Singis Bench IN THE HIGH COURT OF JUDICATURE AT BILASPtJR CHHATTISGARH Cr. Appeal No °'• F 2006 APPELLANT .^(/3^le .^—•"-" ^^•^ Sbri-^t""" ^••••-"":1 ^tfvosate R W 0. R.O) Ananddhar Diwan S/o Shri ^.D.Diwan, aged about 35 'years, resident of Village Purana Tahsildar Quarter No.2 , Ring Road Ambikapur, District Surguja (CG). VERSUS RESPONDENT : •^l' <4. The State of Chhattisgarh, through the District Magistrate Ambikapur District Surguja (CG). ^l^ MEMORANDUM OF CmMINAL APPEAL UNDER SECTION 374"(2) OF CR.P.C. ..( ^ •-fe^~ -^y HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Cr.A. No. 592 of 2006 Ananddhar Diwan. Versus The State of Chhattisgarh. JUDGMENT Postfor 0^-09-2011 / -I 7 Sd//- Prashant Kumar Mishra Judge .< .^-:aff VK HIGH COURT OF CHHATTISGARH. BILASPUR SINGLE BENCH : HON'BLE SHRI PRASHANT KUMAR MISHRA. J. Cr.A.No.M2of2006 APPELLANT RESPONDENT Ananddhar Diwan. Vsrsus The State of Chhattisgarh. smt. indlra Tripathl, counsel for ttie applicant. Shri Ajsy Dwivedi, Deputy (govt. Advocats for the State. JUDGM E N T ( 0^/09/2011) The appellant has been convicted by the trial Court for having committed an offence under Section 354 of I.P.C. The appeltant was charged under Section 354 read with Section 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.1989 (for short the Acf). However, he has been acquitted ofthe charge under Section 3(1)(xi) of the Act and instead he has been convicted under Section 354 of I.P.C. simplicitor and has been awarded sentence of imprisonment for one day i.e. the period already undergone by him. He has also been imposed fine of Rs.1,000/- and in default to undergo simple imprisonment for 15 days. This appeal has been filed to challenge the conviction because the appellant is a Government servant and his conviction may entail his termination from service. (2) Case of the prosecution is that the prosecutrix Ku. Kamla Xess (RA/-4) was a student in Sport Complex. She made a complaint to the Chhattisgarh Adiwasi Vikas Parishad vide Ex.P/4 (undated) alleging that the behaviour of the appellant is not proper and he calls her every now and then and touches her body. In 2002 when the handball feam was going to Raipur, he misbehaved in the bus and this year also, she was called on the pretext of cleaning the floor and misbehaved with her. It was stated in the complaint that being a student of Sport Comple)? she has to go out regularly and because of the behaviour of the accused her life is spoiled, therefore she should not be sent out with such kind of instructors. \ (3) The above mentioned written report was forwarded to the of Police by the Chhattisgarh Adiwasi Vikas Parishad, District ? -3. !i^ Unit, Surguja vide Ex.P/7 dated 24/09/2003 and on the basis of this \ communication, the F.I.R. was registered. (4) The prosecution examined PW-1 Smt. Sushila Lakra, whohas turned hostile, RW-2 Smt. Anastasiya Toppo, who has also turned hostite, R/V-3 Smt. Uma Singh hostile, PW-4 Kamla Xess and PW-5 Shiv Kumar. In his accused statement under Section 313 of Cr.P.C. the accused denied of outraging the modesty of the prosecutrix, however, he stated that he had only flirted with the giri. He has not,e:xamined any defense witness. (5) The trial Court acquitted the appellant under Section 3(1)(xi) of the Act, however, he has been convicted under Section 354 of I.P.C, The judgment was delivered on 03/08/2006. The accused statement was also recorded on the same date. The appellant made an application before the triai Judge on 04/08/2006 itself to the effect that his reply to question No.5 of the accused statement has wrongly been recorded, whereas he has never admitted that he has flirted with the girl and the said statement came to his notice after reading the judgment which was delivered to him at about 5.00 p.m. This application finds mention in the order-sheet of the trial Court; however, the trial Court directed the accused to prefer an appeal by observing that the appiication cannot be entertained by the trial Court after delivery ofjudgment. (6) RW-4 is the prosecutrix who lodged the undated complaint Ex.P/4, before the Chhattisgarh Adiwasi Vikas Parishad. The said Parishad forwarded the complaint to the Superintendent of Police, Ambikapur along with its covering letter dated 24/09/2003 (Ex.P/7). Referring to the complaint lodged by the prosecutrix it was mentioned in the covering letter of the Chhattisgarh Adiwasi Vikas Parishad that the prosecutrix has stated in her complaint that she was called by the accused in the Cultural Center of Kanya Shiksha Parisar on 02/08/2003, vriiere 'chhedchhad' and 'jabardasti' was committed. .<' ^, (7) Three material witnesses namely PW-1 Smt. Sushila Lakra, PW-2 Smt. Anastasiya Toppo and PW-3 Smt. Uma Singh, who are teachers and Pnncipal respectively of the Kanya Shiksha Parisar have turned hostile. They have only stated that the prosecutrix informed them that behaviour of 'the accused js not proper. In fact PW-3 Smt. Uma Singh, the Principal ofthe -1 7 5 school has stated that the prosecutrix informed her that she will not go to < handball training and when asked about the reason it was stated that she has already failed once in Class X and she wants to study. The girl was directed to submitit in writing. (8) In the statement of P\ft-4 Smt. Kamla Xess she has revealed that the incident has taken ptace on 02/08/2003 and she informed the incident to one Smt. Sushila Lakra on the same day and to Toppo madam on the next day and thereafter when she was askSd by Toppo madam it was informed to the Principal. None of these threejadies namely PW-1 Smt. Sushila Lakra, PW-2 Smt. Anastasiya Toppo and PW-3 Smt. Uma Singh who are posted in the same institution support the prosecution. The prosecutrix is a member of Scheduled Tribes community. From their surname it appears that namely RAf-1 Smt. Sushila Lakra and RW-2 Smt. Anastasiya Toppo also belong to tribal community. RW-5 Shivkumar is the Head Constable, who registered the F.i.R. on the basis of one enquiry report received from Gandhi Nagar, Poiice Station, however, this report has not been submitted in the case. PW- 5 Shivkumar says that no F.I.R. was lodged by the prosecutrix and the present F.1.R. was registered on the basis of report received from Gandhi Nagar Police Station. (9) In her cross-examination, the prosecutrix has admitted that on the relevant date about 10-12 giris were present in the ground, however, she did not inform aboul the incident to any student. She admits that she has not lodged report in the police station. She further admits that the complaint made by her to the Adiwasi Vikas Parishad vide Ex.P/4 was dictated by Shri Tekam, who is the President of Adiwasi Vikas Parishad and thal she has only put her signature over the complaint. She also admits that her case diary statement was taken after a year and in Ex.P/4 the time and date of incident is not mentioned. The prosecution bas not examined any office bearer of the Adiwasi Vikas Parishad or Shri Tekam, who dictated the complaint. .< (10) In the F.I.R. Ex. P/8 in which the-clate of receiving information in the police station is mentioned as 26/06/2004 the date of offence is mentioned as 02/08/2003 without mentioning the time of occurrence of the incident/ofFence. Thus, in this document the incident is said to have taken place about 10% months back. Even if Ex.P/4, ttie application written to the / -^- Chhattisgarh Adiwasi Vikas Parishad is treated to be an information about \ committing of offence, flrstlv this application was not addressed to the police station and in this application the prayer is not to send him outside with such kind of instructors. She has not complained of or made any prayer to take action against the accused. The Adiwasi Vikas Parishad appears to have send this communication to the Superintendent of Police on 24/09/2003 under ttie signatures of Mr. Anuk Pratap Singh Tekam, the District General Secretary of Chhattisgarh Adiwasi Vikas Parishad (Surguja District Branch). If this information is treated as ari'F.I.R. then too it is delayed by 52 days coupte with the fact that date of offence is not mentioned in Ex.P/4. (11) In view of the above discussion/appreciation the following serious lacunae/infirmities clearly emerge in the prosecution case:- (i) (ii) (iv) (V) (vi) (vii) (viin J^ The prosecutrix never went to any police station to todge the F.I.R. Her application addressed to the Chhattisgarh Adiwasi Vikas Parishad does not mention the date of offence. l-1er application to Adiwasi Vikas Parishad does not contain any prayer for taking criminal action against the accused. The letter sent by Chhattisgarh Adiwasi Wkas Parishad to the Superintendent of Police was sent after 52 days of the alleged incident, even though no date is mentioned in the application submitted by the prosecutrix. The F.I.R. was registered after about 11 months. Case diary statement ofthe prosecutrix was taken after a year. R/V-1 Sushila Lakra and PW-2 Anastisiya Toppo both teachers in the same school and are members of Scheduled Tribes category have not supported the case of prosecution even though according to the prosecutrix thes®two teachers were informed about the incident on the same day and on the next day respectively. PW-3 Smt. Uma Singh, the Principal of the school, to whom the prosecutrix says that the incident' was informed, does not support the prosecution. Investigating Officer, Shri Lal Ummed Singh, C.S.P., Ambikapur has not been examined in the case. Shri Anuk Pratap Singh Tekam, General Secretary of Surguja Adiwasi Vikas Parishad, who has signed Ex.P/7 which may be •-1 7 ll h- -- ^^l^' it? ^' 5 treated as an F.I.R. has been dted as witness but has not been \ examined by the prosecution. (12) In the opinion ofJhisCourt, the above mentioned lacuna in the case of prosecution raises serious doubts in the case of prosecution. The prosecutrix was a member of school hand ball team and was frequentty going out of the town to participate in various tournaments, therefore, it can't be said that she is a shy girl and could not inform the incident to police because of her restricte<('movement. (13) Thus, in view of the above, this Court does not feel jt safe to sustain the conviction on the basis of quality of evidence which has been adduced by the prosecution and thus it is held that the appellant is entitled to benefit ofdoubt. (14) Accordingly, the impugned conviction and sentence is set- aside. The criminal appeal stancts allowed. Sd/f- Prashant Kumar Mishra Judge / i^ >.-•'-/ .-tfg.RS,^ .( n