Shantanu Markandey Vs State Of Chhattisgarh

1. The present applicant has preferred this criminal revision under Section 397 read with Section 401 of the Code of Criminal Procedure (Cr.P.C.) against the order dated 04.03.2016 passed by the First Additional Sessions Judge, Balodabazar, District – Balodabazar-Bhatapara, Chhattisgarh, in Criminal Appeal No. 39/2015, whereby the learned Appellate Court dismissed the appeal and affirmed the judgment dated 21.05.2015 passed in Criminal Case No.562/2014 by the Judicial Magistrate First Class, Balodabazar, Chhattisgarh, convicting the applicant under Section 354 of the Indian Penal Code (for short, 'IPC') and sentencing him to undergo rigorous imprisonment for one year and

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to pay a fine of Rs. 500/-, and in default of payment of fine, to further undergo rigorous imprisonment for one month.

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2. Case of the prosecution, in brief, is that on 31.05.2014 at about 6:00 p.m., the prosecutrix had gone towards village pond to attend the call of nature. At that time, the accused/applicant, Shantanu Markandey, caught hold of her hand and attempted to pull her towards himself, stating that he would make physical relationship to her, and abused her when she resisted. It is further alleged that with the intention to outrage her modesty, the accused caught hold of her waist, jerked her, and threw her on the ground, thereafter she informed her family members about the incident. Subsequently, a written report was lodged at the police station regarding the incident, on the basis of which, FIR (Ex.P-01) has been registered against the applicant and statements of the witnesses were recorded under Section 161 of Cr.P.C. During investigation, spot map was prepared vide Ex.P-02.

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3. After completion of investigation, charge sheet has been filed against the applicant before the Court of Judicial Magistrate First Class, Balodabazar, Chhattisgarh. The accused / applicant abjured the guilt and prayed for trial.

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4. The Court of Judicial Magistrate First Class (JMFC), after appreciating the oral and documentary evidence on record, convicted and sentenced the applicant as mentioned in Paragraph 1 of this judgment. The said judgment was challenged by the applicant by way of a criminal appeal, however, the Appellate Court, vide judgment dated 04.03.2016, dismissed the appeal and affirmed the judgment of the trial Court. Hence, this revision.

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5. Learned counsel for the applicant submits that the Court of JMFC as

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well as Appellate Court, without properly appreciating the evidence available on record, are not justified in convicting and sentencing the applicant for the aforesaid offence. He further submits that there are material contradictions and omissions in the statements of the prosecution witnesses and their statements do not corroborate with each other and that of the contents of FIR (Ex.P-01). He also submits that FIR has been lodged after one day of the alleged incident and the delay in lodging the same has not been explained properly. Further, the prosecutrix has not disclosed the name of the applicant, rather while lodging the report, her husband mentioned the name of the applicant. He further contended that test identification parade has also not been done by the prosecution. Thus, there is no cogent and clinching evidence on record to suggest that applicant is the author of the crime in question. On these premises, it is prayed by counsel for the applicant that applicant be acquitted of the charge leveled against him.

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6. On the contrary, learned State Counsel, while supporting the impugned judgments, submits that the Court of JMFC as well as Appellate Court have rightly convicted and sentenced the applicant and there is no illegality or infirmity in the same warranting interference by this Court.

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7. I have heard learned counsel appearing on behalf of the parties and perused the record.

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8. Prosecutrix/victim (PW-1) has stated in her deposition that on the date of the incident, at about 6:00 p.m., she had gone outside, at that time, the accused/applicant asked her name. Upon her refusal, the accused caught hold of her hand and attempted to pull her towards himself, stating that he would make physical relationship with her. This witness

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in her cross-examination has admitted that when the accused caught hold of her hand and pulled her forcibly, then some of her bangles were broken due to which she sustained injuries. She further admitted that when the accused caught hold of her waist and threw her, at that time she did not sustained injuries, however, she further admitted that she sustained injuries on her leg. This apart, this witness while lodging the FIR, has not stated regarding breaking of her bangles nor the same has been seized by the police. Further, there is no mentioning of any type of injury in the FIR, as such, she has not been medically examined nor any MLC report of her has been produced. She has further admitted that after the incident, she has not disclosed the name of the accused to her husband and at the time of lodging of report in the police station, her husband has stated the name of the accused as Shantanu. Furthermore, she has admitted that after the incident, her father-in-law and mother-in-law and her husband came and that the distance between her village Chherkapur and the police station is about 15-20 minutes, despite that the FIR was lodged by them on the next day of the incident and delay in lodging the FIR has not been explained properly. She further admitted that as per the doctor’s report, she has not sustained any injury over her body. On perusal of statement of the prosecutrix, there appears material contradictions and omissions as the same is no duly corroborated with the contents of the FIR (Ex.P-1).

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9. Harish (PW-02), who is the husband of the prosecutrix, has deposed that on the date of the incident, he had gone to attend his duties, and when he returned, his wife (prosecutrix) informed him that while she

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had gone to attend the call of nature, at that time, the applicant came there and tried to outrage her modesty. In his cross-examination, he admitted that his wife (prosecutrix) had not disclosed the name of the accused to him and while lodging the FIR, he has disclosed the name of the accused. He further admitted that his wife has told him about her broken bangles but, at the place of incident, the broken bangles of his wife were not seized by the police. Thus, the statement of this witness is also not duly corroborated with the contents of the FIR.

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10. Sudhu (PW-03) and Jamun Bai (PW-04) who are the father-in-law and mother-in-law of the prosecutrix respectively, in their cross-examination have admitted that their daughter, namely, Harbai (PW-05) had gone to the house of Santosh Markandey (brother of the applicant-accused herein) and she was living there as his wife due to which they had faced humiliation in the village, which also appears that there were no cordial relationship between the families of the applicant and the prosecutrix. This apart, Sudhu (PW-03) has admitted that when his daughter-in-law (prosecutrix) has disclosed about the incident to him, at that time there were no sign of any injury seen over her body. Jamun Bai (PW-04) has further admitted that her daughter-in-law has not disclosed the name of the accused, rather she only told that one boy was trying to outrage her modesty. Thus, there appears contradictions and omissions in the statements of the prosecutrix and her in-laws and the same is also not duly corroborated with the FIR.

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11. Thus, from a perusal of the evidence on record, it is manifest that there are material inconsistencies in the statement of the prosecutrix/victim (PW-01). Her testimony does not corroborate either with the statements

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of other prosecution witnesses or with the contents of the FIR (Ex. P- 01) concerning the alleged incident on relevant fact. Furthermore, no seizure of the allegedly broken bangles of the prosecutrix was effected from the spot by the police, nor has any medical report been produced by the prosecution to substantiate the injuries allegedly sustained by her. Furthermore, after the alleged incident, the prosecutrix did not disclose the name of the accused/applicant to her family members. The FIR was lodged on the following day, and the delay in lodging the same has not been satisfactorily explained. It is pertinent to note that it is the bounden duty of the prosecution to prove its case beyond reasonable doubt; however, in the present case, the prosecution has failed to discharge this obligation by producing cogent, credible, and clinching evidence to establish the complicity of the applicant in the alleged offence.

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12. For the foregoing discussion, I am of the considered opinion that the applicant is entitled for acquittal on the basis of benefit of doubt as the prosecution has miserably failed to prove its case beyond reasonable doubt. The learned Trial Court as well as Appellate Court were totally unjustified in convicting and sentencing the applicant for the aforesaid offence.

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13. Accordingly, the impugned judgments of conviction passed by the Court of JMFC dated 21.05.2015 and that of Appellate Court dated 04.03.2016 are liable to be and are hereby set-aside and the applicant is acquitted of the charge levelled against him by extending him the benefit of doubt.

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14. In the result, the criminal revision is allowed.

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15. It is reported that the applicant is on bail. His bail bonds are not discharged at this stage and the same shall remain operative for a further period of six months in view of the provisions contained in

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Section 481 of BNSS.

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Sd/-

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(Radhakishan Agrawal) JUDGE

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Prakash

Shantanu Markandey v. State Of Chhattisgarh

Case brief

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Shantanu Markandey v. State Of Chhattisgarh

Case brief

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