Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 656 (PAT)

Tengar Yadav v. State Of Bihar

2007-04-02

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. Though the sole appellant was charged under Sections 376, 354, 380 and 457, IPC, on being tried by Sri Ramnath, the then 1st Additional Session Judge, Rohtas at Sasaram in Sessions Trial No. 44/11 of 1991/91 (arising out of Chenari P.S. Case No. 85 of 1990) he suffered conviction only under Sections 457 and 354, IPC and was sentenced to undergo rig- orous imprisonment for a term of two years each on each count with direction for the two sentences to run concurrently. The judgment of conviction and order of sentence were passed by Sri Ramnath on 17.8.1992. 2. The prosecution machinery was set in motion with one Poonam Devi giving her statement before the Officer-in-charge. Chenari P.S. alleging, inter alia, that in the preceding night at about 11.30 p.m. while she with nanad Phool Kumari was sleeping in her room and her mother-in-law was sleeping in the eastern veranda, she suddenly heard the alarming cry of her mother-in-law whereupon she came out of her room and saw two persons both of them forcibly entered into her room. It is alleged that one of them catching hold of her felled her on the cot, gagged her mouth to smother her attempts to raise alarm and ravished her. It is said that Phool Kumari seeing the overt act ran for safety to a corner of the room but did not raise any alarm out of fear. It is alleged that after she had been raped, the miscreant caught hold of Phool Kumari and started fonding her cheeks and breast and seizing the opportunity the informant escaped from the room and raised alarm whereupon both the miscreants took to their heels. While escaping, the mother-in-law attempted to catch them but failed. The informant and the mother-in-law identified one of the culprits as Tengar Yadav. It has also been stated that the mother-in-law disclosed that one of the culprits had attempted to fondle her body and lift her sari and saya which aroused her from sleep and she had raised alarm. It is also alleged that while fleeing Tengar Yadav took away some of the ornaments of the mother-in-law. It has also been stated that the mother-in-law disclosed that one of the culprits had attempted to fondle her body and lift her sari and saya which aroused her from sleep and she had raised alarm. It is also alleged that while fleeing Tengar Yadav took away some of the ornaments of the mother-in-law. The informant in concluding was sanguine that Tengar Yadav having formed a common intention with 2-3 others with ulterior motive had entered into her house, committed rape on her, and in attempting to commit rape on the nanad and mother-in-law had molested them and had stolen the ornaments of the mother-in-law. 3. On the basis of the aforesaid statement of Poonam Devi, Chenari P.S, Case No. 85 of 1990 was registered under Sections 457, 376, 354/34, IPC and after due investigation a charge-sheet was submitted only against the appellant under Sections 457, 376, 354 and 380/34, IPC. 4. At the trial in the Court of Sessions, the sole accused pleaded not guilty of the charges framed against him and took the plea of innocence and false implication. 5. The prosecution in support of its case sought to examine as many as 7 witnesses and also adduced documentary evidence. However, the informant could not be exam ined as she had become traceless after the incident and never returned to the marital home. Similarly, the Investigating Officer also could not be examined and the prosecution has not been able to offer any explanation for such non-examination. 6. The learned trial Judge on a consideration of the materials available on record and after hearing the submissions advanced by the respective parties formed the opinion that the offences under Sections 376 and 380, IPC had not been proved by the prosecution beyond all reasonable doubts and accordingly recorded a verdict of acquittal so far as these charges as against the accused were concerned. What appears to have weighed with the learned trial Judge was that PW 5 (Dr. Vandana Choudhary), who had examined the prosecutrix had not given any positive opinion regarding rape and that the prosecutrix herself had not come to the Court to testify and as such it was rightly held that the offence of rape had not been proved in the absence of the positive evidence of the doctor and the prosecutrix. 7. Vandana Choudhary), who had examined the prosecutrix had not given any positive opinion regarding rape and that the prosecutrix herself had not come to the Court to testify and as such it was rightly held that the offence of rape had not been proved in the absence of the positive evidence of the doctor and the prosecutrix. 7. In respect of the offence under Sec.380, IPC the learned trial Judge found several discrepancies and contradictions in the cross-examination of PWs 2 to 4 regarding the theft of the box containing ornaments. That apart no recovery of any of the stolen articles appears to have been made from the person or possession of the accused and the learned trial Judge was of the opinion that the offence under Sec.380, IPC had not been proved beyond reasonable doubt. 8. So far as the offences under Sections 457 and 354 was concerned there appears sufficient materials on the records. PW 2 (Shanphoola Devi) the mother-in-law of the informant in her testimony in Court sought to support the prosecution case in toto. She has stated about the accused having committed rape on her daughter-in-law and molested her daughter Phool Kumari. She has also spoken of the attempt made to outrage her modesty. She also spoke of her box of ornament being stolen and of having recognized and identified accused Tengar Yadav. PW 3 (Phool Kumari) has corroborated these facts. She has also spoken of the attempt by her mother to nab the accused but he managed to escape. She has also spoken of her father sleeping elsewhere coming to the P.O. along with others on hearing the alarm cries. PW 4 (Sahbir Shah) who had arrived at the spot has stated that on hearing the cries of alarm he rushed to his house from his cattle shed adjacent to his house where he was sleeping and found two persons coming out from his house and amongst them he identified accused Tengar Yadav and claims to have given chase without success. He has also spoke of his daughter-in-law having disappeared shortly after the occurrence and not having returned to the marital home. 9. The learned counsel for the appellant sought to contend that in the absence of the FIR having been proved and the I.O. not being examined no reliance could be placed on the FIR. 10. He has also spoke of his daughter-in-law having disappeared shortly after the occurrence and not having returned to the marital home. 9. The learned counsel for the appellant sought to contend that in the absence of the FIR having been proved and the I.O. not being examined no reliance could be placed on the FIR. 10. I am unable to accept the contention of the learned counsel for the appellant. It is apparent from perusal of the FIR that PWs 2 to 4 are attesting witnesses to the statement given before the police by Poonam Devi (the prosecutrix) which only goes to show that the statement had been recorded by the S.I. in their presence and they having corroborated the contents thereof in course of their testimony in Court there was no room to doubt the bona fides of the FIR which in my opinion has been proved in accordance with law. 11. From the evidence available on record, it is apparent that the accused had stealthily entered into the house of the informant in the depth of night in order to commit an offence, presumably that of rape and theft and in doing so had also used criminal force upon Phool Kumari and her mother Sanphoola Devi with the intent to outrage their modesty. 12. So far as the offence under Sec.354 of the IPC is concerned, it has only been supported by PWs 2 and 3 both of whom were the victims of the said offence. The defence has not been able to bring out anything of any consequences from these two witnesses so as to impeach their credibility. That apart the defence has also not been able to show that these two witnesses apart from PW 4 were on inimical terms with the accused. Obviously. PWs 2 to 4 had no axe to grind with the accused and there is no plausible reason why he should be falsely implicated in a false case. 13. Now coming to the aspect of non-examination of the Investigating Officer the learned counsel for the appellant has not shown by reference to any aspect as to how the non-examination of the I.O. had resulted in any prejudice to the defence. The argument that non-examination of the I.O. invariably results in causing prejudice to the accused and should be held to be fatal as an absolute proposition is fallacious. The argument that non-examination of the I.O. invariably results in causing prejudice to the accused and should be held to be fatal as an absolute proposition is fallacious. The well settled law in this regard is that non-examination of the I.O. can result in failure of the prosecution case only in such cases where the defence wants to prove some material contradictions in the deposition of the witnesses by reference to their statements made during the investigation to undo their credibility or in the like manner when some other material evidence cannot be brought on the record except by examining the I.O. In the present case nothing of this nature has been brought to my notice which can be said to have resulted in any prejudice to the appellant on account of non-examination of the IO. I do not find any merit in this submission of the learned counsel for the appellant more so when nothing has been brought on record regarding animosity. 14. Accordingly I uphold the verdict recorded by the learned trial Judge convicting the appellant herein for offences under Sec. 457 and 354 of IPC. 15. Admittedly the sessions trial is of the year 1991 and arises out of Chanari P.S. Case of the year 1990. Obviously the appellant has suffered the ordeal of prosecution for 17 long years which may have had its adverse effect on his mind and physique. 16. Due regard being had to the facts and circumstances of the case and the ordeal, harassment and hardship suffered by the appellant herein, while maintaining the conviction under Sections 457 and 354, IPC. I am of the opinion that the interest of justice will be served if the sentence pronounced by the trial Judge is modified to the period already undergone. 17. In the result the appeal is dismissed with modification in sentence. Appeal dismissed with modification in sentence.