1 ^-'^. wr CF%'6'0'^%1 /' / r fr'3f^ i_^^' Flleil ®n-.^~L"""';!M-_^. ^. r~@^Ch^c^ 3K THS H1GH COUBT OF M^BX'A PBADESH AI JABALPU'B, GBIMJNALAPPEAL N0. )b ^'U OF 1994. Nalin Mohan Kaidu son of Shri Shanker Sao BSaiau^aged 28 years, resiaent of Sector-1.9 Quart^r No • 37, Balco,District Bilaspir ,MP ..^ APP£lLAIffI (JN JAIL) 7S. THE SIAIE OF MADHIA PB.iDESH ^ .,. EE6PCBDMT GH;IMMAL__ APPEAL I3H'DEa SECTIQi 374(2) OF TBE Ca_ffi.@,AL_ PBOGEDUBE, CODE: BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.05 13:01:21 +0530 A.f-^ APPELLANT RESPONDENT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1464 of 1994 Nalin Mohan Naidu VERSUS State of Madhya Pradesh Shri Vishnu Kostha counsel for the appellant. Shri Vivek Sharma PL for respondenVState. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (27.07.2010) This appeal is directed against the judgment and order dated 24.11.1994 passed by Additionat Sessions Judge, Bilaspur, in Sessions Trial No.417/92 convicting the accused/appellant under Section 363, 366 and 354 IPC and sentencing him to undergo rigorous imprisonment for three years with fine ofRs.1,000, five years with fine of Rs. 1,000 and one year with fine of Rs. 1,000 on each count respectively, plus default stipulations. 2. Case of the prosecution in brief is that on 07.06.1992 at about 2.05 a.m. FIR (Ex. P-1) was lodged by M. P. Singh (PW-1) alleging that on 6.6.1992 at about 10.15 a.m. when his daughter (the prosecutrix - PW-4) aged about 6 years at the relevant time was returning to her house after playing, the accused/appellant took her to his house, removed her under wearand made an attempt to commit sexual intercourse with her. It is alleged that when he had gone to close the back-door, the prosecutrix got out from the other door. After investigation the challan was filed on 13.11.1992 under section 376/511 IPC. The Court below however framed the charges against him under sections 363, 366 and 354 IPC. 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 05 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminat Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in thecase. /f^\ Y ^s<€: ^%^?&^p' ^) -2- 4 . After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the accused/appellant submits that the accused/appellant has not been identified by the prosecutrix and in the absence of test identification parade entire case of the prosecution goes. He submits that in the Court statement, the prosecutrix has categorically stated that she did not know the accused/appellant. He submits that even otherwise also a very improbable story has been given by the prosecutrix which cannot be believed by a man of common prudence. 7. On the other hand counsel for the respondent/State supports the judgment and submits that the manner in which a minor girl aged about six years was kidnapped by the accused/appellant and seriousness of his act in trying to commit sexual intercourse with her shows his perverted mentality. He submits that in her Court statement which has been recorded more than two and a half years after the incident, minor contradictions and omissions if any, have to be ignored. As regards identity of the accused/appellant, State counset submits that at the first instance the prosecutrix has stated that she knew the appellant and that when the offence was committed, he had grown his beard and therefore it was difficult for her to identify him. 8. Prosecutrix (PW-4) a young girl of 8 years of age at the time of giving evidence, has stated that on the date of incident she had gone to the house of Smt. Manju Pandey (PW-3)to play with her daughter namely Gudiya alias Priti and while returning there-from, one unknown person having moustache and beard had called her. She has further stated that the person present in the Court was not the accused/appellant. She has then stated that the said person might have got shaved his moustache and beard. She has stated that the person who called her had some scars on his face. According to her, when she did not go to the house of the accused/appellant, he himself came out on the road and lifted her to his house and then closed the door. She has stated that he gave her some snacks also and then removed his shirt and full-pant, made her sit on his / ''1 '•^r^^^^^.._ ^ ^^S^& I? "^A,^"^" -3- lap,went to get oit and then taking opportunity she slipped out there from. Thereafter she narrated the entire incident to her mother who then reported the matter to Smt. Manju Pandey (PW-3)and then her neighbour Papu was called by her. Then she took them to the house of accused/appellant and told them that it was the same house where the offence was committed and then her mother threw stones at the door but nobody cameout from there. When the door was notopened, her mother put the lock on it. She has then stated that when her mother had pelted stones at the door, said person had peeped from inside and said as to who ^A/as at the door and then he again got back and ran away from the back door. Smt. Bindu Devi (PW-2) - mother of the prosecutrix has supported the version of the prosecutrix and stated that on the date of incident her daughterhad gone to the house of Manju Pandey to play with her daughter and about15 minutes thereafter she returned home weeping and narrated the entire incident to her. According to her, she then went to the house of Manju Pandey and from there they both went to the house pf the accused/appellant along with the prosecutrix and asked him to come out. When he opened the door, she asked him as to why he had committed such a bad work and abused him saying whether he was not having her mother and sister but he did not say anything. When this witness picked up the stones the accused/appellant closed the door. On this, she got the lock through one Ruby and put the same on the door. In cross examination also this witness has not stated anything new and remained firm with what she stated in her examination in chief. M.P. Singh (PW-1) - the father of the prosecutrix has supported the versibn of his daughter. Manju Pandey (PW- 3) inwhose house the prosecutrix had gone to play along with her daughter and in whose company the prosecutrix and her mother had gone to the house of the accused/appellant has also supported the case of the prosecution. M.P. Tandon (PW-5) -the investigatingofficer has supported the case ofthe prosecution. 9. True it is that the prosecutrix has stated in her evidence that the person who took her inside the house was having beard and moustache but the person present in the Courtwas not the same person. She has also stated that may be the said person had got his beard and moustache shaved. Again in paragraph 4 of her evidence, there appears to be some ^.. [i%. ^ •.^^s. s -L^- confusion in the mind of the prosecutrix as according to her some scars were there on the face of the accused/appellant but the person who was present in the Court had no such scars. Be that as it may, if the entire evidence ofthe prosecutrix is taken into consideration, in paragraph No.1 she has stated that she knew the accused/appellant. Most importantly, her Court statement was recorded two and a half years after the incident and therefore, looking to her tender age such minor contradictions and omissions therein are but natural to exist. Moreover, mother of the prosecutrix namely Bindu Devi (PW-2) and Smt. Manju Pandey (PW-3) have categorically stated that after the incident the prosecutrix took them to the house of the accused/appellant and told that it was the same house where the incident had taken place and when accused was called, he ran away.In these circumstances, the identity of the accused/appellant cannot be termed as doubtful. Even otherwise, no questions regarding the identity of the accused/appellant were put to these witnesses namely Bindu Devi (PW-2) and Smt. Manju Pandey (PW-3) and therefore, it can safely be said that it was the accused/appellant who had made an attempt to commit sexual intercourse with the prosecutrix. Admittedly, on the date of incident, the prosecutrix was a girl aged about 6 years, minor contradictions and omissions in her evidence cannot be termed as fatal to the case of the prosecution that too when Bindu Devi (PW-2) and Smt. Manju Pandey (PW-3) have fully supported the same. Thus looking to the seriousness of the offence committed by the accused/appellant the findings of conviction recorded by the Court below are just and proper and do not call for any interference in this appeal. However, in the facts and circumstances of the case, the sentence of rigorous imprisonment for five years under section 366 IPC imposed by the trial Court is reduced to three years but that under Section 363 IPC is hereby maintained. In lieu thereof, the fine amount is enhanced from Rs. 1,000 to Rs. 5,000 which would be deposited in the Court below within a period of four months. 10. Accordingly, the appeal is partly allowed. Conviction part of the judgment impugned is maintained. However, sentences stand modified to the extent indicated above. — Sd/- Pritinker Diwaker Judge Sf^