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Jharkhand High Court · body

2008 DIGILAW 1412 (JHR)

Jamshed Mian(Ansari) v. State of Jharkhand

2008-12-06

D.K.SINHA

body2008
JUDGMENT : The sole appellant Jamshed Mian(Ansari) has preferred this appeal against the order of conviction recorded under section 354 of the Indian Penal Code passed by the Vth Additional Sessions Judge,Dhanbad in S.T.No. 305 of 2001 whereby he has been sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 5,000/-with default stipulation to serve out additional period of six months imprisonment. He was further directed that the amount of fine if so paid and realized be given to the victim Janeva Khatoon or her legal heirs. 2. The prosecution story in short was that when the victim Janeva Khatoon had been returning after answering the call of nature from the field to her home the appellant Jamshed Mian(Ansari) caught hold her with the intention to commit rape on her. On the alarm there being raised by the victim extending resistance to the act of the appellant, it was alleged that he took to his heels brandishing a knife by extending threat that she would be killed if she would raise alarm. The victim returned back home and narrated the occurrence to her father(informant),mother (Ashrin Bibi)and other near relations upon which a panchayati was held in the village but the appellant refused to marry her and ultimately the informant-father had no way out except to institute a case in the police station by presenting a written report on 7.10.1990 in relation to the occurrence which took place on 5.10.1990. 3. Charge against the appellant was framed under sections 376 read with 511 of the Indian Penal Code and he was put on trial. 4. The learned trial court after due consideration of the testimony of the prosecution witnesses observed that none of the witnesses could testify that the appellant had undressed the clothes of the victim or that the appellant had himself undressed with the intention to commit rape on her and therefore, elements as required for constituting charge under sections 376 read with 511 of the Indian Penal Code could not be proved nevertheless the appellant was convicted under section 354 of the Indian Penal Code and accordingly sentenced. 5. 5. The learned counsel for the appellant exhorted that according to the prosecution case there was no eye witness of the occurrence other than the victim Janeva Khatoon and the other witnesses who were produced and examined on behalf of the prosecution had derived information from her and therefore their evidence was secondary in nature having corroborative value. But in the instant case as the victim abstained from the witness box for the reasons well known to the prosecution and the charge could not be substantiated either by direct evidence or circumstantial evidence in any manner, the trial court grossly erred in recoding the conviction of the appellant under section 354 of the Indian Penal Code without explanation or legal evidence on the record. 6. Having regard to the facts and circumstances of the case and arguments advanced for the appellant I find that though the trial court observed that the prosecution could not be able to prove the charge under sections 376 read with 511 of the Indian Penal Code against the appellant, but without assigning any reason the court erroneously observed that the prosecution could be able to prove the lesser offence under section 354 of the Indian Penal Code. Admittedly, charge was not framed against the appellant under section 354 of the Indian Penal Code and the settled law is that if the charge is framed against the accused in a graver offence, the conviction may be recorded in a lighter offence provided; the incriminating materials appearing against the accused must be subscribed and confronted to the accused in statement recorded under section 313 of Cr.P.C. I find that no incriminating material was put to the appellant while recording his statement under section 313 of Cr.P.C.so as to call for his conviction under section 354 of the Indian Penal Code. On the other hand, I find that the appellant was called upon to answer as to whether he attempted to commit rape on the victim girl on 5.10.1990 to which his reply was in negative and he pleaded false implication. On the other hand, I find that the appellant was called upon to answer as to whether he attempted to commit rape on the victim girl on 5.10.1990 to which his reply was in negative and he pleaded false implication. I find substance in the arguments on behalf of the appellant that none of the witnesses produced and examined on behalf of the prosecution was eye witness and they derived information from Janeva Khatoon, hence the character of such witnesses produced on behalf of the prosecution is secondary in nature and on their evidence the conviction of the appellant is erroneous for want of primary evidence before the trial court and for reason judgment of conviction under section 354 of the Indian Penal Code and order of sentence recorded against the appellant cannot sustain and accordingly is set aside. The appellant Jamshed Mian(Ansari) is therefore, acquitted in S.T.No. 305 of 1991 arising out of G.R.No. 3181 of 1990.His bail bond stands discharged.