Vimla Singh Kapoor, J
1. FIR (Ex.P-1) lodged by Dilip Kumar Verma (PW-2)- son of the prosecutrix (PW-1) demonstrates that on 03.11.2001 he brought the accused to his
house and on being asked by the accused he went to call one Khileshwari thereto. At that time, the prosecutrix - a blind married lady and the accused
alone were present there. Since the prosecutrix was blind, the accused/appellant assured her of driving away her blindness by treating her and on this
pretext he bolted the door from inside and committed forcible sexual intercourse with her. On account of door being closed from inside, PW-2 reached
there by jumping over the wall and found the accused/appellant committing sexual intercourse with PW-1. Thereafter, the accused/appellant was
caught hold of, handed over to the police and the FIR Ex.P-1 came to be lodged. After completion of investigation charge sheet was filed under
Sections 450 and 376 IPC followed by framing of charge accordingly.
2. Learned court below by its judgment dated 22.05.2002 passed in Sessions Trial No. 48/2002 acquitted the appellant under Section 376 but convicted
him under Section 354 IPC and sentenced to undergo RI for two years. Hence, this appeal.
3. Counsel for the accused/appellant submits that even the prosecutrix (PW-1) much less her son PW-2 have not supported the case of the
prosecution. He submits that the prosecutrix herself has negated the act of sexual intercourse committed by the accused/appellant. Medical report,
according to the counsel for the appellant, also does not stand by the prosecution.
4. State counsel however, supports the judgment impugned to be fully justified.
5. Of course, the prosecutrix has not consistently stated anything like sexual intercourse committed with her by the accused yet she has categorically
stated that on the date of incident the accused came to her house and on the pretext of giving treatment to her for her blindness, made her lie on the
cot, by witchcraft made her unconscious and committed forcible sexual intercourse with her. However, she has not stated as to how and in what
manner the sexual intercourse was committed with her as she was already unconscious. PW-2 has also stated that after he returned home the
accused/ appellant was involved in commission of sexual intercourse with PW-1. Though this witnesses has made this exaggerated statement yet
looking to the version of prosecutrix and the medical evidence as well it becomes difficult for this Court to hold him guilty under Section 376 IPC and
being so the trial Court has rightly acquitted of the said charge. However, there is ample evidence to show that the accused/appellant made the
prosecutrix lie on the bed and made her unconscious by the act of witchcraft, and therefore, his conviction under Section 354 IPC cannot be said to be
at fault. Since, the prosecutrix was not subjected to forcible sexual intercourse as is clear by her own testimony, the medical report being negative is
quite natural.
6. Accordingly, the conviction of the appellant under Section 354 IPC is maintained. However, looking to the fact that the appellant has already
remained in jail for more than six months and also keeping in mind the fact that the incident had taken place in the year 2001 and the appellant has
already faced a long drawn prosecution, this Court is inclined to reduce the sentence imposed on him to the period already undergone. Order
accordingly.
7. Appeal thus allowed in part.