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Raju Sen vs State Of Chhattisgarh 39 … on 19 November, 2018

NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 417 of 2005

Order reserved on 11.09.2018

Order pronounced on 19 .11.2018

Raju Sen, S/o Bishoha Ram Sen, aged about 27 years, R/o
Potiyadih, Thana – Arjuni, District – Dhamtari, CG.
—- Applicant
Versus
State of Chhattisgarh, through District Magistrate, District
Dhamtari, CG.
—- Respondent

For Applicant : Shri K.K. Dewangan, Advocate
For State/ Respondent : Smt. M. Aasha, Panel Lawyer

Hon’ble Smt. Justice Vimla Singh Kapoor

CAV Order

The accused / applicant has preferred this revision petition
against the judgment of conviction and order of sentence dated
15/09/2005 passed by Additional Sessions Judge, Dhamtari,
(Session Division, Raipur) CG in Criminal Appeal No. 282/2004
affirming the judgment dated 04.10.2004 passed by Judicial
Magistrate First Class, Dhamtari, in Criminal Case No. 385/2000
convicting the accused/applicant under Sections 456 and 354 IPC
and sentencing him to undergo RI for two years with fine of Rs.
1,000/- under Section 456 and RI for one year with fine of Rs.
500/- under Section 354 IPC, plus default stipulation.

2. Briefly stated facts of the case leading to the disposal of
present revision petition are that on 13.06.2000 at about 2 in the
midnight when the prosecutrix was sleeping in her house, the
accused/applicant herein gained and entry therein, caught hold of
her shoulder, got over the cot in which she was sleeping, pressed
her mouth and tried to remover her cloths. Meanwhile, her
husband reached there and on seeing him the accused/applicant
tried to run away but was apprehended by him – the husband of
the prosecutrix. On the basis of FIR (Ex. P-1) lodged by the
prosecutrix, offences under Sections 354 and 456 IPC were
registered against the accused/applicant and after completion of
investigation charge sheet was filed against the applicant under
the same section. From the record it appears that during the
pendency of trial the prosecutrix died.

3. On being satisfied with the averments of the parties and
evidence on record the trial Court convicted and sentenced the
accused/applicant as mentioned above. The findings recorded by
the trial Court have been affirmed by the lower appellate Court by
the Judgment impugned, and it is that which is under challenge in
this revision.

4. Learned counsel for the accused/applicant submits that he
is not pressing this revision on merits and would confine his
argument to the sentence part of the judgment assailed therein.
According to him, as the incident had taken place in the year
2000, and that he has already remained in jail for a period of 10
days, no useful purpose would be served in again sending him to
jail, and therefore, the sentence imposed upon him may be
reduced to the period already undergone by him.

5. State counsel however, supports the findings recorded by
both the Courts below.

6. Heard counsel for the parties and perused the material on
record.

7. Though counsel for the accused/applicant is not inclined to
press conviction of the accused/applicant, this Court thinks it
appropriate to refer to the evidence of the witnesses to ascertain
his guilt or innocence and therefore, it proceeds to do so.

8. This Court is not in agreement with the stand of the
accused that on account of death of the prosecutrix during trial
the conviction of the accused/applicant is not sustainable. It is for
the reason that even if she is not there to express her agony,
number of witnesses including her husband are there to state the
things. From the evidence of PW-2 – the husband of the
prosecutrix, it is clear that on the date of incident he had
apprehended the accused/applicant in the room of his wife and at
that time the accused/applicant was in naked condition. Evidence
of this witness has been corroborated by PW-3, PW-4, PW-5, PW-6
and PW-7. Even PW-1 – the investigating officer has also
supported the case of the prosecution stating that the prosecutrix
while lodging the report had clearly disclosed the act of the
accused/applicant that on the date of incident he had entered her
house in the midnight and tried to outrage her modesty. Thus,
taking into consideration the material collected by the
prosecution including the evidence of the witnesses, it is
apparent that on the date of incident the accused/applicant had
committed a house tress-pass and used criminal force on the
prosecutrix with an intention to outrage her modesty.

9. Thus, in view of the factual discussion made above in the
light of the evidence of the witnesses, this Court is of the opinion
that both the Courts below have been quite justified in holding
the accused/applicant guilty under Sections 354 and 456 IPC, and
being so, the same is hereby maintained.

10. As regards sentence, keeping in view the fact that the
incident had taken place about 18 years back and the applicant
has already remained in jail for a period of 10 days, this Court is
of the opinion that it would be in the interest of justice to reduce
the sentence to the period already undergone by him. Order
accordingly.

11. Resultantly, the revision petition is hereby allowed in part
with the modification in the judgment impugned as above.

Sd/-

(Vimla Singh Kapoor)
Judge

Jyotishi/Pawan

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