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2013 DIGILAW 259 (PAT)

Sanjay Das v. State Of Bihar

2013-02-26

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT 1. This criminal appeal has been preferred by the sole appellant against the judgment of conviction dated 18.10.2001 and sentence order dated 19.10.2001 passed by learned Addl. Sessions Judge VII, Munger in Sessions trial no. 764 of 1998/116 of 1998 by which and whereunder he convicted the appellant for the offences punishable under sections 354, 366 and 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for one year under section 354 of the Indian Penal Code, to undergo rigorous imprisonment for a period of seven years under section 366 of the Indian Penal Code and to undergo rigorous imprisonment for a period of seven years under section 376 of the Indian Penal Code. However, all the sentences were ordered to be run concurrently. 2. In brief, the prosecution case, is that P.W. 6, Rambilash Das @ Jhagru, gave a written report to officer-in-charge of Bariarpur police station on 26.4.1998 to this effect that Sanajy Das- appellant used to tease his wife Meena Devi by snatching her Lota and by catching her hand and whenever she raised alarm, he used to flee from there. He further stated that one year prior to filing of the above stated written report, the above stated Sanajy Das- appellant took his wife Meena Devi to Delhi by showing his fake letter and he had never written any letter to his wife. He further stated that the aforesaid Sanajy Das as well as his wife Meena Devi reached at his residence of Delhi after four days and Sanajy Das- appellant committed rape with Meena Devi for two days by keeping her at different places. He further stated that on 25.4.1998 while his wife Meena Devi was going to attend the call of nature, the aforesaid Sanajy Das - appellant caught hold her and started dragging her upon which she raised alarm and after that Sanajy Das- appellant fled away from there. His wife came to her house and made complain to him. He further stated that he went to the house of Sanajy Das- appellant to enquire about the aforesaid incident but his uncle Nursing Das and one Jai Prakash Das abused him and ran to assault him with Garasa upon which he fled away from there and saved his life. 3. He further stated that he went to the house of Sanajy Das- appellant to enquire about the aforesaid incident but his uncle Nursing Das and one Jai Prakash Das abused him and ran to assault him with Garasa upon which he fled away from there and saved his life. 3. On the basis of the aforesaid written report, Mufassil P.S. case no.91/1998 for the offences under sections 341, 323, 354, 376, 420, 307/34 of the Indian Penal Code was registered against the appellant and others and after investigation, police submitted charge sheet against the appellant and others for the offences under sections 341, 323, 354, 376, 420, 504/34 of the Indian Penal Code. The cognizance of the offences was taken and the case was committed to the court of sessions, in usual way. 4. Two charge sheeted accused, namely, Jai Prakash Das and Nursing Das were discharged by learned Addl. Sessions Judge, Munger and accordingly, appellant as well as co–accused Dip Narain Das were put on trial and the appellant was charged for the offences under sections 354, 366 and 376 of the Indian Penal Code whereas co-accused was charged for the offence under section 366 of the Indian Penal Code. The charges were denied by the appellant and co–accused Deep Narain Das and they claimed to be tried. 5. In course of trial, prosecution examined, altogether, seven witnesses and the prosecution also got exhibited signature of P.W.6 on his written report as exhibit 1. The statements of the appellant and the co-accused were recorded under section 313 of the Cr.P.C in which they denied the prosecution story and claimed themselves to be innocent. 6. The defence also examined one defence witness and got exhibited Panchnama as exhibit A. 7. The learned trial court, having perused the evidence available on record, acquitted co-accused Deep Narain Das whereas convicted and sentenced the appellant in the manner as stated above. 8. 6. The defence also examined one defence witness and got exhibited Panchnama as exhibit A. 7. The learned trial court, having perused the evidence available on record, acquitted co-accused Deep Narain Das whereas convicted and sentenced the appellant in the manner as stated above. 8. Sri Om Prakash Pandey, advocate appearing for the appellant as amicus curiae, assailed the impugned judgment of conviction and sentence order arguing that according to the prosecution case itself, the informant’ wife was taken to Delhi by the appellant and the informant lodged this case only on the ground that victim was brought to Delhi after four days, therefore, question of application of section 366 of the I.P.C does not arise because victim was neither taken away from India nor she was kidnapped from her lawful guardianship and furthermore, the appellant never induced any deceitful means in taking away the victim. He further submitted that if offence under section 366 of the I.P.C is not attracted, the charge under section 376 of the I.P.C is also failed because according to the prosecution case itself, victim was raped at Delhi and, therefore, the learned trial court had got no jurisdiction to try the appellant for the offence punishable under section 376 of the IPC. He further submitted that so far as section 354 of the I.P.C is concerned, as a matter of fact, P.W.6 had taken loan from father of the appellant and when the aforesaid loan was demanded by father of the appellant, P.W. 6 lodged this false case against the appellant as well as his other family members. 9. On the other hand, learned Addl. Public Prosecutor appearing for the State supported the impugned judgment of conviction and sentence order arguing that victim was examined in course of trial as prosecution witness no. 4 and she supported the prosecution story and testimony of victim is corroborated by other prosecution witnesses and there was ample materials before the learned trial court to convict and sentence the appellant. 10. As I have already stated that, altogether, 7 prosecution witnesses were examined on behalf of the prosecution, out of whom, P.W. 1 is elder brother-in-law of P.W.4 Meena Devi and similarly, P.W.2 is also elder brother-in-law of victim P.W.4. P.W.3 Salo Devi is mother-in-law of P.W.4 and P.W.5 Lakhan Das is younger brother-in-law of P.W.4 whereas P.W.6 is the husband of P.W.4. P.W.3 Salo Devi is mother-in-law of P.W.4 and P.W.5 Lakhan Das is younger brother-in-law of P.W.4 whereas P.W.6 is the husband of P.W.4. P.W.4 is the victim herself and P.W.7 is the Investigating officer of the case. 11. P.W.1, P.W. 2, P.W. 3, P.W. 5 and P.W 6 supported the occurrence which had taken place on 25.4.1998. 12. P.Ws. 1 and 2 stated that when P.W.4 raised alarm, they reached on the place of occurrence but the appellant fled away from there. Similar statement has been made by P.Ws. 5 and 6 but P.W.4 stated that when the appellant caught hold her hand, she raised alarm upon which the appellant fled away from there and after that she returned to her home and narrated the entire incident to her family members. 13. P.W.1, P.W. 2, P.W. 3, P.W. 5 and P.W 6 stated that near about one year prior to the incident of 25.4.1998, the appellant had shown a fake letter and on the basis of the aforesaid fake letter, he took P.W.4 to Delhi. P.W.4 stated that one year prior to the incident of 25.4.1998, the appellant came to her house and said that her husband was suffering from illness and also shown a letter purported to be written by her husband and after that he along with the appellant went Delhi by train but the appellant took her in a house where he kept her for three days and committed rape on her. She further stated that after three days, she was taken to the house of her husband but due to fear, she did not disclose the incident of rape to her husband. On being cross-examined by the defence, she stated that when the appellant showed letter to her and disclosed about ailment of her husband, she did not disclose the aforesaid fact to any person of her family and she along with the appellant left her house to go to Delhi. She further stated that in the morning of next day, she reached Delhi and after one day of reaching Delhi, she came to the house of her husband. She further stated that when she was confined in the house, she used to take meal along with the appellant in a hotel. She further stated that in the morning of next day, she reached Delhi and after one day of reaching Delhi, she came to the house of her husband. She further stated that when she was confined in the house, she used to take meal along with the appellant in a hotel. At para 4 of her cross-examination, she admitted that she had not disclosed the incident of rape to any person at Delhi and when the occurrence of 25.4.1998 took place, she disclosed the incident of Delhi to her family members. She further stated at para 5 of her cross-examination that when she disclosed the incident of rape to her husband at Delhi, her husband started chiding her. 14. P.W.6, husband of P.W.4 stated that one year prior to the incident of 25.4.1998, appellant took his wife showing his fake letter and kept his wife for two days at unknown place and after that his wife was brought to his home. On being cross-examined by the defence, this witness said that he learnt the story of rape at Delhi but he did not institute any case. He further stated that the appellant remain stayed in his house at Delhi for two days but he did not try to locate the house in which his wife had been confined by the appellant nor he gave any information regarding the incident of rape to Delhi police. He further admitted that his wife did not disclose anything on the date when she came at her home at Delhi and he learnt the aforesaid facts after one or two days of arrival of his wife. He further stated that he did not give any information about the above stated rape to his family members and after five to six months of the aforesaid occurrence, he went to his village but he did not inform any thing to his family members and when the occurrence of 25.4.1998 took place, he stated the entire thing to his family members. 15. P.W.7 stated that he took the charge of investigation, inspected the place of occurrence and recorded the statements of witnesses and got recorded the statement of P.W.4 under section 164 of the Cr.P.C. At para 3 of his cross-examination , he stated that he tried to obtain fake letter from P.W.6 but he did not mention the aforesaid fact in the case diary. He further stated at para 4 of his cross-examination that he did not visit Delhi. 16. On perusal of the evidences available on record, it is explicit clear that according to the prosecution case itself, offence of abduction and rape had taken place one year prior to 25.4.1998 but no case in respect of the aforesaid occurrence was lodged by the informant (P.W. 6) or the victim (P.W. 4). Although P.W.4 stated that she did not inform about the aforesaid occurrence to her husband and after two days of the aforesaid occurrence, she narrated the entire occurrence to her husband but in spite of getting information from P.W.4, the informant (P.W.6) did not take any step to lodge the case in respect of the aforesaid alleged occurrence of abduction and rape and for the first time, case in respect of the aforesaid alleged occurrence of abduction and rape was lodged by the informant ( P.W.6) on 26.4.1998. 17. Although the learned trial Judge has observed that P.Ws.4 and 6 gave sufficient explanation for not instituting the case in Delhi but even if it assumed that P.W.6 or P.W.4 did not lodge any case at Delhi in respect of alleged abduction and rape, then also, P.W.6 has admitted that after five to six months of the aforesaid occurrence, he along with his wife came to his village but even then, he did not disclose the aforesaid incident to his family members nor lodged any case in respect of the above stated abduction and rape of P.W.4 and, therefore, the aforesaid delay creates doubt about genuiness of the prosecution case in respect of alleged story of abduction and rape and the appellant is entitled to get the benefit of doubt in respect of the charge framed against him under sections 366 and 376 of the IPC. 18. So far as offence under section 354 of the IPC is concerned, almost all material witnesses have made consistent statements on the aforesaid occurrence and, in my opinion, the prosecution succeeded to prove the charge under section 354 of the IPC. 19. Appellant has been sentenced to undergo rigorous imprisonment for one year under section 354 of the IPC and from perusal of the lower court record, it would appear that the appellant was remanded in the case on 24.4.1998 and remained in custody till 21.8.1999. 19. Appellant has been sentenced to undergo rigorous imprisonment for one year under section 354 of the IPC and from perusal of the lower court record, it would appear that the appellant was remanded in the case on 24.4.1998 and remained in custody till 21.8.1999. Furthermore, I find that after prouncement of judgment of conviction, the appellant was taken in custody on 18.10.2001 and he remained in custody till 21.1.2002 and, therefore, in my view, the period already undergone by the appellant during the course of trial as well as during the pendency of the appeal shall meet the ends of justice. 20. On the basis of the aforesaid discussions, this criminal appeal is partly, allowed and the conviction of the appellant for the offences under sections 366 and 376 of the IPC is, hereby, set aside and so far as conviction of the appellant under section 354 of the IPC is concerned, the same is confirmed but the sentence awarded to him under section 354 of the IPC is reduced to the already period undergone by him in course of trial as well as during the pendency of the appeal. 21. In the aforesaid manner, this appeal stands disposed of.