w @HYA mwwsa z JmALPUR w Ng/ 19 a as}. / rinath maey APPELLANT : Den Dy 80 sh P ag 26 ar llae ambau aarian mm CF0000057340 7,, ed ws“ We vig Smr .s. abd, mm. mw V8; RESWW? : Stae t of M.Fo E CODE H kw” 13 THE hIGH COUR?” ct. airgg /91 z ‘ J} x CRImNAL APPEAL U/$ 374(2) O? m CRIMIXAL FROCwUR . , HIGH COURT OF CHHATTISGARH BILASPUR (Sinqle Bench: Hon’ble Shri Sunil Kumar Sinha, J) Criminal Aggeal No. 356 of 1991 APPELLANT Deen Dayal S/o Shrinath Pandey, aged 2O years, R/o Village Sambalpur, P.S. Gariaband, District Raipur Versus RESPONDENT State of M.P. (Now State of Chhattisgarh) (Aggeal under Section 374 (2! of The Code of Criminal Procedurel 1973) Appearance: Ms. Sudha Agrawal, Advocate for the appellant. Ms. Sunita Jain, Panel Lawyer for the State. ORAL-JUDGMENT (26.08.2010) Sunil Kumar Sinha, J. (1) Appellant — Deen Dayal stands convicted u/s 354 IPC and sentenced to undergo S.l. for 1 year, by the Fourth Additional Sessions Judge, Raipur in Sessions Trial No.100/89, vide judgment dated 23rd of February, 1991. (2) The facts, briefly stated, are as under:- The appellant was tried for the offences punishable u/ss 354 & 376 read With Section 511 IPC The case of the prosecution is that on 17 2 89 at about 1 1 30 p m the appellant met wrth the prosecutrix (PW-1) on a way near a pond In the outer area of the village. The allegations are that he dragged her to a nearby place ”ji'nd there he tried to commit “sexual intercourse against her. The 2 Criminal Appeal No.‘ 356 of 1991 further case of the prosecutionisthat on hue and cry of the prosecutrix, brother of the prosecutrix, Sukhit Ram (PW-2), came there and he caught them in the bushes and took the prosecutrix to the house and then a report (Ex.-P/1) was lodged in the concerned police station on the same day at about 7.30 p.m.. Thereafter on 27.2.89, the prosecutrix filed an application in the Court of Chief Judicial Magistrate, Raipur u/s 164 Cr.P.C. for recording her evidence, which was recorded by the said Court on the same day. The copy of the statement is Ex.-D/3. in the said statement, she did not make allegations against the appellant. (3) On trial, the prosecutrix (PW-1), in examination-in-chief, deposed that she was dragged by the appellant and the appellant tried to commit sexual intercourse against her. The learned Sessions Judge disbelieved the story relating‘to attempt'byma’ppe‘llant‘to commit seXUaI intercourse against the prosecutrix, therefore, the appellant was acquitted of the charges framed u/ss 376/511 IPC. However, the. Sessions Judge believing the story of dragging the prosecutrix by the appellant and convicted & sentenced him as aforementioned. l (4) Ms. Sudha Agrawal, learned counsel appearing on behalf of the appellant, argued that the learned Sessions Judge erred in law in convicting the‘appellant u/s 354 IPC. On due appreciation of the evidence of the prosecutrix (PW-1 ), even an offence u/s 354 IPC is not made out in this case. (5) On the other hand, Ms. Sunita Jain, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment paSsed by the Sessions Court. 3 Criminal Appeal No. 356 of 1991 (6) l have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) The prosecutrix (PW-1) was married lady aged about 20 years‘. She was deserted by her husband and was residing with her parents. The appellant was a neighbour of the prosecutrix. The prosecutrix deposed in her Court evidence that the appellant met her on the way near the pond in the outer area of the village and dragged her to nearby bushes. She also deposed that the appellant threw her on the ground, and when she made cries, her brother namely Sukhit Ram (PW-2) came there and took her to the house. In the cross—examination, she admittedthat she had gone to Raipur along with family member of the appellant and an application (Ex.-D/2) was submitted by henbefore the Chief Judicial Magistrate. She admitted her signature on the said application which was filed u/s 164 Cr.P.C. for recording her evidence. She further admitted in the cross-examination that thereafter the concerned Magistrate recorded her evidence and took her signature over the deposition sheet. She admitted her signature over the deposition sheet Ex.-D/2. She admitted in the cross-examination that her statement was recorded by Magistrate in Camera-Proceeding and nobody was present at that time. She further admitted that she told the actual facts to the Magistrate. Even she admitted her entire statement (Ex.—D/3) which she gave before the Magistrate. l find that in the said evidence, the story set-forth by the prosecutrix in the F.l.R.;and in her Court evidence are lacking. The learned Sessions Judge has discussed about the t64 statement of the prosecutrix, but even after all this; the Sessions Judge relied on her testimpny for the conviction of the “appellant u/s 354 IPC. After going 4 Criminal Appeal No. 356 of 1991 through the entire evidence of the prosecutrix (PW—1), i find that her testimony was not reliable even for the purposes of conviction u/s 354 IPC. The prosecutrix, in her examination-in—chief, stated that she was not knowing the appellant earlier, but in her cross-examination, vide para-6, she admitted that the appellant was her neighbour and he was residing in a house situated just after two houses of the house of prosecutrix in the same Iocality. Shealso admitted in the cross-examination in Para-6 itself that when the appellant took her to the bushes, she remained there for about half an hour,and then only her brother came there and took her to the house. in View of the entire evidence availab|e on record, in the considered opinion of this Court, it was not safe to rely on‘the testimony of the prosecutrix and the Sessions Court erred in law in placing its reliance on her testimony and convicting the appellant as aforementioned. vatti (8) For the foregoing reasons, the conviction and sentence awarded to the appellant cannot be sustained and the same deserves ’to be set- aside. (9) In the result, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 354 IPC are set-aside. The appellant is acquitted of the charges framed against him. lt is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. $6.1,- g Sunil. Kumar Sinha W ,_ Judge / / \.\ / “5g