1 2025:CGHC:17348 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 249 of 2016 1 - Smt. Pritilata Sahu W/o Shri Sanjay Sahu Aged About 29 Years, Occupation Housewife, 2 - Smt. Vibharani Vishwas W/o Nityanand Vishwas Aged About 51 Years, Occupation Housewife, Both are R/o Village Digma, Near F.C.I. Godown, Police Station Gandhi Nagar, District Surguja (wrongly mentioned District Surajpur in impugned judgement Chhattisgarh) Chhattisgarh. ... Appellants versus State of Chhattisgarh Through Station House Officer, Police Of Police Station Jainagar, District Surajpur Chhattisgarh. ---- Respondent ___________________________________________________________ For Appellants : Ms. Sameeksha Gupta, Advocate For State/Respondent : Mr. Rishabh Singh Deo, PL ___________________________________________________________ Hon'ble Shri Justice Arvind Kumar Verma Judgment On Board 15/04/2025 2 1. Today when the matter is called out for hearing, no one appeared on behalf of the appellant I, therefore, requested for assistance from a Counsel of the High Court Legal Aid Services Committee, Ms. Sameeksha Gupta, Advocate has been nominated to assist the Court. 2. I have gone through the judgment under appeal and the depositions of witnesses and exhibits assisted both by Advocate, Ms. Sameeksha Gupta through the High Court Legal Services Committee and learned State Counsel. In view of (2014) 14 SCC 222 (Surya Baksh Singh v. State of Uttar Pradesh), I do not consider it necessary to adjourn this case and issue fresh notice to the Appellant as his interest has been duly taken care of by nominating another Counsel from the High Court Legal Services Committee. 3. The appellant has filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence dated 27.01.2016 (Annexure A-1) passed by the Court of learned Special Judge {Scheduled Castes/Scheduled Tribes (Prevention of Atrocities)} Act, 1989, Surajpur (C.G.) in Special Sessions Trial Court 57/2014, whereby the appellant has been convicted and sentenced as under :- 3 Conviction Sentence In Default Under Section 452 of the Indian Penal Code R.I. for 02 years and fine amount of Rs.500/- In default of payment of fine amount further R.I. for 02 months Under Section 323/34 of the Indian Penal Code R.I. for 01 year and fine amount of Rs.500/- In default of payment of fine amount further R.I. for 02 months (Both sentences shall run concurrently) 4. Briefly stated facts of the case leading to the disposal of this appeal are that the complainant is the resident of 10th battalion Kanakpur and her husband is posted as Constable in the said battalion. On 07.09.2014 at around 9:00 a.m., when the complainant was at her house, at that time appellants came to her house and abused on caste line at a public place and threatened to her to kill and entered inside the house of the complainant. The appellants pulled complainant's hair and assaulted her with fist. Due to which, the complainant sustained injury on her right elbow and shoulder. 5. On a written complainant dated 07.09.2014 at Police Station Jainagar registered FIR u/s 294, 452, 506, 323/34 of IPC and Section 3(1)(d) of Scheduled Caste & Scheduled Tribe 4 (Prevention of Atrocities) Act against the appellants. 6. After completing the investigation related procedural formalities, the final report was filed by the Police before the jurisdictional Court. 7. So as to prove the complicity of the accused/appellants in the crime in question, prosecution has examined as many as 07 witnesses. Statement of the accused/appellants under Section 313 Cr.PC was recorded in which they pleaded their innocence and false implication in the case. However, appellants themselves examined as defence witness. 8. After hearing the parties and going through the material available on record including the evidence of the witnesses, trial Court has convicted and sentenced the accused/appellant as described in paragraph 03 of this judgment. Hence, this appeal. 9. Learned counsel for the appellant contended that the appellants have been wrongly convicted by the trial Court without there being sufficient and clinching evidence available on record against them. She further contended that there is no eye witness to the incident, despite the fact when the alleged incident took place the complainant was taking tuition classes. However, the student was not examined by the prosecution who could be an eye witness. 5 She further contended that the prosecution witnesses has contradicted themselves and are interested witnesses as all of them are employee of the same institution and naturally then they tend to support the complainant whose husband was also working at the same place. The FIR, Section 161 statement and statement recorded in the trial court have material contradiction and creates doubt in the prosecution story which suggests false implication in the case. It is, therefore prayed that this court may be allowed this appeal and further be set aside Annexure A-1. 10. Per contra, learned Counsel appearing for the State supported the impugned judgment and submits that the impugned judgment passed by the trial Court is based on proper appreciation of material and evidence available on record and the same requires no interference. 11. I have heard learned counsel appearing on behalf of the parties, the impugned judgment passed by the trial Court, perused the statement of the witnesses and other material available on record with utmost circumspection. 12. Section 452 of IPC provides as under :- “452. House-trespass after preparation for hurt, assault or wrongful restraint. 6 Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting and person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 13. Complainant - Smt. Fabiyalo Ekka (PW-1) has stated that on the date of incident, she was teaching tuition to a child in her house, at that time, the accused came to her house and knocked the door. When she opened the door, the accused pushed the door and entered her house and started abusing her on caste and also using obscene language against her. Accused Pritilata Sahu grabbed her hair and threw her on the ground and after that both of them started beating her with a stick. Accused Pritilata was pulling her hair and accused Vibha was twisting her neck and choking it. At the time of the incident, her aunt Sapna was also present at the spot. There was another woman with the accused who was standing outside with a child. When the accused started hitting her with kicks and punches, she started shouting for help. Hearing her voice, Aadesh came there and started intervening. At the same 7 time, her neighbor Sangeeta Chaudhary also came there. She got injuries on her right hand and head due to the beating by the accused. She still have pain in her head. She further stated that she is a Tribal woman of Oraon caste and come under the Scheduled Tribe category. The accused know her caste. Knowing her caste, the accused abused her on caste lines, Uraain, Dhangarin. She felt very humiliated by the accused abusing her with abusive words. The accused were threatening to kill her. She had given a written complaint of the incident in Jaynagar Police Station. Her complaint is Ex.P.-1. 14. Dr. J.S. Saruta (PW-6) who examined the complainant/victim stated that on 07/09/2014 at around 8:00 pm, lady Constable Priyanka Kujur, number 814 from Police Station Jaynagar brought injured Fabiola Ekka/complainant, for examination of her injury and to give a report. After examining the injured, she found the following injuries on her body:- Injury No.1 - A bruise was present on the right elbow, measuring 1.5 cm x 1.5 cm. Injury No.2 - A scratch mark was present on the neck, measuring 4 cm x 0.50 cm. Injury No.3 - The victim was complaining of pain, but 8 there were no other external injuries visible on her body. She opined that the above injuries were caused by some hard and blunt object. The above injuries were simple in nature. Medical report is Ex.P-6. 15. It is a matter for decision whether the house trespass alleged in this case will come under Section 451 IPC, or under Section 452 IPC. A mere house trespass with intention to cause hurt will come only under Section 451 IPC. To attract Section 452 IPC, there must be prior preparation to cause hurt in the process of house trespass. Anyway, on a perusal of the materials, in considered opinion of this Court is that the complainant had sustained only very simple injury in the alleged incident, in the opinion of this Court that the prosecution has not proved the element of preparation for causing assault, but has proven the intention to commit a crime, it may alter the conviction from Section 452 IPC to Section 451 IPC. 16. This Court has examined aforesaid submissions of learned counsel for the parties, statement of witnesses, having regard to nature of offence and manner of commission of offence as is disclosed in examination-in-chief of complainant and provisions of Section 9 452 of IPC, it would not be appropriate to convict the appellant for the offence punishable under Section 452 of IPC, but having regard to overall facts and circumstances of the case, ends of justice would be met if, the appellants convict for the offence punishable under Section 451 of IPC with fine sentence of Rs.1,000/- instead of Section 452 of IPC, sentence of RI for two years and fine of Rs.500/-. Accordingly, the offence punishable under Section 452 of IPC is altered into Section 451 IPC with fine sentence of Rs.1,000/- against the each appellant. 17. With regard to sentence for the offence punishable under Section 323/34 IPC, considering the fact that the date of incident is 07.09.2014 more than 10 years has been lapsed and there is no previous antecedent of the appellants. Further, considering the nature of injuries sustained by the complainant and appellants are rural lady, I am of the considered opinion that the ends of justice would be met if, sentence of rigorous imprisonment for one year for the offence under Section 323/34 IPC is altered into only fine sentence of Rs.1,000-1,000/-. Ordered accordingly. 18. With the aforesaid observations, the instant appeal is partly allowed to the extent shown above. 19. It is reported that the appellants are on bail. Their bail bonds are 10 not discharged at this stage and the same shall remain operative for a further period of six months in view of the provisions contained in Section 437-A of Cr.P.C. 20. Records of the Court below be sent back along with copy of this judgment for information and necessary compliance. Sd/- (Arvind Kumar Verma) Judge Vasant