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2013 DIGILAW 81 (PAT)

Lagan Yadav v. State of Bihar

2013-01-18

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT HEMANT KUMAR SRIVASTAVA, J. 1. Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State and perused the record. 2. This Criminal Appeal has been filed against the judgment of conviction and sentence order dated 21-07-2001 passed by Sri Kamla Prasad, Special Judge, Madhubani in Sessions Trial No. 308 of 1998/10 of 1998 arising out of G.R. No. 1120 of 1994 by which and whereunder, he convicted the appellant for the offence punishable under Section-376 read with Section-511 of the Indian Penal Code but acquitted him of the charges under Sections-3(i)(xi)/3 (ii) (v) of SC & ST (Prevention of Atrocities) Act as well as Section-324 of the Indian Penal Code and sentenced the appellant to undergo rigorous imprisonment for five years for the offence under Section-376 read with Section-511 of the Indian Penal Code. 3. The prosecution case, in brief, is that P.W. 4 Aghaniya Dev,i who happens to be informant of this case, gave her fardbeyan to ASI of Ghoghardiha Police Station, in presence of her husband, on 07-11-1994 at about 11.00 a.m. to this effect that on 06-11-1994 at about 1.30 p.m. while she was taking rest near a mango tree after cutting grass, the appellant came there and snatched Hasua from her and after that, he pushed her on the ground and attempted to commit rape on her removing her clothes. She tried to raise alarm but he put her Sari into her mouth and outraged her modesty. Any how, she raised her alarm which attracted Jageshwar Chaupal, Sita Devi, Ghausi Chaupal and Matan Chaupal who came there running. The appellant also assaulted her and pierced Hasua into her leg and also torn her clothes and fled away with her ornaments. She further stated that Matan Chaupal gave his Lungi and after that, she covered her body with the aforesaid Lungi and came to her home and narrated the entire incident to her husband on the next day as her husband was not present in the house on the day of occurrence and returned to home on the next day of the occurrence. 4. 4. On the basis of fardbeyan of the informant, Fulparas (Ghoghardiha) P.S. Case No. 263 of 1994 for the offences under Section-376 read with Section-511, 323, 324, 307, 379 of the Indian Penal Code and Sections-3(i)(xi)/3 (ii) (v) of SC & ST (Prevention of Atrocities) Act was registered and accordingly, formal FIR was drawn against the appellant under the above-said sections. The matter was investigated by the I.O. and after completion of investigation, the I.O. submitted charge sheet against the appellant. The cognizance was taken and the case was committed to the court of sessions. 5. The appellant was put on trial and he was charged for the offences punishable under Sections-323, 324, 376 read with Section-511 of the Indian Penal Code and Sections-3(i)(xi)/3 (ii) (v) of SC & ST (Prevention of Atrocities) Act. He denied the charges and claimed to be tried. 6. In support of its case, prosecution examined, altogether, five witnesses and also proved the injury report of injured as Ext. 1. The statement of appellant was recorded under Section-313 of the Cr. P.C. in which, he reiterated his innocence. 7. Although no evidence was adduced by the appellant in support of his defence but it appears from the statement of the appellant recorded under Section-313 of the Cr.P.C. that the defence of the appellant was totally denial of the prosecution story. 8. Learned Trial Court, having relied upon the deposition of P.W. 4, the informant of this case as well as deposition of P.W. 7, passed the impugned judgment of conviction and sentence order, in the manner as stated above. 9. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order pointing out that except the informant (P.W. 4), none of the prosecution witnesses have supported the prosecution case and, moreover, P.W. 4 in her cross-examination, admitted that only a scuffle had taken place between her and appellant and on account of the aforesaid scuffle, she fell on the ground and her Sari and blouse were torn. Learned counsel for the appellant further submitted that the learned Trial Judge has passed the impugned judgment of conviction and sentence order only on the basis of surmises and conjecture and as a matter of fact, there was no legal evidence before learned Trial Judge to pass judgment of conviction and sentence order. 10. Learned counsel for the appellant further submitted that the learned Trial Judge has passed the impugned judgment of conviction and sentence order only on the basis of surmises and conjecture and as a matter of fact, there was no legal evidence before learned Trial Judge to pass judgment of conviction and sentence order. 10. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order submitting that P.W. 4 has supported the prosecution story in her examination-in-chief and the Ext.-1 injury report of P.W. 4 corroborates the prosecution story. 11. On perusal of the lower court record, I find that altogether five witnesses were examined by the prosecution before the trial court; out of them, P.W. 1 is doctor who had examined P.W. 4 after the alleged occurrence and this witness proved the injury report of P.W. 4 as Ext. 1. P.Ws. 2, 3 & 5 have been declared hostile and they have stated nothing in respect of the alleged occurrence. Although the prosecution drew the attention of the aforesaid witnesses towards their previous statement but the prosecution could not succeed to elicit anything from the deposition of aforesaid witnesses. 12. The only material witness is P.W. 4 Agahaniya Devi who happens to be informant and injured of this case. She has supported the prosecution case in her examination-in-chief but on being cross-examined by the defence. She has admitted that she has compromised the case with the appellant. She further stated that only Mar-Pit had taken place between her and the appellant, and in the aforesaid Mar-Pit, she fell down on earth as a result of which, her blouse and Sari were torn up. 13. After scrutinizing the deposition of P.W. 4, it is explicit clear that on being cross-examined by the defence, she has nowhere stated about the story of attempt of rape and, therefore, I do agree with the submission of learned counsel for the appellant that the learned Trial Judge has committed an error in convicting and sentencing the appellant. 14. On the basis of aforesaid discussions, this Cr. Appeal is allowed and, accordingly, impugned judgment of conviction and sentence order dated 21-07-2001 is, hereby, set aside and the appellant is acquitted of the charge. 15. The appellant is on bail and, accordingly, he is discharged from the liability of his bail bonds.