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2018 DIGILAW 33 (PAT)

Biren Sah S/o Radhey Sah v. State of Bihar

2018-01-05

VINOD KUMAR SINHA

body2018
JUDGMENT : 1. By way of present appeal, appellants seek to challenge the Judgment of conviction dated 20.08.2002 and order of sentence dated 23.08.2002, passed by Shri Umeshwar Nath, learned Additional Sessions Judge, Fast Track Court No. 5, Purnea in Sessions Trial No. 27 of 1998, by which the sole appellant-Biren Sah was held guilty under Sections 448 and 354 of the Indian Penal Code (hereinafter referred to as “the IPC”) and was sentenced to undergo R.I. for six months under Section 348 of the IPC and R.I. for six months under Sections 354 of the IPC. 2. Prosecution case as narrated by informant PW-6 in her fardbeyan before Mirganj Police Station, in short is that in the night of 12/13.05.1996 at about 1 A.M. accused Biren Sah entered into her house after breaking the lock and tried to infringe her modesty by pulling the Sari worn by her. Informant woke up and ignited the Dibiya, in which she identified the accused-appellant and on alarm being raised by her, the accused-appellant fled away. She informed the incident to the mukhiya in the said night and, thereafter, the matter was reported to police. On the basis of the aforesaid fardbeyan Dhamdaha (Mirganj) P.S. Case No. 116 of 1996 under Section 376/511 of the IPC against the appellant. Police after investigation submitted charge-sheet. 3. Thereafter, the charge was framed under Section 448 and 376/511 of the IPC, cognizance of the offence was taken and case was committed to the court of sessions, which ultimately traveled to the file of Shri Umeshwar Nath, learned Additional Sessions Judge, Fast Track Court No. 5, Purnea, for trial and disposal. 4. To bring home the charge, prosecution examined 08 prosecution witnesses. They are: PW-1 Gauri Shankar Poddar, who was declared hostile by the prosecution, PW-2 Umda Devi, PW-3, Radha Devi, PW-4 Ratna Devi, PW-5 Rampari Devi, (informant) PW-6 Mahesh Prasad Thakur, who was declared hostile by the prosecution, PW-7 Birma Kumar, (son of the informant) and PW-8 Chandwati Devi. 5. When examined under Section 313 Cr.P.C. appellants denied the occurrence and claimed his false implication by the local mukhiya. 6. 5. When examined under Section 313 Cr.P.C. appellants denied the occurrence and claimed his false implication by the local mukhiya. 6. After conclusion of trial, the learned trial court did not find the accused guilty under Section 376/511 of the IPC rather he found the accused guilty for the offences punishable under Sections 448 and 354 of the IPC and accordingly convicted and sentenced him in the manner as stated above. 7. Contention of the appellant is that he has falsely been made accused in this case and no such occurrence has ever taken place, which will appear from the fact that there are certain contradictions amongst the evidence of all the prosecution witnesses as at one place PW-4 in her evidence has stated that she saw the appellant pulling the sari worn by the informant (PW-5), whereas, in paragraph 4 of her evidence, she has stated that she reached the place of occurrence after the incident and saw the accused-Biren Sah, fleeing away. Likewise, the evidence of PW-7, who is the son of informant-victim also contradicts the evidence of PW-5 (informant) as he has stated in his evidence that accused-Biren Sah tried to pull the Sari of his mother, when the dibiya was lit up, whereas, evidence of Informant (PW-5) shows that accused-Biren Sah was pulling her Sari and then she woke up and lit up the dibiya and raised alarm and accused fled away and so far other witnesses are concerned, they are also not the eye witness of the occurrence coupled with the fact that I.O. has not been examined in this case and the mukhiya before, whom the panchyati was held has also not been examined and the trial court without appreciating these vital contradictions in the evidence of prosecution witnesses has convicted the appellant under Section 448 and 354 of the IPC, which is out and out bad and not sustainable in the eye of law of law. 8. 8. On the other hand, learned counsel appearing on behalf of respondent-State, supported the finding of guilt recorded by the learned Trial Court and has argued that evidence of informant (PW-5) clearly suggests that it was the appellant, who tried to infringe her modesty and was caught while pulling her sari and was seen in the light of dibiya, which has also been supported by other witnesses, who have seen the appellant fleeing away just after the occurrence and, therefore, conviction of appellant under Section 448 and 354 of the IPC is just and proper and does not require any interference. 9. Heard both sides. 10. It appears that the PW-5, is the informant in this case and has supported the occurrence and has stated in her evidence that appellant entered into her house on the alleged date and started pulling her Sari. In the meantime, she woke up and lit up the dibiya and in the light of said dibiya, she identified the accused- appellant and when she raised hulla, accused- appellant fled away. She approached the mukhiya of the village in the same night and, thereafter, the case was instituted. She has also been cross-examined at length but there is nothing in her cross-examination to doubt the veracity of her evidence and it appears that the fardbeyan was recorded on the very next day of occurrence, therefore, there is no chance of manipulation. 11. As stated above PW-1 and PW-6 had been declared hostile. PW-2 Umda Devi, though does not appear to be an eye-witness of the occurrence, however, she has stated in her evidence that she was informed by the PW-5 (informant) about the occurrence. This witness has also been cross-examined, however, there is nothing in her cross-examination to doubt her evidence. Similarly, PW-3 is also not an eye-witness of the occurrence, however, she has supported the prosecution case and also admitted in her evidence that a panchayati was held but the accused-Biren Sah has not appeared in the said panchayati. PW-4 also does not appear to be the eye-witness of the case, however, her evidence in para-4 disclosed that she saw the appellant fleeing away just after the occurrence. 12. PW-4 also does not appear to be the eye-witness of the case, however, her evidence in para-4 disclosed that she saw the appellant fleeing away just after the occurrence. 12. PW-7 is the son of informant and he claims himself to be eyewitness of the occurrence as he saw the appellant Biren-Sah pulling the Sari of his mother, thereafter, he and her mother raised hulla and the appellant fled away. However, from the evidence of this witnesses, it appear that there is slight contradiction in his evidence when compared with the evidence of PW-5 (informant) as PW-5 (informant) in her evidence had stated that she woke up when the appellant was trying to pull her sari and lit up the dibiaya and in the light of dibiya identified the appellant, whereas the evidence of this witness (PW-7) shows that appellant tried to pull the sari of her mother after ignition of dibiya. However, the said contradiction might be because he was minor aged about only 10 years at the time of occurrence and also he was deposing after lapse of six years. 13. PW-8 also does not appear to be an eye witness of the occurrence, however, she claims that on hulla she went to the place of occurrence and saw appellant-Biren Sah fleeing away. This witness has been cross-examined and there is nothing in her cross-examination to doubt her evidence. 14. Considering the entire discussion made above, it appears that there are consistent evidences available on record so as to show that the appellant-Biren Sah on the alleged date of occurrence that appellant by breaking the lock of the house, had entered into the house of informant and tried to infringe the modesty of the informant, in which, informant woke up and ignited dibiya and identified the appellant. Though other witnesses do not appear to be eye witness of the occurrence but some of the witnesses have seen the appellant fleeing away from the place of occurrence and PW-7, who is son of the informant has also stated in his evidence that he saw the appellant-Biren Sah in the light of Dibiya. 15. The word ‘modesty’ is not to be interpreted with reference to a particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account of her sex. 15. The word ‘modesty’ is not to be interpreted with reference to a particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account of her sex. What the legislature had in mind when it used the word modesty in Sections 354 of the Penal Code was protection of an attribute which is peculiar to woman, as a virtue which attaches to a female on account of her sex. Modesty is the attribute of female sex and she possesses it irrespective of her age. The question of infringing the modesty of a woman would of course depend upon the customs and habits of the people. Acts which are outrageous to morality would be outrageous to modesty of women. No particular yardstick of universal application can be made for measuring the amplitude of modesty of woman, as it may vary from country to country or society to society. 16. In view of the discussions made above, it appears the prosecution has succeeded in proving the charge of Section 448 and 354 of the IPC as there are materials on record to show that on the alleged date of occurrence, appellant trespassed the house of informant and tried to infringe her modesty. 17. Accordingly, I do not find any infirmity in the conviction and sentence of appellant under Section 448 and 354 of the IPC and the same is hereby upheld. It appears that he has been sentenced to undergo R.I. for six months in both counts. Submission of learned counsel for the appellant is that he has remained in custody for three months and he has suffered the ignominy and rigors of trial for a period of 21 years as such period of sentence be modified to the extent to a period already undergone by him in custody. 18. Considering the above submission of learned counsel for the appellant, sentence is reduced to a period already undergone by him in judicial custody with a fine of Rs. 5,000/- and in default of payment of fine, he has to undergo S.I. for 03 months. 19. It is made clear that aforesaid amount once deposited, shall be released in favour of the informant of this case. 20. With above modification in sentence, this appeal is dismissed.