1 / 14 2025:CGHC:4516 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1192 of 2022  Nawaz Khan @ Bholu, son of late Nawab Khan, aged about 39 years, resident of Sanjay Nagar, Kanker, Police Station – Kanker, District – North Bastar Kanker (C.G.) ... Appellant versus  State Of Chhattisgarh Through the Station House Officer, Police Station – Kanker, District North Bastar Kanker (C.G.) ... Respondent For Appellant : Mr. D.N. Prajapati, Advocate. For Respondent/State : Mr. Devesh G. Kela, P.L. Hon'ble Smt. Justice Rajani Dubey, J (Judgment on Board) 24/01/2025 1. The appellant in this appeal under Section 374 (2) of CrPC has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 20.07.2022 passed by the Special Judge, (constituted under 2 / 14 Scheduled Castes and Scheduled Tribes) (Prevention of Atrocities) Act, 1989, North Bastar, Kanker (C.G.), in Special Criminal Case No.21/2020, whereby the appellant stands convicted and sentenced as under: Conviction Sentence Under Section 366 of IPC. Rigorous Imprisonment for 05 years with fine of Rs.500/-, in default of payment of fine to further undergo additional R.I. for 03 months. Under Section 376 read with Section 511 of IPC Rigorous Imprisonment for 07 years with fine of Rs.5000/-, in default of payment of fine to further undergo R.I. for 06 months Under Section 323 of IPC Rigorous Imprisonment for 01 months with fine of Rs.100/-, in default of payment of fine to further undergo additional R.I. for 10 days. 2. Case of the prosecution, in brief, is that complainant/victim made a report in police station Kanker to the effect that on 10.04.2020 at around 11.00 am, accused/appellant Nawaz Khan alias Bholu resident of Sanjay Nagar Kanker came to her rented house and called out, then her friend Sunita Salam came out and called her, then she came and talked to accused/appellant Nawaz Khan, then he said her to accompany him that he would get ration for her from the Collectorate office. Thereafter, she went to the Collectorate office with the accused/appellant, but the office was closed then he took her on his motorcycle to Gadhiya Pahad in the 3 / 14 name of getting wood for cook and parked his vehicle in Gadhiya Pahad ground and took her to the staircase holding her hand and after reaching halfway near sagon tree, he caught hold of her both hand, started seducing her saying to have physical relations with him once, however she freed herself and ran down towards the staircase. It was further alleged in the complaint that when she was going there, the accuse/appellant again caught her near Singh gate, took her between the stones next to the stairs and with intent to outrage her modesty, he tried to remove her clothes and threw her dupatta. When she ran away after pushing her, he caught and slapped her, due to which she suffered injuries in her hand and on body. Thereafter, she pushed the accused/appellant and ran down the stairs and came to her rented house and her slipper was left at the place of incident. After coming home, she informed the incident to her friends Sunita Salam, Madhuri Sevta and Reshma Toppo who were living with her. On the basis of the above written complaint of the victim, an FIR was registered against the accused/appellant in Police Station Kaker under Sections 354, 354 (a), 354 (b) and 323 IPC. 3. During the course of investigation, the victim/prosecutrix was examined by a doctor and gave his report under Ex.P./10. The spot map (Ex.P/5 and P/6) were prepared. 4 / 14 Patwari prepared spot map under Ex.P/11 and panchanama under Ex.P/12. The caste certificate of the victim was seized under Ex.P/3 and her orange coloured dupatta and slippers were seized under Ex.P./04. The motorcycle of the accused/appellant bearing registration No.CG-19-BF-5501 was seized under Ex.P/13. The accused/appellant was arrested under arrest memo Ex.P./09 and information regarding this was given to his wife under Ex.P/17. During the investigation, the statement of the victim/prosecutrix under Sections 164 and 161 CrPC and the statement of other witnesses were recorded under Section 161 CrPC. After completion of usual investigation, charge-sheet was filed against the accused/appellant under Sections 354, 354 (a) (b), 323, 376 r/w section 511 IPC and Sections 3, 2 (1) (M), 3(2) (c) (i-ii), 3 (2) (Vd) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Thereafter, learned trial Court framed charge under Sections 366, 376 read with Section 511 and Section 323 of IPC & Section 3 (2) (vd) of SC/ST Act, to which he abjured his guilt and prayed for trial. 4. In order to prove its case, the prosecution examined as many as 09 witnesses. Statement of the accused was also recorded under Section 313 of CrPC in which he denied all the incriminating circumstances appearing against him in 5 / 14 the prosecution case, pleaded innocence and false implication. In defence, two witness namely Ameena Begum (DW/1) and Rafikunnisa (DW/2) were also examined. 5. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, while acquitting the accused/appellant from the charge under Sections 3 (2) (v) and 3 (2) (Vd) of SC/ST Act, convicted him as mentioned in para 1 of this judgment. 6. Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence is perverse, erroneous, contrary to law, facts and circumstances of the case, therefore, is liable to be set- aside. The learned trial Court has gravely erred in convicting the appellant under Sections 366, 376/511 and 323 of IPC. Learned counsel further submits that from bare perusal of medical report of the prosecutrix, it is apparent that no sexual intercourse was committed with the prosecutrix, therefore, conviction under Section 376 of IPC being unsustainable in law deserves to be quashed. Learned counsel also submits that on the same set of evidence, the learned trial Court has acquitted the appellant from the offence under Section 3(2)(v) and 3(2)(va) of the S.C./S.T. Act, but committed grave error of law in convicting him under Sections 366, 376/511 and 323 of IPC. The 6 / 14 learned trial Court while convicting the appellant did not appreciate oral and documentary evidence properly and the prosecution has failed to prove its case beyond reasonable doubt. Thus, the impugned judgment of conviction and order of sentence is liable to be set aside. 7. On the other hand, learned State counsel supporting the impugned judgment submits that the learned trial Court minutely appreciated oral and documentary evidence and has rightly convicted the appellant. So, the appeal being without any merit is liable to be dismissed. 8. Heard learned counsel for the parties and perused the record of the learned trial Court. 9. It is apparent from the record of the learned trial Court that the learned trial Court framed charges under Sections 366, 376 read with section 511, Section 323 of IPC and Sections 3 (2) (v) and 3 (2) (va) of SC/ST Act and after appreciation of oral and documentary evidence, the learned trial Court while acquitting the accused/appellant from the charge under Sections 3 (2) (v) and 3 (2) (Vd) of SC/ST Act, convicted him as described above in para 1. 10. It is apparent from the statement of prosecutrix (PW/1) that on the date of incident at around 10-11.00 am, the accused/appellant came near her house where she resides on rent and called out, whereupon her friend Sunita Salaam 7 / 14 came out of home and told her that the accused/appellant is calling her. Thereafter, she came out of the room then accused/appellant told her that he would get ration for her. She has also stated that thereafter she kept two bags with her and went with the accused/appellant on his motorcycle to Collectorate, where one person informed that the office is closed today. Thereafter, the accused/appellant asked her as to what would she do here for long time, she has no wood to cook, he would get wood for her from the wood depot. She has also stated that thereafter the accused/appellant took her on his motorcycle to Gadhiyapahad. There was a ground near the temple on top of Gadhiya Pahad, where the accused parked his motorcycle. After this, the accused/appellant said to go towards stairs, there they would get good wood. She has also stated that after taking sack from the stand she went towards the stairs for picking up wood. While she was picking up wood, the accused/appellant said her to come below the stairs where dry wood was visible. At that time, the accused/appellant was sitting below the stairs. She went below the stairs and said where is wood, then the accused/appellant said that here is the dry wood and then the accused/appellant suddenly caught hold of her hand and said to sit down, we would take the wood later whereupon, 8 / 14 she said that she has to go home quickly then then the accused/appellant asked her name, from where are she, for what she has come here. Thereafter, she told the accused/appellant to leave her hand first but the accused/appellant told me to come down and said to come near him and started touching her with intent to outrage her modesty. This witness has also stated that the accused/appellant asked her for sexual favour once for which he would give her money, ration and whatever she wants. 11. This witness has further stated that the accused/appellant wanted to have physical relation with her. The accused/appellant was sitting on the upper side of the stairs and she was sitting on the lower side of the stairs. She got up and started running from there towards the top of the stairs, then the accused/appellant caught her both wrists and lay her down on the stairs but she stopped the accused/appellant from lying on her and pushed him and ran towards the bottom of the stairs. Thereafter, the accused/appellant came running towards her and again caught hold of her hands and started pulling her towards the bottom of the stairs, at that time she was pulling herself in defense to get free from the clutches of the accused/appellant and the accused/appellant was pulling 9 / 14 her towards him. Even when she had fallen, he was still pulling me. At that time the accused was holding her left wrist with one hand. Thereafter, the accused/appellant took her to a big stone near the stairs. This witness has stated in detail the mode and manner in which the accused/appellant tried to outrage her modesty and she resisted the act of the accused/appellant and suffered sprain on her leg. She has also state that when she reached her room, she informed the incident to her fried and thereafter she made a report (Ex.P/1) in police station and on the basis of her report, an FIR (Ex.P/2) was lodged against the accused/appellant. 12. This witness, in her cross-examination, admitted that the accused/appellant did not take her forcefully and she went with the accused/appellant as he said that he would get ration for her. This witness remained firm in her cross- examination to what has been stated in examination-in-chief and denied all suggestion of defence and she stated that the accused/appellant was trying to commit rape with her but she did not let him to do so in self-defence. 13. Ku. Sunita Salaam (PW/3) has stated that the prosecutrix (PW/1) informed about the incident. Dr. Sarita Kumeti (PW/4), who examined the prosecutrix (PW/1), stated that she found one abrasion in the size of 3 cm long x 0.5 cm wide on her right hand. Upon pressing both the breasts of 10 / 14 the prosecutrix, more pain was found on right breast. Pain was found on pressing the heels and thighs of both the feet of the prosecutrix. She did not find any internal on external injury on her private part and gave her report under Ex.P/10. 14. Close scrutiny of the evidence makes it clear that on the date of incident i.e. 10.04.2020 at around 11.00 am, accused/appellant came to her rented house and called out, then her friend Sunita Salam (PW/3) came out and called her, then she came and talked to accused/appellant who said her to accompany him on the pretext that he would get ration for her from the Collectorate office. Thereafter, she went to the Collectorate office with the accused/appellant, but the office was closed then he took her on his motorcycle to Gadhiya Pahad in the name of getting wood and parked his vehicle in Gadhiya Pahad ground and took her to the staircase holding her hand and after reaching halfway near sagon tree, he caught hold of her both hands, started seducing her saying to have physical relations with him once, however she freed herself and ran down towards the staircase. The accuse/appellant caught her near Singh gate, took her between the stones next to the stairs and with intent to outrage her modesty, he tried to remove her clothes and threw her dupatta and when she ran away after pushing, the accused/appellant caught her and slapped her, 11 / 14 due to which she suffered injuries in her hand and on body. Thereafter, she pushed the accused/appellant and ran down the stairs and came to her rented house and informed the incident to her friends who were living with her. The evidence of the prosecutrix (PW/1) finds corroboration by the medical evidence (Ex.P/10), according to which, abrasion in the size of 3 cm long x 0.5 cm wide was found on her right hand. Upon pressing both the breasts of the prosecutrix, more pain was found on right breast. Pain was found on pressing the heels and thighs of both the feet of the prosecutrix. 15. As regards conviction of the accused/appellant under Section 366 of the IPC, it would be apposite to quote Section 366 IPC, which reads as under :- “366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, [and whoever, by means of criminal intimidation as defined in this Code or of abuse of 12 / 14 authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.] 16. It is apparent from the testimony of the prosecutrix (PW/1) that she accompanied the accused/appellant of her own and the accused/appellant did not take her forcefully. She travelled on his motorcycle to Gadhiya Pahad for collecting wood without any protest. Thus, looking to the aforesaid testimony of the prosecutrix (PW/1), offence under Section 366 of IPC is not made out against but looking to the statement of prosecutrix that the accused/appellant seduced her, touched her breast, continuously kissed her on her back and tried to outrage her modesty, the offence under Section 376 read with Section 511 of IPC is definitely made out against the appellant. 17. It is also clear from the statement of the prosecutrix (PW/1) that in order to get free from the clutches of the accused/appellant she jumped from the hight and sustained injury in her ankle and leg and Dr. Sarita Kumeti (PW/4) who examined the prosecutrix did not find any external or internal injury and that the prosecutrix was only complaining pain on pressing her breast, leg and thigh. The prosecutrix 13 / 14 (PW/1) has also not stated that the accused/appellant caused her any injury. As such, the offence under Section 323 of IPC is also not made out against the appellant. 18. The prosecutrix (PW/1) has categorically stated about the mode and manner in which the accused/appellant tried to seduce her for sexual fevour and tried to outrage her modesty and she remained firm to what has been stated in her examination-in-chief. The defence has cross-examined this witness at length but has not been able to elicit anything in her cross-examination to discredit her testimony especially to the fact that the accused/appellant did not seduce her for sexual fevour and he did not try to outrage her modesty. Thus, the the learned trial Court having minutely appreciated the statement of prosecutrix (PW/1) has rightly convicted him under Section 376 read with Section 511 of IPC and his conviction under this Section is thus maintained. 19. As regards the sentence, the incident is of the year 2020, the appeal is pending since then, the appellant is languishing in jail from 12.04.2020 and has completed 04 years and 09 months jail sentence which is more than half of the jail sentence imposed under Section 376 r/w Section 511. In these circumstances, the ends of justice would be 14 / 14 served if he is sentenced to the period already undergone by him. 20. In the result, the appeal is allowed in part. While maintaining the conviction of appellant under Section 376 r/w section 511 of IPC, he is acquitted from the charge under Sections 366 and 323 of IPC and his sentence under Section 376 r/w Section 511 of IPC is reduced to the period already undergone by him. The impugned judgment stands modified to the above extent. The appellant is jail. He be set at liberty forthwith, if not required in any other case. 21. The appellant is directed to file personal bond and one surety in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Criminal Procedure Code, 1973. 22. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Rajani Dubey) Judge pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.01.28 16:51:24 +0530