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2007 DIGILAW 836 (JHR)

Lal Mohan Hansda v. The State Of Jharkhand

2007-11-02

D.G.R.PATNAIK

body2007
JUDGMENT D.G.R. Patnaik, J. 1. The instant appeal is directed against the judgment of conviction dated 27 th February 2004 passed in Sessions Trial No. 410 of 2001, whereby the appellant was convicted for the offence under Sections 341/354 of the IPC. The case was registered on the basis of the complaint initially filed by the prosecutrix before the learned Chief Judicial Magistrate, which on being forwarded to the police under Section 156(3) of the Cr. PC, was registered for the offence under Sections 341,354 and 376/511 of the IPC. 2. Case of the prosecution is that negotiation of the complainants marriage with one Girish Mardi Echra of Jadugora was finalized according to the social custom. On 11.4.1999 the elder brother and another relative of the complainant had gone to the house of Girish Mardi for performance of some pre-marriage ceremony. In the evening of the same day, the complainant and her friends namely, Sarswati Murmur and Kumari Bali had gone for evening walk. At that time, the appellant Lal Mohan Hansda accosted the complainant on the road and caught hold of her hands. It is alleged that the appellant had tried to undress the complainant and to commit rape on her, but on her alarms and the a arms raised by her friends, the appellant fled away after putting vermilion on the complainants forehead. The complainants mother and another person arrived there on hearing her alarms and took her to their house. The matter was reported to the village Head. A Panchayati was convened and in presence of the panchayati, the appellant had confessed his guilt and had promised to compensate the family of the complainant. As a result of the above incident, the marriage of the complainant which was settled with Girish Mardi had broken. The appellant had eventually backed out from his assurance! of compensating the family of the complainant. 3. Charge against the appellant was framed for the aforesaid offences to which he did not plead guilty. His case in defence was of total denial of the alleged occurrence. 4. At the trial, altogether eleven witnesses were examined by the prosecution including the complainant. However, investigating officer of the case has lot been examined. Out of several witnesses, PWs 3 and 4, namely the complainants friends, had failed to support the prosecutions case and consequently, they were declared hostile by the prosecution. 4. At the trial, altogether eleven witnesses were examined by the prosecution including the complainant. However, investigating officer of the case has lot been examined. Out of several witnesses, PWs 3 and 4, namely the complainants friends, had failed to support the prosecutions case and consequently, they were declared hostile by the prosecution. PW2 was tendered for her cross- examination. PW5 Surayi Majhi, who was though examined by the prosecution, but he too failed to support the prosecutions case and was declared hostile by the prosecution. The complainant was examined as PW1. In her deposition, she has stated that on 11.4.1999 at about 6.00 PM, while she had gone along with her two friends to Kheda Guttu, the accused Lal Mohan Hansda accosted her suddenly on the road and tore her clothes and wanted to commit rape upon her and when she raised alarm, he put vermilion on her forehead and fled away. She adds that on her alarms, her mother and sister-in-law arrived and took her to their house. She adds further that a panchayati was convened in the village on her complaint, but when the appellant refused to comply with the decisions of the panchayati, she lodged her complaint in the court on 22.6.1999 and chat her statement was recorded by the police. In her cross-examination, she has named both her friends namely, Sarswati Murmur and Kumari Bali who were present at the time of the alleged occurrence. Evidences of PWs 6, 7 and 8 are hearsay. These witnesses have stated that they had heard that the appellant Lal Mohan Hansda had forcibly put vermilion on the forehead of the complainant. PW9, who happens to be the brother of the complainant, affirms to have heard about the occurrence from his sister namely the complainant. He also a firms to have reported the incident to the village Head and panchayati was convened in presence of the appellant Lal Mohan Hansda, but the appellant did not abide by the decisions of the panchayat. The evidence of PWs 10 and 11, who are brothers of the complainant, is almost identical to the evidence of PW9. They too affirm to have heard about the occurrence from the complainant. 5. The evidence of PWs 10 and 11, who are brothers of the complainant, is almost identical to the evidence of PW9. They too affirm to have heard about the occurrence from the complainant. 5. After discussing the evidences of the prosecutions witnesses, the trial court had recorded its finding that the prosecution has not been able to prove the charge for the offence under Sections 376/511 of the IPC. However, the trial court found the appellant guilty for the offence under Sections 341 and 354 of the IPC, but instead of awarding any sentence, the trial court gave the benefit of probation to the appellant directing him to execute bond of Rs. 10,000/- with sureties for maintaining peace and good be behaviour for a period of two years. 6. The appellant has challenged the impugned order of conviction on the following grounds: 1. that the complaint was filed after a delay of two months and the prosecution has not explained the delay satisfactorily. 2. that the friends of the complainant namely PWs 3 and 4 who were purportedly present at the time of the alleged occurrence along with the complainant, have not supported the prosecutions case at all. 3. that except the informant (PW1), rest of the witnesses also do not offer any support to the case of the complainant inasmuch as, the evidence of all the remaining witnesses is hearsay on the point of the alleged occurrence. 4. that the investigating officer of the case has not been examined thereby causing serious prejudice to the appellant in his defence. 7. Shri Indrajeet Sinha, learned Counsel for the appellant, submit; that the impugned judgment of conviction is bad both on the points of law as well as or facts for the main reason that the trial court has not appreciated the evidences on record in proper perspective. Learned Counsel explains that the trial court has erred in placing implicit reliance upon the testimony of the prosecutrix despite the fact that her testimony suffers from several serious contradictions and inconsistencies. Referring in this context 10 the statements contained in the complaint petition/F.I.R., learned Counsel explains that in her complaint, the complainant has stated that an attempt was only made to strip her of her clothes and to commit rape on her, but the complainant has improved her version in her deposition by claiming that the accused had torn her clothes. Referring in this context 10 the statements contained in the complaint petition/F.I.R., learned Counsel explains that in her complaint, the complainant has stated that an attempt was only made to strip her of her clothes and to commit rape on her, but the complainant has improved her version in her deposition by claiming that the accused had torn her clothes. Learned Counsel adds further that even otherwise, neither the offence under Section 354 IPC nor Section 341 IPC is made out from the testimony of the prosecutrix. Learned Counsel would argue that the complainant has not claimed that in the act of putting vermilion on the forehead of the complainant, the accused had any intention to outrage her modesty and, therefore, the mere act of applying vermilion on the forehead of the complainant cannot be construed as an act done with intent to outrage of her modesty. Learned Counsel adds further that on proper reading of the evidence of the prosecutrix, it transpires that the accused had suddenly appeared and by putting vermilion on the complainants forehead, he fled away and in this view of the matter, offence under Section 341 of the IPC is not made out. 8. Learned Counsel for the State, on the other hand, argues that from the evidences of the prosecutrix, it is amply clear that the accused had caught hold of her hand and used force on her land the act of applying vermilion on her forehead, was certainly with intent to outrage her modesty. Learned Counsel submits further that the delay in lodging the complaint has been adequately explained by the prosecution even from the statements of the prosecutrix and the witnesses. The prosecutrix had immediately informed about the incident to her mother and sister-in-law and on the same night, to her brothers and on the next morning, the matter was reported to the village Head. Learned Counsel adds further that the complainant as well as the accused belong to Santhal community and according to their traditional custom, the offences are reported to the elders of their own community for appropriate action. Learned Counsel adds that in the instant case, on the occurrence being promptly reported to the village elders, a panchayati meeting was convened in presence of the appellant and according to the statements of the witnesses, a decision was taken by the panchayat. Learned Counsel adds that in the instant case, on the occurrence being promptly reported to the village elders, a panchayati meeting was convened in presence of the appellant and according to the statements of the witnesses, a decision was taken by the panchayat. The appellant had initially agreed to abide by the decision of the panchayat, but had later backed out. The case was instituted only after the appellant had backed out from his assurance to abide by the decision of the panchayat and, therefore, delay caused in lodging the complaint. Learned Counsel explains further that though, the investigating officer has not been examined, but the non-examination of the investigating officer has not caused any prejudice to the appellant in his defence and therefore, non-examination of the investigating officer is of no consequence to the defence. Learned Counsel further submits that the failure of PWs 3 and 4 to support the case of the prosecution, in itself, does not make any dent in the prosecutions case and the testimony of the prosecutrix alone is sufficient to prove the offence under Sections 341 and 354 of the IPC against the appellant. 9. No doubt, there is delay of two months in institution of the case, but as rightly pointed out by the learned Counsel for the State, the delay has adequately been explained. The complainant and the appellant happen to be members of Santhal Community and according to their traditional custom in the village, disputes are referred to the village Head and Panchayat for settlement. From the evidence of the witnesses particularly, PWs 7, 8, 9 and 19, it appears that the complainant had promptly informed about the occurrence to her mother and other members of her family and soon thereafter, the matter was reported to the village elders. This fact has not been disputed nor controverted by the defence even in the cross-examination of the witnesses. 10. It also appears that two of the material witnesses of the prosecution namely, PWs 3 and 4 have failed to support the prosecutions case and had to be declared hostile by the prosecution. Both these witnesses belong to the same village as that of the appellant. The prosecution was left with the testimony of the prosecutrix. 10. It also appears that two of the material witnesses of the prosecution namely, PWs 3 and 4 have failed to support the prosecutions case and had to be declared hostile by the prosecution. Both these witnesses belong to the same village as that of the appellant. The prosecution was left with the testimony of the prosecutrix. Her testimony is consistent and does not suffer from any serious contradiction She has categorically stated that she was accosted on the way by the appellant and the appellant caught hold of her hands and had tried to outrage her modesty and had also applied vermilion on her forehead. There is no reason to disbelieve the testimony of the prosecutrix. The testimony of PWs 7, 8, 9 and 10 amply bear out that after having suffered outrage at the hands of the appellant, the complainant had promptly reported the matter to her mother and sister-in-law and later, to her brothers and subsequently, the matter was reported to the village Head. The inference which may reasonably be drawn from the testimony of the complainant is that she had felt that her modesty has been outraged by the act and conduct of the appellant. , Section 354 of the IPC is quoted herein-below: 354. Assault or criminal force to woman with intent to outrage her modesty.-Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be like y that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extent to two years, or with fine, or with both. The offence is complete when the accused uses criminal fore; to any woman intending to outrage or knowing it to be likely that he will thereby on rage her modesty. 11. The trial court has adequately discussed the evidences on record and has rightly placed reliance upon the testimony of the prosecutrix to record its finding of guilt for the offence under Sections 354 and 341 of the IPC against the appellant. 12. For the reasons discussed above, I do riot find any merit in this appeal. Accordingly, this appeal is dismissed. The judgment of conviction as passed by the trial court against the appellant for the offence under Sections 354 and 341 of the IPC is hereby confirmed.