CFDDOOD57957 IN THE HIGH COURT OP WYA PRADEg-i g JABALPUR. CRlmmLAPPEaL Ne.7/@ [ K PELLANT Genéu @ Gendram Son of Latel Ram Kewat aged abcut 22 years, Reswent of Khamtarai, Police Station Sarkanda, Elstrict Bilaspu -Ve su s- : The Ste of Madhya Pradesh‘ ta RE SPQDENT N EFPEaZJL' UNDER SECTION 374g2) OF THE CRIWNAL BROCEDURE \CQ I; «w 9 .v / AP '“ r.‘ & DE. Criminal Apgeal No. 710 0f 1995 APPELLANT _______ Gendu @ Gendmm Versus ‘ -—~._ ‘ The Sfafe of Madh‘ya Pradesh (now Shri Somnafh Vérma, counsei for The appellant CRIMINAL APPEAL UNDER SECTION 374 §Z)OF THE CODE OF . CRIMItiAL PROCEDURE RESPONDENT Chhaffisgar'h) Shm’ Ashish Gupta, Panel Lawyer for fhe Sfa're. JUD6MENT (13.01.2011) This appeal is directed againsr fhe impugned judgmenf and order dafed 24.2.1995 passed by 3” Addi‘rional Sessions Judge, Bilaspur- in‘Sessions Trial No. 294/93 convicfing The aceused/appellarn‘ fur- H'ae Offences punish 354 and 323 of 'Hde Indian Pena! Code an undergo rigorous imprisonmeni for One year u/S 354, To undergo rigorous imprisonmenf for six mon’rhs u/S 323 IPC. Bofh fhe sentences were crdered To run cancurrenfiy. 2. Case of ihe prosecution in brief is fhai on 9.4.1993 of 1) was lodged by fhe prosecuirix 1), aged about 28 years aiieging in if ’iha‘i on Thai day in able under- Secfions d senfencing him To abouf 1.30 pm FIR. (Ex?- . \n (PW‘ between 10 - 11 am when she was coiiecfing fhe cow dung, The accused/appeiioni came from behind, pressed her breast fhrew her on ‘rhe field and iniercourse wi‘ih her. Afier invesfigafion cha/Ian was filed on 22.4.1993 for ihe offences under Secfions 376/511 and 323,of The Indian Penal Code. offer up‘iurning her saree commi‘i‘ied forcible sexual /2/- @D 3. 50 as f0 hold To accused/appgIIanT guilty, prosecu’rion has examined as many as 10 wifnesses in supporf of ifs case. 5Tafemenf of The accused/appellant was also recorded under Sec’rion 313 of The Code of Crimina} Procedure in which he denied fhe charges ieveiied againsf him and pleaded his innocence and false impIicaTion in fhe case 4. Affer hearing The parTies, The Trial courT has acquiTTed The accused/appellanT of The offence under SecTion 376/511 IPC buT has convicTed hi under SecTion 323 and 354 of The Indian Penal Code. 5. Counsel for The appellanT submiTs ThaT The prosecuTrix (PW-1) has noT supporTed .The prosecuTion case and has been declared hosTile. He furTher submiTs That based on The same seTfiof evidence, once The courT below has acquiTTed The accused/appellonT under SecTion 376/511 of The Indian Penal Code, under no circumsTances iT could have convicTed The accused/appellanT under SecTions 323 and 354 of The Indian Penal Code. He furTher submiTs ThaT The appellanT has been convicTed on The basis of The sTaTemenT of Gorkha @ Gore Singh (PW-3) whereas as per The sTaTemenT of This wiTness, wife of Trilochan had called him and he saw The accused/appellanT running from The spoT and The wife of Trilochan - Padambai (PW—5) had informed him ThaT‘iT was The accused/appellanT Gendu. He furTher submiTs ThaT-‘Gorkha @ §ore Singh (PW-3) has also noT supporTed The prosecuTion case in any manner and, Therefore, The sTaTemenT of This wiTness become insignificant 6. On The oTher hand supporTing The impugned JudgmenT iT has been argued by The STaTe counsel ThaT even if The s, m x prosecu‘rr'ix has ‘I'ur'ned has‘Hle, convicfion of fhe accused/ appeHan‘f is just and proper- on fhe basis of 'I'he sTaTemenT of Gorkha @ 6cm Singh (PW-3). 7. I have heard counse! for- ‘rhe par-Ties and perused The material available on record including judgme'm impugned. 8. Prosecuh‘ix (PW-1) has n01“ supporfed the prosecution case and has. been declared hostile. She has cafegorically stated that she could not see the person who caught hold of her or threw her on the field and she has never informed the police about the name of the accused/appellant. Another important witness Dharmprakash (PW-2) has also been declared hostile. Gorkha @ Gore Singh (PW-3) has stated in his evidence that he was near the place of incident and after hearing the cries of the prosecutrix when he was going towards her, he saw the accused/appellant running from there and there he met the wife of Trilochan -Padambai (PW-5). He has stated that at the relevant time prosecutrix was abusing the accused/appellant. He has stated that thereafter the wife of Trilochan had informed him that it was the accused/appellant Gendu. 9. Padambai (PW-5) has not supported the case of the prosecution and has stated that she had never seen the accused/appellant running from the spot. Though this witness has not been declared hostile but she has not supported the case of the prosecution in any manner. 10. Santoshi (PW-4) who is sister of’ the prosecutrix has also not deposed anything against the accused/appellant and has me'rely stated that prosecutrix had informed her that s / @ somebody had pushed her‘ buw‘ she had no? disciosed The name of any person. 11. Kedar (PW—6) has sfm‘ed in his evidence that he has not seen the incident and, he appears to be a hear-say witness. 12. Dr. Vimla Jain (PW-7) had medically examined the prosecutr'ix and had given her report Ex. P- 2, had found foilowing injuries :- “(i) Pain in both the cheeks. (ii) There was abrasion on the back side of left paim in the size of 2" X 1".“ 13. Minute scrutiny of the evidence as adduced by the witnesses makes it clear that there is no cogent legally admissible evidence on which basis the conviction of the accused/appellant under Section 354 and 323 can be sustained ‘ especially when the prosecutrix has turned hostile. In these circumstances, the accused/appellant is entitled for benefit of dou bt. —ccu.c m cc ,c 14. Consequently, the appeal is allowed. Impugned judgment dated 24.02.1995 is hereby set aside. Appellant is acquitted of the charges levelled against him. The appellant is reported to be on bail. Bail bond furnished by him stand discharged. ‘ Sd/- 9 Mt‘inker Judge/y Diwali/(er W x \a