1 2025:CGHC:4953 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on 22.11.2024 Judgment Delivered on 28.01.2025 CRA No. 841 of 2005 Khemchand, aged about 19 years, S/o Shri Satrughan Satnami, R/o Podi, P.S. Kota District Bilaspur (C.G.) ... Appellant (In Jail) Versus State of Chhattisgarh, through-Police Station Kota, Bilaspur (C.G.) ... Respondent For Appellant : Mr. Praveen Kumar Tulsyan, Advocate. For State : Mr. Akhilesh Kumar, G.A For Objector : Mr. Alok Bakshi, along with Ms. Kusum Lalchandani, Advocate. Hon'ble Smt. Justice Rajani Dubey C.A.V. Judgment 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 11.11.2005 passed by learned Fifth Additional Sessions Judge Bilaspur (C.G.) in Sessions Trial No. 2 168 of 2005 whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/S 376 r/w 511 of IPC R.I. for 05 years and fine of Rs. 500/-, in default of payment of fine to undergo additional R.I. for 03 months. 2. Brief facts of the case are that on 01.07.2003 the prosecutrix was collecting vegetables in the field along with her friends and at that time the accused came there, threw her on the ground and tried to commit sexual intercourse with her. The prosecutrix/victim raised hue and cry and upon such alarm, Fagan Bai, who was working in her field shouted and the appellant fled away from the spot leaving behind the prosecutrix/victim. Thereafter, the prosecutrix/victim narrated about the entire incident to her mother while crying, and at that time her father was not in the home. Later on prosecutrix/victim’s father was apprised of the said incident through his wife as soon as he came back to home and then he reported the matter to the concerned police station. Upon such report, the concerned police station registered a criminal case bearing Crime No. 149/03 under Section 354 of IPC against the accused/appellant and started investigating into the matter and after due and necessary investigation, the police filed the challan before the trial Court at Bilaspur. When the matter was pending before the Court of Additional Chief Judicial Magistrate, Bilaspur. 3 During the pendency of the criminal case under Section 354 of IPC, the father of the prosecutrix filed a private criminal complaint case under Section 376 r/w Section 511 of IPC before the same Court i.e., A.C.J.M, Bilaspur which was registered as complaint case No. 1633/2004 against the appellant. The Court of A.C.J.M, Bilaspur has registered the complaint case under Section 376 r/w Section 511 of IPC against the appellant. The Court of A.C.J.M, Bilaspur committed both the pending cases to the Court of Sessions Judge, Bilaspur being triable by the Court of Sessions, wherein the appellant has abjured his guilt and prayed for trial. 3. So as to hold the accused/appellants guilty, the prosecution has examined prosecution witnesses. The appellants have also examined defence witnesses in their defence. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied all the incriminating charges leveled against him, pleaded his innocence and false implication in this case. 4. The learned trial Court after appreciating the oral and documentary evidence convicted and sentenced the appellant as mentioned in the inaugural paragraph of this judgment. Hence, this present appeal filed by the appellant. 5. Learned counsel for the appellant submits that the impugned judgment of conviction and sentence awarded by the learned trial Court are bad-in-law and perverse, thus liable to be set aside. 4 There is huge contradiction and omission in the statement of the prosecutrix. The statement of the prosecutrix in the Court is not corroborating with the F.I.R, therefore the learned trial Court should have given the benefit of doubt to the appellant. The prosecution has submitted the charge-sheet under Section 354 of IPC and on complaint, the Court of A.C.J.M, Bilaspur registered the offence under Section 376/511 of IPC on the same incident. While marshalling the evidence as well as framing the charges against the accused, the learned trial Court overlooked the ingredients of Section 354 of IPC. The learned trial Court has failed to appreciate the statement of the prosecution witnesses and gave perverse finding. As such, the finding recorded by the learned trial Court is liable to be set aside. Alternatively, he submits that the conviction of the appellant under Section 376 r/w 511 of IPC as imposed by the trial Court is just and proper, considering the fact that the incident took place in the year 2003, this appeal is pending since 2005. During pendency of this appeal the appellant has remained in jail for 02 months and he is now aged about 40 years; so in the interest of justice the appellant may be sentenced to the period already undergone by him. 6. Reliance has been placed on the decision of Ratan Singh v. State of M.P. reported in 1996 (I) MPJR SN 5 and in Ram Dittu v. State of H.P. reported in 1989 CRI. L. J. 2557. 5 7. Per Contra, learned counsel for the State supported the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the accused/appellant, as such this appeal is bereft of any merit and is liable to be dismissed. 8. Heard both the counsel for the parties and perused the material available on record including the impugned judgment. 9. It is clear from record of the learned trial Court that the learned trial Court framed charges under Section 376/511 of IPC and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellant under Section 376/511 of IPC. 10. Prosecutrix/victim (PW-01) stated in her examination-in-chief that on the date of incident, the accused removed underwear of the prosecutrix/victim, as well as his and climbed over her and he did wrong things with her, he inserted his private part in her pee hole and upon her screams, he fled away. In her cross-examination she admitted that in her statement, she did not tell about any penetration and also in the F.I.R she did not narrate the act of the accused. Fagan Bai (DW-01) stated that on the date of incident, she heard some crying noise and when she shouted, both the girl and the boy ran away. The prosecution declared her hostile and cross-examined her, but she denied all the suggestions of the prosecution. (PW-03), (PW-05) & (PW-06) are the eye witnesses, 6 they have stated that the accused threatened them and threw the prosecutrix on the ground, thereby he removed his underwear as well as the prosecutrix/victim’s underwear and told them to leave the place. In her cross-examination, she has admitted this suggestion of defence that the father of the accused and the father of the prosecutrix/victim are of different parties. (PW-02) father of the prosecutrix stated that her daughter told him about the whole incident. 11. In F.I.R. Ex. D/01, the prosecutrix stated that the accused kissed her and removed her underwear, threw her on ground and when she started crying, he left her and ran away and told her that not to tell anyone about incident. So, it is clear that in F.I.R and police statement, Ex. D/02, the prosecutrix stated that the accused/appellant only removed her clothes and when she started crying, he left her and ran away. In Ratan Singh (supra) the Hon’ble Apex Court finds that the statement of the prosecutrix is different from the F.I.R and the prosecutrix has gone to the extent of saying that the petitioner has not only outraged her modesty, but even raped her. However, in F.I.R there is no such allegation of rape having been committed by the petitioner and the High Court of M.P. has convicted the petitioner under Section 354 of IPC. 12. In the present case also in F.I.R, the prosecutrix alleged that the accused removed her underwear and when she started crying, he left her and only threatened her not to tell anyone. No medical 7 evidence has been produced by the prosecution and other witnesses have also stated that the accused removed clothes of the prosecutrix. The prosecutrix admitted this fact that in F.I.R and police statement, she did not tell about rape, but in her examination-in-chief she stated that the accused/appellant committed sexual intercourse. The learned trial Court did not appreciate this contradiction. So, looking to the act of the appellant, the offence under Section 376/511 of IPC is not made out against the appellant and, as such his conviction is altered into Section 354 of IPC. 13. As regards sentence, it is clear that the incident took place in the year 2003 and this appeal is pending since 2005. The appellant is now aged about 40 years; and he has remained in jail for more than 02 months, therefore, his sentence under the aforesaid section is liable to be reduced to the period already undergone by him. 14. In view of the facts and circumstances of the case, this Court is of the opinion that the ends of justice would be met if the sentence imposed by the trial Court is reduced to the period already undergone by him. However, the fine amount imposed by the trial Court shall remain intact. 15. Ex consequenti, the appeal is allowed in part. While maintaining conviction of the appellant under Section 354 of IPC, the sentence 8 imposed thereunder by the trial Court is hereby reduced to the period already undergone by him. 16. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE Uttej