Devendra Kumar @ Ballu vs State Of Chhattisgarh
2022 Latest Caselaw 6228 Chatt

                                 1

                                                                  AFR

                                        Order reserved on 16.6.2022
                                       Order delivered on 13/10/2022

         HIGH COURT OF CHHATTISGARH, BILASPUR

                        CRR No. 89 of 2011

   • Devendra Kumar @ Ballu, S/o Ramji Sen, aged about 31
      years, R/o Kurud, P.S. Jamul, District Durg (CG)

                                                         ---- Applicant
                              Versus

   • State of Chhattisgarh through PS Jamul District Durg (CG)
                                                   ---- Respondent


For Applicant     :     Mr. D.N. Prajapati, Advocate
For Respondent    :     Mr. H.S. Ahluwalia, Dy. Advocate General


          SB: Hon'ble Mr. Justice Parth Prateem Sahu
                            CAV Order

   1. Challenge in this criminal revision is to the judgment dated

      3.2.2011 passed by learned Additional Sessions Judge, Durg

      in Criminal Appeal No.52/10 thereby dismissing appeal and

      affirming the judgment dated 15.6.2010 passed by the Judicial

      Magistrate 1st Class, Durg in Criminal Case No.2/2009

      convicting applicant under Sections 454 & 354 of the Indian

      Penal Code, 1860 (for short 'IPC') and sentencing him to

      undergo RI for 01 year with fine of Rs.500/-, in default to

      undergo additional RI for 02 months; RI for 6 months with fine

      of Rs.500/-, in default to undergo additional RI for 2 months

      respectively.
                               2

2. Facts

of the case, in brief, are that on 18.10.2001 at about

7:10 a.m. applicant along with co-accused Santosh Pandey

entered into house of complainant, Santosh Pandey closed

the doors from inside; applicant caught hold forearm of

complainant with intent to outrage her modesty. Complainant

somehow managed to come out from clutches of accused

persons and came out of house, whereupon accused persons

fled from spot. Complainant narrated the incident to her

neighbourers as also village Kotwar Dayabai (PW-4), went to

police station and lodged report, based upon which FIR was

registered against applicant and co-accused Santosh Pandey

for commission of offence punishable under Section 448 &

354 read with Section 34 of IPC. On completion of

investigation, police filed charge sheet against applicant and

co-accused Santosh Pandey before the trial Court concerned

under Sections 452 & 354 of IPC. Trial Court framed charges

under Sections 454 & 354 of IPC against accused persons.

They abjured their guilt and sought for trial. During course of

trial, co-accused Santosh Pandey died.

3. Trial Court on appreciation of evidence, oral and documentary,

brought on record by both sides, vide judgment dated

15.6.2010 held that prosecution proved the charges under

Sections 454 & 354 of IPC against applicant and accordingly

convicted and sentenced in the manner as mentioned in first

paragraph of this order. Applicant preferred criminal appeal

before the Court of Sessions challenging his conviction, which

was also dismissed by impugned judgment.

4. Mr. D.N. Prajapti, learned counsel for applicant would submit

that it is the case of false implication. Applicant provided

electricity connection to complainant and her husband for

Rs.8,000/-, out of which they have paid only Rs.6,000/- to him,

therefore, some quarrel took place between them with respect

to payment of balance amount. Aforementioned fact has been

admitted by husband of complainant in Paragraph-4 of his

statement before the trial Court. He also contended that

Pramila (PW-3), who was examined as an eyewitness to prove

entrance of applicant in the house of complainant, has not

supported case of prosecution by deposing that she does not

know anything about incident, police has not recorded her

statement. In cross-examination this witness also denied

suggestion with regard to entry of accused persons in the

house of complainant. He also contended that as per

prosecution story, complainant, immediately after the incident,

informed village Kotwar (PW-4) about the incident, but this

witness has also not supported prosecution case. Hence,

prosecution failed to prove beyond reasonable doubt any of

the charges framed against applicant. However, both the

Courts below have not considered the evidence of prosecution

witness in its proper perspective and erroneously convicted

and sentenced the applicant.

5. Mr. H.S. Ahluwalia, learned Deputy Advocate General for the

State opposes submissions of learned counsel for applicant

and submits that allegation against applicant and co-accused

was that they entered into house of complainant, when she

was all alone in the house, and tried to outrage her modesty.

In cases where allegation is of outraging modesty of a woman,

the conviction can be based on solitary evidence of victim

only. In case at hand, husband of complainant stated that on

his return to house from his work place, his wife (complainant)

told him about the incident and next day report was lodged.

Complaint made by complainant was prompt, hence there is

no reason to suspect upon the report lodged. Findings

recorded by both the Courts below are based on proper

appreciation of evidence available on record and the same do

not call for any interference.

6. I have heard learned counsel for the parties and perused the

record.

7. In order to prove charges levelled against applicant,

prosecution examined six witnesses namely Prosecutrix (PW-

1), husband of prosecutrix (PW-2), Pramila Bai (PW-3),

Dayabai (PW-4), D.C. Singh (PW-5) & B.S. Sharma (PW-6).

These witnesses have proved the documents exhibited as

Ex.P-1, P-2, P-3 & P-4. Complainant lodged FIR on

19.10.2001 at about 11:50 a.m. for the alleged incident

occurred on 18.10.2001 at about 7:10 p.m. (19:10 hrs)

alleging that applicant along with co-accused Santosh Pandey

entered into her house, co-accused Santosh closed the door

from inside, applicant tried to caught hold of her hand with

intent to outrage her modesty, whereupon she opened the

door and came out. Thereafter accused persons fled from the

spot. Copy of FIR is marked as Ex.P-3. Complainant (PW-1)

in her evidence stated that after incident, she went to the

house of Kotwarin Dayabai (PW-4), brought her to her house.

At the time of incident, she and her one year old child were

only in the house. In the cross-examination, she admitted that

applicant provided single point electricity connection to her

house for which she has paid Rs.600/- to him, but despite

demand made by her when applicant has not given any

receipt of the same to her, she had not given balance Rs.200/-

to applicant. Prior to incident, applicant came to her house 4-

5 times and demanded money. Quarrel took place between

them for Rs.200/-. She admitted that due to non-payment of

balance amount of Rs.200/-, electricity supply to her house

was discontinued. The fact that there was dispute between

them on account of balance of Rs.200/- towards single point

electricity connection installed by applicant has been admitted

by PW-2 Virdhi, husband of complainant. He also admitted

that had the electricity line was not disconnected and receipt

was given by applicant, this would not have happened.

8. PW-3 Pramila, neighbourer of complainant, stated that she

does not know anything about the incident. She also denied of

any statement made by her to the police as appearing in

Ex.P-1 i.e. statement recorded under Section 161 CrPC by

police during investigation. This witness was declared hostile

by the prosecution.

9. PW-4 Dayabai, Kotwar of village, stated that complainant

came to her and informed that thief had entered into her

house and she wanted to go to lodge report. This witness

denied her statement as recorded by police under Section 161

CrPC.

10. This version of complainant that immediately after incident,

she went to the house of Kotwar (PW-4) and informed about

the incident does not get corroboration from the statement of

PW-4 Dayabai. However, from the admission of complainant

(PW-1) and her husband (PW-2), it is evident that there was a

dispute between them and applicant due to disconnection of

electricity supply to their house by applicant; prior to incident,

applicant came to the house of complainant 4-5 times and

demanded balance amount towards installation of electricity

connection; there was quarrel between them for balance of

Rs.200/- on the complainant. In view of aforementioned

evidence available on record, false implication of an attempt to

outrage modesty of complainant cannot be ruled out. In the

above facts of the case, I am of the view that the prosecution

failed to prove beyond reasonable doubt the charge under

Section 354 of IPC against applicant. Both the Courts below

have not considered the evidence in proper manner, more so

when there was dispute of demand of money and prior quarrel

of complainant with applicant, which is also admitted by

complainant and her husband in their evidence. Evidence of

prosecution witnesses, more so evidence of interested

witnesses requires close scrutiny and minute consideration.

11. Hon'ble Supreme Court in case of Pandurang Sitaram

Bhagwat versus State of Maharashtra, reported in (2005) 9

SCC 44 while considering the appeal against conviction under

Section 354 of IPC held as under:-

"20.We are not oblivious that the doctrine 'falsus in uno, falsus in omnibus' is not applicable in India but the evidence led by the parties must be appreciated keeping in view the entirety of the situation. The Trial Judge, as noticed herein before, came to the conclusion that most of the statements made by PW-2 and PW-3 were incorrect and no reliance could be placed thereon. The statements of the said witnesses with regard to commission of an offence by the Appellant under Section 354 IPC should have been considered keeping in view the extent of falsity in their statements. PW-2 and PW-3 not only failed to substantiate the allegations as regard commission of offences under Sections 323, 506, 506 read with Section 34 IPC but also implicated the three persons falsely. The statements of the said witnesses should have been accepted with a pinch of salt and keeping in view the admitted animosity between the parties. The background of the case vis-`-vis continuous animosity between the complainant and her husband, on the one hand, as also and the Appellant and his other tenants could not have been

lost sight of by the learned Trial Judge."

12. Upon appreciating the facts, circumstances and evidence

available on record as also the decision of Hon'ble Supreme

Court in aforementioned case, I am of the view that conviction

of applicant under Section 354 of IPC recorded by trial Court

and affirmed by appellate Court is not sustainable and it is

hereby set aside.

13. So far as conviction of applicant under Section 454 of IPC is

concerned, the complainant (PW-1) in FIR has made

allegations that applicant along with co-accused Santosh

Pandey entered into her house, abused her, tried to outrage

her modesty and ran away. Dayabai (PW-4) stated in her

evidence that complainant came to her house and informed

that thief entered into her house. There is no allegation of

intent of committing theft by complainant (PW-1). Statement

of applicant was recorded under Section 313 CrPC, but

applicant has not examined any witness in his defence.

Hence, in the facts and circumstances of the case, allegation

of entering into house of complainant at about 7:10 p.m.

cannot be said to be false and baseless. Considering oral and

documentary evidence available on record; finding recorded

with regard to offence under Section 354 of IPC and entirety of

evidence, finding of trial Court holding applicant guilty for

commission of offence under Section 454 of IPC is also not

sustainable and instead, applicant is liable to be convicted

under Section 453 of IPC. Hence, conviction of applicant

under Section 454 of IPC is altered to Section 453 of IPC.

14. On the point of sentence, Mr. DN Prajapati, learned counsel

for the applicant submits that looking to date of incident,

nature of dispute, jail sentence imposed upon applicant, the

sentence imposed upon applicant may be reduced to the

period already undergone by him.

15. Date of incident is 18.10.2001, applicant is facing mental

agony of criminal case for last more than 20 years, after the

judgment passed by the appellate Court, applicant remained

in jail for about 17 days prior to his release on bail pursuant to

the order of suspension of sentence passed by this Court.

Hon'ble Supreme Court in its various decisions has held that

nature of offence, period of pendency of criminal proceedings

since date of initiation till the date of its hearing, can be one of

the grounds of reduction of substantive jail sentence.

16. Consequently, conviction and sentence of applicant under

Section 354 of IPC are hereby set aside. Conviction of

applicant under Section 454 of IPC is altered to conviction

under Section 453 of IPC and substantive jail sentence is also

altered from RI for 1 year to the period of sentence already

undergone by applicant. However, fine amount imposed upon

applicant is enhanced from Rs.500/- to Rs.2,000/-, in default

to undergo RI for 01 months. Fine amount so deposited by

applicant will be paid to the complainant as compensation

after verifying her credentials.

17. Accordingly, revision is allowed in part. Conviction and

sentence are altered as mentioned above.

Sd/-

(Parth Prateem Sahu) Judge

roshan/-