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Jharkhand High Court · body

2011 DIGILAW 1106 (JHR)

Sita Ram Gosain v. State of Jharkhand

2011-12-15

R.R.PRASAD

body2011
JUDGMENT By Court.-This revision application is directed against the judgment and order dated 1.6.2001 passed by the learned 1st Sessions Judge, Koderma in Cr. App. No. 33 of 2001 affirming the judgment and order dated 7.3.2001 passed by the Additional Chief Judicial Magistrate, Koderma in G.R. No. 377 of 1999 whereby and whereunder learned Additional Chief Judicial Magistrate having found the petitioner guilty for an offence under Section 377 of the Indian Penal Code sentenced him to undergo rigorous imprisonment for five years. 2. The case of the prosecution is that Ujjal Kumar Sinha (P.W. 2) aged about 11 years a student of Class-VIII used to have private tuition alongwith others from 6.30 A.M. to 9 A.M. at the residence of the petitioner (accused), who happened to be the Headmaster of the School. On 18.5.1999 the said Ujjal Kumar Sinha alongwith his friends Naresh and Sandeep came to the residence of the petitioner for tuition. At about 9 A.M. the petitioner sent Naresh and Sandeep to their houses and asked Ujjal Kumar Sinha to be there. Thereafter the petitioner asked Ujjal Kumar Sinha to shut the door which he did and then asked Ujjal Kumar Sinha to put off his pant to which he made protest but was assaulted by the petitioner and then committed carnal intercourse against the order of nature. The boy came home weeping and narrated everything to his parents. Thereupon he alongwith villagers came to the house of the petitioner but the house was• found locked and the petitioner was missing. On finding the house locked, the villagers told the father of the boy that they will take action on opening of the school. When the school got opened, the matter was reported to the District Education Officer, Koderma who made an enquiry on 3.6.1999. Thereafter on the advice of others, Brahmdeo Prasad, the father of the victim boy lodged a written report, upon which Koderma (Telaiya) P.S. Case No. 167 of 1999 was instituted under Section 377 of the Indian Penal Code against the petitioner. 3. During investigation, the police got the statement of the victim boy, Ujjal Kumar Sinha recorded under Section 164 of the Code of Criminal Procedure on 8.6.1999. The said boy was also examined by Dr. Jaibrat Rai (P.W. 4), who on examination found abrasion over anal region 1/4" x 1/16". 3. During investigation, the police got the statement of the victim boy, Ujjal Kumar Sinha recorded under Section 164 of the Code of Criminal Procedure on 8.6.1999. The said boy was also examined by Dr. Jaibrat Rai (P.W. 4), who on examination found abrasion over anal region 1/4" x 1/16". The wound age of which was of more than five days was found infected. According to the Doctor, abrasion does suggest the case of unnatural sex. 4. On completion of investigation, the police submitted charge-sheet. When trial commenced, charge was framed to which the petitioner pleaded not guilty and claimed to be tried. 5. The prosecution examined the victim boy Ujjal Kumar Sinha as P.W. 2 whereas his father, Brahmdeo Prasad and mother Kamla Devi were examined as P.Ws. 1 and 5 whereas Basant Sah, the Investigating Officer and the Dr. Jaibrat Rai were examined as P.Ws. 3 and 4. 6. The trial court having found the testimony of the victim reliable getting corroboration from the medical evidence recorded the order of conviction and sentence as aforesaid. The said judgment and order on being challenged in appeal was affirmed by the learned Sessions Judge, Koderma. 7. Mr. A.K. Kashyap, learned Sr. Counsel appearing for the petitioner submitted that occurrence is said to have taken place on 18.5.1999 whereas first information report was lodged on 3.6.1999 and as such, there has been delay of 15 days but no reasonable explanation has been given which creates serious doubt over the prosecution case. Moreover, the prosecution has failed to examine two witnesses, namely, Naresh and Sandeep, who on the date of occurrence had gone to the residence of the Headmaster (petitioner) alongwith the victim boy (P.W. 2) but the prosecution did not examine those two witnesses, rather did withhold others and as such, adverse inference be drawn on account of non-examination of those witnesses. 8. Learned counsel in support of his submission has relied upon a decision rendered in a case of Pratap Singh and Another vs. State of Madhya Pradesh [ (2005)13 SCC 624 ]. 9. 8. Learned counsel in support of his submission has relied upon a decision rendered in a case of Pratap Singh and Another vs. State of Madhya Pradesh [ (2005)13 SCC 624 ]. 9. It was further submitted that the petitioner has falsely been implicated at the instance of Shri Krishna @ Shri Kant Singh, Headmaster of another School but he wanted to be Headmaster of the School in which the petitioner was the Headmaster and this fact gets reflected from the fact that it was Shri Krishna who was scribed the written report, upon which the case was lodged but the court below did not consider all these aspects of the matter in right perspective and passed the order and as such, the order passed by the trial court as well as appellate court are fit to be set aside. 10. No doubt it is true that the occurrence took place on 18.5.1999 whereas written report was submitted on 3.6.1999. The reason which has been extended by the witness, particularly P.W. 1, father of the victim boy is that when they were informed about .the occurrence by his son, the matter was reported to the villagers, who alongwith P.W. 1 came to the house of the petitioner but the house was found locked. Thereupon, as per the evidence of PW. 1, the villagers told him not to take any action as they will be taking action when the school gets opened. Further has testified that when the school got opened, written information was given to the District Education Officer, Koderma who came to the school for enquiry on 3.6.1999 and on the same day written report was lodged. 11. Learned counsel submitted that the version of P.W. 1 in this respect cannot be believed in absence of any evidence in this regard by any of the villagers or even by the District Education Officer, Koderma. The submission made on behalf of the petitioner is not worth acceptable as it appears to be a natural conduct on the part of the P.W. 1 to inform the villagers as soon as he came to know about the occurrence from his son. The submission made on behalf of the petitioner is not worth acceptable as it appears to be a natural conduct on the part of the P.W. 1 to inform the villagers as soon as he came to know about the occurrence from his son. When P.W. 1 came to the residence of the petitioner (accused) alongwith villagers, house was found locked and then according to the P.W. 1, he was asked by the villagers not to take any action as they will be taking action against the Headmaster when the school gets opened. Even P.W. 5, mother of the victim boy and the victim boy also in their evidences corroborated the fact that the P.W. 1 had gone alongwith villagers to the house of the petitioner who was found missing. However, they have deposed that the villagers told them that they will convene a Panchayati whereas P.W. 1 has stated that villagers had asked them not to take any action as they will be taking action. Thus, there appears to be two versions but it hardly makes any material difference on the point of deferment in lodging the case. When the school got opened, an application, according to all those witnesses, was given to the District Education Officer, Koderma who made an enquiry and then on being advised by the villagers, the case was lodged. Thus, what emerges from the evidence is that the P.W 1 waited for action to be taken by the villagers and when nothing seems to have been done by the villagers, written report was lodged on 3.6.1999. Thus, there appears to be reasonable explanation which has been accepted by the court below and there appears to be no reason not to accept the explanation extended on behalf of the prosecution for lodging the case delayedly. 12. Further, I do find that P.W 2 has testified that the petitioner after sending his two friends Naresh and Sandeep got the door closed and then committed carnal intercourse with him against the order of nature forcibly. The version of P.W 2 gets corroboration from the medical evidence as Dr. Jaibrat Rai (P.W 4) in course of examination did find abrasion over anal region which according to him, was caused on account of unnatural offence. The version of P.W 2 gets corroboration from the medical evidence as Dr. Jaibrat Rai (P.W 4) in course of examination did find abrasion over anal region which according to him, was caused on account of unnatural offence. There appears to be no reason to disbelieve the testimony of P.W 2, particularly when evidence of P.W. 2 is getting corroboration from the medical evidence. In this situation even if two witnesses Naresh and San deep had not been examined by the prosecution, it hardly affects the case of prosecution adversely particularly when those two witnesses had never been the eye witnesses to the occurrence, rather those witnesses can be said to be on the point that P.W 2 on the date of occurrence had gone to the place of the petitioner but the defence does not seems to have given any suggestion to P.W 2 that he had riot been there on the date and time of occurrence at the place of the petitioner. 13. Thus, under the aforesaid circumstances, when P.W. 2 has been found to be reliable, non-examination of those witnesses will hardly affect the prosecution case adversely. In this regard a case of Pallu VS. State of Haryana [ (2005)10 SCC 196 ] be referred to. 14. So far as the decision referred to on behalf of the petitioner is concerned, it is true that the Hon'ble Supreme Court has held in a case of Pratap Singh and Another vs. State of Madhya Pradesh (supra) that adverse inference for non-examination of the two witnesses can be drawn but it was held in the context that those witnesses were very material for proving the prosecution case. 15. Other submission which has been advanced is that the petitioner has falsely been implicated at the instance of one Shri Krishna Singh as he wanted to come to the school in which the petitioner was the Headmaster but no evidence has been led in this regard. Moreover, even the petitioner in his statement under Section 313 of the Code of Criminal Procedure has not taken such plea, rather he has taken a plea wherein he has stated that it was Ujjal Kumar Sinha (P.W. 2) who has falsely implicated him but again no reason has been assigned as to why a boy of 11 years taking tuition from him would falsely implicate the petitioner. 16. 16. Thus, I do not find any infirmity in the order passed by the court below. Accordingly, the judgment and order passed by the court below is hereby affirmed. This revision being devoid of any merit is hereby dismissed.