1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 175 of 2016 • Smt. Rashmi Dey (Moghe), W/o Siddharth Dey, aged about 41 Years, D/o- M.G. Moghe, R/o - Vishal Nagar, Green Paradise, Behind Chhattisgarh Hotel, Puraina Raipur, Tahsil and District – Raipur, Chhattisgarh. ...Applicant versus • Siddharth Dey, S/o - Ashish Dey, aged about 43 Years, R/o. - Avelina, Hiranandani Estate, Thane East Maharashtra. Second Address - C/o Ashish Dey, House No. 568, Priyadarshni Nagar, Police Station - New Rajendra Nagar, Raipur Tahsil And District – Raipur, Chhattisgarh. Alternate Address - Siddharth Dey, aged about - 43 Years, S/o Ashish Dey, R/o 1302 Impact Construction, Silicon Building, Near Sonata Tower, Behind Miraj Apartments, Jal Kalyan Nagar, Malad West Mumbai Maharastra , Maharashtra. ...Non-applicant For Applicant : Mr. D.K. Gwalre, Advocate. For Non-applicant : Mr. Kashif Shakeel, Advocate. Hon'ble Shri Justice Radhakishan Agrawal Order on Board 13.02.2025 Heard. 1. The present revision filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction dated 09.12.2015 passed by the learned Sessions Judge, Raipur, C.G. in Criminal Appeal No. 38/2015, while affirming the judgment dated 12.03.2015 passed in Criminal Complaint Case No.3032/2014 by the Judicial Magistrate First Class, AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2025.02.13 16:59:05 +0530 2 Raipur, C.G, whereby the applicant was convicted under Section 323 of Indian Penal Code (for short, 'IPC'). However, the trial Court has given benefit of Section 4 of the Probation of Offenders Act, 1958 to the applicant and directed her to furnish a bond with a surety of Rs.5,000/-, subject to condition that she shall maintain good conduct and behaviour for a period of one year. 2. Case of the prosecution, in brief, is that applicant is the wife of respondent who left the respondent in April-May, 2011 and started living at Raipur. It is alleged that Divorce Petition case No.285-A/2013 filed under Section 13 of the Hindu Marriage Act and Case No.230/2013 filed under Section 125 of Cr.P.C. were pending before the Family Court, Raipur. On 24.08.2013, on the direction of Family Court, respondent/complainant and applicant were present in the counselling room of the Family Court, Raipur for reconciliation and during that period, some dispute arose between them and in that event, present applicant abused the respondent filthily and slapped him on his left cheek in front of two counsellors who were present in the room. Thereafter, the matter was reported by the respondent to Principal Judge and after that, respondent/complainant informed about the incident to Police Station, Gol Bazar, Raipur, but no action was taken against the applicant, then he filed a complaint case and prayed for action against the applicant under Section 323 of IPC. 3. The Court of JMFC took cognizance of the matter and framed charge under Section 323 of IPC against the applicant. The applicant abjured the guilt. 4. After appreciation of oral and documentary evidence available on record, the Court of learned JMFC, convicted the applicant as 3 mentioned in the Para No. 1 of this judgment. The said judgment was challenged by the applicant in criminal appeal, however, the Appellate Court vide judgment dated 09.12.2015, dismissed the appeal upholding the judgment of the learned JMFC. Hence, this revision. 5. Learned counsel for the applicant submits that the Court of JMFC as well as Appellate Court, without properly appreciating the evidence available on record, were not justified in convicting the applicant for the aforesaid offence. He further submits that two independent witnesses namely PW-2 Shamim Rehman and PW-3 Ashalata Awasthi, counsellors, have not supported the version of the respondent that at the time of counselling proceedings, applicant slapped the respondent. He also submits that there are material contradictions and omissions in the statement of complainant/respondent. On these premises, it is prayed by counsel for the applicant that applicant be acquitted of the charge leveled against her. 6. On the contrary, counsel for the respondent, while supporting the impugned judgments, submits that the Court of JMFC as well as Appellate Court have rightly convicted the applicant and there is no illegality or infirmity in the same warranting interference by this Court. 7. I have heard learned counsel appearing on behalf of the parties and perused the record available with utmost circumspection. 8. Complainant/PW-1 Siddharth Dey has stated in his deposition that on 24.08.2013, on the direction of Family Court, he and applicant were present in the counselling room of the Family Court, Raipur for 4 counselling and during counselling proceedings, some dispute arose between them and in that event, present applicant abused him filthily and slapped him on his left cheek in front of said two counsellors who were present in the room. However, on the contrary in cross- examination at para 14, he admitted that applicant has not assaulted him in front of counsellors during counselling proceedings took place at Family Court. He also admitted that before him, his wife/applicant had filed a report against him under Section 294, 506 and 323 of IPC in connection with incident happened on 24.08.2013. This apart, PW-2 Shamim Rehman, counsellor, admitted in his cross-examination that according to him, incident took place at around 12-12:30 pm, but complainant/PW-1, on the contrary, has stated that incident took place at around 1:45 pm. Besides, PW-2 Shamim Rehman and PW-3 Ashalata Tiwari, counsellors, have also admitted in their cross- examinations that they did not see the applicant assaulting the respondent. 9. Thus, from perusal of the above evidence, it is quite vivid that there are material contradictions and omissions in the statement of PW-1 Siddharth Dey and his statement does not corroborate with the statements of other witnesses. Apart from this, PW-1 Siddharth Dey has admitted that due to slap, he received swelling on his cheek, but there is no medical evidence on record to show that respondent/complainant received any injury due to slap by the applicant. As such, sole testimony of PW-1 Siddharth Dey is not reliable as he has exaggerated his version as an afterthought and that prosecution has also failed to bring on record any cogent and 5 clinching evidence which would show the complicity of the applicant in the crime in question. In that view of the matter, I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt, therefore, the applicant is entitled for acquittal on the basis of benefit of doubt. The learned trial Court as well as Appellate Court were totally unjustified in convicting the applicant for the aforesaid offence. 10. Accordingly, the impugned judgments of conviction passed by the Court of JMFC dated 12.03.2015 and that of Appellate Court dated 09.12.2015 are liable to be and are hereby set-aside and the applicant is acquitted of the charge under Section 323 of IPC by extending her the benefit of doubt. 11. In the result, the criminal revision is allowed. Sd/- (Radhakishan Agrawal) JUDGE Akhilesh