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2007 DIGILAW 299 (JHR)

Md. Tayyeb Ansari v. State of Jharkhand

2007-04-11

D.P.SINGH

body2007
JUDGMENT D.P. Singh, J.-This appeal is directed against the judgment of conviction and order of sentence dated 28.8.2002 and 30.8.2002 passed by Sessions Judge, Godda in Sessions Trial No. 135/2000, whereby and whereunder the learned Sessions Judge held the appellant guilty under Section 354 IPC and sentenced him to undergo RI for 1 year and 6 months. 2. The brief facts leading to this appeal are that in the night of 16/17 August, 2000 the appellant entered inside the house of the informant Md. Harun Ali, PW 8 and attempted to commit rape with his wife, PW 7. The victim raised alarm, but the appellant managed to escape. However, he was seen by witnesses, PWs. 1 to 4 running out of the house and confining himself inside his house situated nearby. According 'to the informant, the appellant has earlier also tried to molest his wife, for which even a panchayati was held in the village. 3. The matter was reported to Mahagama police next day in writing, on the basis of which Mahagama P.S. Case No. 104/2000 dated 17.8.2000 was registered against the appellant under Sections 376/511 IPC. The police investigated the case and finally submitted charge-sheet against the appellant under Sections 376/ 511 IPC. The trial of the appellant was committed to the court of sessions where the learned Sessions Judge, Godda charged the appellant for the offences under Sections 376/511 IPC on 22.2.2001, to which he pleaded not guilty and claimed false prosecution. However, the learned trial court after examining witnesses found and held him guilty for the offence under Section 354 IPC and sentenced him as aforesaid. 4. The appellant has remained in custody, on the date of judgment, for nearly two years. The present appeal has been preferred mainly on the ground that the trial court has not considered the improbability of the allegations. It is also asserted that the learned court below has not scrutinized the evidences of witnesses, who were interested and related with the informant. According to the learned counsel for the appellant, the entire prosecution story suffers from credibility, as no one would try to enter in the house of neighbour to commit rape upon a lady, who was having three children. It was also asserted that though it was alleged that the victim was physically thrown on the ground, no injury has been found by the doctor. It was also asserted that though it was alleged that the victim was physically thrown on the ground, no injury has been found by the doctor. The learned counsel further pointed out that in absence of any means of identification produced before I.O., the whole story suffers from credibility neither any broken bangles etc. were found at the PO. As such the appellant may be acquitted of the charges. 5. The learned APP opposed this contention. 6. I have gone through the materials on record in this context. The prosecution has examined altogether 10 witnesses, out of which PW 10 Abdul Sattar Rahmani Kashmi has produced Panchnama held on 7.2.2000, by which it has been brought before the trial court that the appellant has tried earlier to molest 3nd commit rape with the victim on the point of revolver, vide Exts. 1 and 1/2. 7. PW 7, the victim Rakiba Khatoon, has supported her husband PW 8 in details. According to PW 7, on the date of occurrence in the night her daughter PW 6 asked her to open the door to urinate. Thereafter, she was breast-feeding her son in lap, when the appellant entered in the house. She further asserted that he caught hold of her hairs and pressing her mouth tried to exploit her sexually. In the meantime PW 6 returned after urinating and started crying. She further asserted that her• Debar, PW 3 Yar Mohammad and PW 5, Babar Ali also came but in the meantime the appellant managed to escape. 8. This fact has been supported by PWs. 3, 5 and 6, who asserted to have seen the appellant running away from the house. PWs. 1 and 2, Bahadur Ansari and Md. Kalimuddin Ansari and PW 4 Bibi Julekha are neighbourers and hearsay witnesses of the occurrence. All of them have asserted that appellant has tried to commit rape, as per statement made by PW 7. This fact has been supported by PW 6, daughter of the victim and the informant aged about. 9 years. She has admitted that she was taught by the father and lawyer that what question may be put to her in the court and by the counsel for the appellant. 9. Therefore, the eye witnesses of the occurrences are PWs 6 and 7. PW 6, the child witness, was admittedly tutored before her statement was recorded in the court. She has admitted that she was taught by the father and lawyer that what question may be put to her in the court and by the counsel for the appellant. 9. Therefore, the eye witnesses of the occurrences are PWs 6 and 7. PW 6, the child witness, was admittedly tutored before her statement was recorded in the court. PW 7 Rakiba has admitted during cross-examination that on that time a Lalten was burning, which was showl1 to the police. She has asserted that she has stated before the police that earlier she was subjected to such molestation by the appellant. She was not a party of the panchayati. She denied that there was a long pending dispute between the appellant and her family. 10. PW 9 is the 10 of the case, who was cross-examined at length in which he admitted that he did not find any broken bangle etc. at the PO. According to him, the victim Rakiba Khatoon, PW 7 has not asserted that prior to this occurrence she was subjected to molestation by the appellant, as per panchayati Ext.1. According to this witness, Rasida Khatoon, PW 6, has asserted that someone was pulling her mother but she not named the appellant. The 10 further admitted that PW 5 has stated before him that he found Rasida and his brother PW 4 calling from inside the house. He has denied that this witness has asserted before him regarding some incident taking place 1 and 1/2 years ago, for which a panchayati was held. He admitted that no medical examination of the victim was done. 11. In view of the facts and circumstances, discussed above, I find that the incident, has been narrated by different persons in different manners. The informant, PW 8, Harun though examined was not an eye witness of the occurrence. PW 6, the child witness, is admittedly a tutored witness and reliance cannot be placed safely upon her version. PW 7, the victim, has given contradictory statement before the police and in the trial court. The other witnesses claimed to have seen the appellant fleeing from the house are admittedly on inimical terms with the appellant. The enmity between the families is also highlighted by Exts.1 and 1/1, the panchayati. Therefore, the probability of false implication cannot be ruled out. 12. The other witnesses claimed to have seen the appellant fleeing from the house are admittedly on inimical terms with the appellant. The enmity between the families is also highlighted by Exts.1 and 1/1, the panchayati. Therefore, the probability of false implication cannot be ruled out. 12. In view of the facts stated above, where the eye witnesses of the occurrence are contradicting each other and false implication cannot be ruled out, I find that the conviction of the appellant under Section 354 IPC is not maintainable. It is also apparent from the records that the appellant has already remained in custody for nearly two years before the judgment was delivered. In that case even if the occurrence took place, the appellant has suffered sufficiently. 13. Having considered the: above facts and circumstances, I find that the prosecution in the present case has not been able to bring home charges against the appellant. Accordingly this appeal is allowed and judgment of conviction and sentence dated 28.8.2002 and 30.8.2002 passed by the leaned court below is hereby set aside. The appellant being on bail is discharged from the liability of his bail bond.