Partly allowed

Devendra Kumar @ Ballu v. State of Chhattisgarh

Chhattisgarh HC13 Oct 2022CRR/89/2011

Case brief

AI extract

What is this about?

High Court allowed criminal revision, setting aside conviction under Section 354 IPC due to unresolved dispute and lack of corroboration. Conviction under Section 454 IPC was altered to Section 453 IPC. Sentence was modified to reduce imprisonment to time already served and enhanced fine.

What did the court decide?

Conviction under Section 354 IPC set aside. Conviction under Section 454 IPC altered to Section 453 IPC. Sentence altered to period already undergone with enhanced fine.

Devendra Kumar @ Ballu Vs State of Chhattisgarh — Cheating and Forgery | Chhattisgarh HC (2022)

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AFR

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Order reserved on 16.6.2022 Order delivered on 13/10/2022

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRR No. 89 of 2011

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Devendra Kumar @ Ballu, S/o Ramji Sen, aged about 31 years, R/o Kurud, P.S. Jamul, District Durg (CG)

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---- Applicant

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Versus

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State of Chhattisgarh through PS Jamul District Durg (CG) ---- Respondent

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For Applicant : Mr. D.N. Prajapati, Advocate For Respondent : Mr. H.S. Ahluwalia, Dy. Advocate General

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SB: Hon'ble Mr. Justice Parth Prateem Sahu CAV Order

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Challenge in this criminal revision is to the judgment dated 3.2.2011 passed by learned Additional Sessions Judge, Durg in Criminal Appeal No.52/10 thereby dismissing appeal and affirming the judgment dated 15.6.2010 passed by the Judicial Magistrate 1^st Class, Durg in Criminal Case No.2/2009 convicting applicant under Sections 454 & 354 of the Indian Penal Code, 1860 (for short 'IPC') and sentencing him to undergo RI for 01 year with fine of Rs.500/-, in default to undergo additional RI for 02 months; RI for 6 months with fine of Rs.500/-, in default to undergo additional RI for 2 months respectively.

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Facts of the case, in brief, are that on 18.10.2001 at about 7:10 a.m. applicant along with co-accused Santosh Pandey entered into house of complainant, Santosh Pandey closed the doors from inside; applicant caught hold forearm of complainant with intent to outrage her modesty. Complainant somehow managed to come out from clutches of accused persons and came out of house, whereupon accused persons fled from spot. Complainant narrated the incident to her neighbourers as also village Kotwar Dayabai (PW-4), went to police station and lodged report, based upon which FIR was registered against applicant and co-accused Santosh Pandey for commission of offence punishable under Section 448 & 354 read with Section 34 of IPC. On completion of investigation, police filed charge sheet against applicant and co-accused Santosh Pandey before the trial Court concerned under Sections 452 & 354 of IPC. Trial Court framed charges under Sections 454 & 354 of IPC against accused persons. They abjured their guilt and sought for trial. During course of trial, co-accused Santosh Pandey died.

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Trial Court on appreciation of evidence, oral and documentary, brought on record by both sides, vide judgment dated 15.6.2010 held that prosecution proved the charges under Sections 454 & 354 of IPC against applicant and accordingly convicted and sentenced in the manner as mentioned in first paragraph of this order. Applicant preferred criminal appeal before the Court of Sessions challenging his conviction, which

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was also dismissed by impugned judgment.

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Mr. D.N. Prajapti, learned counsel for applicant would submit that it is the case of false implication. Applicant provided electricity connection to complainant and her husband for Rs.8,000/-, out of which they have paid only Rs.6,000/- to him, therefore, some quarrel took place between them with respect to payment of balance amount. Aforementioned fact has been admitted by husband of complainant in Paragraph-4 of his statement before the trial Court. He also contended that Pramila (PW-3), who was examined as an eyewitness to prove entrance of applicant in the house of complainant, has not supported case of prosecution by deposing that she does not know anything about incident, police has not recorded her statement. In cross-examination this witness also denied suggestion with regard to entry of accused persons in the house of complainant. He also contended that as per prosecution story, complainant, immediately after the incident, informed village Kotwar (PW-4) about the incident, but this witness has also not supported prosecution case. Hence, prosecution failed to prove beyond reasonable doubt any of the charges framed against applicant. However, both the Courts below have not considered the evidence of prosecution witness in its proper perspective and erroneously convicted and sentenced the applicant.

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Mr. H.S. Ahluwalia, learned Deputy Advocate General for the

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State opposes submissions of learned counsel for applicant and submits that allegation against applicant and co-accused was that they entered into house of complainant, when she was all alone in the house, and tried to outrage her modesty. In cases where allegation is of outraging modesty of a woman, the conviction can be based on solitary evidence of victim only. In case at hand, husband of complainant stated that on his return to house from his work place, his wife (complainant) told him about the incident and next day report was lodged. Complaint made by complainant was prompt, hence there is no reason to suspect upon the report lodged. Findings recorded by both the Courts below are based on proper appreciation of evidence available on record and the same do not call for any interference.

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I have heard learned counsel for the parties and perused the record.

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In order to prove charges levelled against applicant, prosecution examined six witnesses namely Prosecutrix (PW1), husband of prosecutrix (PW-2), Pramila Bai (PW-3), Dayabai (PW-4), D.C. Singh (PW-5) & B.S. Sharma (PW-6). These witnesses have proved the documents exhibited as Ex.P-1, P-2, P-3 & P-4. Complainant lodged FIR on 19.10.2001 at about 11:50 a.m. for the alleged incident occurred on 18.10.2001 at about 7:10 p.m. (19:10 hrs) alleging that applicant along with co-accused Santosh Pandey

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entered into her house, co-accused Santosh closed the door from inside, applicant tried to caught hold of her hand with intent to outrage her modesty, whereupon she opened the door and came out. Thereafter accused persons fled from the spot. Copy of FIR is marked as Ex.P-3. Complainant (PW-1) in her evidence stated that after incident, she went to the house of Kotwarin Dayabai (PW-4), brought her to her house. At the time of incident, she and her one year old child were only in the house. In the cross-examination, she admitted that applicant provided single point electricity connection to her house for which she has paid Rs.600/- to him, but despite demand made by her when applicant has not given any receipt of the same to her, she had not given balance Rs.200/to applicant. Prior to incident, applicant came to her house 4- 5 times and demanded money. Quarrel took place between them for Rs.200/-. She admitted that due to non-payment of balance amount of Rs.200/-, electricity supply to her house was discontinued. The fact that there was dispute between them on account of balance of Rs.200/- towards single point electricity connection installed by applicant has been admitted by PW-2 Virdhi, husband of complainant. He also admitted that had the electricity line was not disconnected and receipt was given by applicant, this would not have happened.

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PW-3 Pramila, neighbourer of complainant, stated that she does not know anything about the incident. She also denied of any statement made by her to the police as appearing in

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Ex.P-1 i.e. statement recorded under Section 161 CrPC by police during investigation. This witness was declared hostile by the prosecution.

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PW-4 Dayabai, Kotwar of village, stated that complainant came to her and informed that thief had entered into her house and she wanted to go to lodge report. This witness denied her statement as recorded by police under Section 161 CrPC.

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This version of complainant that immediately after incident, she went to the house of Kotwar (PW-4) and informed about the incident does not get corroboration from the statement of PW-4 Dayabai. However, from the admission of complainant (PW-1) and her husband (PW-2), it is evident that there was a dispute between them and applicant due to disconnection of electricity supply to their house by applicant; prior to incident, applicant came to the house of complainant 4-5 times and demanded balance amount towards installation of electricity connection; there was quarrel between them for balance of Rs.200/- on the complainant. In view of aforementioned evidence available on record, false implication of an attempt to outrage modesty of complainant cannot be ruled out. In the above facts of the case, I am of the view that the prosecution failed to prove beyond reasonable doubt the charge under Section 354 of IPC against applicant. Both the Courts below have not considered the evidence in proper manner, more so

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when there was dispute of demand of money and prior quarrel of complainant with applicant, which is also admitted by complainant and her husband in their evidence. Evidence of prosecution witnesses, more so evidence of interested witnesses requires close scrutiny and minute consideration.

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Hon'ble Supreme Court in case of Pandurang Sitaram Bhagwat versus State of Maharashtra , reported in (2005) 9 SCC 44 while considering the appeal against conviction under Section 354 of IPC held as under:-

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“20.We are not oblivious that the doctrine ' falsus in uno, falsus in omnibus ' is not applicable in India but the evidence led by the parties must be appreciated keeping in view the entirety of the situation. The Trial Judge, as noticed herein before, came to the conclusion that most of the statements made by PW-2 and PW-3 were incorrect and no reliance could be placed thereon. The statements of the said witnesses with regard to commission of an offence by the Appellant under Section 354 IPC should have been considered keeping in view the extent of falsity in their statements. PW-2 and PW-3 not only failed to substantiate the allegations as regard commission of offences under Sections 323, 506, 506 read with Section 34 IPC but also implicated the three persons falsely. The statements of the said witnesses should have been accepted with a pinch of salt and keeping in view the admitted animosity between the parties. The background of the case vis-`-vis continuous animosity between the complainant and her husband, on the one hand, as also and the Appellant and his other tenants could not have been

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lost sight of by the learned Trial Judge.”

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Upon appreciating the facts, circumstances and evidence available on record as also the decision of Hon'ble Supreme Court in aforementioned case, I am of the view that conviction of applicant under Section 354 of IPC recorded by trial Court and affirmed by appellate Court is not sustainable and it is hereby set aside.

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So far as conviction of applicant under Section 454 of IPC is concerned, the complainant (PW-1) in FIR has made allegations that applicant along with co-accused Santosh Pandey entered into her house, abused her, tried to outrage her modesty and ran away. Dayabai (PW-4) stated in her evidence that complainant came to her house and informed that thief entered into her house. There is no allegation of intent of committing theft by complainant (PW-1). Statement of applicant was recorded under Section 313 CrPC, but applicant has not examined any witness in his defence. Hence, in the facts and circumstances of the case, allegation of entering into house of complainant at about 7:10 p.m. cannot be said to be false and baseless. Considering oral and documentary evidence available on record; finding recorded with regard to offence under Section 354 of IPC and entirety of evidence, finding of trial Court holding applicant guilty for commission of offence under Section 454 of IPC is also not sustainable and instead, applicant is liable to be convicted under Section 453 of IPC. Hence, conviction of applicant

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under Section 454 of IPC is altered to Section 453 of IPC.

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On the point of sentence, Mr. DN Prajapati, learned counsel for the applicant submits that looking to date of incident, nature of dispute, jail sentence imposed upon applicant, the sentence imposed upon applicant may be reduced to the period already undergone by him.

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Date of incident is 18.10.2001, applicant is facing mental agony of criminal case for last more than 20 years, after the judgment passed by the appellate Court, applicant remained in jail for about 17 days prior to his release on bail pursuant to the order of suspension of sentence passed by this Court. Hon'ble Supreme Court in its various decisions has held that nature of offence, period of pendency of criminal proceedings since date of initiation till the date of its hearing, can be one of the grounds of reduction of substantive jail sentence.

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Consequently, conviction and sentence of applicant under Section 354 of IPC are hereby set aside. Conviction of applicant under Section 454 of IPC is altered to conviction under Section 453 of IPC and substantive jail sentence is also altered from RI for 1 year to the period of sentence already undergone by applicant. However, fine amount imposed upon applicant is enhanced from Rs.500/- to Rs.2,000/-, in default to undergo RI for 01 months. Fine amount so deposited by applicant will be paid to the complainant as compensation after verifying her credentials.

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Accordingly, revision is allowed in part. Conviction and

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sentence are altered as mentioned above.

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Sd/-

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(Parth Prateem Sahu) Judge

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roshan/-

Devendra Kumar @ Ballu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Devendra Kumar @ Ballu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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