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2016 DIGILAW 789 (JHR)

Kailash Bihari Yadav v. State of Jharkhand

2016-05-06

ANANT BIJAY SINGH

body2016
ORDER : The instant appeal has been preferred by the appellant, namely, Kailash Bihari Yadav, being aggrieved and dissatisfied of the judgment and order dated 21.01.2003 passed in Sessions Case No. 52 of 2000 by learned Sri Anirudh Prasad Sharma, 1st Additional Sessions Judge, Dumka whereby and whereunder the learned Trial Court has not held guilty the appellant under Section 376 read with 511 of the I.P.C but held guilty under Section 323 and 448 of the I.P.C and further directed to go R.I for four months each under Section 323 and 448 of the I.P.C and both the sentences were ordered to run concurrently. 2. The case of the prosecution, as folded in the fardbeyan given by Pramila Yadav on 09.11.1997 alleging that on 08.11.1997 at 4 P.M, the appellant who was divorced husband of the informant entered into the house of the informant and abused her, whereupon the informant retorted thereupon the accused caught hold of informant and assaulted her and fell down on the ground and tried to commit rape upon her. It was further alleged that elder sister of informant namely, Shyama Devi Yadav who was working in Jama Primary Health Centre also resisted then the appellant accused abused her and snatched Rs. 500/ from her purse. 3. On the basis of these allegations, Dumka(Town) P.S. Case No. 169 of 1997 was registered on 09.11.1997 under Sections 448, 341, 323, 379, 376 and 511 of the I.P.C. After investigation police submitted chargesheet on 31.12.1997 under Sections 448, 341, 323 and 504 of the I.P.C., thereafter charges were framed on 12.12.2000 by the learned 1st Assistant Sessions Judge, Dumka against the appellant under Sections 323, 448, 376 and 511 of the I.P.C and the prosecution in support of his case examined six witnesses. Thereafter, learned Trial Court held the appellant not guilty for the offence under Sections 376 and 511 of the I.P.C and held guilty under Sections 323 and 448 of the I.P.C and directed to undergo R.I for four months each and both the sentences were ordered to run concurrently. 4. Learned counsel for the appellant while assailing the impugned order and judgment submitted that no offence under Section 448 is made out and admittedly the appellant is a divorced husband of the informant and there were enmity between the parties. 4. Learned counsel for the appellant while assailing the impugned order and judgment submitted that no offence under Section 448 is made out and admittedly the appellant is a divorced husband of the informant and there were enmity between the parties. It is further submitted that neither the doctor was examined nor there is any proof of injury. 5. Learned A.P.P on the other hand while referring to the evidence of P.W.4 Parmila Yadav, who is the informant has submitted that in Examination In Chief in para 1 she has supported the fact as alleged in the written report. In para 2 she has stated that this appellant entered into the house and assaulted her and when it was resisted by her sister namely, Shyama Devi, he also abused Shayama Devi and snatched Rs. 500/. It is further submitted that this fact has been corroborated by the P.W.2 Shayma Devi Yadav, sister of the prosecutrix who in para1 also stated the similar lines so, prosecution has been able to prove the case under Sections 448 and 323 of the I.P.C. 6. Learned counsel for the appellant on the other hand referred the evidence of Ravi Kant Gupta P.W. 1 who has been declared hostile. In Examination In Chief he has stated that he has seen hot exchange of words between the informant and appellant in the house. Learned counsel for the appellant also referred to evidence of P.W.2 Shyama Devi Yadav. In para 8 she has stated that Parmila Devi has taken divorce on 12.09.1997 from the appellant. In para 9 she has stated that when the she reached the house 25 to 30 persons have assembled in the house and in para10 she has given description of the place of occurrence. He also referred to evidence of P.W.5 Mahesh Ram who is neighbour of the informant, in para 1 he has stated that on hulla he came and saw that some scuffle was going on between the informant and Kailash Bihari Yadav. 7. Learned counsel for the appellant has also referred to evidence of P.W.6 Sujata Kumari, Investigating officer of this case. In para 3 he has stated that Kailash Bihari Yadav appellant stated that he had gone to house of informant for meeting his children, outside the house some scuffle took place between the appellant and the informant and not inside the house. In para 3 he has stated that Kailash Bihari Yadav appellant stated that he had gone to house of informant for meeting his children, outside the house some scuffle took place between the appellant and the informant and not inside the house. So it was submitted while referring to provisions of Section 448 which reads herein under: “Punishment for house trespass Whoever commits house trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.” 8. Section 448 provides for punishment of house trespass. Section 442 defines house trespass as follows: “House trespass Whoever commits criminal trespass by entering into or remaining in any building, tent or vesel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit “house trespass”. 9. It was submitted that as per the evidence of the witnesses and also finding of the P.W.6I.O, the entire occurrence took place outside the house. There was no question of house trespass so, prosecution has failed to prove its case beyond reasonable doubt under Section 448 of the I.P.C. Further in absence of non examination of doctor, no injury report has been found so case under Section 323 of the I.P.C is not made out. 10. Having heard learned counsel for the appellant and learned A.P.P appearing on behalf of the State, in view of the evidence of P.W.6 I.O the entire occurrence has taken place outside the house of the informant. The prosecution has failed to prove the case beyond all reasonable doubt under Section 448 of the I.P.C that the appellant has committed criminal house trespass and entered into the house thereafter committed rape. So in view of the matter of conviction this fact has not been considered by the learned Trial Court in proper perspective. Accordingly, conviction under Section 448 of the I.P.C is set aside. Further in absence of non examination of doctor injury report could not be proved under Section 323 of the I.P.C by the prosecution beyond reasonable doubt. Accordingly conviction under Section 323 of the I.P.C is set aside. 11. Accordingly, judgment and order dated 21.01.2003 is hereby set aside and the instant appeal stands allowed. The appellant is discharged of his bail bond. Accordingly conviction under Section 323 of the I.P.C is set aside. 11. Accordingly, judgment and order dated 21.01.2003 is hereby set aside and the instant appeal stands allowed. The appellant is discharged of his bail bond. Let a copy of the judgment be sent to the trial Court.