Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1180 (PAT)

Vijay Choudhary v. State of Bihar

2012-08-24

SHEEMA ALI KHAN

body2012
JUDGMENT (ORAL) Sheema Ali Khan, J.- This appeal is directed against the judgment of conviction dated 14.2.1999 and order of sentence dated 15.12.1999, passed in Sessions Trial No. 56 of 1997/335 of 1994 (D.J.) by the Additional Sessions Judge, 5th, Gaya convicting the sole appellant for offences under Section 376/511 of the Indian Penal Code to undergo R.I. for 7 years. 2. On the basis of a written report of Gayatri Kuman this case was instituted. She has stated that she was going to learn stitching at 'Prayas Sanstha' which is situated at Banke Bazar. On the way, just before the river, when she came near an orchard, she saw the appellant. He was carrying a container of toddy. When he reached near her, he grabbed her neck. She tried to free herself and fell down in the process. The informant then took out her slippers and assaulted him and shouted for help. It is said that Karu Yadav, Raju Singh and Rameshwar Mahto had witnessed the said occurrence. To explain the delay in lodging the First Information Report, it is stated that the male members of her family were not present in the house and, therefore, she could not report the matter to the police. She has also stated that after the occurrence she went to complaint to the mukhiya of the village and narrated the occurrence to him. 3. The defence on behalf of the appellant is that no such occurrence took place and that he has been implicated at the instance of the persons Flamed as witnesses as he did not allow them to collect toddy from the trees. 4. Counsel for the appellant submits that no offence is made out under Section 376 of the Indian Penal Code or for that matter Section 354 of the Indian Penal Code. It is submitted that the ingredients of Section 354 are that some attempts should be made to outrage the modesty of a girl/lady or that the offender should commit an overt act which would be constituted to be sexually oriented. 5. In order to prove the prosecution case eight witnesses have been examined. PW 8 is merely a formal witness. PW 7 has been declared hostile. This Court, therefore, has to examine the five witnesses in support of the prosecution case. 6. PW 1 claims to be an eye-witness to the occurrence. 5. In order to prove the prosecution case eight witnesses have been examined. PW 8 is merely a formal witness. PW 7 has been declared hostile. This Court, therefore, has to examine the five witnesses in support of the prosecution case. 6. PW 1 claims to be an eye-witness to the occurrence. In his chief he has stated that he was sitting near the river when he saw Vijay Choudhary. It is alleged that he threw her on the ground in order to outrage her modesty. He also supported the prosecution case to the extent that he says that after the occurrence the victim girl along with the persons who were present at the place of occurrence went to the house of the mukhiya. 7. PW 2, Arjun Prasad is not named in the First Information Report. According to him he went to the place of occurrence when he heard a sound of voices and saw Vijay Choudhary assaulting Gayatri Kumari. 8. PW 3, Rameshwar Mahto although claims to be an eye-witness has stated at paragraph 4 that he came to the place of occurrence when he heard the sound of alarm. He also states that he went to the house of mukhiya to make a complaint. 9. PWs 4 and 5 are hearsay witnesses to the occurrence. They have supported the case of the prosecution to the extent that they had also heard of the occurrence and learnt that Vijay Choudhary had threw the victim girl on the ground, in order to outrage her modesty. 10. On perusal of the evidence, certain other facts are relevant. That all the witnesses have denied the suggestion and some of them have stated that there was some sort of dispute between the witnesses and the appellant with respect to collection of toddy. Infact PW 4 says that these witnesses have prevented the appellant from collecting toddy from the trees which according to PW 4 created heart burn between the parties. To this extent the defence on behalf of the appellant appears to be correct, in as much that there, is obvious rivalry between the appellant and the witnesses. Infact PW 4 says that these witnesses have prevented the appellant from collecting toddy from the trees which according to PW 4 created heart burn between the parties. To this extent the defence on behalf of the appellant appears to be correct, in as much that there, is obvious rivalry between the appellant and the witnesses. It may be further pointed' out that, as far as PWs 2, 3 and 4 are concerned, they have not seen the occurrence taking place and as such their evidence regarding the manner of occurrence cannot be• considered to be an authentic reproduction of the occurrence. Although PW 3 claims to be an eye-witness, he has stated in his cross-examination, that he only came to the place of occurrence after it had taken place, therefore, apart from PW 1 and the informant there are no eye-witnesses to the occurrence. On perusal of the evidence, this Court finds that even if the evidence of PW 1 and the informant. PW 7 is accepted in his entirety, no case is made out under Section 376/511 of the Indian Penal Code in view of the statement of the girl that Vijay Choudhary had attacked her by catching hold of her neck and she had responded by hitting him with her slippers. Thus the facts narrated by her leads this Court to conclude that Vijay Choudhary was not trying to outrage her modesty. On the other hand, the narration of Gayatri Kumari that the appellant attacked her with a container full of toddy (Labni which is an earthen pot to carry toddy) seems to be unbelievable specially in view of the fact that she had retaliated by hitting him with her slippers, the toddy would have spilled and fallen on the ground, which would be the natural consequences of the events as described by Gayatri Kumari. None of the witnesses including the informant say anything about the pot breaking or spilling, which leads this Court to doubt the manner in which the occurrence has been disclosed. Apart from all the factual aspects, the ingredients of Section 376/511 are not made out in the facts of this case. 11. For the reasons aforesaid, appellant is acquitted of the charges levelled against him under Section 376/511 of the Indian Penal Code. He is also discharged from the liability of his bail bond furnished earlier in this case. 12. Apart from all the factual aspects, the ingredients of Section 376/511 are not made out in the facts of this case. 11. For the reasons aforesaid, appellant is acquitted of the charges levelled against him under Section 376/511 of the Indian Penal Code. He is also discharged from the liability of his bail bond furnished earlier in this case. 12. This appeal is allowed. Appeal allowed.