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IN THE HIGH COURT OF JHARKHAND AT RANCHI
ANUBHA RAWAT CHOUDHARY, J.
Mathura Thakur, Son of Late Bandhu Thakur – Appellant
Versus
The State of Jharkhand – Respondent
Cr. Rev. No. 228 of 2012
Decided on : 06-05-2021
Indian Penal Code, 1860 - 376/511 – Criminal Procedure Code,1973 - Section 313 - Commit rape – Investigation - Counsel further submitted that although witnesses were cited in charge-sheet of case but only were examined and Investigating Officer of case was not examined - He also submitted that except rest witnesses are interested witnesses informant of case and mother of victims but she herself is hearsay witness as she has stated in her evidence that she was sleeping inside room and came out of room upon alarm raised by victim - He further submitted that father victims who was admittedly not present at time and place occurrence and it was mother who had narrated entire incident father and accordingly father and mother both are hearsay witnesses – Held, Court also finds that had not raised alarm petitioner was determined to commit offence of having sexual connection with victims - This Court finds that petitioner not only desired to gratify his passions upon victims but intended to do so at all events and notwithstanding resistance on their part but could not succeed due to intervention - Facts and circumstances case conduct petitioner evidences on record clearly establish beyond any reasonable doubt that petitioner intended and prepared to commit rape upon victims and such intention and preparation translated into an attempt to commit rape and petitioner tried to overpower victims in spite of their protest and threatened to kill them - It has also been established beyond all reasonable doubts that petitioner would have succeeded in committing rape upon victims had there been no intervention upon alarm raised - Incidentally object of revisional jurisdiction as envisaged under Section was to confer upon superior criminal courts kind paternal supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law irregularity of procedure neglect of proper precautions of apparent harshness of treatment which has resulted on one hand in some injury to due maintenance of law and order or on other hand in some underserved hardship to individuals - See in this context decision of this Court main question which High Court has to consider in an application in revision is whether substantial justice has been done – Petition dismissed
JUDGMENT :
1. Heard Mr. Sanjay Kumar Pandey, the learned counsel appearing on behalf of the petitioner.
2. Heard Mr. Manoj Kumar Mishra, the learned A.P.P. appearing on behalf of the Opposite Party-State.
3. The present criminal revision petition is directed against the Judgment dated 31.01.2005 passed by the learned Addl. Sessions Judge-VIII, Dhanbad in Criminal Appeal No. 166/1994 whereby and whereunder the conviction and sentence of the petitioner under Section 376/511 of the Indian Penal Code passed by the learned trial court was affirmed and the appeal was dismissed.
4. The petitioner had preferred the criminal appeal against the Judgment of conviction and the order of sentence dated 03.10.1994 passed by the learned 1st Assistant Sessions Judge, Dhanbad in Sessions Trial No. 240 of 1985 (arising out of Jorapokhar P.S. Case No. 101/1985 dated 09.03.1985 corresponding to G.R. No. 574/1985) whereby and whereunder the petitioner was held guilty and convicted under Sections 376/511 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for 07 years and to pay fine of Rs.5,000/- and in default in payment of fine, to undergo Rigorous Imprisonment for a further period of 01 month.
Arguments on behalf of the petitioner
5. The learned counsel appearing on behalf of the petitioner while advancing his arguments submitted that the incident is of 07.03.1985 at about 11:00 P.M. and the fardbeyan was recorded on 08.03.1985 at about 05:00 P.M. and the F.I.R was registered on 09.03.1985 at 8:45 A.M. under Sections 376/511 of Indian Penal Code. The charge-sheet was submitted on 22.03.1985 and charge was framed on 03.07.1989 under the aforesaid Sections.
6. The learned counsel further submitted that although 6 (six) witnesses were cited in the charge-sheet of the case, but only 5 (five) were examined and the Investigating Officer of the case was not examined. He also submitted that except P.W.-5, rest witnesses are interested witnesses. P.W.-4 is the informant of the case and the mother of the victims, but she herself is a hearsay witness as she has stated in her evidence that she was sleeping inside the room and came out of the room upon alarm raised by the victim. He further submitted that P.W.-1 is the father of the victims who was admittedly not present at the time and place of the occurrence and it was the mother who had narrated the entire incident to the father and accordingly, the father and mother both are hearsay witnesses. He further submitted that P.W.-5 is also not the eye witness to the occurrence and she had arrived at the place of occurrence when alarm was raised by the informant and other witnesses. The learned counsel submitted that P.W.-2 and P.W.-3 are the victim witnesses of the case. He further submitted that only one exhibit i.e. the fardbeyan has been exhibited in the case as Exhibit-1 and the F.I.R. itself has not been proved. He also submitted that the Investigating Officer of the case has not been examined and due to non-examination, serious prejudice has been caused to the petitioner and there are material contradictions in the evidence of the prosecution witnesses. He further submitted that the aforesaid aspects of the case have not been properly considered by the learned courts below.
7. The learned counsel further submitted that the basic ingredients for the offence of attempt to commit rape are not satisfied in the present case and as such, the offence under Sections 376/511 of the Indian Penal Code is not made out against the petitioner and the present case, at best, may be a case under Section 354 of Indian Penal Code.
8. The learned counsel for the petitioner referred to the judgments passed by the Hon’ble Supreme Court in the cases of “Aman Kumar and Another –vs- State of Haryana” reported in (2004) 4 SCC 379 Paragraph Nos.11, 13 and 14; “Tarkeshwar Sahu –vs- State of Bihar (now Jharkhand)” reported in (2006) 8 SCC 560 and “Koppula Venkat Rao –vs- State of A.P.” reported in (2004) 3 SCC 602 in
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