Chattisgarh High Court
Dawan @ Bhursa vs State Of Chhattisgarh on 4 February, 2025
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.02.06
10:46:05 +0530
2025:CGHC:6396
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 147 of 2007
Dawanram @ Bhursa S/o Sadhuram Kalar, aged about 55 years,
resident of Sitagaon, Thana Oundhi, District Rajnandgaon (CG)
... Appellant
versus
State Of Chhattisgarh Through Police Station Oundhi, District
Rajnandgaon (CG)
... Respondent
For Appellant : Mr. Abhishek Sharma, Advocate
For Respondent/State : Mr. H. A. P. S. Bhatia, Panel Lawyer
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Judgment on Board
(04.02.2025)
1. The present appeal arises out of the impugned judgment of
conviction and order of sentence dated 23.01.2007 passed by
learned Special Judge, Rajnandgaon (C.G.) in Special Case No.
34/2006 whereby, the appellant has been convicted and sentenced
as under:-
Conviction Sentence
U/s 450 of IPC R.I. for 2 years and fine of Rs.500/-, in
default of payment of fine amount,
additional S.I. for 2 months.
U/s 376/511 of IPC R.I. for 2 years and fine of Rs.500/- in
default of payment of fine amount,
additional S.I. for 2 months.
(Both the sentences were directed to run concurrently).
2. The case of prosecution, in short, is that, on 15.04.2006 at about
11:00 p.m., the complainant/prosecutrix was sleeping in her house
along with her son Komal. At that time, the appellant entered her
house, climbed on the cot on which she was sleeping, lifted her
garments and caught hold her thigh. On suspicion, she pushed him
back with her hands. She recognized the appellant in the light of a
torch and started shouting thief-thief. On hearing her scream, her
son and other neighbours came there and caught the appellant.
Based on the complaint made by the prosecutrix, FIR was lodged
against the appellant and after due investigation charge sheet was
filed.
3. So as to hold the accused/appellant guilty, the prosecution has
examined as many as 11 witnesses in support of its case.
Statement of the accused/appellant was also recorded under
Section 313 of the Cr.P.C. in which he denied the charges leveled
against him and pleaded innocence and false implication in the
case. However, three witnesses have been examined by the
appellant in his defence.
4. Learned trial Court, after appreciation of oral and documentary
evidence on record, convicted and sentenced the appellant as
mentioned in the opening paragraph of this judgment, against
which the present appeal has been preferred by the appellant
questioning the legality, validity and correctness of the impugned
judgment.
5. Learned counsel for the appellant submits that the learned trial
Court is absolutely unjustified in convicting the appellant for the
aforesaid offence as there was dispute going on between Halba
and Kalar Castes, therefore, the appellant has been falsely
implicated in this case. He submits that since the prosecutrix used
to sell liquor, the appellant went to her house to drink liquor and
on account of darkness, he touched the leg of the prosecutrix.
Hence, if the entire case of the prosecution is taken as it is, at best,
the offence under Sections 457 & 354 of IPC would be made out
and, therefore, the conviction of appellant under Section 450 &
376/511 of I.P.C. may be altered/converted to Sections 457 & 354
of I.P.C. and the sentence imposed upon him be reduced to the
period already undergone by him, as he has already remained in
jail for more than 10 months 11 days.
6. On the other hand, learned State counsel, supports the impugned
judgment and submits that prosecution has been able to prove the
offence beyond reasonable doubt and the trial Court has rightly
convicted the appellant for the aforesaid offence and therefore, the
instant appeal deserves to be dismissed.
7. Heard learned counsel for the parties and perused the record
including the impugned judgment.
8. The prosecutrix (PW-1) has stated before the court that on the date
of incident at about 10:30 p.m. the appellant came to her house,
lifted her Saari and Lahnga and caught her thigh. On suspicion,
she lit a torch and recognized that it was the appellant. When she
shouted thief-thief, her son and neighbours came there and caught
the appellant. The husband of the prosecutrix Rai Singh (PW-5)
has stated that her wife (prosecutrix) told him that the appellant
had come to their house and caught her arm and hand. Similarly,
Mangturam (PW-6) has also stated that the prosecutrix told him
that the appellant caught hold of her arm and hand and did nothing
else.
9. From the record it is also evident that there is a counter report
lodged by the appellant against the complainant party. In the said
counter report, it has been stated that the appellant had gone to
the house of prosecutrix at night to drink alcohol because she used
to sell alcohol and in the dark, his foot touched the leg of
prosectrix. When the prosecutrix shouted thief-thief, the people of
the neighborhood came there and beat him up. Both the reports
have been lodged on the same date with an interval of one hour.
Whatever the appellant has said in his statement recorded under
section-313 CrPC, the same has been said by the defense
witnesses.
10. The conviction of appellant has been made under sections 450 and
376/511 of IPC. Section 450 of the Indian Penal Code deals with
house-trespass to commit an offense that is punishable by life
imprisonment and section-376/511 deals with attempt to rape.
11. From the evidence available on record, it has been proved that the
appellant had entered the house of the prosecutrix at night and
touched her thigh, therefore, it would not be an attempt to rape but
it would be an act of outraging the modesty of the victim which
would fall under the category of section 354 of IPC. Since the
offence under section 354 of IPC is not punishable with life
imprisonment, the conviction of appellant would be under Section
457 of IPC instead of section 450 of IPC.
12. In that view of the matter, the conviction of appellant under
Section 450 & 376/511 of IPC is altered/converted to sections 457
354 of IPC respectively and he is sentenced to the period already
undergone by him, as he has already remained in jail for about 10
months 11 days.
13. Appellant is on bail. he need not surrender, however, his bail bonds
shall remain in force for a period of six months in view of the
provisions contained in Section 437A of the CrPC.
14. In the result, this criminal appeal is partly allowed to the extent
indicated herein-above.
15. Let a certified copy of this judgment along with the original record
be transmitted forthwith to the trial Court concerned, for information
and necessary action, if any.
Sd/-
(Sanjay Kumar Jaiswal)
Judge
Khatai
