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2022 DIGILAW 65 (JHR)

Devendra Mahli v. State of Jharkhand

2022-01-10

NAVNEET KUMAR

body2022
JUDGMENT : This appeal is preferred against the Judgment of Conviction dated 22.08.2003 and order of sentence dated 23.08.2003 passed by the learned Additional Judicial Commissioner, FTC-VII, Ranchi, in S.T. No.592 of 1998, arising out of Itaki P.S. Case No.35 of 1997, corresponding to G.R. No.2362 of 1997, whereby the sole accused appellant has been convicted for the offence under Sections 341, 354, 509 and 366/511 of IPC and directed to serve one month simple imprisonment under Section 341 of IPC, two years for the offence committed under Section 354 of IPC, one month S.I. for the offence committed under Section 509 of IPC and R.I. for five years for the offence committed under Section 366/511 of IPC. 2. The allegations against the appellant arose in the wake of the beyan dated 07.10.1997 of the informant (Hereinafter referred to as ‘victim’:- name held up to maintain confidentiality), where she had given her statement before the officer-in-charge of Itaki P.S. that on 6.10.1997, she had gone to the house of her maternal uncle, which is situated just 25 yards away from her house. After cleaning the house of her mama, she left the house for washing the utensil and reached near the hand pump. There was completely dark. No one was with her. All of a sudden, the accused-appellant Devendra Mahali appeared and caught hold her hand and taking her away from that place to lonely field and said don’t raise hue and cry, ‘’I will marry with you.’’ Out of fear, she tried to flee away from the grip of the accused, but she was caught hold by the accused with force and again accused was taking her away forcibly. Thereafter, she raised hue and cry and got rid off from the grip of the accused and ran away. She was chased by the accused and caught hold of by him. She was put on ground and tried to outrage the modesty. After hearing the hulla of the informant, her mama and father reached at the place of occurrence and rescued her from the grip of the accused. Thereafter, accused was assaulted by the villagers. She has further stated that accused has torn her garments. She was put on ground and tried to outrage the modesty. After hearing the hulla of the informant, her mama and father reached at the place of occurrence and rescued her from the grip of the accused. Thereafter, accused was assaulted by the villagers. She has further stated that accused has torn her garments. She has further stated that accused Devendra Mahali had given her threatening on 3.10.1997, while she was going to fetch the soil from the pond when she was intercepted by the accused and told that he wanted to marry with her. 3. On the basis of statement recorded by Officer In-charge, Itaki P.S., FIR was registered under Sections 341, 354, 509 and 366/511 of IPC against the sole accused appellant and investigation was taken up. After investigation, the police submitted the charge-sheet in this case, on the basis of which, cognizance of the offence was taken and the case was committed to the Court of Sessions and the learned court below passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 4. Heard Mrs. Suchitra Pandey, learned Amicus Curiae appearing on behalf of the appellant and Mr. Ashok Kumar, APP appearing on behalf of the State. 5. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel contended that the impugned judgment of conviction and order of sentence is unsustainable in the eyes of law and deserved to be set-aside as the same has been passed against the weight of evidence. It is contended that the learned trial court failed to appreciate that the statement of informant (PW – 5) is contradicted by the statement of father (PW – 1) and maternal uncles PW 3 and PW 4. It is contended that the investigating officer of the case has not been examined, which has greatly prejudiced to the appellant as his attention could not be drawn on the point of exaggerated versions of P.Ws. It is contended that the investigating officer of the case has not been examined, which has greatly prejudiced to the appellant as his attention could not be drawn on the point of exaggerated versions of P.Ws. Further it has also been contended by the learned Amicus that it is not a case of attempt to kidnap or abduct or induce the ‘victim’ inasmuch as any act of the appellant did not indicate his intention either to compel her to marry with him or to force or seduce her to illicit inter course and relied upon the rulings of the Honble Supreme court in ; (1) State of Maharashtra Vs. Mohd. Yakub & Ors. reported in (1980) 3 SCC 57 . (2) State of Rajasthan Vs. Sri Chand reported in (2015) 11 SCC 229 . In the light aforesaid authorities on the definition of ''Attempt", the learned Amicus Smt. Suchitra Pandey contended that none of the witnesses examined on behalf of the prosecution including her father (P.W.1) mamas (P.W.3) and (P.W.4) and her mother (P.W.7) supported the version of P.W.5 (victim) to corroborate the case of prosecution on the charges that P.W.5 was subjected by the appellant either for kidnapping, or abducting or inducing the victim to compel her to marry with him or to force or seduce her to illicit inter course nor the victim made any complaint about earlier alleged threatening that the accused wanted to marry with her forcibly in the FIR nor her this version of FIR gets corroborated in the testimonies of the victim herself either in examination in chief or in the cross examination to support her earlier statement of FIR that the appellant had threatened her to marry when she was examined as P.W.5. during the course of trial and thus the charges for the offence punishable under section 366/511 of IPC is not proved. Further it has also been pointed out that the learned trial court did not take into consideration the testimonies of the defence witnesses and hence impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. 6. Further it has also been pointed out that the learned trial court did not take into consideration the testimonies of the defence witnesses and hence impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. 6. On the other hand the learned APP appearing on behalf of the State contended that the learned trial court has rightly appreciated the evidences available on record and there is no legal point to interfere and after taking into consideration all the facts convicted the appellant for the offences punishable under sections 341, 354, 509 and 366/511 of IPC and awarded the sentence accordingly, hence there is no merit in the appeal and it is fit to be dismissed. 7. Heard the parties and after going through the records, it is found that in order to substantiate the charges leveled against the appellant, the prosecution has been able to examine eight witnesses in this case, but neither the I.O. has been examined nor the formal FIR has been duly proved. On the other hand, three defence witnesses have also been examined on behalf of the appellant as DW-1 Bishwanath Mahto, DW – 2 Narayan Gope and DW – 3 Govind. 8. From the perusal of the testimonies of the witnesses examined on behalf of the prosecution, it is found that PW – 1 Boura Oraon, PW – 2 Alim Uddin Ansari, PW – 3 Soma Oraon, PW – 4 Lakhan Oraon, PW – 6 Binni Orain, PW – 7 Etwari Orain and PW – 8 Kura Pahan are hearsay witnesses. 9. PW – 1 in his examination-in-chief has supported the prosecution case to the effect that the appellant has tried to outrage the modesty of the victim by taking her away to a lonely place. The defence has also drawn attention of this witness that the informant people had assaulted the appellant because there had been some dispute between the appellant and the prosecution party and that is why this false case has been instituted. In para 13 this witness clearly stated that at the time of occurrence he was in his house doing puja. The defence has also drawn attention of this witness that the informant people had assaulted the appellant because there had been some dispute between the appellant and the prosecution party and that is why this false case has been instituted. In para 13 this witness clearly stated that at the time of occurrence he was in his house doing puja. In para 24, the attention of this witness was drawn with respect to his earlier statement given by this witness before the police, but since the I.O. has not been examined and therefore the veracity and truthfulness of this witness remains doubtful to the extent that the appellant had also tried to kidnap or abduct or induce or to compel for marriage, within the meaning of Section 366 of IPC. 10. PW – 2 Alim Uddin Ansari is another hearsay witness examined on behalf of the prosecution case and he heard from the villagers that the appellant had tried to outrage the modesty of the victim but there is no whisper in his testimonies about any attempt to kidnap or abduct or induce to compel her marriage within the meaning of Section 366 of IPC. In para 5 this witness stated that he was in the house at the time of occurrence. 11. PW – 3 Soma Oraon is the maternal uncle of the victim and he had also supported the case of the prosecution to the extent that the appellant has tried to outrage her modesty as evident from paras 2, 5, and 9, but the attempt of kidnapping her has not been supported. This witness also did not utter a single word about any attempt to kidnap or abduct or induce or to compel for marriage within the meaning of Section 366 of IPC. 12. PW – 4 Lakhna Oraon is another maternal uncle and in the examination in chief supporting the case he stated that he had tried to outrage the modesty of the victim, where the villagers caught him and assaulted him. In the cross-examination, the defence has been taken on behalf of the appellant that there had been some criminal case also instituted by the appellant upon this witness and that is why, he has been falsely implicated in this case. In the cross-examination, the defence has been taken on behalf of the appellant that there had been some criminal case also instituted by the appellant upon this witness and that is why, he has been falsely implicated in this case. Despite taking this defence, the fact remains for taking into consideration that the appellant has tried to outrage the modesty of the victim as consistently and uniformly supported by the witnesses PW – 1, 2, 3 & 4 which is falling in line with the charges leveled against the appellant in the FIR itself. This witness also did not state a single word about any attempt to kidnap or abduct or induce or to compel for marriage within the meaning of Section 366 of IPC. 13. PW – 5 is the ‘victim’. She categorically stated in her examination in chief that the appellant reached at the place of occurrence, i.e. near the hand pump, when she was washing utensils and thereafter he tried to outrage the modesty as evident from para 2 of the examination in chief, by which, it appears that she has corroborated charges of outraging the modesty as made in the FIR but the attempt to kidnap or abduct or induce or to compel her marriage within the meaning of Section 366 of IPC is not substantiated from her version. The defence has drawn the attention of this witness in para 8 of the cross examination about her earlier statement before the police but its veracity could not be appreciated as the I.O. in this case has not been examined and the appellant did not get the opportunity to effectively draw the attention about her earlier versions in order to bring out the contradictions and therefore the appellant has been debarred from the fair justice and therefore non-examination of the I.O. has caused prejudice with respect to the charge of attempt to kidnap or abduct or induce or to compel her marriage within the meaning of Section 366 of IPC , but she has categorically stated about the incident of outraging the modesty in conformity with her statement given in the FIR where she has proved her signature which is marked as Ext.1 14. Further PW – 6 Binni Orain had also reached the place of occurrence after hearing hulla and came to know that the appellant had outraged modesty of victim-informant. Further PW – 6 Binni Orain had also reached the place of occurrence after hearing hulla and came to know that the appellant had outraged modesty of victim-informant. Her statement was not recorded by the police and she had come to depose in the Court for the first time. This witness also did not reveal a single word about any attempt to kidnap or abduct or induce or to compel for marriage within the meaning of Section 366 of IPC. 15. PW – 7 Etwari Orain, who is the mother of the victim and she has stated in her cross-examination vide para 6 that she did not know as to what happened outside the house and she has not been examined by the police as stated in para 7. This witness also did not speak a single word about any attempt to kidnap or abduct or induce or to compel for marriage within the meaning of Section 366 of IPC. 16. PW -8 Kura Pahan had also reached the place of occurrence after hearing the hulla and found that the accused appellant was restless because of the injuries inflicted upon him and this witness was also not examined by the police. In the cross-examination in para 2, he had supported the case of the prosecution to the extent that her modesty was outraged by this appellant. He stated in para 4 of his deposition that at the time of occurrence he was at his house. 17. On the other hand, the defence witnesses have been examined as DW – 1 Bishwanath Mahto in order to show that this appellant has been falsely implicated in this case, because there has been criminal case instituted by the appellant against the maternal uncles including PW – 3 and PW – 4 and therefore he was badly assaulted by them and in order to protect themselves, this case was instituted by them under the pretext of outraging the modesty of victim. 18. DW – 2 Narayan Gope is also examined on behalf of the appellant and he had stated that accused appellant was assaulted by the villagers in order to take defence that since a case has been instituted by the appellant against the prosecution party including PW – 3 and PW – 4, hence at their instances, this false case has been instituted. 19. 19. DW – 3 Govind examined on behalf of the appellant also stated that PW – 3 Soma Oraon and PW – 4 Lakhna have instituted the false case because the appellant had also instituted a case against them and the appellant was badly assaulted by them, which has come in the deposition of the witnesses examined on behalf prosecution also including PWs – 1, 2, 3, 4 and PW -8 also. 20. Recapitulating the aforesaid depositions, it is well founded that the prosecution has been able to substantiate the case of the prosecution to the extent that the appellant had outraged the modesty of the victim P.W.5 forcibly and he was caught and assaulted by the villagers and the deposition of victim PW – 5 supported to that effect candidly and by the other witnesses, i.e. PWs – 1, 2, 3, 4, 6 & 8, although, the defence has been taken on behalf of the appellant that these witnesses are inimical witnesses because a case was instituted by him and that is why this false case has been instituted by them but in view of the glaring evidences examined on behalf of the prosecution and emanating from the testimonies of PW – 5 and corroborated to the that extent by PWs 1, 2 ,3, 4, 6, 7 and 8 consistently and uniformly about outraging the modesty of the victim forcibly as their versions are in conformity with FIR with the charges leveled against the appellant for the offences punishable under sections 341, 354 and 509 of IPC. Thus the charges leveled against the appellant for the offences punishable under sections 341, 354 and 509 of IPC are proved even in absence of the non-examination of I.O. inasmuch as it did not cause prejudice to that effect as discussed above. But from the evaluation of the testimonies of the witnesses in the foregoing paragraphs the charge of attempt to kidnap or abduct or induce or to compel her for marriage within the meaning of Section 366 of IPC is not substantiated and therefore the learned trial court has committed gross error in finding the accused guilty for the offence punishable under Sections 366/511 of IPC, of which, no evidence has come in the testimony of any one of the witnesses. I.O. in this case has also not been examined nor any incriminating articles is said to have been seized or brought on record in order to substantiate the allegations. 21. Therefore, from the aforesaid findings on the basis of analysis of evidences in preceding paragraphs, this Court comes to the conclusion that the appellant is guilty for the offences punishable under Sections 341, 354 and 509 of IPC as the guilt of the sole accused-appellant is not proved for the offence punishable under Sections 366/511 of IPC. 22. In the backdrop this court alters the guilt of the sole accused appellant for the offences punishable only under Sections 341, 354 and 509 of IPC and not under section 366/511 of IPC as his guilt is not proved for the offence punishable under Sections 366/511 of IPC. Accordingly the sole appellant Devendra Mahali is convicted for the offences punishable under Sections 341, 354 and 509 of IPC and the impugned judgment of conviction and order of sentence for the offence punishable under Sections 366/511 of IPC is set-aside. 23. So far as the sentence for the offences punishable under Sections 341, 354 and 509 of IPC is concerned, it has been pointed by learned defence counsel that the sole appellant has already remained in jail for about one year and three months and therefore no useful or meaningful purpose would be served to send him again in jail and there is nothing about any criminal history against the sole accused appellant. Further the sole accused appellant has been suffering a trauma of this criminal case since 1997 and now his age is about 60 years as per record of this case. Therefore it is just and fair to award the sentence of imprisonment to the sole appellant Devendra Mahali for the period already undergone for the offences punishable under Sections 341, 354 and 509 of IPC jointly in a composite manner. Since the appellant is on bail, he is discharged from the liabilities of bail bond. 24. Accordingly, this appeal is dismissed with modification in the judgment of conviction dated 22.08.2003 and order of sentence dated 23.08.2003, passed by the learned Additional Judicial Commissioner, FTC-VII, Ranchi, in S.T. No.592 of 1998, arising out of Itaki P.S. Case No.35 of 1997, corresponding to G.R. No.2362 of 1997, as above. 25. 24. Accordingly, this appeal is dismissed with modification in the judgment of conviction dated 22.08.2003 and order of sentence dated 23.08.2003, passed by the learned Additional Judicial Commissioner, FTC-VII, Ranchi, in S.T. No.592 of 1998, arising out of Itaki P.S. Case No.35 of 1997, corresponding to G.R. No.2362 of 1997, as above. 25. Let a copy of this judgment be forwarded to the Member Secretary, Jharkhand State Legal Services Authority to make payment of professional fees to the appointed amicus curiae Mrs. Suchitra Pandey who has assisted this court efficiently and skillfully. 26. Let the Lower Court Record be sent back forthwith to the concerned court below along with a copy of this judgment.