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2012 DIGILAW 1065 (JHR)

Farid Sheikh v. State of Bihar

2012-07-26

H.C.MISHRA

body2012
ORDER By the Court.-Heard learned counsel for the petitioners and learned counsel for the State. 2. Petitioners have challenged the judgment dated 18th December, 1999 passed by Sri Vinay Kumar Sinha, learned Additional Session Judge, Pakur, in Session Case No. 231 of 1991/35 of 1991, whereby the petitioners have been found guilty for the offences under Section 448 and 376/511 of the IPC, and were convicted for the same. Upon hearing on the point of sentence, the accused petitioners were sentenced to undergo R.I. for one year each for the offence under Section 448, IPC, and to undergo R.I. for four years each for the offence under Section 376/511, IPC, and both the sentences were ordered to run concurrently. 3. From the record it appears that the petitioners were made accused in connection with Mahespur P.S. Case No. 23 of 1987, corresponding to G.R No. 54 of 1987, which was instituted on the basis of the FIR lodged by the informant victim 'X, alleging that while the informant was sleeping in her house with her sister 'Y, the accused petitioners entered into their room and outraged the modesty of both the sisters and upon alarm raised by them, the family members came there, whereupon the accused persons fled away. On the basis of this allegation, the FIR was lodged for the offence under Sections 448 and 354 of the IPC. It appears that after investigation, police submitted charge-sheet for the offence under Sections 447 and 376/511 of the IPC and the cognizance was also taken against the petitioners. Ultimately, the charges were framed against the petitioners' for the offence under Section 448 and 376/511 of the IPC, and they were put to trial. 4. From the lower Court records and the impugned judgment, it appears that the prosecution examined six witnesses in all who have supported the case, but the fact remains that neither the informant 'X nor the I.O. were examined in this case. The another victim 'Y was examined as PW 4 who has only deposed that the accused persons entered into the room, where she was sleeping with her sister and they outraged their modesty (by molesting them). Upon the alarm raised by them the accused persons fled away. There is nothing in her deposition to show that the accused persons made any attempt to commit rape upon them. 5. The other P.Ws. Upon the alarm raised by them the accused persons fled away. There is nothing in her deposition to show that the accused persons made any attempt to commit rape upon them. 5. The other P.Ws. are the neighbours and family members who reached upon the alarm raised by the victim and they are the hearsay witnesses on the point of committing the offence. P.W. 5 has not supported the case and he was declared hostile. The Lower Court Record shows that even the F'IR was not proved in the case. 6. It appears that upon appraisal of the evidence on record the Court below found the petitioners guilty for the offence under Sections 448 and 376/511 of the IPC and they were convicted for the same and upon hearing on the point of sentence, they were sentenced as aforesaid by impugned Judgment and Order dated 18.12.1999. 7. Learned counsel for the petitioners has submitted that the petitioners have been falsely implicated, in this case. It has also been submitted that the impugned Judgment is absolutely illegal in as much as the informant has not been examined in this case who is the material witness in this case and the I.O. has also not been examined causing prejudice to the defence as relevant contradictions appearing in the depositions of the witnesses could not be taken from the Investigating Officer. It has also been submitted that the independent witness has not supported the case. Learned counsel accordingly, submitted that impugned Judgment cannot be sustained in the eyes of law. 8. Learned counsel for the State on the other hand opposed the prayer of the petitioners and has submitted that there is no illegality in the impugned Judgment and the same cannot be interfered with. 9. After having heard learned counsels for both the sides and upon going through the record. I find that in the evidence of the victim there is nothing to show that the petitioners had made any attempt to commit rape upon the victim girls. The informant. who is the other victim has not been examined in this case. Even the I.O. has not been examined. I find that in the evidence of the victim there is nothing to show that the petitioners had made any attempt to commit rape upon the victim girls. The informant. who is the other victim has not been examined in this case. Even the I.O. has not been examined. In the FIR, there is no allegation that the petitioners had attempted to commit rape upon the victim girls and accordingly, the FIR was not lodged, for the offence under Sections 376/511, IPC rather the FIR was lodged only for the offence under Sections 448 and 354 of the IPC. In course of trial, even though one of the victim was examined, but she has not stated that there was any attempt on behalf of the petitioners to commit rape upon them rather her evidence is only to the extent of outraging the modesty of the victim girls by molesting them. Thus, in absence of any evidence on record to show that there was any attempt by these petitioners to commit rape upon the victim girls in my considered view the petitioners could not be convicted for the offence under Sections 376/511 of the IPC. As the informant and the I.O. were not examined in he trial. coupled with the fact that even the FIR was not proved in the case. I am also of the considered view that it is a fit case in which the petitioners aught to have been given the benefit of doubt. Accordingly the impugned Judgment convicting and sentencing the petitioner for the offence under Sections 448 and 376/511 of the IPC, cannot be sustained in the eyes of law. 10. In view of the aforementioned discussions, the impugned Judgment of conviction and Order of sentence dated 18.12.1999 passed by Sri Vinay Kumar Sinha, learned Additional Sessions Judge. Pakur, in Sessions Case No. 231 of 1991/35 of 1991 is hereby, set-aside. The petitioners are given the benefit of doubt and 'they are acquitted of the charge and they are also discharged from the liabilities of their respective bail bonds. This application is accordingly allowed. 11. Let the Lower Court Records be sent back forthwith. Application allowed.