Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 582 (PAT)

Abdul Touf v. State Of Bihar

2013-05-02

HEMANT KUMAR SRIVASTAVA

body2013
ORAL JUDGMENT 1. Heard learned amicus curiae appearing for the appellant 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 order of sentence dated 23.02.2001 passed by learned Additional Sessions Judge, Kishanganj in Sessions Trial No. 170 of 1999/Trial No. 118 of 1999 by which and whereunder he convicted the appellant for the offences punishable under Sections 354 and 377 of the Indian Penal Code and sentenced him to undergo one year rigorous imprisonment for the offence punishable under Section 354 of the Indian Penal Code and to undergo three years rigorous imprisonment for the offence punishable under Section 377 of the Indian Penal Code. However, learned trial court directed that both the sentences would run concurrently and the period already undergone by him would be set off towards his imprisonment. 3. In brief, the prosecution case, is that P.W.7, Jainul Haque @ Mainul Haque gave his Ferdbeyan to officer in charge of Pothia police station on 17.05.1998 to this effect that on 08.05.1998 at about 03:00 P.M. while he was taking rest in his house, his daughter, namely, Saruf Jan @ Sukni aged about seven years came weeping there and informed him as well as his wife, Anwari that she had gone in search of Nasir but appellant took her in the house of one Samayun and removed her clothes and attempted to commit rape on her but when he could not succeed in his attempts, he put his private part into her mouth and after that, he pressed his private part between her thighs. Anyhow, she got released herself from the clutches of the appellant and came to her home. The wife of informant (p.w.7) noticed minor injury on the private part of her daughter and when informant, Jainul Haque @ Mainul Haque tried to go to police station, the panches of his village stopped him and stated that matter would be solved in the panchayati and after that he did not go to the police station but no panchayati was held and then he gave his Ferdbeyan. 4. On the basis of aforesaid Ferdbeyan, Pothia P.S. Case No. 60 of 1998 under Section 376 of the Indian Penal Code was registered and on the same day formal first information report against the appellant was prepared. 4. On the basis of aforesaid Ferdbeyan, Pothia P.S. Case No. 60 of 1998 under Section 376 of the Indian Penal Code was registered and on the same day formal first information report against the appellant was prepared. After investigation, police submitted charge sheet against the appellant for the offence punishable under Section 376 of the Indian Penal Code. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way. The appellant stood trial and he was charged for the offence punishable under Section 376 of the Indian Penal Code and later on, charges were amended and the appellant was also charged for the offences punishable under Section 376 read with Section 511 and Section 377 of the Indian Penal Code. The appellant denied the charges and claimed to be tried. 5. In course of trial, prosecution examined, altogether, 12 witnesses and also proved documentary evidences including the injury report of victim girl. The statement of appellant was recorded under Section 313 of the Cr.P.C. in which he reiterated his innocence. No evidence was adduced on behalf of the appellant in support of his defence but from perusal of statement of the appellant recorded under Section 313 of the Cr.P.C. as well as trends of cross examination of prosecution witnesses, it appears that the defence of the appellant was total denial of prosecution story. 6. The learned trial court having relied upon the testimonies of prosecution witnesses passed the impugned judgment of conviction and order of sentence in the manner as stated above. 7. Learned amicus curiae appearing for the appellant challenged the impugned judgment of conviction and order of sentence arguing that the learned trial court based his findings only on surmises and conjectures and the medical report of victim does not support the prosecution story and only on the basis of deposition of victim girl, the learned trial court convicted the appellant. He further submitted that as a matter of fact, there were two groups in the village of appellant and the rival group of the appellant set up the informant and got lodged this false case against the appellant. 8. He further submitted that as a matter of fact, there were two groups in the village of appellant and the rival group of the appellant set up the informant and got lodged this false case against the appellant. 8. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence arguing that victim girl was examined by the trial court as P.W. 10 and she supported the prosecution story and apart from this, informant as well as his wife also supported the prosecution story and, therefore, there is no scope for this Court to interfere into the findings of learned trial court. 9. As I have already stated that, altogether, 12 prosecution witnesses were examined in course of trial, out of whom P.W.10 is victim girl. She, specifically, narrated the manner in which she was dealt with by the appellant on the alleged date of occurrence. There is nothing in her cross examination to discard her deposition. 10. P.W.4 is mother of P.W.10. She stated that on the alleged date of occurrence, P.W.10 narrated the entire story to her and after that she made complaints to parents of appellant but they did nothing and, thereafter, her husband lodged the case. 11. P.W.1, Md. Majeed, P.W.2, Mokin Mohammad, P.W.6, P.W.8 and P.W.9 almost all the aforesaid prosecution witnesses have stated that just after the alleged occurrence they learnt about the alleged occurrence from P.W.10 as well as P.W.4 and P.W.7. 12. Although, P.W.11 did not find any injury on the person of P.W.10 but according to prosecution case, the alleged occurrence had taken place on 08.05.1998 and P.W.10 was examined by P.W.11 on 18.05.1998 i.e. after ten days of the alleged occurrence and, therefore, even if no sign of rape or any injury was found on the person of P.W.10, then also, the deposition of P.W.10 and other witnesses cannot be discarded. 13. On perusal of the entire evidences available on the record as well as from perusal of impugned judgment, I find that the learned trial court rightly convicted the appellant for the offences punishable under Sections 354 and 377 of the Indian Penal Code and there is no scope for this court to disturb the findings of conviction of the appellant under the above stated sections. 14. 14. So far as quantum of sentence is concerned, admittedly, the appellant has been sentenced to undergo rigorous imprisonment for three years under Section 377 of the Indian Penal Code and to undergo rigorous imprisonment for one year for the offence punishable under Section 354 of the Indian Penal Code and both the sentences were ordered to be run concurrently. The appellant was aged about 55 years at the time of pronouncement of impugned judgment and I find that appellant surrendered before the trial court on 30.11.1998 and remained in custody till conclusion of his trial and when the appellant preferred this appeal before this Court, he was ordered to be released on bail by this Court on 12.04.2001 and, therefore, the aforesaid fact indicates that appellant has already spent for more than two and half years in custody. Admittedly, the alleged occurrence had taken place in the year 1998 and the peace and harmony between the parties have already been restored. Therefore, in the aforesaid circumstance, the end of justice will meet, if the appellant is sentenced to period already undergone by him in course of trial as well as during the pendency of this appeal. 15. On the basis of aforesaid discussions, this criminal appeal stands dismissed with modification in order of sentence as stated above.