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2013 DIGILAW 89 (CHH)

ISHWAR LAL v. STATE OF C. G.

2013-03-07

PRITINKER DIWAKER

body2013
ORDER 1. This revision is directed against the judgment and order dated 12.11.2002 passed by Additional Sessions Judge, Bemetra District Durg in Criminal Appeal No. 214/1996 convicting the accused/applicant under Sections 456, 354, 324 and 323 IPC and sentencing him to undergo RI for six months under Sections 354 and 324 each, and pay fine of Rs. 500/- under Sections 456 and 323 IPC each. 2. Facts of the case in brief are that on 16.6.1989 FIR Ex. P-1 was lodged by complainant Ku. M. Devnath (PW-1) who was working as a nurse alleging that on 15.6.1989 at about 11 p.m. when she was sleeping in her house, accused/applicant knocked at the door and when it was not opened by her, he jumped over the wall and gained an entry to her house. Thereafter, the accused/applicant caught hold of her with an intention to outrage her modesty and bite her near right eye brow and cheek. He is also alleged to have given a blow on her mouth as a result of which she sustained injury on her teeth and in order to save herself she also bite the accused/applicant. Based on this FIR, offence under Section 354 IPC was registered against the accused/applicant. Complainant was medically examined on 16.6.1989 vide Ex. P-4 and as many as four injuries were found on her body. After investigation, charge-sheet was filed against the applicant on 29.6.1989 for the offence under Sections 354, 324, 325, 323 and 456 IPC. Court below however framed the charge under Sections 457, 354, 325, 324 and 323 IPC. 3. In support of its case the prosecution has examined 7 witnesses. Statement of the accused/applicant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial Court by its judgment dated 26.11.1996 convicted the accused/applicant under Sections 456, 354, 325 and 324 IPC and sentenced him to undergo RI for six months under each Section. Additionally, the applicant was directed to pay fine of Rs. 500/- under Sections 456 and 325 IPC each. In appeal, the lower Appellate Court maintained the conviction under Sections 456, 354 and 324 IPC but altered it under Section 325 to 323 IPC and sentenced him to pay fine of Rs. 500/-. Hence this revision. 5. Additionally, the applicant was directed to pay fine of Rs. 500/- under Sections 456 and 325 IPC each. In appeal, the lower Appellate Court maintained the conviction under Sections 456, 354 and 324 IPC but altered it under Section 325 to 323 IPC and sentenced him to pay fine of Rs. 500/-. Hence this revision. 5. Heard counsel for the parties and perused the material available on record. 6. Counsel for the applicant submits that the offence under Sections 456 and 323 IPC is not made out against the accused/applicant. He submits that there is no evidence to show that the applicant made an attempt to outrage the modesty of the complainant and thus his conviction under Section 354 IPC is also bad. He further submits that as no dangerous weapon has been used by the applicant, he cannot be convicted under Section 324 IPC. 7. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that for bringing home the offence under Section 324 IPC, use of dangerous weapon is not necessary and tooth bite would also come within the purview of Section 324 IPC. He further submits that in the night the accused/applicant had entered the house of the complainant with an intention to outrage her modesty and thus conviction under Sections 354 and 456 is in accordance with law. According to the State counsel, the Court below has already taken a lenient view while imposing the sentence and therefore no interference with the concurrent findings of the two Courts below is warranted. 8. Complainant (PW-1) has stated that on the date of incident when she was sleeping in her house, the accused/applicant knocked at the door but she did not open the same and instead she called her three neighboures. When the door was knocked again, she made an inquiry from the accused/applicant as to who he was on which he disclosed his name as Ishwar Lal. This witness has further stated that to save herself, she went to the room of her tenants who were living in the same premises but even then the accused/applicant was persistently knocking the door. Thereafter, the applicant entered her house by jumping over the wall and seeing him in this condition, other persons who were with her fled away from there. Thereafter, the applicant entered her house by jumping over the wall and seeing him in this condition, other persons who were with her fled away from there. According to this witness, the accused/applicant first poured kerosene oil in her house saying that he would kill her. On account of the threat given by the accused/applicant, all other persons went away but she was caught by him from back side, he pressed her neck and tried to outrage her modesty. Accused/applicant is also stated to have bitten her cheek and near the eye brow. According to her, in order to save herself, she also bite the accused/applicant and that after arrival of one person, the accused/applicant left the place. In cross examination too this witness did not state anything new and remained stuck to the version put forth in examination-in-chief. Hari Shankar (PW-2) is the Kotwar who prepared spot map Ex. P-2. Jivrakhan (PW-3) has not supported the case of the prosecution and has been declared hostile. Dr. K. Shrivastava (PW-4) is the witness who medically examined the complainant and gave his report Ex. P-4 which shows that following six injuries were found on the body of the complainant : (i) Dislocation of upper left lateral incisor tooth (ii) Abrasion - eliptical in form showing small interrupted marks - Intervening space is bruised red in colour and swelling is present around the injury. (iii) Abrasion - rectangular in shape, dark red in colour, swelling is present around the injury. (iv) Contusion - oval in shape, swelling is present red in colour. (v) Abrasion - rectangular in shape, red in colour. (vi) Linear abrasions, two in number. Domar Singh (PW-5), Ranbir Singh (PW-6) and Hriday Kumar (PW7) have not supported the case of the prosecution. 9. Having thus seen the evidence of the witnesses, in particular that of the complainant (PW-1) where she has categorically stated that while she was sleeping in her house in the night, accused/applicant gained an entry thereto and tried to outrage her modesty. Submission of the counsel for the applicant that as no dangerous weapon was used by the applicant in causing injury to the complainant, his conviction under Section 324 IPC is not sustainable in law, has no force because even the tooth bite injury comes within the purview of that Section. Submission of the counsel for the applicant that as no dangerous weapon was used by the applicant in causing injury to the complainant, his conviction under Section 324 IPC is not sustainable in law, has no force because even the tooth bite injury comes within the purview of that Section. Thus the concurrent findings given by the two Courts below are strictly in accordance with law and there is no infirmity in the same. 10. In the result, the revision being without substance is liable to be dismissed and it is dismissed as such. Revision Dismissed.