W HIGH COURT OF CHHA'I‘TISGARH BILASPUR SINGLE BENCH: HON’BLE SHRI R. L. JHANW$ J. Ctiminal Aggeal No. 143! 1999 APPELLANT Angesh Kumar Sahu RESPONDENT State of Madhya Pradesh JUDGMENT POST ON 23 JULY, 2009 m k‘ ’Sd/- R.L. Jhanwar Wht’PdEe E m HIGH COURT OF CHHATTISGAM! BILASPUR SINGLE BENCH : HON’BLE SHRI RAJESHWAR LAL JHANWAKJ. Criminal Apyeal No. 143/ 1999 Angesh Kumar Sahu, S/o Gancsh Ram Sahu, aged 34 yeals, residcnt of Danitola Dhamtari, Thana Dhamtari, District Raipur (M.P.) Versus State of Madhya Pxadesh thxnugh the District Magishate, Raipur (M.P.) MEMORANDUM OF APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE Appearance: Shri Sunil Sahu, counsel for the appellant. Shn' Pmdcep Singh, Panel Lawyer for the State. APPELLANT RESPONDENT J U D G M E N T (Delivered on 2L, .07.2009) 1. The appellant has prefened this appeal against the judgment of conviction and order of sentence dated 23—12- 1998, passed by the Special Judge, Raipur in Special Sessions Case No.54] 1998, whereby the learned Special Judge has convicted the appellant for commission of od‘ence punishable under Sections 456 and 354 of the IPC and sentenced him to undergo R.I. for 6 months and to pay fine of Rs‘300/- and in default of paymentof hne to further undergo R.I. for 6 days under Section 456 of the IPC and R.I. for 6 months under Section 354 of the IPC. 2. The prosecution story, in-shOIt, is that on 30.4.1998, Kumari Bai (P.W.—3) had gone to village— Danitola, maternal home of her niece Bindu (P.W.l) to attend the marriage function. On the same date, in the midnight at 2:30 o’clock, when Kumari Bai (P.W.—3) with her niece Bindu (P.W.—1) was sleeping in the room on a cot, the appellant came there and caught her hands, legs. Upon which, she woke—up and saw that one man Was sleeping on the7cot between her and Bindu. She shouted and raised alarm. 0n hearing the noise, \&ndu woke-up and also raised alarm, upon which, the b ‘ /\ \ accused person fled &om there. Some persons chased ths accused and caught him, who was identifled by Bindu (P.W.1) as Angesh Sahu. Thexeafter, the FIR was lodged by Kumari Bai (P.W.3) in the police Station —~ Dhamtari. Investigau'on took place. Statements of witnesses were xecorded by the police and after completion of investigation, charge sheet was hled in the Court of Special Judge, Raipur for offence punishable under Sections 456 81. 354 of the IPC and Section 3 (1) (xi) of the Scheduled Castes and Scheduled Tn'bes (Prevention of Atrocities) Act, 1989 (for short ‘the Act of 1989’). . The learned Special Judge framed the charge under Sections 456 an 354 of the IPC and Secu'on 3 (1) (xi) of the Act of 1989 and read over and explained to the appellant, who abjured the guilt and pleaded that he has been falsely implicated in the case. The learned Special Judge, after evaluating the evidence available on record and healing the counsel for respective parties, while acquitting the accused/appellant— Angesh Kumar Sahu of the charge under Section 3 (1) (id) of the Act of 1989, convicted him under Sections 456 and 354 ofl.P.C, as above. . I have heard learned counsel appearing for the parties at length and have also perused the material available on record. , Kumari Bai (P.W.-3) deposed that in the night, the accused came there and caught her legs, hands and breast. She woke-up and shouted. The accused ned from there. She further deposed that the accused was sleeping between her and Bindu and when she raised hue and cry he fled from there, however this part of statement does not nnd place in the FIR or in the statement given under Section 161 of Cr.P.C. Appellant was unknown to Kumari Bai. No identincation has been done by the prosecution agency. . So far as Bindu Bai (P.W.1) is concerned, in her statement she has deposed that she and Kuman‘ Bai were in a marriage funcn'on and in the night of 30.4.1998, they were sleeping together on a cot inside the room. She stated that ”a?! E$ W2mmwW@m%w—§W§ah¥mw§ ww%mmmwmmw—§Ewméimv mmwr§1a1€$n3maa%agywwlfwf?mai W W W". But according to Kumari Bai (P.W.3) accused was sleeping between her and Bindu and when she shouted he mn away. Statements of Kumaxi Bai (P.W.3) 8r, Bindu Bai (P.W.1) are contradictoxy and considering the statement of Knmari Bai (P.W.3) it was not possible for Bindu Bai (P.W.—1) to identify the appellant. Although witnesses Ganeshiya Bai (P.W.—4) 8n Ravidas (P.W.2) have also been examined by the prosecution, however they did not support the prosecution version. . From the above discussion, it is evident that statements of Kumari Bai (P.W.—3) 8r. Bindu Bai (P.W. 1) are contradictory to each other and so far as identihcau'on of the appellant is concerned, the statements of both the witnesses are shaky. Statements of both the witnesses do not hnd support nom the other witnesses. . For the forgoing reasons, I am of the opinion that the learned Special Judge has erred in relying on the evidence of prosecution and thereby convicting and sentencing the appellant under Sections 456 and 354 of the IPC. . ln the result, the appeal succeeds. Conviction for oh‘ence under Sections 456 8n 354 of the IPC recorded by the trial Court and sentence passed by the trial Court for the aforesaid onences are Set aside. The appellant—Angesh Kumar Sahu is acquitted of the charge under Sections 456 85 354 of the IPC. R.L. Jhanwar Judge Sdl- Kvr/Sinha ‘