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2018 DIGILAW 2757 (JHR)

Firoz Khan v. State of Jharkhand

2018-12-14

RATNAKER BHENGRA

body2018
JUDGMENT : RATNAKER BHENGRA, J. 1. Heard the parties. 2. This appeal is directed against the judgment of conviction and order of sentence dated 18.03.2004 passed by learned Sessions Judge, Jamtara in Sessions Case No. 105 of 2002 whereby and whereunder the appellant has been convicted under section 354 IPC directing to undergo imprisonment for two years and fine of Rs. 2000/-. 3. The prosecution was launched on the basis of a complaint vide PCR Case No. 162/2002 by the complainant. It is alleged that the complainant was the resident of New Colony, Pokhartala, Mihijam and that the accused Firoz khan was her neighbor. In the night intervening 21/22.4.2002 complainant was sleeping on the roof of her house, the accused climbed on the roof where the complainant was sleeping. The accused tore her nighty and attempted to commit rape and also outrage her modesty. On the alarm raised by the complainant the witnesses arrived and the accused escaped on the arrival of the witnesses. Complainant presented a written report at the police station but the police did not take action. Hence the complaint case was filed for the offence under section 376/511 IPC against the accused. 4. On the basis of investigation under section 156(3) Cr.P.C. Jamtara P.S. Case No. 95 of 2002 was registered under section 376/511 of the IPC. 5. Six witnesses were examined by the prosecution. On the conclusion of the trial appellant was convicted and sentenced as aforesaid. Hence, this appeal. 6. PW-5 is the complainant herself. She deposed that on the day of occurrence she was sleeping on the open roof on account of summer season. Her three daughters were also sleeping on the roof and since the house was newly constructed, there was no door plank at the ground floor. The accused Firoz came and pressed her breasts by both of his hands and at that time, she was wearing nighty. She screamed and called upon as to who was that, she identified in the light of bulb that it was Firoz. Her daughters woke up and also raised alarm. Firoz torn her nighty from the front side. He was sitting by her side and not climbed over her body. The accused had come with the intention to commit rape on her but he escaped on her raising alarm. None came from the neighbourhood. Her daughters woke up and also raised alarm. Firoz torn her nighty from the front side. He was sitting by her side and not climbed over her body. The accused had come with the intention to commit rape on her but he escaped on her raising alarm. None came from the neighbourhood. At about 11.00 a.m. she informed the police station, since there was no male member in her house. Her husband was working at Lilua. When no action was taken by the Mihijam Police she instituted a complaint at the Civil Court, Jamtara. In the cross examination she admitted of having instituted the complaint case at the court after about 1½ months of the occurrence and prior to that she presented a written report at the Mihijam police Station on 24.4.2000. She further deposed that she had dictated in the complaint petition that in the night of occurrence her three daughters were also sleeping at the roof. It was not a fact that she had dictated that she alone was sleeping on the roof. 7. PW-1 Nisharat Jahan, is the daughter of the complainant. She deposed that on the date of occurrence she was sleeping with her mother and two sisters on the roof of the house. She woke up on the sound of scuffle and altercation with her Mummy by someone. She identified that it was Firoz khan who had put his hand on the breast of her mother and her mother screamed. On hearing hulla Firoz Khan attempted to escape and due to this the nighty of her mother was torn. Her father was informed who was working at Lilua workshop, Howrah. In the cross examination, she deposed that she had narrated before the police that Firoz had put his hand on the soldier of her mother. 8. PW-2 is Nikhat Parveen, another daughter of the complainant. She deposed that on the date of occurrence she was sleeping with her mother and two sisters. Firoz khan climbed over the roof, being to scuffle with her mother and when her mother raised alarm, she woke up and witnessed that he escaped after pushing her mother. The nighty of her mother was found torn, none appeared on hearing halla from the neighbourhood. In the cross examination she said that she was not interrogated by the police nor was her statement recorded. 9. PW-6 is Md. The nighty of her mother was found torn, none appeared on hearing halla from the neighbourhood. In the cross examination she said that she was not interrogated by the police nor was her statement recorded. 9. PW-6 is Md. Jamaluddin who is the I.O of the case. He deposed that the copy of the complaint which was sent from the court of C.J.M. Jamtara was received at the Mihijam Police Station on 04.06.2002. It was forwarded by the officer Incharge of Mihijam Police Station with his endorsement to the Jamtara Police Station which has been proved and marked Exhibit-2. On the basis of such endorsement Jamtara P.S. Case No. 95 of 2002 was registered which is marked Exhibit-2/1. He proved the formal FIR which has been proved and marked Exhibit-3. In the cross examination, he deposed that the complainant had not apprised that Firoz had caught her breasts with both of his hands and that she had not narrated having identified the accused in the street light as well as the light of verandah and that Firoz had torn her nighty from the front side. The witness admitted that complainant had narrated that the accused had come with the intention to commit rape and that had she not raised alarm she would have been ravished. In the court question, the I.O. deposed that no torn cloth or the torn nighty was produced by the complainant before him. ARGUMENTS OF THE APPELLANT 10. Learned counsel for the appellant has submitted that the appellant has been convicted under section 354 IPC and has been imposed a sentence of two years imprisonment with a fine of Rs. 2000/-. The occurrence is of the night of the 21st and 22nd April 2002 at around 2 a.m. However, the complaint case was lodged much-much later on 13.5.2002, which is almost after 22 days from the alleged occurrence and there is no proper explanation regarding this delay. Thereafter, the formal FIR was only registered on 04.06.2002. Learned Counsel for the appellant has referred to the text of the complaint and pointed out that the complainant has said that at the time of occurrence she was alone at the time and the accused or the appellant herein had only tried to do something. Thereafter, the formal FIR was only registered on 04.06.2002. Learned Counsel for the appellant has referred to the text of the complaint and pointed out that the complainant has said that at the time of occurrence she was alone at the time and the accused or the appellant herein had only tried to do something. Counsel says that she has herself admitted that he had only tried to do a particular act, which means that he had not really succeeded in whatever she is alleging the appellant to have done. However, his argument is that nothing of the sort had taken place which would convict the offence of which he has been convicted. Counsel for the appellant has then highlighted some of the main points from the deposition of the complainant PW-5. He has pointed out referring to para 1 that in the complaint, the incident is said to have occurred at 2 O’clock. However, in her evidence, she has said it occurred around 12 or 1 O’clock, which is a considerable variation. Referring to paragraph 2, counsel says that in her deposition or evidence she has said she was there along with three daughter, however, in her complaint, she has said that she was alone. Counsel says this is a major contradiction in her evidence. Referring to paragraph 3, he has asserted that in her evidence she has deposed that he had caught her breast with his hands, but this is not that in the complaint at all. Counsel says this is major departure from the complaint and this needs to be noted because the offence is of a sexual nature. When variation or inconsistency is there regarding the manner of occurrence itself then the case against the appellant stands on very shaky grounds. Counsel further points out that even the I.O or the Investigating Officer has said that she has not stated about the said two major variations. Counsel for the appellant further pointed out that in the complaint, she has vividly described how he had tried to commit the sexual offence in detail in paragraph 5 of her complaint. However, this is absent in the deposition. Counsel for the appellant further pointed out that in the complaint, she has vividly described how he had tried to commit the sexual offence in detail in paragraph 5 of her complaint. However, this is absent in the deposition. Therefore, he again says that on the one hand there is vivid description of how he tried to commit the sexual offence and this itself is not described as such in his evidence then this is a major-major inconsistency or contradiction and therefore the appellant cannot be convicted of any offence. Counsel also pointed out that she has deposed that her husband came on the next day, at which counsel says that then why the delay of 22 days had occurred. Counsel has also submitted that she was not presented before doctor and that should have been done but unfortunately that is a major omission on the part of the prosecution. Counsel has referred to paragraph 14 where she has deposed that three of the girls or daughters were also sleeping on the roof, and asserted that this is in contradiction or inconsistent with the complaint that she has indicated that she was sleeping alone. Referring to paragraph 18 and 19, counsel for the appellant has pointed out that she is a mother of nine children and so she must be of considerable age while the appellant was young boy of 23 at the time of occurrence and there is no reason why he would have been attracted to such an aged woman compared to him and that too also who was mother of a nine children and that is simply not believable. Counsel also refers to the suggestion that have been made regarding money being advanced by the father of the accused or the appellant to her for construction of the house. However, she had sought to deny it. Counsel says that this is the reason for making the false accusations against the complainant because the father of the appellant was seeking and trying to get back the money which he had given to the prosecutrix and her family but they were denying to return the same. 11. However, she had sought to deny it. Counsel says that this is the reason for making the false accusations against the complainant because the father of the appellant was seeking and trying to get back the money which he had given to the prosecutrix and her family but they were denying to return the same. 11. He has then referred to evidence of PW-1 who is Nisharat Jahan, a daughter of the complainant and pointed out that her daughter like her mother has also said that the sister was also sleeping along with the mother at which counsel for the appellant has said this is also inconsistent with what the informant or the prosectrix had said in the complaint. He has referred to paragraph 4 of her evidence and pointed out that this witness had deposed that she had seen that Firoz Khan had put his hands on the breast of her mother, at which counsel says that no such description has been given in the complaint, therefore, with such inconsistencies the appellant cannot be convicted. Counsel for the appellant referred to paragraph 7 and pointed out that she herself or this witness has herself deposed that all these were told to her by her mother and accordingly she has deposed and therefore, counsel has said that she is totally a tutored witness by the mother and therefore she cannot be believed and she is therefore also not an eye witness. Counsel for the appellant has then referred to para 18 of the deposition of this witness and pointed out that she has deposed that her elder sister is 30 years. Counsel therefore says one can very well imagine the age of the mother a mother who has nine children. He further says that due to such differences in age it is not possible to believe that a 23 years young man was attracted to the aged lady, therefore, the entire allegation is a concoction due to return of money loan that was being demanded by the father of the appellant. Counsel for the appellant, has then referred to the evidence of PW-2 who is Nikhat Parveen and also submitted that she has also described that they had gone to sleep along with her mother and when the appellant had come and started molesting her mother then she had made alarm. Counsel for the appellant, has then referred to the evidence of PW-2 who is Nikhat Parveen and also submitted that she has also described that they had gone to sleep along with her mother and when the appellant had come and started molesting her mother then she had made alarm. Then she had awoken and all the sisters had also awoken. She has further deposed that struggle was taking place with the accused and then he fled and that the nighty of her mother was torn. Counsel for the appellant has again said that this is again in contradiction or inconsistent with the complainant where the informant has not said that the daughters were was sleeping with her mother. Referring to the evidence of PW-3 Mosuma Khatun, counsel for the appellant has said that she is not an eye witness and she herself has said that she was not examined by the police. 12. Learned counsel has then referred to the deposition of PW-4 Sahabuddin, who is a neighbour and said that he has deposed that after the incident the informant had come to his house along with her daughter and informed him about what had taken place. Counsel for the appellant says that this has not been informed in the complaint itself. 13. Learned counsel for the appellant has then referred to the evidence of PW-6 or the Investigating Officer and pointed out that in paragraph 17 the I.O. had said that the informant did not disclose that the appellant has put his hand on her breast, under investigation under section 161 of the Cr.P.C. Neither is it mentioned in the complaint that the appellant has put his hand on the chest or breast of the complainant but only it is said in her deposition. Counsel also points out that the investigating officer had not seized any nighty and torn clothes and said that this is a major lacuna on the part of the prosecution witness because this could then have been a material exhibit. However, since this has not been seized, the benefit of such absence can only go to the appellant. Counsel also points out that the investigating officer had not seized any nighty and torn clothes and said that this is a major lacuna on the part of the prosecution witness because this could then have been a material exhibit. However, since this has not been seized, the benefit of such absence can only go to the appellant. In his submission, counsel for the appellant has argued that initially charge was framed under section 376/511 of the IPC but however he was convicted under section 354 of the IPC and he was not given opportunity to defend himself under section 354 of the IPC and therefore he cannot be convicted of the same. Counsel pointed out that there is considerable variations in the time of occurrence as given by various prosecution witnesses and as compared to the initial time and therefore with such inconsistency in time, the complaint cannot be believed. Counsel also points out in reiteration that in the complaint she had said that she was alone at the time the incidence while later on she had said in her evidence that three of her daughters were sleeping along with her and even two of her daughters have deposed in the same line and this clearly a case of tutored corroboration. However, the I.O. has denied that she has informed as such during the time of investigation. The counsel for the appellant has also submitted that she was not sent to any doctor for examination is also in favour of the appellant because she was not sent for any examination or rather she did not go to any doctor for examination because no incident as such even took place. Subsequently the non-seizure of any torn clothes or nighty which is said to have been torn is also a major disadvantage to the prosecution. This was one of the major material evidences and if it had been produced which could easily had been on the part of the prosecution then it would have led towards putting some blame on the appellant. However, the allegedly torn nighty has not been produced because it was not torn at all because the appellant did not go to her house or to her roof top to commit such offence. However, the allegedly torn nighty has not been produced because it was not torn at all because the appellant did not go to her house or to her roof top to commit such offence. Learned counsel has also said that the delay of 22 days from the date of occurrence to the lodging of the complaint is also totally not properly explained and the delay can only be explained that the entire case against the appellant is a concocted and manufacture one and therefore conviction against the appellant be set aside. Counsel in his arguments has also cited the following cases to buttress his arguments:- 1. K. Lakshmana Rao vs. Public Prosecutor, State of A.P. (1979) 4 SCC 638 2. Pandurang Sitaram Bhagwat vs. State of Maharashtra, (2005) 9 SCC 44 14. Learned counsel referring to decision of K. Lakshmana Rao (supra) said that new allegations and overt acts attributed to the accused at the trial which were not mentioned in the FIR should not have been believed where the FIR had been filed after due deliberations. ARGUMENTS OF THE APP 15. Learned counsel for the State, learned APP has argued that the conviction under section 354 of the IPC is fully justified and it does not have a totally different ingredients from sections 376/511 of the IPC. Since sections 376/511 of the IPC was not established, therefore, the conviction under section 354 of the IPC has been done and it was rightly done in the facts and circumstances of the case which has also been supported by the evidence of her daughters. Counsel for the State has also said that in para 3 of the complaint, it has been mentioned that she was sleeping on roof. It is not indicted that she was alone on the roof. However, in para 5, where accused came to assault her then at that time and exact spot she was alone. Counsel says that the assault was made on her alone and she was asleep and the others were also asleep so the assault was made on her alone. However, her daughters were also sleeping nearby or in the vicinity. 16. Learned counsel has also argued that during investigation many aspects may be left out during the stage of deposition or evidence many things are clarified remembered and pointed out. However, her daughters were also sleeping nearby or in the vicinity. 16. Learned counsel has also argued that during investigation many aspects may be left out during the stage of deposition or evidence many things are clarified remembered and pointed out. It has come in the evidences that the accused had gone at night and at very late in the night. The question arises why he will go in the night unless it was for ulterior purpose or intent. Therefore, as per the evidence of the prosecutirx as well as the evidence of her daughters, the offence is fully made out and hence the judgment of conviction passed by the learned court below require no interference. CONCLUSIONS 17. Having heard both counsels; having gone through the records of the case and the evidences and in the facts and circumstances, I find that this is allegedly an offence of sexual nature in which the accused or the appellant Firoz Khan has been convicted for the offence under section 354 IPC and sentenced for imprisonment of two years. However, in the complaint that has been lodged by the complainant, there is reasonable description of the assault that was allegedly made on her. However, in her deposition there is no such parallel description. More particularly, in the evidence of the I.O. PW-6, the I.O. has deposed that in his deposition that complainant had not described the sexual nature of the offence. In fact in para 17 of the evidence of the I.O. he deposes that the complainant had not stated to him that the appellant had put his hands on her breast, or that even the appellant had torn her nighty from the front and thereafter climbed on to her body. She had not stated that the appellant had bodily contact with her so as to sit upon her. In para 18, the I.O. has deposed that she had told him that the appellant had come there with bad intentions and if she had not made alarm then her honour would have been ruined. Therefore, it is seen that while in the complaint, there is reasonable description of the assault that she claims to have been made upon her but in her deposition there is no such parallel description. Therefore, it is seen that while in the complaint, there is reasonable description of the assault that she claims to have been made upon her but in her deposition there is no such parallel description. And more particularly, in her statement before the I.O. she seems to have completely denied sexual assault of the kind which she has mentioned in her complaint initially. Paragraph 18 is noteworthy in the sense she says that if she had not made alarm then her honour would have been ruined, which suggests that she was able to make alarm and the appellant was not really able to do anything against her will or consent. 18. It is also seen that in the complaint she has not at all mentioned her daughters that PW-1 and PW-2 has having heard about the incident then and that they had also seen the incident. However, two daughters i.e. PW-1 and PW-2 have deposed in court as witnesses as if they had seen the incident. This is a vital contradiction because if the daughters were witnesses then it is rather strange that they have been left out in the body of the complaint as having seen the offence alleged against the appellant. 19. It is alleged in the description of the offence and as tried to be made out in the evidence of the complainant and also corroborated by one of the daughters PW-2 that at the time of the occurrence the alleged victim was sleeping in a nighty and that the accused had torn the nighty and assaulted her. However, this would have a most important piece of evidence and I see no reason why this vital piece reason was not handed over the police or seized by the police as evidence. This would have at least a crucial evidence particularly when the complainant was not examined by the doctor. Of course, the alleged victim is a much matured woman with many children and therefore, rape is of a not easily determined in the case of such woman, nevertheless, it is rather strange as to why the nighty has not been brought on record as exhibit. The other aspect is in the delay in lodging of the case. Of course, the alleged victim is a much matured woman with many children and therefore, rape is of a not easily determined in the case of such woman, nevertheless, it is rather strange as to why the nighty has not been brought on record as exhibit. The other aspect is in the delay in lodging of the case. The delay is indicated as being of 22 days which seems considerable in nature, even though, the husband of the complainant or the alleged victim was said to have not been present there. However, he had arrived the next day as the pretext of no male members being present could also not be taken. Regarding the delay, it is not mentioned in the complaint also, which has however, been mentioned in the evidence of the complainant, that when she had gone to lodged the case with the police on the next after the alleged occurrence, the accused or the appellant was also present at the police and he had threatened her and thereby obstructing lodging of the FIR. Now, this information should have been disclosed in the complaint but this has not been done so and since it has not been done so but it has been referred to in the evidence of the complainant only, therefore, there is some doubt raised about this suggestion. 20. In conclusion, the lack of description regarding the assault made by the accused or the appellant in the alleged victim’s statement to the police under section 161 Cr.P.C. the doubtful nature of the witness or evidence of PW-1 or the daughters of the appellant regarding there being present, or having seen the alleged assault at the time of the occurrence, the absence of the nighty which could have proved a valuable piece of evidence and the delay of 22 days and not bringing into the complaint itself that the accused or the appellant had threatened her at the police station all raise considerable doubt which all raise considerable doubt regarding the veracity of the allegation made against the appellant and therefore, some benefit of doubt is also allowable to the accused or the appellant in this case. 21. 21. Accordingly the judgment of conviction and order of sentence dated 18.03.2004 passed by learned Sessions Judge, Jamtara in Sessions Case No. 105 of 2002 whereby and whereunder the accused or the appellant herein had been convicted under section 354 of the IPC and directed to undergo imprisonment for two years with a fine of Rs. 2000/- is hereby set aside. The appellant is given the benefit of doubts because of the doubtful issues raised and he is set free of the liabilities of his bail bonds. 22. Accordingly, appeal is allowed. Appeal allowed.