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2017 DIGILAW 1512 (JHR)

Sohan Swanshi v. State Of Jharkhand

2017-08-24

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. – Heard Mrs. Anubha Rawat Choudhary, learned counsel for the petitioner and Mr. Ravi Kumar Singh, learned A.P.P. for the State. 2. This application is directed against the judgment dated 31.05.2005 passed by the learned Additional Judicial Commissioner IIIrd, Khunti in Cr. Appeal No. 21 of 2003, whereby and where under the judgment and order of conviction and sentence dated 11.02.2003 passed by the learned Judicial Magistrate, 1st Class, Khunti in G.R. Case No. 515 of 1999 (Trial No. 143 of 2003), by which the petitioner has been convicted for the offence punishable under Section 354 of the Indian Penal Code and sentenced to undergo R.I. for six months has been affirmed. 3. It appears from the prosecution story that on 04.10.1999 when the informant went to forest to collect leaves the petitioner had appeared and caught hold of her hand and thereafter started touching her breast and subsequently on an alarm raised by the informant one Jeetmani Devi appeared and thereafter the accused has filed away. It is alleged that a Panchayat meeting was held and thereafter the First Information Report was instituted. 4. It has been submitted by Mrs. Anubha Rawat Choudhary, learned counsel for the petitioner that the entire prosecution case is based upon the evidence of P.W.5 the informant. Learned counsel for the petitioner submits that there are no other witnesses to the occurrence. It has also been submitted that there was a delay of 12 days in instituting the First Information Report which also dilutes the prosecution case. Learned counsel for the petitioner further submits that in the alternative if this Court is not inclined to interfere in the judgment of conviction, the period of sentence be reduced considering the fact that the petitioner is facing the rigors of the prosecution case since the year 1999 and has also remained for sometime in custody. 5. Learned A.P.P. for the State has opposed the prayer made by the petitioner. 6. It appears that in course of trial five witnesses were examined on behalf of the prosecution. P.W.1 Munga Devi is the mother of the victim girl who has supported the version of her daughter and said that after 15 days of the incident she had gone to the Police Station since there was no male member available in the family and her husband is a lunatic. P.W.1 Munga Devi is the mother of the victim girl who has supported the version of her daughter and said that after 15 days of the incident she had gone to the Police Station since there was no male member available in the family and her husband is a lunatic. P.W.2 Jeetmani Devi has also stated that she had seen the alleged incident with her own eyes and had also identified the petitioner during her evidence. She has also corroborated the evidence of other witnesses that the petitioner did not appear in the Panchayat. P.W.3 Nandlal Swanshi has also supported the prosecution case and so has P.W.4 who has stated that P.W.5 (informant) had informed him that the petitioner had touched her body and molested her. P.W.5 Saraswati Kumari is the informant who has stated that the petitioner had pressed her breast when she had gone to collect the leaves for her goats. She has further disclosed that after the incident a Panchayat meeting was convened but since the petitioner did not appear no decision could be taken. She has further stated that about 10 to 12 days after the incident had taken place she had gone to the Police Station and thereafter the First Information Report was instituted. 7. Learned counsel for the petitioner has much stressed on the delay in instituting the First Information Report but as it appears that after the incident had taken place a Panchayat meeting was convened but since the petitioner did not appear no decision could be taken and thereafter the First Information Report was instituted. Further reasonable explanation had been submitted by the mother of the informant being P.W.1 who has stated that there was no male member in the family as the father of the informant is a lunatic. Although, the Investigating Officer of the case has not been examined but the evidence of P.W.5 has sufficiently been corroborated by the evidence of the other witnesses and in such circumstances the place of occurrence having duly been proved, the defence was not prejudiced by the non-examination of the Investigating Officer. 8. Although, the Investigating Officer of the case has not been examined but the evidence of P.W.5 has sufficiently been corroborated by the evidence of the other witnesses and in such circumstances the place of occurrence having duly been proved, the defence was not prejudiced by the non-examination of the Investigating Officer. 8. Learned counsel for the petitioner at this juncture has also submitted about the false implication of the petitioner on account of some previous dispute but the same cannot be taken into consideration solely on the ground that P.W.5 has been very clear, categorical and cogent in her evidence with respect to the petitioner outraging her modesty. It is a well known fact that enmity is a double edged sword and therefore merely because there was some dispute existing between the petitioner and the informant party the same cannot solely be the reason for not believing the version of the prosecution. 9. Thus on proper appreciation of the materials available on record this Court comes to a finding that the learned trial court had rightly convicted the petitioner for the offence punishable under Section 354 of the Indian Penal Code which was subsequently affirmed in appeal. There being no reason to conclude otherwise the judgment of conviction passed by the learned trial court and affirmed by the learned appellate court is, hereby, sustained. 10. However, with respect to the sentence which has been imposed upon the petitioner it appears that the petitioner has remained for some time in custody out of a maximum period of six months R.I. It further appears that the petitioner is facing the rigours of the prosecution case for the last almost two decades. On consideration of the aforesaid facts the period of sentence imposed upon the petitioner is modified to the period already undergone. 11. This application stands dismissed with the aforesaid modification in sentence.