Rinku Chaudhary vs The State Of Bihar on 15 September, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.115 of 2015
Arising Out of PS.Case No. -50 Year- 2012 Thana -BARUN District- AURANGABAD

1. Rinku Chaudhary son of Shyam Nandan Chaudhary resident of Village-
Khemda, P.S. – Barun, District- Aurangabad.

…. …. Appellant/s
Versus

1. The State of Bihar

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Krishna Prasad Singh, Sr. Advocate
Mr. Meena Singh, Advocate
For the Respondent/s : Mr. Z. Hoda , A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 15-09-2017

The sole appellant, Rinku Choudhary, has been

found guilty for an offence punishable under Section 323 of

the Indian Penal Code and sentenced to undergo Simple

Imprisonment for 6 months with a fine of Rs. 1000/- and in

default thereof, to undergo Simple Imprisonment for 75

days, Rigorous Imprisonment for 2 years under Section 354

Indian Penal Code with a fine of Rs. 2000/- and in default

thereof, two months Simple Imprisonment and 3 years
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Rigorous Imprisonment for the offence under
Section 457 of

the Indian Penal Code with a fine of Rs. 2000/- and in default

thereof, two months Simple Imprisonment with a further

direction to run the sentences, concurrently vide judgment of

conviction dated 03.02.2015 and order of sentence dated

04.02.2015, passed by the learned Ad-hoc Additional

Sessions Judge-IV, Aurangabad in Sessions Trial No. 150 of

2012 and 25 of 2012 arising out of Barun P.S.Case No. 150

of 2012.

1) P.W.-5, Mamta Kumari, the informant, aged

about twelve years had filed a written report on 20.03.2012

alleging therein that in the preceding night while she had

slept along with her younger sister, Puja Kumari, all of

sudden, one person made house trespass, came near to

Chauki and caught hold of her neck whereupon, she raised an

alarm. On this, he tried to press her mouth. On her cry, her

mother as well as her sister, Puja Kumari awoke. Her mother,
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Shakuntala Devi came inside her room and all of them caught

hold the aforesaid miscreant and then identified him to be her

neighbour, Rinku Choudhary, son of Shyam Nandan

Choudhary who, at that very moment lifted a danda, which

was kept in the room and gave a danda blow over the head

of the mother of the informant whereupon he succeeded in

fleeing. It has also been divulged that he had entered into his

house with ulterior motive. It has also been disclosed that

during course of escape, Rinku Choudhary sustained injury.

After investigation of the case, charge sheet was submitted,

whereupon trial commenced and concluded in a manner,

subject matter of instant appeal.

2) The defence case, as is evident from cross-

examination as well as statement recorded under Section 313

of the Cr. P.C. is complete denial. It has also been suggested

that prosecution party was apprehensive that there was some

sort of relationship in between appellant with the informant,
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Mamta Kumari and on account thereof, while he was going

to meet natural call in the night, he was assaulted by the

prosecution party for which a case has been instituted,

however, nothing has been adduced on behalf of the defence

to substantiate the same.

3) In order to substantiate the case, the

prosecution had examined altogether seven P.Ws. who are

P.W.1, Nanhak Choudhary, P.W.-2, Krishna Choduhary,

P.W.-3, Shankuntala Devi( mother of the informant and

injured), P.W.-4, Puja Kumari, P.W.-5, Mamta Kumari,

P.W.-6- Dr. Vinod Sarin and P.W.-7, Lallan Singh. Side by

side also exhibited documents as Exhibit-1- Written report,

Exhibit-2- Injury Report and Exhibit-3- formal F.I.R.

After going through the evidence adduced on

behalf of prosecution, it is evident that they have admitted

presence of injury not appellant, Rinku Choduahry.

4) From the evident of P.W.-7, Investigating
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Officer, it is evident that Rinku Chodhary was apprehended

from his house and then was remanded to judicial custody.

During cross- examination at para-12, he had admitted that at

that time when Rinku Choudhary was apprehended, he was

injured but he had not prepared injury report relating thereto.

He took Rinku Choudhary to Barun Police Station and then

was sent to Barun Hospital, through Choukidar for treatment.

At that time, he had prepared memo of arrest against the

aforesaid Rinku Choduary. In para-13, it is further evident

that he had not obtained injury report relating to Rinku

Chodhary.

5) Furthermore, from the order dated 21.03.2012,

it is evident that when Rinku Choudhary was produced for

remand in this case, he was injured and the injury was duly

bandaged. Prosecution also had not denied presence of injury

over Appellant and for that, it has been disclosed that during

course of fleeing, he dashed against door frame, but now the
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witness became able to see in absence of light, is a

circumstance, which has to be seen from the evidences

adduced on behalf of the prosecution.

6) Apart from this, P.W.-1, para-6, P.W.-2 para –

7, P.W.-3 para-5, P.W.-4 para-9 have admitted presence of

Rinku Choudhary at the hospital for the treatment. P.W.-2 as

well as P.W.-3 had admitted that there was a complaint

lodged by the Uncle of Rinku Choudhary namely, Manoj

Choudhary. P.W.-2 had gone to the extent that Mar-pit took

place in between both the parties and case and counter case

had been filed on behalf of both the parties is another

circumstance which needs proper consideration while

analyzing the evidence.

7) It is not an obligation on the part of the

prosecution to explain the injury, having sustained by the

accused, more particularly, when it happens to be simple in

nature, however, could not exonerate the prosecution to
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prove the case. To adjudge the same evidence in detail to be

taken note of P.W. 1 also, who is neighbor of the informant.

After going through his Examination-in -Chief, it is evident

that he had deposed to the extent that in the night of 19/20-

03-2012 while he was sleeping in his house, accused entered

in the house and caught throat of informant and tried to press

her mouth, on raising alarm, he came out and gone to the

Darwaza where he saw people having apprehended Rinku

Choudhary. Rinku Choudhary had attempted to commit rape

upon Mamta on account there of, he was apprehended.

Rinku Choudhary lifted danda and gave a danda blow over

the mother of the informant as a result of which, she

sustained injuries over her head. Thereafter, he returned back

to his house. During cross-examination at para-4, he stated

that after hearing cry of the mother of the informant, who had

received injury on her head, he came to know about the

occurrence. In para-11, he had stated that he had not
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disclosed to any body about the occurrence.

8) P.W.-2 had deposed that when after hearing

hue and cry, he rushed to the place of Mamta Kumari on the

alleged date and time of occurrence, he saw the mother of

Mamta Kumari in an injured condition having injury over

her head. Then he deposed that Rinku Choudhary after

making house trespass attempted to commit rape. On cry,

when mother came in rescue, Rinku Choudhary assaulted her

with lathi and then he fled away. At para-5, he had stated that

when he reached at the place of occurrence , there was large

number of people present there but he is unable to disclose

the name of any of them. He had not done any thing. Then,

thereafter, he returned back.

9) P.W.-3 is the mother of victim Mamta, injured

and she had disposed that on the alleged date and time of

occurrence, she was sleeping in different room, while her

daughters were sleeping in different room. After hearing cry
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of both the daughters, she rushed and caught hold of Rinku

Choudhary. Her daughter had disclosed that Rinku

Choudhary, after pressing her neck, had attempted to commit

rape upon her. Accused fled away after assaulting her with

lathi as a result of which she sustained injury over her head.

Then he gond to Police station with her daughter, where

fardbeyan was recorded and, thereafter, she was shifted to

hospital. In the cross examination at para-4, she had deposed

that she had gone to Police Station in the night itself. The

Sub Inspector, Barun P.S. had recorded fardbeyan where

upon her daughter put her signature. She also put her thumb

impression. Then, he had denied the suggestion in para-6,

that it is wrong to say that she had not gone to the Police

station in the night. In para-9, she had stated that she had

gone to Police Station in the night itself along with her

daughter. Again they both visited Police Station on the

following morning and the case was registered in the
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morning. In para-10, she had stated that her house has

Northern front. Her daughter slept over Chouki at western

side room. The main gate was closed with lock but lock was

not broken. After hearing cry of her daughter, she also raised

alarm. Then at para-11, she had shown houses in her

boundary, but she failed to say whether those persons came

or not.

10) P.W.- 4, Puja Kumari happens to be sister of

the informant, aged about 10 years. From her deposition, it is

not clear whether the Court had exercised to identity her of

normal understanding. However, she had deposed that on the

alleged date and time of occurrence, she slept along with her

sister. Rinku Choudhary made house trespass, came near her

sister, pressed her mouth and then entered into scuffle with

an intention to commit rape. On her cry, her mother came

inside the room and caught hold Rinku Choudhary, over

which he gave lathi blow and then fled away. During course
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of cross-examination at para-5, she had stated that it was

awaken since before but she had not seen Rinku Choudhary

while entering inside her room due to darkness. When her

sister cried, then she understood that some body is there and

then, she rushed making alarm. She rushed to her mother and

awaken her. In para-7, she had spoken that she and her

mother became afraid of. There was darkness in her room.

Her mother came in her room and caught hold the accused

Rinku Choudhary, who fled away after assaulting her on

head and then they all had gone to sleep.

11) P.W.-5 is the informant, who had deposed

that on the date of occurrence and time of occurrence, she

slept with Puja Kumari. At that very time, one boy came

inside room whom she identified as Rinku Choudhary. He

came and then pressed her mouth and made effort to commit

rape. She raised alarm. The accused tried to untie the string

of her salwar. Till then, her mother came and tried to caught
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hold him. Accused lifted lathi, have blow and then fled

away. She along with her mother had gone to Police Station

where she lodged a case. Identified the accused police sent

her mother to Hospital for treatment.

12) During cross-examination at para-6 she had

stated that it was dead of night. There was pitch dark. Then

said at para-7 that on account of darkness that they have not

raised alarm. None of neighbors came. She along with her

mother had gone to the Barun Police Station at night itself.

From Police Station, they were sent to hospital. Thereafter,

they returned back to the house and slept. In the morning

they have gone to the neighbors and disclosed with regard to

the occurrence. In para-8, she had stated that she did not

know the accused. For the first time, she had seen the

accused. She was not knowing his name since before. After,

having been disclosed by her mother, she came to know

about his name.

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13) P.W.-6 is the doctor, who examined the

mother of informant and found one lacerated wound ¾” x ¼”

x 1/6″, simple in nature.

14) P.W.-7 happens to be I.O. of the case, who

recorded the F.I.R. proceeded with the investigation,

arrested the accused and then, thereafter, submitted

chargesheet. During cross examination at para-9, he had

admitted that it was dark night and he had not found any

source of light at the house of the informant.

15) From the evidence, as discussed herein

above, it is evident that conduct of P.W.1 and P.W.-2

happens to be abnormal. P.W.-1 had claimed that when he

reached at the P.O. , the accused was already apprehended by

so many persons and during course thereof, accused inflicted

danda blow over the head of Shakuntla Devi. How it

materialized, it is the matter of concern, as the Appellant was

apprehended by others, not by Shankuntala. In like wise
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manner the conduct of P.W.-2, who just after visiting the

place returned back without any activity.

16) Now coming to the evidences of P.W.-3, 4

and 5, none of them had deposed that Court yard happens to

be duly fenced though P.W.-3 had deposed that main gate

was locked and aforesaid lock was not broken, at the other

end, the Investigating Officer had not found during course of

his objective finding relating to P.O. that the Court yard was

duly fenced and the main gate was affixed. In like wise

manner, neither P.W.-3, P.W.4, P.W.5 had deposed that door

was present with the room, nor the I.O. had dislodged the

same, whether room was closed or opened, the witnesses also

did not say. None of the witnesses had disclosed that they

chased the appellant then how they came to know about the

injury sustained by the appellant.

17) As held above, the prosecution is not under

the obligation to explain the injury sustained by the accused
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but in the present facts and circumstances of the case, when

the evidence of prosecution witnesses, as is evident, found

disjunct on account thereof, admitting injury as well as

presence of counter version by way of counter case, appears

to be fatal to the prosecution case.

18) Consequent thereupon, the judgement of

conviction and sentence recorded by the learned lower Court,

did not find favour. The same is set aside.

19) The Appeal is accordingly, allowed. The

appellant is on bail, hence he is discharged from the liability

of bail bonds.

(Aditya Kumar Trivedi, J)

Sudha/-

AFR/NAFR NAFR

CAV DATE NA
Uploading Date 21.09.2017
Transmission 21.09.2017
Date

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