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2001 DIGILAW 582 (PAT)

Devendra Tiwary v. State Of Bihar

2001-07-13

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. The instant appeal is directed against the judgment and order dated 23.5.2000 passed by Shri Gopal Mahto, Additional Sessions Judge VIII, Gaya in Sessions Trial No. 147 of 1989/409 of 1999 whereby and whereunder he found at held the appellant guilty and convicted him for the offence under Sections 376/511 and 448 of the Indian Penal Code (Hereinafter referred to as the Code) and sentenced him to undergo rigorous imprisonment for five years under the first count and six months under the second count, both the sentences having been ordered to run concurrently. 2. The prosecution case, as unfolded in the FIR and the evidence of the prosecution witnesses, lay within a narrow compass. The victim girl Karuna Kumari (PW 9) is the daughter of the cousin (Mamera Bhai) of the informant Gupteshwar Prasad (PW 7). She had been at the house of the informant to look after his old and ailing mother Lakshmi Devi (PW 6). At about 7.30 p.m. on 5.7.1988 Karuna Kumari along with her girl friends went to attend marriage of the grand daughter of co-villager, named, Dwarika Tiwary. She returned home at about 9.30 P.M. She went in slumber on a cot by the side of the cot on which her grand mother i.e., mother of the informant, was aslept. At about mid night while Karuna Kumari was aslept, she felt some male member putting his fingers on her person. She woke up and started crying. The miscreants untied lace (Dori) of her Salwar. When the victim girl started shouting at the top of her voice, the miscreant pressed her mouth. However, though he caught hold of her, he could not succeed in ravishing her. On hearing her cry, the informants mother (PW 6) also woke up and started raising alarm. The miscreant then fled away after opening the door. Both Karuna Kumari and Laxmi Devi claimed to have identified the miscreant in the moon light. The miscreant was none but the appellant. Hearing hue and cry, PW 10 Bankey Singh. PW 11 Siya Sharan Singh and certain other villagers arrived at the scene. The miscreant then fled away after opening the door. Both Karuna Kumari and Laxmi Devi claimed to have identified the miscreant in the moon light. The miscreant was none but the appellant. Hearing hue and cry, PW 10 Bankey Singh. PW 11 Siya Sharan Singh and certain other villagers arrived at the scene. Karuna Kumari and Laxmi Devi narrated to them how the appellant in an attempt to commit rape caught hold on the victim Karuna Kumari and untied the lace of her Salwar but he could not succeed in his ill motive and design in consequence of awakening of the victim and her grand mother and raising alarm by them and he made good escape after opening the door. 3. The informant was lecturer at Gaya College, Gaya. He had been at Gaya. Surendra Sharma (PW 3) went to him and informed him of the incident, at about 11.30 a.m. on 7.7.1988. After getting information, he rushed to his house situated at village Kurkihat under the jurisdiction of Wazirganj police station in the district of Gaya. He learnt from his mother (PW 6) and Karuna Kumari (PW 9) that the appellant had entered into his house and he had attempted to ravish his niece Karuna Kumari. He, thereafter submitted a written report (Ext. 1) to the Officer-in-Charge of Wazirganj police station on the basis of which formal FIR (Ext. 2) was drawn up and the case was registered under Sections 354 and 448 of the Code. The investigation was entrusted to Abdul Wasi (PW 12). He conducted investigation and after completion thereof submitted charge-sheet under Sections 376/511 and 448 of the Code and finally the trial commenced after commitment. 4. The appellant was charged under Sections 376/511 and 448 of the Code. He pleaded not guilty and claimed to be tried. He did not enter into defence but. from the trend of cross-examination of the prosecution witnesses and the statement of the appellant recorded under Section 313, Cr PC the defence seemed to be that of total denial and false implication. He pleaded not guilty and claimed to be tried. He did not enter into defence but. from the trend of cross-examination of the prosecution witnesses and the statement of the appellant recorded under Section 313, Cr PC the defence seemed to be that of total denial and false implication. The appellant tried to set up defence that the informant lodged a criminal case against his wife alleging therein that she was living in adultery with her father and he approached and requested him to give evidence but as he did not get ready to depose in accordance with his dictates and hence he had been falsely implicated in this case. 5. In order to prove its case, the prosecution examined as many as 12 witnesses. After taking the facts, circumstances and evidence brought on record, into account the learned trial Court found and held the appellant guilty and convicted and sentenced him, as stated above, vide the impugned judgment and order. 6. Aggrieved by the judgment and order of conviction and sentence, the appellant preferred the present appeal. He assailed the judgment and order of conviction and sentence passed against him on the ground that it was not based on law and facts rather it was passed on mere surmises and conjectures. 7. Now the only point for determination is whether the impugned judgment and order of conviction and sentence recorded against the appellant can be sustained and upheld on the basis of the materials on record. 8. Karuna Kumari (PW 9), the victed girl, aged about 18 years was the most competent and natural witness in the case. She supported the prosecution case in its entirety by stating on oath that at about 7.30 p.m. on 5.7.1988 she along with her friends went to the house of Dwarika Tiwary to attend marriage ceremony of his grand daughter and after she returned home at about 9.30 p.m. she surrendered to bed in the room in which her grand mother (PW 6) was also aslept on a separate cot. A lamp was said to be burning in the room. PW 9 further stated that at about 12.00 in the night while she was in deep slumber she felt someone touching her person, in consequence of which was awakened. A lamp was said to be burning in the room. PW 9 further stated that at about 12.00 in the night while she was in deep slumber she felt someone touching her person, in consequence of which was awakened. She wanted to raise alarm but the miscreant pressed her mouth, however, she could any how raise alarm, after hearing which PW 6 woke up. PW 9 added that the miscreant had opening the lace (Dori) of her Salwar or Pajama but as she and her grand mother woke up and started raising alarm, he could not succeed in ravishing her and he made good escape, after opening the door. The miscreant was identified by PW 9 and 6 in the moon light while he was fleeing away. PW 9 asserted that the miscreant was appellant Devendra Tiwary. She stated that the villagers arrived at the scene after hearing hue and cry and she narrated to them as to how the appellant had entered into her house and put his fingers on her person and untied the Dori of her pajama in a bid to commit rape on her. 9. The evidence of PW 6 Laxmi Devi was identical to that of PW 9. She stated that she and her grand daughter (PW 9) slept on two separate cots in the same room on the fateful night. PW 6 stated that she woke up after hearing cry of PW 9. It is in her evidence that the miscreant entered into the room and he untied the Dori of her pajama which PW 9 was wearing at the moment, however, as both PWs 6 and 9 started crying the miscreant i.e., the appellant could not succeed in committing rape and he made good escape and while fleeing away, he was identified by PW 6. It is true that PW 6 did not identify the appellant in Court. PW 6 was 70 years old rustic and illiterate woman and it was just possible that she had weak eye-sight at the time she deposed and on that account could not identify the appellant whom she had identified on the date of occurrence. 10. It is true that PW 6 did not identify the appellant in Court. PW 6 was 70 years old rustic and illiterate woman and it was just possible that she had weak eye-sight at the time she deposed and on that account could not identify the appellant whom she had identified on the date of occurrence. 10. The evidence of PWs 6 and 9 on the point of entry of the appellant in the room and his putting fingers on the person of the victim Karuna Kumari (PW 9) and opening the Dori of her pajama in a bid to commit rape on her is quite consistent and corroborative, free from inherent taint and inlirmity. They were cross-examined at length but nothing material, adversely affecting the edifice of the prosecution case was elicited in their cross-examination. 11. PW 8 Pramod Singh was another witness who had arrived at the scene of incident and had identified the appellant while he was fleeing away. PW 8 stated that he was sleeping at the roof of the house of PW 11 Siya Sharan Singh. On the fateful day at about mid night he woke up after hearing the alarm coming from the house of informant Gupteshwar Prasad (PW 7). He claimed to have identified the appellant in the torch light. He stated that he went to the house of the informant where victim Karuna Kumari narrated to him now the appellant entered into her room, put his fingers on her person and untied the Dori of her pajama with an intent to commit rape on her. 12. PW 10 Bankey Singh and PW 11 Siya Sharan Singh also rushed to the scene of occurrence where victim Karuna Kumari stated to him how the appellant entered into her room and attempted to ravish her by opening the Dori of her pajama, however, he could not succeed in committing rape on her as she and her grand mother had woke up and raise alarm. 13. 13. Informant Gupteshwar Prasad (PW 7) after being informed by PW 3 on 7.7.1988 went to his house and he learnt from his mother PW 6 and niece (PW 9) that the appellant on the fateful night entered into the room, put fingers on the person of the victim (PW 9) and untied the Dori of her pajama in a bid to commit rape on her but he could not succeed in implementing his ill design and motive as PWs 6 and 9 had waken up and raised alarm. All the witnesses including PWs 7, 8, 10 and 11 were also told by PW 9 that she had identified the appellant while he started fleeing away from the room. PW 7 thereafter went to the police station and submitted his written statement referred to above on the basis of which the case was registered. 14. PW 3 Surendra Sharma is not an eye-witness to the incident nor has it come in the evidence of any of the witnesses that he had arrived at the scene of incident and he was narrated the sordid and awful tale of the victim girl by her and as such the evidence of PW 3 would have been of no consequence. In the circumstances, the fact that he was tendered by the prosecution and in his cross-examination he stated that he knew nothing about the occurrence is not very material adversely affecting the prosecution case. 15. PW 1 Uttim Pandey and PW 4 Sanjay Singh did not support the prosecution case and they were declared hostile by the prosecution. PW 2 Rita Kumari and PW 5 Ramjee Singh were tendered witnesses. 16. PW 12, Md. Abdul Wasi is the Investigating Officer. He proved the formal FIR (Ext. 2). He stated that he investigated into the case and after completion of investigation he submitted charge-sheet. The crux of the matter is that the I.O. gave his evidence without the case diary. On the day PW 12 presented himself in Court for giving evidence, the case diary did not appear to have been made available to him by the prosecutor. His evidence cannot legally be taken into account. 17. PWs. 6, 7, 8, 9, 10 and 11 were cross-examined at length but nothing material going to adversely affect the core of the prosecution case was elicited in their cross-examination. His evidence cannot legally be taken into account. 17. PWs. 6, 7, 8, 9, 10 and 11 were cross-examined at length but nothing material going to adversely affect the core of the prosecution case was elicited in their cross-examination. Their evidence is quite consistent and corroborative and the same inspires confidence. 18. The evidence of the victim girl Karuna Kumari (PW 9) and her grand mother Laxmi Devi (PW 6) considered together with the evidence of PW 7, 10 and 11 abundantly established that the appellant on the fateful night entered into the room in which both PWs 6 and 9 were sleeping on two different and separate cots and he put his fingers on the person of the victim PW 9 and untied the Dori of her pajama in a bid to commit rape on her. 19. Learned defence counsel contended that no such incident ever took place and the appellant had, as a matter of fact, been unnecessarily and falsely dragged into the instant case simply because he did not agree to depose in accordance with the dictates of the informant (PW 7) in the case brought against his wife and father-in-law in which allegation was that his wife had illicit connection with her father. The contention seems to be devoid of merit and force and the same cannot be accepted. 20. It was contended that it had come in evidence that the house of the informant was closed from all corners and it was not possible for any outsider to enter into the house and there was no explanation as to how the appellant entered into the room of the victim. It was further contended that the incident took place on 5.7.1988 and the FIR was lodged on 7.7.1988 and thus there was inordinate delay in lodging the FIR. 21. The contentions were of no consequences. It was just possible that the appellant had hid himself in the house of the victim prior to it was bolted in the night. The delay in lodging the FIR stood well explained inasmuch as the informant and the victim belonged to respectable family and there was no male member in the house and the case could not have been lodged unless the informant came to his house after getting information. The delay in lodging the FIR stood well explained inasmuch as the informant and the victim belonged to respectable family and there was no male member in the house and the case could not have been lodged unless the informant came to his house after getting information. Besides, the victim was young and unmarried girl and she or her grand mother must have been quite hesitant to lodge a case in respect of the incident telling upon the chastity of the girl. 22. The appellant was convicted under Section 376 read with Section 511 of the Code. Relying on the cases of (1) State of Madhya Pradesh v. Babulal, AIR 1960 MP 155 , (2) Bankey v. State, AIR 1961 All 131 , (3) Hari Mohapatra and another v. State of Orissa and others, 1996 Cr LJ 2952 and (4) Kandarpa Thakuria v. State of Assam and others, 1992 Cr LJ 3084, learned defence counsel contended that the appellants action felt far short of attempt to commit rape and whatever act was committed by the appellant would merely amount to intention and preparation to commit rape and that could, by no stretch of imagination, be said to have amounted to attempt to commit rape. The contention seems to be pregnant with many circumstance. 23. In the case of State of Madhya Pradesh (supra) it was held that for attempt to committ rape, there should be some action on the part of the accused which would show that he is just going to have sexual connection with the prosecutrix. The prosecution must establish that it has gone beyond the stage of preparation. The difference between the mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. In that case the accused had made the girl naked but he ran away of seeing her uncle. The offence was held to come under Section 354 of the Code and not under Section 376/511 of the Code. 24. In the case of Bankey (supra), it was held that intruding into the privacy of a lady and making indecent gestures and removing her clothes could not constitute an offence punishable under Section 376/511 of the Code and the accused was held guilty only under Section 509 of the Code. 25. 24. In the case of Bankey (supra), it was held that intruding into the privacy of a lady and making indecent gestures and removing her clothes could not constitute an offence punishable under Section 376/511 of the Code and the accused was held guilty only under Section 509 of the Code. 25. In the case of Hari Mohapatra (supra), the allegation was that the accused entered into the room, closed the door and molested the victim by squeezing her breast and tried to open her pant. It was held that such an act was relatable to the stage of preparation alone and did not fall within the expression attempt to commit rape. 26. In the case of Kandarpa Thakuria (supra), it was held that there might be intention or expression but, every indecent assault upon a woman did not amount to attempt to commit rape unless determination of an accused to gratify his passion at all events and in spite of resistance is established. 27. In view of the ratio decidendi of the cases, referred to above, it is to be held that the acts of the appellant in entering into the room of Karuna Kumari, putting his fingers on her persons and untying the Dori of her pajama can at best be said to have amounted to expresion of intention and preparation but they can by no stretch of imagination, be said to have amounted to attempt to commit rape. However, the appellant must be said to have rendered himself liable both under Sections 354 and 448 of the Code under which the case was initially registered and as such his conviction under Section 376/511 of the Code is required to be altered to conviction under Section 354 of the Code. 28. It was contended that the appellant had been in jail custody since 27.7.1988 to 12.12.1988 and again from 23.5.2000 till date and thus he had already suffered the rigor and hardship of jail during his incarceration for over one and half years. Accordingly, a prayer was made that the appellant be let off with the sentence for the period already undergone by him. 29. Accordingly, a prayer was made that the appellant be let off with the sentence for the period already undergone by him. 29. In view of what has been stated and observed in the preceding paragraphs, the conviction and sentence of the appellant recorded under Section 376/511 is altered and converted into the one under Section 354 of the Code and he is directed to be sentenced to undergo rigorous imprisonment for the period already undergone by him. However, the conviction and sentence of the appellant recorded under Section 448 of the Code stands maintained and confirmed. Both the sentences shall run concurrently. 30. In the result this appeal is dismissed with the modification in the conviction and sentence mentioned above. Let the appellant be released from the jail custody forthwith if not wanted in any other case.