m THE HIGH COURT OF JUDICATURE AT BIIASPUR (C.G-) 4’2 ( Memorandum af Cr.Appea1 U/s 374 (2) ef Cr.P.c. ) Cr. Appeal NO. Of 2004 OP CRIMINAL APPEAL UNDER SECTION OF Cr. smiction gamma ¥ fr APPELLANT sanjitzaani s/o Aéitya Prasadswi, ,./ ‘ «w " I, aged 24 yeérs, occupation labourer, r/o Krishna Nagaf'} Génesh (hawk supela, Bhilai, P.sr. $ume1a, District mrg . “we ,ixj0'“ wrsus V §$§®bNDENT ‘I‘heV state a? dahattisgarh. I Through the District Nagistrate c\\‘9v\ mtg (CG). w-m‘ HIGH COURT OF CHHATTISGARH'AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 425 of 2004 Sanjit Soni. APPELLANT VERSUS RESPONDENT State of Chhattisgarh. \ Shri Aru>n Kochar counse! for the appellant. Shri Vaibhav Goverdhan PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. J UDGM ENT (04.11.2009) This appeal is directed against judgment dated 27.3.2004 passed ’by Special Judge. Durg, in Special; Case No. 1/2004 convicting the appeiiant for the offence punishable under Sections 354, 451 and 323 of the Indian Penai Code and sentencing him to undergo rigorous imprisonment for six months with fine of Rs. 500, rigorous imprisonment for three months with fine of Rs. 500 and rigorous imprisonment for three months with fine of Rs. 500, on each coUnt respectively, plus default stipulations. 2. Facts of the case in brief are that on 26.12.2002 a report was lodged by the complainant namely Roshni Banjare (PW—5) in Police Station — Supela, District Durg, alleging that on that day when she was ‘all alone in her house. the appellant came there and started talking to her irrelevantly using obscene words. Thereafter, she went to the house of maternal uncle of the accused/appellant and disclosed the matter to him. It is further alleged that while after disclosing the matter to the maternal uncle of the accused/appellant she was coming back to her house,lthe appellant met her on the way and gave three—four slaps on her cheek and also abused her in the name of her caste. Since no action was taken by the police on her report, a written report (Ex.'P—3) was made by her alleging that on the date of incident when she was alone in her house after taking \ @V. _2f_ bath, accused/appellant entered her house and caught hold of her waist and then she after pushing him aside went to the maternal uncle of the accused/appellant and narrated the entire incident to the accused/appellant on the way she was stopped b‘y him and abused in the name of her caste and was also slapped by him On the basns of the said report FIR (Ex P-4) was registered on 25.7.2003. After completion of the investigation, charge sheet was filed against the accused/appellant under sections 354 451 323 IPC and Section 3(1) (Xi) of the Scheduled Caste and Scheduled Tribe (Prevention of AtrOCIties) Act 3. “So as to hold the accused/appellant guilty, prosecution has examined as many as 09 witnesses. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he has denied the charges levelled against him and pleaded his innocence and false implication in the Case 4. After hearing the parties, trial Court has convicted and sentenced the accused/appellant for the offences punishable under Sections 354, 451 and 323 IPC but acquitted him of'the offence under Section 3(1) (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act . Hence this appeal. 5. ‘Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellant submits that once on the same set ‘ ‘ of evidence the appellant has been acquitted of the offence under section 3(1) (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, he ought to have been acquitted of the other offences also when nothing new was brought against the accused/appellant by the prosecution. He submits that there is inconsistency in the statement of the complainant because she first lodged the report Ex. P-9A stating that when she was all alone, the ‘ L him. While she was returning from the house of maternal uncle of /3,. appeHant came and talkedr to her using obscene words, and thereafter she went to the house of the maternal uncle of the appellant, made a complaint to him against the appellant and there she was slapped by him whereas in written report (Ex. P-3) she has given a totally different version and stated that accused entered her house, caught hold of her waist, and then she went to the maternal uncle of the accused and while she was returning from there, on the way accused met her, slapped her and also ab‘used in the name of her caste. According to the counsel for the appellant, this inconsistency in her statement entitles the appellant to get acquittal. The complainant has further stated in report Ex P—9 that she was slapped by the accused and her neighbours had also seen the entire Inc1dent However no Independent Witness to this fact has been examined by the prosecution and therefore benefit of doubt ought to have been given to the accused He also submits that the complainant has admitted in her cross examination that written report Ex. P-3 was drafted byher neighbour and the same was merely signed by her and therefore the same cannot be accepted. In respect of medical report Ex P 1 counsel for the appellant submits that Dr Jaishri Gopinath (PW1) has stated that swelling present on the right cheek of the complainant could be possmle after being hit against the wall also. According to him, in view of this statement of the doctor, offence under section 323 IPC cannot be made out. He submits that the inconsistency in the statement of the complainant continues and at one pomt of time she has stated that the inCIdent took place in her house but in subsequent report she has stated that the ineldent had taken place in the house of the uncle of the accused. He submits that the inCident of marpeet is said to have taken place when she was returning from the house of maternal uncle of the appellant and therefore the ingredients of section 451 of IPC are not attracted. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the conviction and 24 ) WQ” sentence imposed by the trial Court is just and proper and no interference with the same is caHed for. 8. Heard counsel for the parties and perused the material available on record. 9. From report (Ex. P—9) it is clear that in the first report there is no allegation against the appellant regarding his catching hold of the waist of the complainant ‘nor has she made any allegation that the appellant had entered her houset It is for the first time in the written report Ex. P—3 she has stated that the appellant caught hold of her waist when she was in her house but as per Ex. P-9 the entire incident had taken place in the house of the maternal uncle of the accused and further that when she was returning from the said house. However, as per written report Ext P-3 incident had taken place in the house of the complainant. Moreover, when the complainant has admitted the fact that writtertrreport was drafted by the neighbour and she had merely signed, her statement is not trustworthy and cannot be accepted as a cogent piece of evidence. Thus the prosecUtion has failed to establish the guiltvof the accused/appellant beyond reasonable doubt and therefore benefit of doubt has to be given to him. 10. ln the result, the appeal is allowed. impugned judgment passed by the trial Court is set aside. Appellant is acquitted of the charges levelled against him. He be set free forthwith if not required in any other case. ~ 1’ritinker Diwakfr . Sdi— Judge L