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2011 DIGILAW 141 (CHH)

JHAMMAN ALIAS JAYMAN v. STATE OF C. G.

2011-04-08

T.P.SHARMA

body2011
ORDER 1. By this criminal revision petitioner has challenged the legality and propriety of the order dated 30/9/2009 passed by learned Sessions Judge, Sarguja (Ambikapur) in criminal Appeal No. 153/08 affirming the judgment of conviction and order of sentence dated 27/11/08 passed by Judicial Magistrate First Class, Camp Court, Ambikapur in criminal case No. 187/08 whereby and where under after holding the petitioner guilty for the offence punishable under Sections 457 & 354 of the Indian Penal Code, learned Judicial Magistrate First Class, Camp Court Ambikapur sentenced the petitioner imprisonment for 2 years and fine of Rs. 100/- and imprisonment for 3 months. 2. Judgment is impugned on the ground that without any credible and clinching evidence Court below has convicted and sentenced the petitioner and thereby committed an illegality. 3. Brief facts necessary for disposal of this criminal revision is on 10/ 3/03 at about 12 at night while prosecutrix PW1 (name not mentioned) was sleeping in her house petitioner by dashing the door by kick open the door of the prosecutrix and caught hold her with intent to outrage her modesty. Any how she rescued herself. Second day she narrated the incident to other persons and lodged First Information Report vide Ex. P-l. Spot map was prepared vide Ex. P-2. She was examined by doctor vide Ex. P-6. After completion of the investigation charge sheet was filed before the learned Judicial Magistrate First Class, Camp Court Ambikapur who after trial convicted and sentenced the petitioner. Conviction and sentence were challenged before the appellant Court and learned Sessions Judge Sarguja (Ambikapur) while affirming the conviction and sentence dismissed the appeal vide judgment impugned. 4. Shri Sudeep Agrawal, Advocate for the applicant/petitioner and Shri Pradeep Singh, P.L. for the State/non-applicant are heard. 5. Judgment impugned and records of the Courts below perused. 6. Learned counsel for the petitioner vehemently argued that conviction is based on the evidence of solitary witness complainant i.e. prosecutrix which does not inspire confidence and trustworthy. She has not intimated the incident immediately to her neighbour and other villagers. Her solitary evidence is not safe to rely for convicting the petitioner while convicting the petitioner both the Courts below have not considered these most material legal aspect of the case and thereby committed an illegality. 7. She has not intimated the incident immediately to her neighbour and other villagers. Her solitary evidence is not safe to rely for convicting the petitioner while convicting the petitioner both the Courts below have not considered these most material legal aspect of the case and thereby committed an illegality. 7. On the other hand, learned counsel for the State/respondent opposed the revision and submits that alleged incident took place at night and no person was present near the place of incident therefore it was not possible for the prosecutrix who was present alone in her house with three small kids to narrate the incident to neighbour. Her evidence is corroborated by the promptly lodged First Information Report and is sufficient for conviction of the petitioner. 8. Evidence adduced on behalf of the prosecution and record of the. Courts below perused. 9. On close scrutiny of the evidence of PW1 prosecutrix, I do not find any infirmity in her evidence she has narrated the incident, her evidence is natural and well corroborated by the First Information Report lodged by her. Both the Courts below has rightly convicted and upheld the conviction of the petitioner under Sections 457 & 354 of the Indian Penal Code. 10. As regard the question of sentence is concerned, Court below have rightly sentenced and affirmed the sentence of imprisonment for 3 months under Section 354 of the Indian Penal Code. As regard the sentence under Section 457 of the Indian Penal Code is concerned, considering the age of the petitioner and nature of offence and the material fact that although the prosecutrix was alone in her house and nobody was present to help her but petitioner has not committed any sexual act sentence of 2 years awarded to the petitioner, is disproportionate, therefore the sentence imposed for the offence punishable under Section 457 of the Indian Penal Code require reconsideration. Consequently, the criminal revision is partly allowed. Consequently, the criminal revision is partly allowed. Conviction of the petitioner under Sections 457 & 354 of the Indian Penal Code and sentence of imprisonment for 3 months imposed upon the petitioner for the offence punishable under Section 354 of the Indian Penal Code is maintained but the sentence of imprisonment for 2 years imposed upon the petitioner for the offence punishable under Section 457 of the Indian Penal Code is reduced to the imprisonment for custodial period i.e. for 6 months and II days which he has spent in Jail. Petitioner shall be released immediately if not required in any other case. Revision Partly Allowed.