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2018 DIGILAW 2332 (JHR)

Janardan Prasad Yadav v. State Of Jharkhand

2018-10-23

RONGON MUKHOPADHYAY

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JUDGMENT Rongon Mukhopadhyay, J. - Heard Mr. Baleshwar Yadav, learned counsel for the petitioner and Mrs. Lily Sahay, learned A.P.P. for the State. 2. This application is directed against the judgment dated 12.08.2008 passed by the learned Sessions Judge, Gumla in Criminal Appeal No. 3 of 2006 whereby and whereunder the judgment and order of conviction and sentence dated 05.01.2006 passed by the learned S.D.J.M., Gumla in connection with Sisai (Bharno) P. S. Case No. 10 of 2005 corresponding to G. R. No. 70 of 2005 convicting the petitioner for the offence under Section 377 of the I.P.C. and sentencing him to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 5,000/- has been affirmed. 3. The prosecution story in brief is that the informant used to stay from his childhood in the house of his maternal uncle and look after the cattle. It is alleged that on 31.01.2005 while he was returning in the evening with his cattle, the petitioner met him in the path and had told him to tie the cattle and meet him. It is further been alleged that when the informant came back to the petitioner, the petitioner had committed an unnatural offence with him and has also threatened him not to disclose about the incident to anyone. It is also been alleged that at the time of commission of offence, the same was witnessed by several persons including Mansu Oraon, Chamar Oraon, Mahadeo Oraon and Govind Mishra, but on account of fear of the petitioner, none has disclosed about the incident. The informant went back to his house and disclosed about the incident to his maternal uncle and aunt as well as to the villagers and thereafter the FIR was instituted. Based on the aforesaid allegations, Sisai (Bharno) P. S. Case No. 10 of 2005 was registered in which after investigation, charge-sheet was submitted and after cognizance was taken, charges were framed against the petitioner under Section 377 of I.P.C. to which he pleaded not guilty and claimed to be tried. 4. In course of trial, 8 witnesses have been examined on behalf of the prosecution. P.W. 1 - Ravindra Nathker is one of the Panches who has stated that the petitioner on appearing before the Panchayat had confessed his guilt. He has further stated that the people had started assaulting the petitioner. 4. In course of trial, 8 witnesses have been examined on behalf of the prosecution. P.W. 1 - Ravindra Nathker is one of the Panches who has stated that the petitioner on appearing before the Panchayat had confessed his guilt. He has further stated that the people had started assaulting the petitioner. P.W. 2 - Chandra Deo Oraon is an eye-witness to the occurrence who has stated that while he was standing near the Anganbari, the informant was taken away by the petitioner towards the rock and this witness along with some other persons had seen the petitioner committing an unnatural offence with the informant. He has further stated that he was also subjected to an unnatural offence by the petitioner about a month back and he was threatened not to disclose about the incident to anyone. P.W. 3 - Mansu Oraon is another of the eye-witnesses who have supported the prosecution case as narrated by P.W. 2. P.W. 4 - Ashok Kumar Gupta has stated that on 31.01.2005 in the evening hours, he was in his house when the uncle of the informant had come to him and had narrated about the incident. He has stated that a meeting was called in the village in which the petitioner had appeared and had confessed his guilt before the Panches. This witness has proved his hand-writing and signature which has been reduced in writing and which has been marked as Exhibit 1. P.W. 5 - Birsa Oraon is the informant who has stated that on the fateful day, while he was coming back to his house along with the cattle, the petitioner met him and had asked him to tie the cattle and come back and he was threatened with dire consequences if such direction of the petitioner is not followed. He has further stated that the petitioner had taken him into Bijli Tongri, where he had committed unnatural intercourse with him. He has also stated about the document prepared at the Panchayat and it was decided that a criminal case be lodged against the petitioner. He has further supported his initial version with respect to several persons having seen the occurrence including P.W. 2 & P.W. 3. P.W. 6 - Dr. He has also stated about the document prepared at the Panchayat and it was decided that a criminal case be lodged against the petitioner. He has further supported his initial version with respect to several persons having seen the occurrence including P.W. 2 & P.W. 3. P.W. 6 - Dr. Anil Kumar Kamal is the Medical Officer of P.H.C., Bharno who has examined the victim and had found injuries in his anus and it was opined that the injury was caused by hard and blunt substance which might be an erected penis of a person. P.W. 7 - Chandra Bhushan Pahan was also present in the Panchayat, who has stated about the confession rendered by the petitioner before the Panches. He has also stated about the assault committed by the persons who have gathered in the Panchayat. P.W. 8 - Sudhir Kumar Chaudhary is the Investigating Officer of the case who has stated that after registration of the case, the accused as well as the victim were sent to P.H.C., Bharno for their medical examination. This witness has described the place of occurrence and has also recorded the statement of the witnesses under Section 161 of Cr.P.C. and after obtaining the injury reports has submitted charge-sheet against the petitioner. This witness has proved his writing and signature in the injury memo which has been marked as Exhibit 3/1 and 2/1 respectively as also has proved the signature of the then Officer Incharge on the formal FIR which has been marked as Exhibit 4 and 4/1. 5. It has been stated by the learned counsel for the petitioner that an improbable story has been created by the informant since the petitioner was aged more than 60 years at the time of the incident. Learned counsel further submits that the medical report belies the prosecution case with respect to an unnatural offence having been committed by the petitioner upon the informant. Learned counsel further submits that if this Court is not inclined to interfere with the judgment of conviction, the period of sentence may suitably be reduced considering the fact that the petitioner has remained in custody for a period of 2 years and at present, if alive would be more than 78 years of age. 6. Learned A.P.P. for the State has opposed the prayer made by the petitioner. 7. 6. Learned A.P.P. for the State has opposed the prayer made by the petitioner. 7. The contentions made in the FIR by P.W. 5 has been corroborated by P.W. 2 and P.W. 3, who are the eye-witnesses to the occurrence. In fact the act of committing an unnatural intercourse with the informant by the petitioner has also sufficiently been corroborated by the doctor who is P.W. 6, who has found injuries upon the person of the informant. The acceptance of guilt by the petitioner in the Panchayat has been disbelieved by the learned courts below and rightly so, since some of the witnesses have stated that on arrival of the petitioner, the persons who had gathered at the Panchayat had started committing assault upon him and perhaps due to fear, the petitioner has confessed his guilt. Leaving aside the opinion of the Panchayat as indicated above, taking into the evidence of P.W. 2 and P.W. 3 which absolutely corroborates the evidence of the informant - P.W. 5, the same was a sufficient cause for the learned trial court to convict the petitioner for the offence under Section 377 of I.P.C. The same is hereby sustained. 8. Although, learned counsel for the petitioner has vehemently argued about the reduction in the sentence of the petitioner considering his old age and the fact that he has remained in custody for a period of 2 years, but the fact remains that the petitioner had involved himself in a heinous offence with the informant who was aged about 12 years and if the version of P.W. 2 is also taken to be true, the petitioner appears to have committed an unnatural offence with P.W. 2 one month prior to the incident which had occurred with the informant - P.W. 5. The conduct of the petitioner and the fact that he has been involved in committing such an offence with a 12 years old child, I am not inclined to reduce the period of sentence imposed upon the petitioner. 9. In the totality of the circumstances enumerated above, I am not inclined to entertain this application, which accordingly stands dismissed.