Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 191 (PAT)

Harendra Singh v. State of Bihar

2013-02-08

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT (ORAL) Hemant Kumar Srivastava. J. Heard learned counsel appearing for the appellants as well as learned Additional Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction and sentence order dated 05.12.2001 passed by Additional Court No.2, Patna, Fast Track Court in Sessions Trial No. 215 of 1995/468 of 2001 by which and whereunder he convicted the appellants for the offences punishable under Section 354 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for one year for the above stated section and furthermore, appellant No. 1 was convicted for the offence under Section 323 of the Indian Penal Code and was sentenced to underg9 rigorous imprisonment for three months under the aforesaid section and the learned trial Court directed that both the sentences of appellant No. 1 would run concurrently. 3. In brief, the prosecution case, is that on 24.07.1994. PW 3, Manju Kumari gave a written report to officer in charge of Masaurhi Police Station stating therein that on the same day at about 09:00 a.m. her mother asked her to bring the wages from the house of one Pramod and after that she went to the house of Pramod where sister of Pramod asked her to call the Pramod from dalan and after that she went to call the aforesaid Pramod and reached at the dalan of Man Singh where Pramod was present. She further stated in her written report that Pramod proceeded to go to his door and she followed him and in that course, she reached near the house of Devan Singh. She further slated that appellants were present at the dalan of Devan Singh and all of a sudden they came in front of her and appellant No.2 caught her hand whereas appellant No.1 gagged her mouth and both the aforesaid appellants brought her to paddy house of Devan Singh and threw her on the ground and tried to commit rape on her upon which she raised alarm and having heard her noise one woman came out from the house of Devan Singh and both the appellants fled away from there. She further stated that she was returning to her home raising alarm and while she was on her way, her mother met her in a lane and she narrated all the incidents to her mother and while she was narrating the incident to her mother the appellants again came there and slapped to her as well as her mother. 4. On the basis of aforesaid written report. Masaurhi P.S. Case No. 174 of 1994 under Sections 323. 341, 354. 376/511 of the Indian Penal Code was registered and accordingly, formal first information report was drawn against the appellants. The matter was investigated by the Investigating Officer and after completion of investigation. Investigating Officer submitted charge-sheet for the above stated offences against the appellants. The cognizance of the offences was taken and the case was committed to the Court of Sessions, in usual way. 5. The appellants were put on trial and accordingly, they were charged for the offences punishable under Sections 376/511. 341. 353 and 323 of the Indian Penal Code. The appellants denied the charges and claimed to be tried. 6. In course of trial. altogether. eight witnesses were examined on behalf of the prosecution. The statements of appellants were recorded under Section 313 of the Cr PC in which they reiterated their innocence. No evidence was adduced on behalf of the appellants in support of their defence but from perusal of trends of cross-examination of prosecution witnesses as well as statements of the appellants recorded under Section 313 of the Cr PC it appears that the defence of the appellants was their false implication. 7. The learned trial Court having relied upon the evidence of PW 1 to PW 3 convicted and sentenced the appellants in the manner as stated above. 8. Learned counsel appearing for the appellants submits that prosecution witnesses have made contradictory statements which go to the root of the prosecution case and. therefore no reliance can safely be placed upon the testimony of prosecution witnesses. He further submitted that PW 3 has admitted in her cross-examination that she made statement before the police as dictated by her father. PW 1 and furthermore. therefore no reliance can safely be placed upon the testimony of prosecution witnesses. He further submitted that PW 3 has admitted in her cross-examination that she made statement before the police as dictated by her father. PW 1 and furthermore. PW I stated at para 5 of his cross-examination that when he along with PW 2 and PW 3 reached the police station, he made statement before the police and after his statement, the statements of PW 2 and PW 3 were recorded and. therefore, the aforesaid admission' of PW 1 shows that first information regarding the alleged occurrence was given by PW 1 but prosecution could not succeed to bring the aforesaid first information on record and. therefore, no reliance can safely be placed upon the prosecution case. He further submitted that the appellants did not get an opportunity to clarify the aforesaid statement of PW 1 from the Investigating Officer as the Investigating Officer has not been examined in this case and. therefore, non-examination of the Investigating Officer caused serious prejudice to the appellants. 9. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that PW 3 very clearly stated that she was taken to a room by the appellants and when her mother (PW 2) made complaint, the appellants slapped her as well as her mother and, therefore, the learned trial Court rightly convicted the appellants for the offences punishable under Sections 354 and 323 of the Indian Penal Code. 10. As I have already stated that. altogether, eight prosecution witnesses were exan1ined in this case but out of the aforesaid witnesses, PW 4 to PW 8 have been declared hostile and they have not supported the prosecution case and, therefore, only PW 1 to PW 3 are material witnesses in this case. 11. PW 1, Parshuram Ram is father of PW 3 and admittedly, this witness had not seen the alleged occurrence and on the alleged date of occurrence he was ill and taking rest in his house. This witness stated that after the alleged occurrence he went to police station along with PW 3 and his daughter (PW 3) lodged the case. PW 1, Parshuram Ram is father of PW 3 and admittedly, this witness had not seen the alleged occurrence and on the alleged date of occurrence he was ill and taking rest in his house. This witness stated that after the alleged occurrence he went to police station along with PW 3 and his daughter (PW 3) lodged the case. This witness stated that on the alleged date of occurrence his wife (PW 2) had gone for plantation of paddy to the field of one Pramod and she returned at about 06:00 p.m. This witness further stated that when he reached at the police station, firstly his statement was recorded and after that the statement of his wife was recorded. He further stated that after recording his statement as well as his wife's statement, the statement of his daughter (PW 3) was recorded. He admitted in his cross-examination that he had stated nothing before the police about the alleged occurrence. 12. PW 2, Uma Devi is mother of PW.3 (informant) and she stated that on the alleged date of occurrence she had sent her daughter Manju to the house of Pramod for bringing the wages and having heard the noise she went at the door of Devan Singh where she met her daughter, Manju (PW 3) who told that appellant No.2 caught her hand whereas appellant No. 1 pushed her into the Bhusla Ghar of Devan Singh where both the appellants overthrew her on ground upon which she raised alarm which attracted one woman of house of Devan Singh and both the appellants fled away from there. This witness further stated that when she along with PW.3 went at the door of appellant No.1, the appellants assaulted her as well as PW 3 with fists and slaps and after that she along with her daughter went to Masaurhi Police Station where her daughter lodged the case. On being cross-examined by the defence, she stated that on the alleged date of occurrence, she had not gone to work at the field of Pramod. She further stated that daroga took the statement of PW 3 and after that PW 3 put her thumb impression on her statement. 13. PW 3. Manju Kumari is informant of this case. On being cross-examined by the defence, she stated that on the alleged date of occurrence, she had not gone to work at the field of Pramod. She further stated that daroga took the statement of PW 3 and after that PW 3 put her thumb impression on her statement. 13. PW 3. Manju Kumari is informant of this case. She supported the prosecution story and stated that when she reached near the door of Devan Singh appellants caught her and took to the paddy house of Devan Singh. She further stated that she raised alarm and after that the appellants fled away from there. She also stated that appellants did nothing with her. She further stated that after the aforesaid incident, she was returning to her home and while she was on her way, she met with her mother and narrated the entire story and she along with her mother came at the door of appellant No.2. who started assaulting her as well as her mother. She further stated that she along with her parents came to police station and gave her statement before the police. She further stated that on the alleged date of occurrence at about 09:00 a.m., she had gone to bring wages and she did not meet any body on her way. At para 6 of her cross-examination, she admitted that the appellants did nothing with her and in the same para she admitted that on the direction of her father she lodged the case and she gave her statement before the police as dictated by her father. 14. From perusal of impugned judgment. I find that learned trial Court did not place any reliance on the deposition of PW 1 but having placed reliance on the depositions of PW.2 and PW 3 convicted the appellants in the manner as stated above. Furthermore, the perusal of impugned judgment of conviction reveals that the learned trial Judge came to conclusion that the prosecution could not succeed to prove the charge under Section 341 of the Indian Penal Code against the appellants. 15. Furthermore, the perusal of impugned judgment of conviction reveals that the learned trial Judge came to conclusion that the prosecution could not succeed to prove the charge under Section 341 of the Indian Penal Code against the appellants. 15. It has been argued on behalf of the appellants that PW 3 has clearly admitted at para 6 of her cross-examination that the appellants did not misbehave with her and the learned trial Court did not find that PW 3 was restrained or confined by the appellants and, therefore, the conviction of the appellants under Section 354 of the Indian Penal Code is bad in law. 16. The learned trial Court has dealt with the aforesaid issue at para 13 of the impugned judgment and observed that out of misunderstanding PW 3 gave the above' stated statement but it is apparent from the deposition of PW 3 that in her examination in-chief, she stated that she was taken to a room and when she raised alarm the - appellants fled away from there and they did nothing with her and the similar statement has been made by her at para 6 of her deposition. Therefore, it is clear from the statement of PW 3 that she did not make the aforesaid statement on account of misunderstanding. Furthermore, she stated that she made statement before the police as told by her father and, therefore, the aforesaid statement of PW 3 indicates this fact that she lodged the present case at the dictation of her father, PW 1 who was admittedly present in police station along with PW 3. 17. No doubt, the solitary statement of prosecutrix is sufficient to convict an accused under Section 354 of the Indian Penal Code but before convicting an accused under Section 354 of the Indian Penal Code, the statement of prosecutrix must inspire confidence to the Court. In the present case, PW 3, the prosecutrix, herself, admitted that she made statement before the police as dictated by her father and furthermore, she admitted that the appellants did nothing with her. So, the aforesaid statement of prosecutrix clearly demolishes the prosecution case and the appellants are entitled to get the benefit of doubt. 18. So far as story of assault is concerned. So, the aforesaid statement of prosecutrix clearly demolishes the prosecution case and the appellants are entitled to get the benefit of doubt. 18. So far as story of assault is concerned. PW 2 stated in her examination in-chief that both the appellants assaulted her as well as PW 3 with fists and slaps whereas PW 3 stated that only appellant No. 1 assaulted her as well as PW 2. So, there is contradiction in the statements of both the aforesaid witnesses on the point of assault also and on account of the aforesaid contradiction, the appellants are entitled to get the benefit of doubt. 19. After scrutinizing the statements of prosecution witnesses and on the basis of aforesaid discussions. I am of the opinion that learned trial Court committed error in convicting and sentencing the appellants in the manner as stated above. 20. Thus, this criminal appeal is allowed and the impugned judgment of conviction and sentence order are, hereby, set aside. Both the appellants are on bail. They are discharged from the liabilities of their respective bail bonds. Appeal allowed.