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Judgment 31/08/2017 The instant criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant Chandra Bhan against the judgment dated 15.12.1994 passed by the learned Additional District and Sessions Judge, Nohar, Camp Bhadra in Sessions Case No.47/1994 by which he convicted the accused- appellant for the offences under Sections 448, 324 and 376/5011 IPC and passed the following sentence :

u/s 448 and 324 IPC Three months simple imprisonment for each offence u/s 376/511 IPC Two years simple imprisonment with fine of Rs. 500/- and in default of payment of fine, further undergo one month's simple imprisonment.
Brief facts of the case are that on 22.06.1994 the complainant Sumitra (PW-5) submitted a report at Police Station (2 of 9) [CRLA-22/1995] Bhirani, District Sri Ganganagar alleging that day before yesterday her husband went to attend marriage function in the house of Brajlal Jat, her mother-in-law went to the house of Amru Jat and her father-in-law also went to his relative's house. She further alleged that after taking meal at about 10 PM she went to sleep outside her room. Her Dever was also sleeping in the Chowk. At about 11 PM in the night, she suddenly felt that somebody was touching her body in a wrong manner and biting near her abdomen. She woke up and saw that the accused-appellant Chandar Bhan was present there. She pushed back the accused- appellant and when she tried to catch him, he bit on her left hand. Thereafter she raised noise. Her Dever Gulab and Surender came there and consequent to which the accused-appellant ran away. At that time, her mother-in-law and some other person also reached there. They also saw the accused-appellant running from the house. She further alleged that the accused-appellant was trying to outrage her modesty. On the said report, the Police registered the FIR No. 81/1994 for offence under Sections 376/511, 452 & 323 IPC and started the investigation. After usual investigation, the police filed charge sheet against the accused-appellant for offences punishable under Sections 376/511, 458 & 324 IPC before the Court of Judicial Magistrate (First Class), Bhadra. Later on the case was transferred in the Court of Additional District and Sessions Judge, Nohar Camp at Bhadra.

The learned trial court after hearing the arguments and considering the material on record, framed charges against (3 of 9) [CRLA-22/1995] accused-appellant for offences under Sections 376/511, 458 & 324 IPC. The accused-appellant pleaded not guilty and claimed trial.

At the trial, the prosecution examined nine witnesses in all and thereafter the statement of the accused-appellant was recorded under section 313 Cr.P.C. In defence, no witness was examined.

At the conclusion of the trial, the learned Additional District and Sessions Judge, Nohar Camp at Bhadra vide judgment and order dated 15.12.1994 convicted the accused-appellant for offences under Sections 448, 324 and 376/511 IPC and passed the sentence as mentioned earlier. Hence, this criminal appeal at the instance of the accused-appellant against his conviction.

Learned counsel for the accused-appellant has argued that a false case has been lodged against the accused-appellant as no such type of occurrence has taken place. Further there are major contradictions, improvements and omissions in the statements of the prosecution witnesses. In the alternative, it has been argued that no offence under Section 376/511 IPC is made out against the accused-appellant and at the most the case may travel to offence under Section 354 IPC. Therefore, looking to the fact that at the time of incident the accused-appellant was only 22 years old, the benefit of probation may be given to the accused- appellant.