HIGH COURT OF CHHATTISGARH, BILASPUR
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
State of Chhattisgarh through Police Station Purani Basti, Bhilai-3,
District Durg (C.G.)
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
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)