Kharsiya stated that on receiving the case diary of the aforesaid case for further investigation, he recorded the statements of Leelavati (PW/1), Budhwaro Bai, Sakhuni Ram (PW/2), Sukhsen Ratia (PW/3), Dulalu (PW/4) and I'aradeshi Ratia (PW/5) as stated out by them. Nothing was added oromitted iii their statements by him. 14) Having considered all the facts and circum;,tances of the case, it is apparent that there are discrepancies and contradictions in the testimonies of PW/1, the prosecutrix and PW/2 her father in vi.3w of the FIR and their statements under Section 161 of the Cr.P.C. The otlier witnesses PW/3 and PW/5 turned hostile. .On perusal of the recorc', it is evident that the accused/appellant has been sentenced to undergo ('> months Rl out of which ^f^'s'''"-;-. •>. y-c^ 'M ^^ t^ "•;e1.; s^ 't. - s •y he has already served more than 50 days. In view of the aforesaid, 1 am of the opinion that the ends of justice would be served if the sentence awarded to the accused/appellant is reduced to the period already undergone by him. 15) For the foregoing, the appeal is partly allowed. Conviction of the trial Court is confirmed and the sentence awarded to the appellant by the trial Court is reduced to the period already undergone by him. 16) The appellant is on bail. His bail bonds shall stand discharged. Sd/- R.N. Chandrakar Judge