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2018 DIGILAW 172 (JHR)

Dinesh Yadav v. State Of Jharkhand

2018-01-18

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT Anil Kumar Choudhary, J. – Heard learned counsel for the appellants and learned Addl. PP for the State. 2. This appeal has been preferred by the appellants against Judgment dated 20.12.2005 passed by the 1st Additional Sessions Judge, Deoghar, in S.T. No. 290 of 2005, whereby and whereunder, the court below has only observed that the prosecution established the offence under Section 323 of the Indian Penal Code against the appellants but without in any express words convicting the appellants, released the appellants Dinesh Yadav and Bachu Yadav @ Bachu Mahto after due admonition. 3. The prosecution case in brief as mentioned in the complaint of the complainant that on 14.01.2005, the appellant-accused Dinesh Yadav came to the house of the complainant at about 4.00 P.M. and requested her to give a piece of meat to be tasted by the accused. As the complainant refused the request, it is alleged that the appellant Dinesh Yadav committed rape on her. It is further the case of prosecution that when the husband of the complainant came on the next Sunday of the said incident then, the complainant went to house of accused along with her husband at about 10.00 A.M. to complain about the appellants-accused. Then the appellants-accused along with co-accused person assaulted the complainant and her husband. She then went to police station but as police did not take any action, she filed the complaint case in court. 4. After the cognizance was taken, the case was committed to the court of sessions. Charges for the offences punishable under Sections 376, 452 and 323 of Indian Penal Code was framed against the appellant Dinesh Yadav and Charge for the offence punishable under Sections 323 and 504 of Indian Penal Code was framed against the appellant no. 2- Bachu Yadav @ Bachu Mahto and upon the accused-appellants'' pleading not guilty, they were put to trial. 5. In support of its case, prosecution examined four witnesses. P.W.2- Amla Devi is the complainant. She has stated that the occurrence took place at 4.00 P.M. The appellant no. 1 requested her to give a piece of meat and when she refused the request, the appellant no. 1 abused and assaulted her and when she raised alarm, the appellant fled away. She called her husband and her husband came on the next Sunday of the said incident. 1 requested her to give a piece of meat and when she refused the request, the appellant no. 1 abused and assaulted her and when she raised alarm, the appellant fled away. She called her husband and her husband came on the next Sunday of the said incident. Then she went to the house of the appellants to complain that the appellant no. 1 assaulted her. At this stage the PW 2 was declared hostile. In her cross examination, on being put leading question by the prosecution, she denied that she mentioned in her complaint that the appellant committed rape on her. 6. P.W.1- Laru Mahto is the husband of the alleged victim. He has stated that on his returning to his home on Sunday, the PW2 told that the appellant Dinesh Yadav assaulted her. When P.W.1 discussed this matter with the appellant- Dinesh Yadav, he abused P.W.1. P.W.1 was also declared hostile. In his cross examination, he has stated that they have compromised the matter. 7. P.W.3- Sanjhia Devi has stated that at 4.00 PM, she saw that Dinesh Yadav was assaulting P.W.2. Thereafter, the P.W.2 went with her husband P.W.1 to the house of the appellants and the appellants pushed him. In her cross examination, she has stated that the occurrence of assault took place outside the house. 8. P.W.4-Babita Devi has stated that the appellant assaulted P.W.2. and she was also declared hostile. 9. After closure of the evidence of the prosecution, statements were recorded under Section 313 Cr.P.C, where the appellants denied the circumstances appearing in evidence against them. The learned court below after considering the evidence on record observed that the prosecution has established the offence under Section 323 of the Indian Penal Code against both the appellants and thereafter went on discussing that there has been compromise between the parties but as the signature of one of the affected parties namely Laru Mahto was not appearing on the compromise petition, the learned court below did not compound the offence and without formally holding the appellants guilty of the offence punishable under Section 323 of the Indian Penal Code or convicting them for the said offence observed that the appellants be released after due admonition and released them. 10. 10. Learned counsel for the appellants submitted that the learned court below erred by admonishing the appellants without holding them guilty for any offence or convicting them for any offence. Hence, he submitted that the impugned judgment being not sustainable in law, be set aside. 11. Learned Addl. PP concedes that without holding any accused guilty, the learned court below ought not have admonished them. 12. Section 235 of the Code of Criminal Procedure reads as under 235. Judgment of acquittal or conviction :- (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law. Perusal of section 235 of the Code of Criminal Procedure reveals that the said section mandates that it is incumbent upon the Session Judge to give either judgment of acquittal or conviction at the conclusion of the trial. This in other words means that the Session Judge has either to acquit or to convict the accused persons of the charges framed against them, at the conclusion of the trial. It is needless to mention that such being the mandate of law a duty is cast upon the Session Judge to mention in no uncertain words either he acquits or convicts the accused persons of the charges framed against them and mere observation that the evidence is sufficient to establish the charge or not and without mentioning in no uncertain words either he acquits or convicts the accused will not complete the judgment and certainly a premature stage for admonition of the accused. Hence I have no hesitation in holding that the learned Additional Sessions Judge has in this case failed to discharge the duty cast upon him by law in not mentioning in no uncertain words either he acquits or convicts the accused. 13. At this stage it will be relevant to refer to Section 3 of the Probation of Offenders Act, 1958, which reads as under: "3. 13. At this stage it will be relevant to refer to Section 3 of the Probation of Offenders Act, 1958, which reads as under: "3. Power of court to release certain offenders after admonition.- When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition." It is evident from Section 3 of the Prevention of Offenders Act, that exercising the power of admonition, can be used only when any person is found guilty of committing an offence punishable with the offence mentioned in that section or any offence punishable with imprisonment for not more than two years with fine under the Indian Penal Code. But perusal of the record reveals that nowhere in the impugned judgment, the appellants have been held guilty or convicted for any offence by the learned court below and the only opinion has been expressed by the court below that the prosecution has established offence under section 323 of the Indian Penal Code against both the accused persons. Hence this court is of the considered view that the learned court below erred by admonishing the appellants without holding them guilty and convicting them of any offence. 14. The evidence on record suggests that none of witnesses have stated that any hurt has been caused to anybody. The compromise has been effected to between the parties and informant herself has been declared hostile and she has not stood by her averments made in her complaint, about the commission of the serious offence like rape having committed on her. The evidence on record suggests that none of witnesses have stated that any hurt has been caused to anybody. The compromise has been effected to between the parties and informant herself has been declared hostile and she has not stood by her averments made in her complaint, about the commission of the serious offence like rape having committed on her. So, it is crystal clear that either the PW2 made false allegations about a serious offence of commission of rape on her or she deposed falsehood on oath. In either case she cannot be treated as a credible witness. Hence her testimony becomes doubtful and cannot be sole basis of establishing the charge for the offence punishable under section 323 of the Indian Penal Code. Further, there are contradictions between the testimonies of P.W.1 and P.W.3 as P.W. 1 has only stated that he was abused by the appellants whereas PW3 has stated that he was assaulted also. 15. So, I have no hesitation in holding that the evidence in record is insufficient to establish the charges for the offence punishable under Section 323 of the Indian Penal Code against the appellants-accused. Accordingly, the impugned judgment being not sustainable in law, is hereby, set aside. The appellant no. 1 has already been released from custody and the appellant no. 2 has been discharged from the liabilities of his bail bond. 16. Let the original Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment. 17. This appeal is, accordingly, allowed.