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2017 DIGILAW 1044 (JHR)

Chhotu Sao v. State of Jharkhand

2017-07-06

RONGON MUKHOPADHYAY

body2017
JUDGMENT : 1. Heard Mr. Vijay Kumar Roy, learned counsel, appearing for the petitioner and learned Mr. Shekhar Sinha, learned A.P.P. for the State. 2. This application is directed against the judgment dated 28.09.2004 passed in Criminal Appeal No. 06 of 1994 by learned 6th Additional Sessions Judge, Giridih, whereby the appeal preferred against the judgment of conviction and the order of sentence dated 18.01.1994 passed by learned Judicial Magistrate, 1st Class, Giridih, in Complaint Case No. 404 of 1989 (T.R. No. 1388 of 1993/707 of 1994), has been dismissed, but while the conviction u/s 452 and 354 I.P.C. was affirmed, the sentenced was reduced u/s 452 I.P.C. to 01 year in place of 2 years and 01 years in place of one and half years u/s 354 I.P.C. 3. It has been stated by learned counsel for the petitioner that the complainant was having illicit relationship with one Sanjho Singh, which was objected by the petitioner who is brother-in-law (Devar) of the complainant and due to that reason he has falsely been implicated in the instant case at the instance of Sajho Singh. Learned counsel further submits although several persons were in the vicinity, no independent witnesses have been examined in this case and in the trial two witnesses who have been examined are the complainant herself and her son and they are the interested witnesses. Learned counsel further argued that the property in question was a joint property and therefore no offence u/s 452 I.P.C. is made out. Learned counsel furthering his argument has submitted that in the alternative if this Court is not inclined to interfere with the impugned judgment of conviction, the period of sentence be modified, considering the fact that the petitioner is facing rigours of criminal case since 1989 and he had remained in custody for a considerable period. 4. Learned A.P.P. appearing for the State has opposed the prayer of the petitioner. 5. A complaint was filed by the opposite party No. 2 in which it was alleged that in the night of 25.05.1989 the complainant was sleeping in her house with her son Shambhu Pd. Sahu, when the petitioner had knocked at the door and on opening the door he entered into the house of the complainant. It is further alleged that the complainant was caught hold of by the petitioner who started squeezing her breast. Sahu, when the petitioner had knocked at the door and on opening the door he entered into the house of the complainant. It is further alleged that the complainant was caught hold of by the petitioner who started squeezing her breast. When the complainant tried to raise hulla, she was threatened and her son was assaulted by the petitioner. Based on the aforesaid allegations, Complainant Case No. 404 of 1989 was instituted. After conducting enquiry by examining the complainant as well as the complaint witnesses, cognizance was taken for the offence punishable u/s 452 and 354 I.P.C. 6. It appears that the prosecution in course of trial has examined as many as 02 witnesses in support of its case. C.W. 1 , Shambhu Kumar Sahu who is the son of the complainant, has supported the case to the effect that the petitioner had entered into the house of the complainant and thereafter he outraged the modesty of his mother and this witness was assaulted. C.W. 2, Most. Dhalia Devi is the complainant herself, who has also supported the prosecution case as enumerated in the complaint petition. The defence had examined one witness namely, Kartik Sao who had stated about the illicit relationship between the complainant and Sanjho Singh, which was opposed by the petitioner, who happened to be her brother-in-law. It is a fact that only two witnesses were examined by the complainant, one being her son and another she herself. Merely because no independent witness has been arrayed to give evidence during trial, the complainant's case cannot be disbelieved, as C.W. 1 and C.W. 2 are very consistent with respect to the fact that the petitioner had knocked the door and on the door being opened he entered into the house and outraged the modesty of complainant as also the son of the complainant was assaulted by him. Nothing has been elicited by the defence from its testimony which suggest disbelieving the version of the prosecution. The complainant has sufficiently been able to prove the allegation levelled against the petitioner. Although the defence had stated about the illicit relationship between Sanjho Singh and the complainant, but the same cannot take away the allegation which have been sufficiently proved by the complainant through her evidence. 7. The complainant has sufficiently been able to prove the allegation levelled against the petitioner. Although the defence had stated about the illicit relationship between Sanjho Singh and the complainant, but the same cannot take away the allegation which have been sufficiently proved by the complainant through her evidence. 7. Such circumstances, therefore having been property considered by the learned trial court, the petitioner has been convicted for the offence punishable u/s 452 and 354 I.P.C. The learned appellate court had also appreciated the materials available on record, while dismissing the appeal but reducing the sentence awarded to the petitioner. 8. In the circumstances, I do not find any reason to interfere in the judgment of conviction as been passed by the learned trial court, which has been affirmed by the learned appellate court also. However with respect to the sentence imposed upon the petitioner, it appears that the petitioner has been facing rigours of the criminal case since 1989 and it further appears that the petitioner has remained in custody for a considerable period. In such circumstances, the order of sentence passed against the petitioner is modified to the period already undergone by the petitioner. 9. This application stands dismissed with the aforesaid modification in the order of sentence awarded to the petitioners.