Patna High Court CR. APP (SJ) No.125 of 2015 dt.04-10-2017 1

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.125 of 2015
Arising Out of PS.Case No. -163 Year- 2006 Thana -SAHEBPUR KAMAL District- BEGUSARAI

Kamdeo Jha, Son of Late Abhiram Jha, resident of Village – Sanha Purbari Tola,
Police Station – Sahebpur Kamal, District – Begusarai.

…. …. Appellant/s
Versus
The State of Bihar

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Ashwani Kumar Sinha-Advocate
Mr. Dinkar Kumar-Advocate
For the Respondent/s : Mr. Z. Hoda-A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 04-10-2017

Challenged in this appeal is judgment of conviction

dated 31.01.2015 and order of sentence dated 06.02.2015 passed by

the 4th Additional Sessions Judge, Begusarai in Sessions Trial No.19

of 2008, convicting the appellant, Kamdeo Jha for an offence

punishable under Section 376 of the I.P.C. and sentenced to undergo

R.I. for 10 years as well as to pay fine appertaining to Rs.10,000/-, in

default thereof, to undergo S.I. for two months additionally.

2. Name withheld (PW-3) gave her fard-bayan on

25.12.2006 at about 4.00 p.m. at Bajrang Chowk alleging inter alia

that she had come to her Nani’s place about 10 days ago along with

her mother. During her stay, she developed headache. Even after

taking some medicine, she did not get relief. Then, her maternal
Patna High Court CR. APP (SJ) No.125 of 2015 dt.04-10-2017 2

grandmother had said that there happens to be one Baba, who by his

occultism gets the ailment cured, whereupon she along with her

maternal grandmother has come to the place of Kamdeo Jha, who

directing her maternal grandmother to sit outside, took her inside hut.

When she gone inside the hut, he closed the door and then, directed

her to stand straight. Then thereafter, he began to press her both legs

with both his hands and then, proceeded in ascending manner. When

his hands came over waist, he suddenly opened string of her salwar as

a result of which, she became naked, she tried to cover her body.

During course thereof, she was forced to lie down, Kamdeo Jha

gagged her mouth with one hand and then, pounced upon her and

raped. After releasing, she came outside and disclosed the event to her

maternal grandmother, who began to raise alarm attracting passers by

as well as persons having their presence in surrounding. As soon as

people began to assemble, Kamdeo Jha slipped there from.

3. On the basis of the aforesaid fard-bayan,

Sahebpurkamal P. S. Case No.163 of 2006 was registered under

Section 376 I.P.C. followed with an investigation and then,

concluding the same, chargesheet was submitted facilitating the trial

which concluded in a manner, subject matter of instant appeal.

4. Defence case, as is evident from mode of cross-

examination as well as statement recorded under Section 313 of the
Patna High Court CR. APP (SJ) No.125 of 2015 dt.04-10-2017 3

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

prosecution party became puppet at the hands of local Mukhiya

Ashok Kumar at whose instance this false case has been filed.

However, neither any ocular nor documentary evidence has been

adduced on his behalf.

5. In order to substantiate its case, prosecution had

examined altogether five PWs, out of whom, PW-1 Md. Khurshid,

PW-2 Bhuliya Khatoon, mother of the victim, PW-3, victim, PW-4

Khairoon Khatoon, maternal grandmother of the victim and PW-5

Durgesh Ram. Side by side, had also exhibited viz. Exhibit-1 fard-

bayan, Exhibit-2 formal F.I.R., Exhibit-3 endorsement over the fard-

bayan.

6. The learned counsel for the appellant while

assailing the judgment of conviction and sentence has submitted that

the finding recorded by the learned lower Court is not at all

substantiated by the material available on the record. In order to

buttress such plea, it has been submitted that doctor has not been

examined and that being so, the physical condition of the victim has

not come up. It has further been submitted that evidence of doctor was

very much crucial in the facts and circumstances of the case as, at an

initial stage the victim had alleged that she was raped while during

course of evidence, she had shifted there from and alleged that she
Patna High Court CR. APP (SJ) No.125 of 2015 dt.04-10-2017 4

was subjected to sodomy. Furthermore, it has also been submitted that

PW-5, the I.O. during course of inspection of the P.O. had not found

anything, which could have substantiated the allegation made by the

victim.

7. Now, coming to evidence of remaining witnesses,

it has been submitted that PW-1 did not claim to be an eye witness to

occurrence rather he had stated that from newspaper he came to know

regarding the occurrence. PW-2, mother of the victim though claimed

identification of the appellant, but from her evidence, it is crystal clear

that she would not have identified as, she had not visited nor had seen

the appellant since before. Furthermore, her evidence speaks with

regard to introduction of new facts, which never been corroborated by

the alleged victim as well as her maternal grandmother that Jabbir,

brother of victim also accompanied them. The source, in the aforesaid

background, became doubtful so, she cannot be even a hearsay

witness. So far evidence of PW-4, maternal grandmother is

concerned, during course of her evidence, she had not claimed

identification of the appellant in dock and so, in totality of the event

the case of the prosecution is found completely demolished. That

being so, the finding recorded by the learned lower Court is not at all

found supported by the testimony of witnesses whereupon is fit to be

set aside.

Patna High Court CR. APP (SJ) No.125 of 2015 dt.04-10-2017 5

8. On the other hand, learned Additional Public

Prosecutor though endorsed the view having been advanced at the end

of the appellant, but submitted that so far event of molestation is

concerned, victim happens to be consistent and during course of

cross-examination since she stood firm. In the facts and circumstances

of the case, though there happens to be inconsistency in the evidence

of the PW-3, victim herself, whether she was raped or sodomized, but

so far molestation is concerned, she had categorically stated and so,

Section 354 of the I.P.C. is found very much applicable and for that,

the conviction on that score needs modification.

9. Gone through the L.C. Record. From the L.C.

Record, it is apparent that doctor has not been examined. It is also

evident from the evidence of PW-3 (victim) that Salwar which

contains blood stain as well as other kind of spot was taken away by

the police, but PW-5, the I.O. had not substantiated the same. It is

further evident from the evidence of PW-5, I.O. that during course of

inspection of the P.O., he had not found anything objectionable which

could have given additional assurance with regard to commission of

the occurrence at the alleged P.O.

10. Now, coming to the evidence of the remaining

witnesses, learned counsel for the appellant has rightly submitted that

PW-1 came to know through newspaper after so many days of the
Patna High Court CR. APP (SJ) No.125 of 2015 dt.04-10-2017 6

alleged occurrence, PW-2 mother of the victim came to know from

the disclosure having been made by the victim, when she was taken to

that place by her son Jabbir, which neither been corroborated by PW-

3, victim herself nor by PW-4, Khairoon Khatoon, the maternal

grandmother. Apart from this, age of Jabbir has not been disclosed nor

the aforesaid Jabbir examined in this case. PW-4, Khairoon Khatoon

had deposed that she along with victim had gone to the place of

Kamdeo Jha, she sat outside while Kamdeo Jha took victim inside hut.

After coming out from hut, her daughter’s daughter disclosed that she

has been raped, but failed to identify Kamdeo in the dock and so,

substantial evidence relating to identification gone up.

11. Now, coming to the evidence of victim (PW-3).

She remained intact so far other activity of the appellant is concerned.

However, she shifted herself from initial version whereunder she had

disclosed that she was raped by Kamdeo. During course of evidence,

she had deposed that she was sodomized. No charge was amended on

that very score. At the present moment, though to some extent,

Section 386 of the Cr.P.C. does permit, but while exercising such

power, it is apparent that basically these two offences require two

different kind of defence which, if allowed, will cause prejudice to the

appellant. So far other kind of allegations are concerned, there

happens to be consistent evidence of the victim that she was molested
Patna High Court CR. APP (SJ) No.125 of 2015 dt.04-10-2017 7

and on that very score, during course of cross-examination had

detailed the activity having adopted by the appellant under Para-23,

36. However, in Para-29, she had disclosed with regard to tying of her

hands and legs, whereupon there was injury over her hand and leg, but

the PW-5, I.O. had not corroborated the same, as no sign was found

over person of victim.

12. Falsus in uno falsus in omnibus is not at all

applicable and on account thereof, part evidence of a witness, which is

found unreliable is to be rejected. Simultaneously, the remaining part

which inspires confidence, reliability, credibility is to be accepted.

After all, the function of the Court is separate the grain from chaff that

means to say, while appreciating the evidence of a witness, the Court

is under obligation to separate the truthfulness from falsehood.

Applying the aforesaid principle when the evidence of PW-3 has been

gone through, it is apparent that on account of being novice, she could

not perceive the actual event which she was confronted and on

account thereof, there happens to be inconsistency, but so far

molestation is concerned, she stood firm whereupon the conviction

having recorded under Section 376 of the I.P.C. is modified to its

lesser offence under Section 354 of the I.P.C. So far sentence is

concerned, the occurrence is of the Year 2006, appellant remained

under custody for a year whereupon reducing the sentence as already
Patna High Court CR. APP (SJ) No.125 of 2015 dt.04-10-2017 8

undergone maintaining the sentence of fine in default thereof, to

undergo S.I. for two months. Appellant is on bail, which is extended

for eight weeks, during midst thereof, the amount of fine should be

deposited failing which, the learned lower Court will be at liberty to

proceed against the appellant in accordance with law. If fine amount is

deposited, then in that event, half of the same should be handed over

to the victim on proper identification within four weeks from the date

of deposit and further, the learned lower Court will intimate the same.

13. With the aforesaid modification, instant appeal is

partly allowed.

(Aditya Kumar Trivedi, J)
Vikash/-

AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 10.10.2017
Transmission 10.10.2017
Date