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Raju Tiwari vs State Of C.G. 20 Wps/3545/2018 … on 16 October, 2019


Criminal Appeal No. 578 of 2002

Judgment reserved on 03.10.2019

Judgment delivered on 16.10.2019

Raju Tiwari S/o. Jainarayan Tiwari, Aged about 23 years, R/o.
Kushalpur Raipur, Purani Basti, Chhattisgarh,

Permanent resident vilage Usuri, District Shiwan, Police Station
Hasanpura (Bihar)

—- Appellant

State of Chhattisgarh through Police Station Purani Basti, Bhilai-3,
District Durg (C.G.)

—- Respondent


For Appellants : Mr. Malay Kumar Bhaduri, Advocate.
For Respondent : Ms. Shriya Mishra, Panel Lawyer


Hon’ble Smt. Justice Vimla Singh Kapoor

FIR (Ex.P-1) lodged by Dilip Kumar Verma (PW-2)- son of the

prosecutrix (PW-1) demonstrates that on 03.11.2001 he brought the

accused to his house and on being asked by the accused he went to

call one Khileshwari thereto. At that time, the prosecutrix – a blind

married lady and the accused alone were present there. Since the

prosecutrix was blind, the accused/appellant assured her of driving

away her blindness by treating her and on this pretext he bolted

the door from inside and committed forcible sexual intercourse with

her. On account of door being closed from inside, PW-2 reached

there by jumping over the wall and found the accused/appellant

committing sexual intercourse with PW-1. Thereafter, the

accused/appellant was caught hold of, handed over to the police

and the FIR Ex.P-1 came to be lodged. After completion of

investigation charge sheet was filed under Sections 450 and Section376

IPC followed by framing of charge accordingly.

2. Learned court below by its judgment dated 22.05.2002 passed

in Sessions Trial No. 48/2002 acquitted the appellant under Section

376 but convicted him under Section 354 IPC and sentenced to

undergo RI for two years. Hence, this appeal.

3. Counsel for the accused/appellant submits that even the

prosecutrix (PW-1) much less her son PW-2 have not supported the

case of the prosecution. He submits that the prosecutrix herself has

negated the act of sexual intercourse committed by the

accused/appellant. Medical report, according to the counsel for the

appellant, also does not stand by the prosecution.

4. State counsel however, supports the judgment impugned to be

fully justified.

5. Of course, the prosecutrix has not consistently stated anything

like sexual intercourse committed with her by the accused yet she

has categorically stated that on the date of incident the accused

came to her house and on the pretext of giving treatment to her for

her blindness, made her lie on the cot, by witchcraft made her

unconscious and committed forcible sexual intercourse with her.

However, she has not stated as to how and in what manner the

sexual intercourse was committed with her as she was already

unconscious. PW-2 has also stated that after he returned home the

accused/ appellant was involved in commission of sexual

intercourse with PW-1. Though this witnesses has made this

exaggerated statement yet looking to the version of prosecutrix

and the medical evidence as well it becomes difficult for this Court

to hold him guilty under Section 376 IPC and being so the trial Court

has rightly acquitted of the said charge. However, there is ample

evidence to show that the accused/appellant made the prosecutrix

lie on the bed and made her unconscious by the act of witchcraft,

and therefore, his conviction under Section 354 IPC cannot be said

to be at fault. Since, the prosecutrix was not subjected to forcible

sexual intercourse as is clear by her own testimony, the medical

report being negative is quite natural.

6. Accordingly, the conviction of the appellant under Section 354

IPC is maintained. However, looking to the fact that the appellant

has already remained in jail for more than six months and also

keeping in mind the fact that the incident had taken place in the

year 2001 and the appellant has already faced a long drawn

prosecution, this Court is inclined to reduce the sentence imposed

on him to the period already undergone. Order accordingly.

7. Appeal thus allowed in part.


(Vimla Singh Kapoor)

Jyotishi/ Santosh

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