PAk RS Shaw gengh 3 IN THE HIGH COURT OF CHHATTISGARH AT BILASPI TR CRIMINAL APPEAL No.4 { [i OF 2004 \ CRIMINAL APPEAL U/S 374(2) OF THE CODE OF CRIMINAL PROCEDURE. APPELLANT : Dhaneshwar Rajwade, éf ACCUSED S/o RamNarayan Rajwade, Aged about—22 yrs., Occufaation- Wed on V Shn 99 KL§NX T T. \H’JOAte Cultivation, Resident of Village— Mukundpur, Police Station — Darima Distt4 Sarguja(C.G.) y/ .V R :0 €l A t L\ VERSUS wL RESPONDENT : The State of Chhattisgarh Though A J A K Police Statlon— Ambikapur Dlstt SarguJa(C G) HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 964 of 2004 Dhaneshwar Rajwade APPELLANT VERSUS RESPONDENT State of Chattisgarh \ Shri Manoj Mishra counsel for the appellant. ’ Smt. Smita Ghai PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. J U D G M E N T (25.02.201 1) This appeal is directed against the judgment and order dated 27.10.2004 passed by Special Judge, Ambikapur (Sarguja) in Speciai GaseNo. 105/2003 convicting the accu§ediappellant under Sections 3 (1) (Xi) of the Scheduied Caste and Scheduled Tribe (prevention of atrocities) Act (for short the “Act”) and 323 IPC and sentencing him to undergo rigorous imprisonment for six months with tine of Rs. 500 Uls 3 (1) (xi) of the Act and rigorous imprisonment for three months u/s 323 IPC, plus default stipulations. 2. Case of the prosecution in brief is that on 2.7.2003 a written report Ex. P-1 was lodged by the prosecutrix (PW-2) alleging that on 27.6.2003 at about 1O a.m. she was returning from the village pond after taking bath and when reached near the brook, accused/appellant came there, caught hold of her hand with an intention to outrage her modesty and tried to take her towards the bushes saying “Sali Gond if you will not sleep with me, With whom you will sleep”. It is alleged that when she tried to get rid of him, he slapped on her neck. Meanwhile, when the people of village reached . there, he ran away from the spot. Based on this written report, FIR (Ex. P—2) was registered against the accused/appellant for the offences under sections 354, 323 IPC and 3 (1) (xi) of the Act. After investigation, aha/Ian was filed by the police. The Court below however framed charge against the accused/appellant under p .‘Qr Sections 3 (1) (xi) of the Act read with 354 IPC and 3 (1) (x) of the Act read with 294 IPC. 3. So as to hold the accused/appeant guilty, prosecution has examined 07 witnesses in support of its case. Statement of the accused/appellant was aiso recorded under section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart, one Karmu Ram alias Nan Sai (DW—1) has aiso been examined by the defence in support of its case. 4. After hearing the parties the trial Court has acquitted the accusediappeiiant of the charge u/s 294 IPC r/w 3 (1) (X) of the Act but convicted and sentenced him u/s 3 (1) (xi) of the Act and 323 IPC. 5. Heard counsei for the parties and perused the materiai availabie on record including the judgment impugned. 6. Counsel for the appellant submits that there is nve days’ delay in lodging the FIR which has not been satisfactorily explained by the prosecution. He submits that in the court statement and the FIR the prosecutrlx has made different statement. According to him, written report Ex. (P-1) was neither prepared by her nor read over to her and that she had merely signed the same after being prepared by her father Prabhu Singh (PW-3). He submits that even the father of the prosecutrlx namely Prabhu Singh (PW—3) has not supported th caseof the prosecution and has been declared hostile. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that minor contradictions and omissions, if any, in the statement of the witnesses will not in any way affect the case of the prosecution and the approach taken by the Court below convicting the accused/appellant is fully justified. 8. Prosecutrix (PW-2) has stated in her evidence that on the date $ of incident when she was returning from the village pond after taking bath, the accused/appellant who was grazing cattle appeared on her way, caught hold of her hand and tried to take her toWards the ll e nb bushes and when she proested to his at, sla her neck. Threaft, cording to this witness, she reahhoe narrd t enre incident to er rets. Accding t h, t aed/pelit is jwar by c which cs under t geri cagory heres e caste i God which co in t teo f schedul trib. In ro examintin thi witnes has tatd tht Pbhu Singh (P) ad N Sai brothers d t her father is Prabu Singh. Sh has sad that thi isted e dipute between Prabh Singh d Nan Sai a e a criminal ca w ending betwe the. Accordin t her, Nan Sai d the father of the aused/appellant are close friends. She has admi cc tted tt bef he iident she us t visit te hus of te accused/apelnt and have a talk with h thr. In paaph of her cross exaination she has stated that he was uneducate and th the written repot odged by er wa got red b her fher n hi s had t her thumb impson..h hs further stte th before te thub impressn bin ut on t ritte r h was not eplaed the contents thereof. Prabhu Singh (PW-3) the far f te prosecutrix has not supported e case f he protion a turned hostile. e has howver tad that on the da of incident the prosectrix ca to hi eping ad ifoed hat the accuse/appellnt h beaten her. Shivnth R 4) wo s an t ro h ot h wa also in the compy of the father of he psecutrix as n uprted he ae of the psecutio and has bn declared hostile. Lal Ummed Sigh (W-5) is t investigati officer h has suported the case of t prosecution. Snu Singh (PW-) is t Sarpnch f the village who had issued the caste certificate E. P-6. r. .K. Jin (-7) ho had medally examined the prutrix and given his eport Ex. P-7 hs tated that injuy s noticed on her body. 9. Diussn ma above makes one thing clar tha the atement ade by t prosecutrix in the FIR that befe th st m he and or e Cur ap to be highly incistent to b acted un. Evn the father of t psecutrix ‘has not suppd the case f t proutio d has been declared hostile. ecord further shows th ere is an inordnate delay of five n l t rp eary t c he pped on eer ac ced‘m and ate he ti h pan or o er he ccusapan Ra aste ome he ena te wa hr s n mes he cagry o ed e css ao s s se a ra W-3 n an are an hat h e tte er ex som s u an nd ven se as p en m g o an ha ore t nc ed o h oe h pla is moe ragr 9 m s d at r l h s prepa y at o wch he pu resi\;Se a ad at h m io eg p he wn repot, se xin — the o h th o t secu nd H e ste te u me m we n nrm t da ad a am (PW- spo t cs ron ee n P he ng wo p he an 6 he a o x D J a PW w ic osec r a s no r wa scio de e t ot pear ons e po e he ro orte o he secn an R at th i days i odging he eort gr? *9; which has not been satisfactorily explained by the prosecution. Most importantly, the prosecutrix herself has stated that the written report Ex. P-2 was got prepared by her father and she had simply put her thumb impression on that even without being explained the contents thereof. ln these circumstances, according to the considered opinion of this Court, the conviction as recorded by the Court below is not worth sustenance. \ 10. ln the result, the appeal is allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charges levelled against him. As the appellant is on bail, his bail bonds stand discharged.