C?-3 HIGH COURT OF CHHATTISGARIL BILASPUR SINGLB BENCH: HQN»BLBSHRI R. L. JHANWAR. J. Criminal Appeal No. 1414/1994 APPELLANT Tapaxi Kumiar Versus RBSPONDENT State ofM.P. (now C.G.) JUDGMENT POST ON '2.^ NOVEMBER. 2009 Sd/- R.L. Jhanwar Judge BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.05 11:48:45 +0530 R=S N8NliNNKf' ^- HIGH COURT OF CHHATTISGARH AT BILASPUR ®B:HON»BLBSHRI RAJESHWAR LAL JHANWAR, J. APPELLANT Accused RBSPONDBNT Crinainal Appeal No. 1414/1994 Tapan Kuniar, son of KrishnakaEit Haldar, aged about 27 years, Caste- Dengar, residen.t of Kuiiiharpara, Jagdalpur, District-Bastar (M,P.) (now C.G.) Versus The State of Madhya Rradesh through Thana Prabhari, P.S. Bodhghah (Jagdalpur) District- Bastar (M.P.) (now C.G.) Appearasice: Shri Alok Dewangaii, coiinsel for the appellaat. Shri Arviad Shukla, Panel Lowyer for tlie State, JUDQMENT (Delivered on^.^.11.2009) 1. This criiniD.al appeal is directed against fhe judgnieiit of conviction aiid oider of senteuce dated 27th October, 1994 passed m S.T. No,396/93, whereby the learaed 1st Additional Sessions Judge, Jagdalpiir has convicted fhe appeUaat uuder Section 354 offhe IPC aad sentenced him to undergo RJ, for 1 year and to pay a fine of Rs, 1000/-, in default of paynieiit of fiaie to further undergo R.I, for 3 monfhs. 2. Prosecution story, m brief, is ttiat, fhe prosecutrix had gone to her sister's house at Jagdalpur to take cai'e of her children. Oii 9.4,1993, fhe proseciitrix aiid her sister's family was sleepia.g in two sepai'ate roonis, At tliat time, tlie appeUant along wifli ofher co-accused Anaad Quvenile) entered fhe house and the appeUaat has cosaiaitted sexiial iatercourse with her. When she tiied to raise hue aad cry, tlie appellaxit gagged her m.outh. aiid after coimidtting sexual iatercourse, the appeUaat along wifh co-accused fled fi'oisi tliere. Her sister saw the accused persons fleeing froni her house. The prosecutrix narrated fhe stoiy to her sister ao.d brofher-io.-law. Thereafter the report of the iacident was lodged by fhe prosecutaix. The iavestigation took place. Necessar}^ seizures were niade. Statements iinder ,^^sSStts. Sectiou 161 Cr.P.C. were recorded. After coxupletion of uivestigatiou, ftie chalaii agamst co-accused - Anand was filed before the Juvenile Court aiid chalaii agaiast the appeUaiit was fsled before the Chief Judicial Magistrate, Jagdalpur. In due course, the case was comnxitted to the Court of Sessions, Jagdalpur. 3, The leanied Sessioiis Judge made over the case to the 1st Additional Sessions Judge, Jagdalpur for trial. The learaed Additional Sessious Judge has fraxaed charge uiider Section 376 of the IPC. Chai'ge was read over and was explaiaed to tlie appeUant The appeUaiit abjured tlxe guilt aad pleaded iiinocence and his defence was that he has been falsely impticated in the offence. 4. The leamed Additional Sessions Judge has, after evaluatiag tlie evidence available on record aiid heariug fhe coiinsel for respective parties convicted the appeUaiit under Section 450 IPC aad sentenced him as nientioned above. 5. Leained counsel for fhe appeUaat subinits ttiat the prosecution has not been able to prove fhe guilt of the appeUaiit zuider Section 354 beyond reasonable doubt. Consideriag fhe facts & circumstaQ.ces of tlie case, fhe appellaat may be sentenced to fhe period of imprisonment already iindergone by hioi. 6. On tlie other haiid learaed counsel for fh.e State has supported the unpugued judgnient, 7. I have heard learaed counsel appearing for botli tlie parties aad also penised tiie uiaterial available on record. 8. It is.evident froni fhe statenient ofprosecutrix (P,W.6) that at the tiiae of occurrence, when she was sleepin.g, tlie appellaat who was acquauited wifh. her, eiitered tDiside the house aad tiied to outai'age her inodesty. When she toried to raise alarm, fhe appellan.t gagged her m.0utli and fhreatened her. When she called her sister, fhe appeUaat pushed her aiid fled fromi the house. Then she narrated tlie iacident to his brother-ia- law and fhereafter lodged the report ia tlie poUce station. She ^•-^ "^. w. 1 '%! £ ^.. %^./ has furtlier deposed tliat on tlie date ofnieident, flie accused persons who had eutered iaside tlie house were Tapaii (present appeUaat) and Anand, She was sent for xaedical exaoiination, Her radiological examiiiation was also done. Iii lier cross-exainiiiation, she has deposed that there are two roonis iii her sister's house. In paragraph-6 of her cross- exaoiuiation she has stated fhat the person who had entered niside her house was Tapao. i.e, fh.e appeUaiit In paragraph -8 of her cross examiaation she speci&cally stated fhat the same iacident, which occurred wifh her, was uever occurred previously. 9, Dayaiiiani (P.W.-l), sister of tlie prosecutrix has stated tliat she is acqiiamted with the appellaiit as tlie appellaat resided m her colony. Ou fhe date ofmcident, after hearmg cries ofthe px'osecutx-ix, when she woke-up an.d Mt fhe Biatchstick, she saw fhe appeUaiit fleeiag froin fhe house by opening the door. Thereafter, her sister narrated fhe io.cident to her. In her cross-exanim.ation, she stated th.at ia her police stateraent she had deposed tliat 'when she woke-up after calling of the prosecutrix and lit the matchsiick, saw the appellani fleeing fronz her hoi^se\ In her poUce statement,Ex.D-2 she speci&cally mentioned that after the iacident she saw botli fhe accused persons goiag outside froni her house. 10. Alexix (P,W.3), brofher-m-law of fhe prosecutorix has stated fhat when tlie prosecutrix raised hue and ciy fhey woke-up. Her wife Dayainaiii (P.W.-l) asked fhe prosecutrix about tiie incident. The prosecutdx did not narrate the io.cident before him. It is natural conduct tiiat it was not possible for tlie prosecutiix to uarrate such iiicident before her broth.er-iii-law, In his cross-exainiiiation he stated fhat lungi aad sUpper of tlie appellaiit reniauied in his house. Thus, he supported the prosecution case. He was declarcd hostile. However ia his cross-examiiiation he specifically deposed tliat his wtfe Dayamaiii (P.W.l) had narrate.d tiie entire 3tory as was uarrated by tlie prosecutrix to DayaBiaai. 11. Dr. Siut. S. Das (P.W.7), cn inedical exainination of tlie prosecutrix found no ext-enial or ioitemal ro-jun7 011 her body, Her hyBien was found to be iatact Slie found 110 sign of any sexual iiitercourse coiniaitted on the prosecutnx asid opined tliat no definite opniion could be given regardiag rape on fhe prosecutiix. Her report is Ex. P~14. Dr, M,S, Thaficur (P.W-5), Radiologist, who exajauned fhe prosecutrix, has opiaed her age to be above 14 years aad below 15 years. He has further opiaed fhat fhere may be inai'gia of error of 2 years on bofli sides, Thus, it is cleai' from the statement ofDr. M.S, Thakur, Radiologist, fh.at fhe age ofthe proseciitrix was below 15 years. 12. Section 354 ofthe IPC reads as under:- <tf354. Assault or crimiaal foree to wamaa with iatexit to outrage her modesty- Whoever assaults or uses criLmiaal force to aiiy woniaa/ mteiidiag to outrage or kaowiiig it to be Hkely that he wiU fhereby outrage lier xnodesty, shall be punished witli imprisonment of eifher descriptioii for a term which niay extend to tevo years, or with fine, or wifh both." 13. It is clear froiix the statenients of prosecutrix (P.W»6), her sister Dayamaai (P,W.l) aiid brother-m4aw Alexix (P,W.3) that fhe appeUaat entered their house aad used crimiiial force to outrage ttie inodesty of fhe prosecutiix by gaggiag her mouth aiid also threatened her, I am of the opiaion fhat tlie leanied tdal C^ourt has righfly convicted tiie appeUaat under Section 354oftheIPC. 14. For fhe foregoiag reasons, considermg fhe facts aad cu'cuinstaaces ofthe case, I ain offhe considered opiaion fhat fhe sentence already undergone by the appellaat will raeet the requtrem.ents ofjustice. 15. In fhe result, fhe appeal is partly aUowed, The appeUant has been in jaU from 11.4.1993 to 7.5.1993 i.e. for 26 days. The conviction of the appeUaat under Section 354 of fhe IPC is affiiTaed. However, fhe sentence awarded by tlie tdal Court is reduced tp 26 days which fhe appeUaat has ah*eady undergone aad the appeUaat is sentenced to tlie period ah-eady iindergone. He shall be set at liberty forthwifh, if not requn'ed iii aoy ofher case. i R.L. Jhanwar Judge