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2025 DIGILAW 435 (PAT)

Kalendra Yadav S/o Naresh Yadav v. State of Bihar

2025-04-18

RAMESH CHAND MALVIYA

body2025
JUDGMENT : RAMESH CHAND MALVIYA, J. 1. Heard Mr. Abhas Chandra learned Amicus Curiae for the appellant and Mr. Satya Narayan Prasad learned APP for the State. 2. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) against the Judgment and Order dated 05.11.2007 and 08.11.2007 in Sessions Trial No. 141 of 2002, arising out of Sahar P.S. Case No. 119 of 1998 corresponding to G.R. No. 2330 of 1998 passed by the learned Additional District and Sessions Judge (F.T.C.)-IVth, Bhojpur at Ara whereby and where-under the appellant has been convicted for the offence punishable under Sections 376 and 511 of the Indian Penal Code and sentenced to under go rigorous imprisonment for five years. 3. The prosecution case is based on the Fardbeyan of the informant before the police of Sahar P.S. Case No. 119 of 1998 stating therein that on 08.10.1998 at about 12 AM the informant went to the canal with her goat, in the meantime, Kalendra Yadav came their and tried to outrage her modesty after opening her panty, but she put a bite in his hand, raised alarm, after which one Mushhar (villager) came and the appellant fled away. Thereafter the informant came at his house narrated the story to her parents after which the Panchayati was desirous but due to failure thereof the informant with her mother reached at the Police Station and lodged this case. 4. On the basis of Fardbeyan, a formal First Information Report was registered as Sahar P.S. Case No. 119 of 1998 dated 10.10.2008 for the offence punishable under Sections 376 and 511 of the Indian Penal Code. The police after investigation submitted charge-sheet under Sections 376 and 511 of the Indian Penal Code and the learned Magistrate committed the case to the Court of Sessions. 5. During the trial the prosecution has examined seven witnesses to substantiate this case. Out of them, PW-1 Jagadish Sharma, PW-2 Sheo Kumari Devi, PW-3 Jiwan Kumari (informant), PW-4 Tapeshwar Singh, PW-5 Nand Kishore Singh, PW-6 Harischandra Paswan and PW-7 Brahmdeo Singh. 6. PW-1 Jagadish Sharma (father of the informant), who is hearsay witness. In his examination-in-chief stated that occurrence took place at 12pm in the year 1998 and at that time he was working in some other place and he came to know about the incident by her daughter. 6. PW-1 Jagadish Sharma (father of the informant), who is hearsay witness. In his examination-in-chief stated that occurrence took place at 12pm in the year 1998 and at that time he was working in some other place and he came to know about the incident by her daughter. In his cross- examination, he stated that the place where his daughter went to graze the goats that place does not belongs to Kalendra Yadav and Kalendra Yadav does not have any field. He said that his daughter did not tell the name of that people from Mushar community who has come there at the time of occurrence. 7. PW-2 Sheo Kumari Devi (mother of the informant), who is also the hearsay witness. In her examination- in-chief stated that occurrence took place around four and half years ago in the noon and she was at home when the daughter narrated the incident to her. She further stated that her daughter told that she had gone to gaze the goats then Kalendr Yadav opened her pant and tried to insult her due to which she shouted and a passerby came there after hearing her cry then Kalendra Yadav fled away. She further stated that when the panchyati was called Kalendra’s father refused to consider the decision of the panches, thereafter she went to the police station and lodged a case against accused person. She further gave her thumb impression before the Sub-Inspector on the fardbeyan. 8. PW-3 Jiwan Kumari (informant), she was of about 13 years of age at the time of alleged occurrence. In her examination-in-chief stated that occurrence took place four and half years ago, it was noon time and she was not married at that time. She went to graze goats near the canal in the west side of the village there in the field then the sole accused firstly told her to step aside when she was in paddy field with her goats. She also stated that her frock had been torn which she was wearing on that day. She has stated that she bite on the hands of the accused/appellant, when he tried to molest her. On hearing the noise/alarm a passerby came there, seeing which the accused/appellant fled away from the place of occurrence. After 3 days of the occurrence she went to the police station with her mother and father. She has stated that she bite on the hands of the accused/appellant, when he tried to molest her. On hearing the noise/alarm a passerby came there, seeing which the accused/appellant fled away from the place of occurrence. After 3 days of the occurrence she went to the police station with her mother and father. 8.i. On cross-examination, she further stated that accused did not ask her to move from there and he had not torn her clothes. She further stated that she did not know the passerby before the occurrence and after the occurrence it took 30 minutes to return to her house. 9. PW-4 and 5 Tapeshwar Singh and Nand Kishore Singh (Independent witness). have been declared hostile. 10. PW-6 Harishchandra Paswan (Investigating Officer) in his examination-in-chief stated that he was posted as an SHO at Sahar PS on 10.10.1998 and recorded Jiwani Kumari’s fardbeyan and the same has been is marked as Ext-1 and the formal FIR is marked as Ext-2. He further stated that he recorded the statements of the witnesses and inspected the place of occurrence. In his cross-examination vide para-4, he stated that the informant has not disclosed that the accused/appellant molested her, therefore, she was not sent for Medical Examination. 11. PW-7 Sramhdeo Singh (Panch), was the then Mukhiya of the village. He stated in examination-in-chief that occurrence took place about 5-6 years ago and he had done Panchayati and has disclosed the names of other panches in whose presence the Panchayati was done. In his cross- examination he has stated that no document was exhibited during the trial that Panchyati was done and the Investigating Officer had not recorded his statement. There were only interested witnesses or hearsay witnesses and the informant was not medically examined. He further stated the Investigating Officer has not recorded his statement. 12. Learned amicus curiae for the appellant submits that appellant has falsely been implicated in this case and the impugned judgment of conviction and order of sentence are not sustainable in the eye of law or on facts. Learned trial Court has not applied its judicial mind and erroneously passed the judgment of conviction and order of sentence. 12. Learned amicus curiae for the appellant submits that appellant has falsely been implicated in this case and the impugned judgment of conviction and order of sentence are not sustainable in the eye of law or on facts. Learned trial Court has not applied its judicial mind and erroneously passed the judgment of conviction and order of sentence. From perusal of the evidences adduced on behalf of the prosecution, it is crystal clear that the prosecution case has not been supported by anyone other than the informant/victim herself and it is relevant to note here that all other witnesses are interested witnesses. Learned counsel further submitted that there is delay of 3 days in filing the FIR. He further submitted that PW-1 and 2 are hearsay witnesses and they have not seen the occurrence nor tried to search for that mushar who was present at the time of incidence. He further submitted that the said passerby was not examined and neither the torn frock of the informant (victim) was seized nor produced before the trial Court and the accused/appellant was not medically examined by the Doctor to prove that he had a bite sign on his hand. 12.i. Learned amicus curiae further contended that informant/victim in her fardbeyan stated that upon seeing a mushar the appellant fled away but in her deposition she stated that a passerby came then the appellant fled away. He submitted that it is not understandable that how PW-3 knew that the person who was cutting the wood was a mushar by caste. He further submitted that PW-6 in his cross-examination stated that PW-3 did not disclosed that the appellant molested her and complete investigation was not done by him and he had no knowledge about investigation. He further submitted that except PW-7 no one from the Panchayat was examined nor any documents were exhibited to show that Panchayat was done and on failure of such, the present case was registered. 12.ii. Learned amicus curiae further submitted that there are material discrepancies in the statement of the prosecution witnesses as other investigating officers who investigated the present case were not examined to corroborate with the prosecution story neither other panches were examined to show that Panchayat was held, which implies that prosecution has failed to prove its case beyond all reasonable doubt against the appellants. 12.iii. 12.iii. The Learned trial Court has failed to appreciate the evidence it's right perspective and impugned judgment of conviction is bad in law as well as on fact and such to set aside. Learned counsel further submitted that this appeal is of the year 2008 and occurrence is of the year 1998, where, the appellants have suffered and undergone persistent agony on the account of the same and are struggling for the defence since last 16-17 years. So, the appellants should have been acquitted from the conviction as sentenced against them. 13. However, learned APP for the State defends the impugned judgment of conviction and the order of sentence submitting that there is no illegality or infirmity in the impugned judgment and order of sentence, because prosecution has proved its case against the appellant beyond all reasonable doubts. In view of the aforesaid statements and the evidence on record, learned trial Court has rightly convicted the appellant and the present appeal should not be entertained. 14. At this stage, I would like to appreciate the relevant extract of entire evidence led by the prosecution and defence before the Trial Court and have thoroughly perused the materials on record as well as given thoughtful consideration to the submissions advanced by both the parties. 15. On deeply studied and scrutinized all the facts and materials available on record, it is evident to note that the informant/victim in her fardbeyan stated that upon seeing a mushar the appellant fled away but in her deposition she stated that a passerby came then the appellant fled away. It is not understandable that how PW-3 knew that the person who was cutting the wood was a mushar by caste. There are material discrepancies in the statement of the prosecution witnesses as none of the prosecution witnesses have seen the appellant nor PW-1 and 2, father and mother of the victim tried to bring the passerby person during the course of trial to substantiate the allegation leveled on the appellant and other investigating officers who investigated the present case were not also examined to corroborate with the prosecution story neither other panches were examined nor any documents were exhibited to show that Panchayat was held and PW-7 in his cross- examination further stated that at the date of occurrence he was outstation and informant had already lodged a case, there the Panchayat was not held. There is also two days delay in lodging of the FIR and there is no explanation for the same. 16. In the case of Jabir and others vs. State of Uttarakhand, AIR 2023 SC 1239 held on the point that where all witnesses are related, there being serious inconsistencies in deposition of the witnesses as well as delay in lodging of the FIR, the sole reliance on the last seen circumstance, even if assumed to have been proved the conviction of the accused would not be justified. Also relied upon the Supreme court ruling in the case of Ram Swaroop vs. Ravi, 2004 (13) SCC 134 held that the version disclosed by witness is quite different from what he stated in the FIR and in the statement recorded during investigation such a witness is not a credible witness. 17. Further, Investigating Officer has also not been examined who has investigated the case during the course of trial as it was fatal since he could have adduced the expected evidence and his non-examination creates a material lacuna in the effort of the prosecution to nail the appellant, thereby creating reasonable doubt in the prosecution case and the learned trial Court failed to scrutinize the evidence brought on record regarding deficiencies, drawbacks and infirmities crept during course of trial and passed the impugned judgment in complete ignorance of criminal jurisprudence. Further, there is no eyewitnesses to the said occurrence and all the PW’s were hearsay witnesses and have not seen the occurrence. 18. The learned trial Court failed to scrutinize the evidence brought on record regarding deficiencies, drawbacks and infirmities crept during course of trial and passed the impugned judgment in complete ignorance of criminal jurisprudence and passed this judgment. Moreover, there are discrepancies regarding the sequence of events and the presence of individuals at the place of occurrence. Considering this fact, prosecution has failed to establish this case beyond shadow of all reasonable doubts, therefore, in such circumstances, it may not be proper to convict the appellant/accused on the materials available on record. Hence, the judgment of conviction and order of sentence in this present matter is fit to be set aside. 19. Considering this fact, prosecution has failed to establish this case beyond shadow of all reasonable doubts, therefore, in such circumstances, it may not be proper to convict the appellant/accused on the materials available on record. Hence, the judgment of conviction and order of sentence in this present matter is fit to be set aside. 19. Hence, the Judgment of conviction dated 05.11.2007 and order of sentence dated 08.11.2007 passed in Sessions Trial Case No. 141 of 2002 arising out of Sahar P.S. Case No. 119 of 1998 dated 10.10.1998 passed by the learned Additional District and Sessions Judge (FTC)-IV, Ara, Bhojpur, is set aside and the accused/appellant is acquitted from the charges leveled against him. As the appellant is on bail, he is discharged from the liability of his bail bonds. 20. Before parting with this appeal, Secretary, Patna High Court Legal Services Committee is directed to pay Rs. 5,000/- (five thousand) to the learned Amicus Curiae, namely, Mr. Abhas Chandra towards honorarium for assisting this Court in the present appeal. 21. Let a copy of first and last page of this judgment be handed over to the advocate Mr. Abhas Chandra, learned Amicus Curiae and Office is directed to proceed further in granting honorarium to him which is to be paid by Patna High Court Legal Services Committee. 22. Accordingly, this appeal stands allowed.