w we new} \~"“""'e"f‘ QV THE HIGH COURT OF JUDICATURE AT JABALPUR (Ix/{PE P Criminal meal No ‘?3\> /2ooo‘ IHHIHllllllHHHWll/Hll r I 00062920 UNDER sucucw 374(2) OF THa CODE 01: CRIMNAL oRocmb w 1973 9 APPELLANT Munn Es, son of N ki Dag Panika‘“ ' aged about 25,years, resident of village Parsabhata, P.S,BALCO ‘ J Distt . Knrba, (MP? x ‘ 1’ VersUS RESPONDEVT 0. State of Madhya Prade 0/, Thraugh S.H.O.,P.§. ALCO, K Distt.K0rba (MP). Arising out of the judgmeht, conviction and sentgnce passed by the court of S’pec'iél’Judge, 1. 4a ' G’yGM \ f '1‘ 1 Ci” CEEV ‘ ”(sax (Under SC/ST ‘ Prevention of A1:rocities Act I 1989} I Bllasaur, Dlqtt Blksyzr/(MP) (Presmed over by 3hr; B P shra) 1n Sbemal Crlmmal Case N0, 63/98 6h 31/1/2990, convicting and sentencing the; appellant as under 3 CGNV ICTICN U/s 354 I_.P.C. ‘ QIGa {\Qmwig guug w m3 W SENTENCE ' X’Régorous: Imfirisonment 5f for 2 years and fine Rs. ‘ 5oo/— in defeult 3.x. for 2 months . f”? M : CV-‘x I ‘g A P HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 815 of 2000. Munnudas son of Nanki Das. APPELLANT r VERSUS RESPONDENT State of Madhya Pradesh (now \N‘ Chhattisgarh). Shri H.V. Sharma coifnsel for appellant. Shri Vivek Sharma PL for respondent/State. L u f CRIMINAL AP_PEAL UNDER SECTION 374 12) OF THE CODE OF CRIMINAL PROCEDURES 4 , JUDGMENT ( 1;.02 .2010) This appeal is directed against the judgment dated 31.1.2000 passed by Special Judge, Bilaspur in Special Criminal Case No.’ 63/1998 convicting the accused/appellant for the offence punishable under Section 354 of the Indian Penal code andvsenten'cing him to undergo rigorous imprisonment for two years and pay tine of Rs. 500, in 'default of payment ofgfine to further undergo rigorous imprisonment for two months. 2. Case of the prosecution in brief is that on 2.10.1998 at about 1O a.m. FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) aged about 11 years at the relevant time alleging that in the intervening night of 1 and 2 .10.1998 when her sister and father had gone to see a dance programme and she was sleeping in her house, the accused/appellant entered her house, took out her underwear and tried to insert his penis into her anus. It is alleged that while doing srs \ ‘ that act, mouth- of the prosecutrix was gagged by the ll " accused/appellant. Meanwhile, father of the prosecutrix namely i GDilmohan (PW—2) reached there and on seeing him the accused/appellant ran away. After investigation, the police filed the challan against the accused/appellant for the offences under sections 376/511 ‘IPC’and section 3(2) (5) of the Scheduled Caste r and Scheduled Tribe (Prevention of Atrocities) Act. m1_ 3. So as to hold the accused/appellant guilty, prosecution has examined 09 witnesfses in support of its cése. Statement of the accused/appellant was aiso recorded under section 313 of the Code of‘ Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the Ce. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellant for the offence under Section 354 IPC. However, by the same judgment, the accused/appellant has been acquitted of the offences punishable under sections 376/511 ‘4‘ [PC and section 3(2) (5) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. £ 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/appellant submits that there is delay in lodging the FIR as though the incident had taken place in the intervening night of 1 and 2.10.1998, the report was lodged on the morning of 2.10.1998. He submits that statements of the witnesses under Section 161 of the Code of’Criminal Procedure were recorded on 24.12.1998 and this inordinate delay has not been properly explained by the prosecution. He submits that Ex. P-1 is not the first FIR but it is the second FIR and the prosecution has deliberately suppressed the first FIR. He submits that though independent witnesses are also there, none of them has been examined by the prosecution. 7. On the other hand counsel for the respondent/State supporting the impugned judgment submits that present is a case where the accused/appellant should have been prosecuted under : §ection 377/511 IPC and there is ample material on record to convict the accused/appellant for the said offence. He submits that statement of the prosecutrix is duly supported by the medical report ‘ (Ex. P—13) where Dr. '(Smt.) N.D. Ram (PW-9) has categorically‘ stated that there was swelling and tenderness on the anus of the ‘, prosecutrix and when the said portion was touched, she wasi l x ,1 aS : 26 _3_' complaining acute pain. He submits that FSL report (Ex. P-14) also supports the case of the prosecution. In resp‘ect of delay in Iodging the FIR, counsel for the respondent/State submits that there is no delay at all and the report has been lodged promptly as the incident had taken place on 1.710.1998 and the report was lodged on the next morning at about 10 a.m. As regards delay in recording the statements of the witnesses under Section 161 of the Code of Criminal Procedure, he submits that the Investigating Officer Shri B.~‘P. Dwivedi (PW—7) has categorically stated that as he was busy in sOme important case, case diary was handed over to Sub Inspector namely S.D. Mahant (PW-4). He submits that as no question whatsoever was put to Shri Mahant in this regard, at this stage, the accused/appellant is estopped from raising this ground. He submits that once the statement of the prosecutrix is duly supported by the medical and FSL report, theminor lacuna if any in the case of the prosecution should be ignored. 8. The prosecutrix in her Court statement has categorically stated that when she was sleeping in her house, accused/appellant came there and tried to remove her underwear. She has further stated that while th'e accused/appellant was removing her underwear, she got awake and when she tried to get up, he pressed her mouth with his hands on account of which she could not raise her voice. Thereafter, accused/appellant removed her underwear and tried to insert his penis into her anus but he did not succeed in doing so. According to her, at that time her father reached there and when he knocked at the door, the accused/appellant ran away. She has stated that when her father asked her as to why she was W, weeping, she disclosed the entire incident to him. Dilmohan Sidar (PW-2) — the father of the prosecutrix has fully supported the case of the prosecution and stated that on the date of incident he had gone to watch the dance programme. According to him, at about 2/230 ‘ a.m. when the dance programme had started, he went home to bring the prosecutrix also to watch the said programme and when her reached home, the light of the house was off and door of the house] lay open. When he switched on the light, he found the prosecutrix: vla _({’_ weeping and when he asked her as to why she was weeping, she told the entire incident to him. Dr. (Smt.) NLD. Ram (PW-9) who examined the prosecutrix has categorically stated that there was swelling and tenderness in her anus and on touching the same she was compiaining acute pain. She has opined that tenderness on the anus of the prosecutrix could be due to unnatural intercourse also. 9. ; The material available on record reveals that when he prosecutrix was sleeping in her atone, the appellant came there and after removing her underwear tried to insert his penis into the anus of the prosecutrix though not succeeded in the same as a result of which there was swelling and tenderness in it and on touching the same she was complaining acute pain thereon and thus he has assaulted her by usmg criminal force Intending to outrage her modesty. Though from the eVIdence available on record it appears to be a case of remand so as to frame charges in accordance with law and then decide the case afresh, keeping in mind the fact that-by now the prosecutrix must have married and settled elsewhere and if such a course is adopted the prosecutrix would again be required to appear in the Court and give eVIdence which may put a question mark in her already settled life this Court refrains from domg so to av0id any future complications to her. Accordingly, the Judgment impugned convicting the accused/appellant under Section 354 IPC being based on the evidence led by the parties is just and proper and does not call for any interference in this appeal. 10. ln the result, the appeal being without substance is liable to be dismissed and it is accordingly dismissed. / Pritinke" D‘wake Judge /c a Sdl- /*iii , /