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PATNA HIGH COURT
Vinod Kumar Sinha, J.
Ram Sagun Yadav —Appellant
versus
The State of Bihar —Respondent
Criminal Appeal (SJ) No.405 of 2015
Decided on 20.11.2017
For the Appellant:M/s Arbind Kumar Sharma, Kiran Sharma, Saroj Kumar Sharma, Randhir Kumar No.1, Advocates
For the Respondent: Mr. Sujit Kumar Singh, APP
For the Informant:M/S Sanjeev Kumar, Shamshad Alam, Advocates
Headnote:Indian Penal Code, 1860—Section 376/511—Victim girl while on her way to school was caught by accused, forcibly taken to Maize field where accused removed her undergarments and attempted to rape her—Victim raised alarm and villagers came and accused ran away—Conviction by Trial Court—Appeal—Nothing appeared in cross-examination of victim to disbelieve the manner of occurrence—Though in FIR victim girl stated that name of accused was disclosed by PW5 and PW8, who had reached spot on hearing her alarm but in evidence victim stated that she knew accused before occurrence—Evidence in court was substantive evidence and fardbeyan was only for purposes of corroboration and contradiction—Victim identified accused in court—PW7 corroborated victim girl by deposing that he saw victim girl naked on place of incident—PW1 and 2, brother and mother of victim had reached spot just after the occurrence and victim narrated incident to them, their evidence was admissible u/s 118 of Evidence Act—Evidence showed that as soon accused got victim naked she raised alarm village people reached and accused ran away—Offence would fall u/s 354 IPC and conviction accordingly modified—Accused was in custody since three years—Sentence reduced to period undergone.
Held: Considering the entire evidence discussed above, no doubt P.Ws. 5 and 8, who claimed to be eye-witness to the occurrence, as stated in FIR, have been declared hostile in this case but there is evidence of P.W.4, the victim informant is available on record and she has supported the prosecution case. The evidence of P.W.4 has been corroborated by evidence of P.Ws. 1 and 2, who are brother and mother of the victim and they have stated that the informant victim has narrated the occurrence to them just after occurrence that appellant has tried to commit rape upon her. The evidence of P.Ws. 1 and 2 is admissible under Section 118 of Indian Evidence Act. Further the evidence of Ashok Kumar (P.W.7) shows that he found the victim girl crying and he has supported the prosecution case and there is nothing to show that the same is tutored. Further there is nothing on record to show that there was strange relationship between the appellant and victim girl, as such, she has implicated the appellant in this case and victim girl was aged 13-15 years at the time of occurrence and there is nothing on record to show that her evidence was tutored, rather the same has been corroborated by evidence of P.W.7 as well as evidence of P.Ws. 1 and 2, as such, there is prosecution evidence is available in support of prosecution case. It is relevant to mention here that the appellant has also admitted his presence at the place of occurrence.
Further submission of learned counsel for the appellant is that appellant is only bread earner in his family and moreover he is in custody for more than three years and further no case is made out under Sections 376/511 IPC against the appellant as at best, if the evidence is believed, it is a case of preparation and attempt to outrage her modesty and nothing else and Doctor has found no injury on the person of victim.
If the prosecution evidence is discussed in the background of ratio decided in the above judgment it appears that in the present case there is only evidence that appellant has dragged the victim to a maize field and got her naked and tried to commit rape and thereafter people assembled there and appellant fled away and nothing is available on record to show that she was further physically assaulted and Doctor has not found any injury on the person of victim girl. Hence at best, the evidences are there against the appellant under Section 354 IPC.
In such view of the matter, justice will be served if the conviction of the appellant under Sections 376/511 IPC is modified to a conviction under Section 354 IPC, which is a minor offence of offence under Sections 376/511 IPC. Further it appears that appellant has remained in custody for more than three years and submission is that he is only bread earner of his family. Accordingly, the appeal is partly allowed to the extent that conviction of the appellant is modified to a conviction under Section 354 IPC and sentence is reduced to the period already undergone by him. (Paras 21, 22, 24 to 26)
Result: Appeal allowed partly.
JUDGMENT (ORAL)
This appeal arises out of the judgment of conviction dated 26.6.2015 and order of sentence dated 1.7.2015 passed by learned Sessions Judge, Begusarai in Sessions Case No. 49 of 2006 whereby appellant has been convicted under Sections 376 and 511 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and imposed a fine of Rs.10,000/- and in case of default in payment of fine, to undergo simple imprisonment for six months.
2. Prosecution case, in short, is that the victim informant Sanju Kumari (P.W.4) has lodged fardbeyan stating, inter alia, therein that while she was going to school on 28.8.2014 at about 8 A.M. and when she reached southern side of bamboo clumps of Fathi Mian, a boy caught her and forcibly brought her in the Maize field of Shiv Sah and after removing her undergarments, attempted to commit rape upon her and also molested her. On alarm raised by her, villagers, namely, Rajendra Poddar, Sudhir Singh and school teacher Ashok Singh came there and appellant fled away from the place of occurrence.
3. On the basis of aforesaid fardbeyan Bhagwanpur P.S.Case No. 99 of 2004 was registered under Sections 376 and 511 IPC against the appellant and after investigation charge sheet has been submitted against the appellant, on which cognizance of the offences has been taken and the case was committed to the court of sessions, which was kept by the learned Sessions Judge to his own file for trial and disposal.
4. On behalf of prosecution altogether 12 witnesses have been examined, they are : P.W.1 Ram Pravesh Poddar (brother of victim), P.W.2 Urmila Kumari @ Urmila Devi (mother of victim), P.W.3 Bhagwan Poddar (father of victim), P.W.4 Sanju Kumari (victim and informant), P.W.5 Rajendra Poddar (hostile), P.W.6 Vijay Sah (hostile), P.W.7 Ashok Kumar (teacher of school), P.W.8 Sudhir Singh (hostile), P.W.9 Dr.Gopal Mishra (Medical Officer, Sadar Hospital, Begusarai), P.W.10 Dr.Ram Pravesh Rai (Surgeon, Sadar Hospital, Begusarai), P.W.11 Dr. N.K.Choudhary (Medical Officer, P.H.C. Saraiya Garha, Supaul) and P.W.12 Dr.Shashi Prabha (In-charge Medical Officer, Birpur Primary Health Centre, Begusarai).
5. Apart from the said oral evidence the prosecution had brought the following documents: Ext.1 Signature of victim Sanju Devi on fardbeyan and Exts. 2 to 2/4 Medical Board Reports.
6. Defence has not adduced any evidence either oral or documentary in support of its case but plea of defence is simply denial of the occurrence and of false implication.
7. After trial learned trial court has convicted the appellant under Sections 376 and 511 IPC and sentenced him as stated above.
8. Against the aforesaid judgment and order the appellant has preferred this appeal on the ground that the victim (P.W.4) claims that Rajendra Poddar (P.W.5) and Sudhir Singh (P.W.8) had disclosed the name of appellant, whereas Rajendra Poddar and Sudhir Singh had not supported the prosecution case, being identified by them and so far P.W.7, Ashok Singh, is concerned, his evidence shows that he had not seen the occurrence and he saw the victim crying. It has also been submitted that the evidence of P.W.7 discloses that other teachers and 400 to 500 students were present but it looks absurd that they have not heard the hulla and only P.W.7 rushed to the placed of occurrence. Further submission of learned counsel for the appellant is that identification of the appellant in court is not admissible as her fardbeyan shows that name of appellant has been disclosed by Rajendra Poddar, Sudhir Singh and Ashok Singh to the informant and she was not knowing the name of the appellant but in the court she claimed that she was knowing the appellant from before, which contradicts her earlier statement (fardbeyan). Further submission is that in such a circumstance, non-examination of I.O. is also fatal in this case, as had the I.O. been examined, defence may cross examine him on those points, as such, serious prejudice has been
