Tirath @ Uttu vs State Of Chhattisgarh

By way of this Revision, the Applicant has challenged the judgment dated 11.01.2012 passed by the 2nd Additional Sessions Judge, Baloda Bazar, District Raipur in Criminal Appeal No.109/2011 affirming the conviction of the Applicant under Sections 354 IPC and sentencing him to undergo RI for 6 months with fine of Rs.500/- with usual default stipulations, which was imposed by the Judicial Magistrate Second Class, Baloda Bazar in Criminal Case No.25/2009 vide judgment dated 06.01.2010.

Facts leading to the instant case are that on 09.09.2008, the prosecutrix (PW-1), a 28 year old married lady, who is the neighbour of the present Applicant, had lodged a written report that on the date of incident i.e. 09.09.2008 at about 7.00 pm, the prosecutrix (PW-1) was going to the house of one Ben Kumar to make a phone call to her husband and when she reached near the electric pole in front of her house, then the present Applicant reached there and caught hold of her breast and hand with bad intentions and while rescuing herself, the prosecutrix fell down due to which, she received injuries on her right wrist and neck. At the relevant time, she was carrying her baby with her. When the prosecutrix raised cries, her nephew Tarun (PW-2) and relative Lalit (PW-3) reached there and the Applicant fled away from the spot on seeing them. Head Constable Dasruram (PW-5) has registered the FIR (Ex.P-2) bearing No.227/2008 on 09.09.2008 at 9.15 pm at PS Palari. During investigation, he had prepared spot map (Ex.P-3) and also recorded the statement of the witnesses and the Applicant was arrested vide Ex.P-5.

After completion of investigation, charge sheet was filed. The Applicant has abjured his guilt. In order to prove its case, the prosecution had examined as many as five witnesses. In statement recorded under Section 313 Cr.P.C, the Applicant had stated that he has been falsely implicated in the case and had not produced any defence evidence.

After conclusion of trial, the learned Magistrate found the Applicant guilty under Section 354 IPC and acquitted him of the charge under Section 323 IPC and awarded him sentence as mentioned above, which was affirmed by the impugned judgment, hence this Revision.

Shri Hemant Gupta, learned Counsel for the Applicant submits that there are various omissions and contradictions in the statement of the witnesses and no independent witness has been examined. He further submits that there is previous enmity between the parties, the prosecution had failed to prove its case beyond reasonable doubt and on the same set of evidence, the trial Court had acquitted the Applicant of the charge under Section 323 IPC only whereas, he should have been acquitted of the charge under Section 354 IPC also. He lastly submits that the impugned judgment is bad in law which may be set aside and the instant Revision may be allowed.

On the other hand, Shri Gagan Tiwari, learned Counsel for the State, while supporting the impugned judgment, submitted that the Court below had categorically recorded its finding, therefore, the same does not call for any interference and the instant Revision Petition deserves to be dismissed.

I have heard learned Counsel for the parties and perused the entire record with utmost circumspection.

Question for determination in this Revision is whether the impugned judgment of conviction is just and proper and it calls for any interference?

Prosecutrix (PW-1) admitted that the house of the Applicant is adjacent to that of her and there is boundary wall between both the houses. She had categorically admitted in her cross-examination that there was an old dispute between them with regard to the said boundary wall for which, a report was also made earlier. She had also admitted that due to the said inimical terms, they were not in talking terms with each other. She deposed that on the date of incident, at 7 o’ clock in the evening, when she was going out carrying her baby with her and reached near the electric pole, the accused Applicant caught hold of her breast and hand with bad intentions. She had stated that upon yelling, her nephew Tarun (PW-2) and relative Lalit (PW-3) came there and on seeing them, the Applicant pushed her and ran away from the spot which caused injuries on her hand and neck.

Dashruram (PW-5) had recorded FIR (Ex.P-2) on the basis of a written complaint made by the prosecutrix (PW-1) at 9.15 pm. In the cross-examination of the prosecutrix (PW-1), she had denied that she was pushed or fell down in the process of getting rid of the Applicant. Tarun (PW-2) admits in his cross-examination that he had not seen the incident. Lalit (PW-3) also deposed that upon hearing cries of her mother-prosecutrix (PW-1) when he reached there, he saw her on the street of the village in a fallen condition. Both these witnesses have stated that they have no knowledge as to how the incident occurred.

The prosecutrix had categorically admitted in her evidence that she was not in good terms with the accused/Applicant. Both Tarun (PW-2) and Lalit (PW-3) have admitted that they are close relatives to the prosecutrix and no independent witness has been examined by the prosecution during trial. Further, the prosecutrix is an illiterate lady who had lodged the FIR with a written complaint but there is no evidence as to who had prepared the same. Further, there are contradictions and omissions in the statement of the prosecutrix (PW-1) and the basic document of the said written complaint has also not been proved during the trial. Considering the fact that there is no independent reliable witness, evidence of the prosecutrix (PW-1) and other witnesses i.e. Tarun (PW-2) and Lalit (PW-3) do not inspire the confidence of this Court and on the same set of evidence, the trial Court had acquitted the accused Applicant of the charge under Section 323 IPC, therefore, placing reliance on the same evidence, the said Court found the Applicant guilty and awarded him conviction under Section 354 IPC.

In view of the above appreciation, as the findings recorded by the learned appellate Court are perverse to the evidence available on record, the impugned judgment of conviction and order of sentence cannot be sustained.

Resultantly, the Revision is hereby allowed. The impugned judgment of conviction and order of sentence passed by the court below are set aside and the Applicant is acquitted of the charge under Section 354 IPC. The Applicant is reported to be on bail. His bail bonds shall remain in operation for a period of 6 months from today in view of Section 437-A Cr.P.C. He shall appear before the higher Court as and when directed. Fine, if paid, shall be returned to the Applicant.

The record of the Court below be sent back along with a copy of this order.