Akhilesh Prasad @ Akhilesh Kumar vs The State Of Bihar on 16 October, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.221 of 2015
Arising Out of PS.Case No. -36 Year- 2014 Thana -PALI District- JEHANABAD

Akhilesh Prasad @ Akhilesh Kumar Son of Yogeshwar Yadav@Yogeshwar Yadav
Murari resident of Village: Murari Tand, P.s Pali District jehanabad, Bihar
…. …. Appellant/s
Versus
The State of Bihar …. …. Respondent/s

Appearance:

For the Appellant/s : Mr. Abhishek Krishna Gupta, Adv.
For the Respondent/s : Mr. Syed Ashfaque Ahmad, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 16-10-2017

1. Sole appellant, Akhilesh Prasad @ Akhilesh Kumar has

been found guilty for an offence punishable under Section 354 of the

IPC and sentenced to undergo R.I. for five years as well as to pay fine

appertaining to rupees five thousand in default thereof to undergo S.I.

for one year additionally vide judgment of conviction dated 25.03.2015

and order of sentence dated 30.03.2015 passed by Additional Sessions

Judge, VIth, Jehanabad in Sessions Trial No.444 of 2014.

2. PW.3 (name withheld) filed written report on

06.10.2014 alleging inter alia that she happens to be student of B.A.

Part-II. On 06.10.2014 her parents have gone to purchase medicine.

At about 06:00 PM while she was engaged in lightening and being

alone, her co-villager Akhilesh Prasad intruded inside her house

stealthily, came at courtyard and caught hold her. He threw her on

the ground with an intention to commit rape, she resisted whereupon,

he used to force. Seeing no an alternative, she raised alarm over which

her cousin Kaushlendra as well as her neighbours came, caught hold
Patna High Court CR. APP (SJ) No.221 of 2015 dt.16-10-2017 2

him, assaulted Akhilesh. Anyhow, he managed to his escape.

3. On the basis of the aforesaid, written report Pali P.S.

Case No.36/2014 was registered under Section 376/511 of the IPC

whereunder charge sheet was also submitted after concluding

investigation paving way for trial which ultimately 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

Cr.P.C. is that of complete denial. Furthermore, it has also been

submitted that no occurrence as alleged by the prosecution had ever

taken place rather, the prosecution party brutally assaulted the

appellant as well as his wife prior to the time of alleged occurrence

and for that, on the written report of wife of appellant, namely,

Gyanpati Devi, Pali P.S. Case No.37/2014 was registered and only to

save their skin, this false case has been filed. In order to substantiate

the same Ext.A-Fardbeyan, Ext.B-Charge sheet of the counter case

has been made an exhibit.

5. In order to substantiate its case, prosecution had

examined altogether four PWs out of whom PW.1-Jagdish Prasad,

father of victim, PW.2-Sita Devi, mother of the victim, PW.3-victim

herself and PW.4-Chandan Kumar. Side by side had also exhibited

Ext.1-Written Report, Ext.2-Endorsement over the written report,

Ext.3-Formal FIR. As stated above defence also exhibited FIR as well

as charge sheet of the counter case as Ext.A,B respectively. Howevr,

no oral evidence has been adduced.

Patna High Court CR. APP (SJ) No.221 of 2015 dt.16-10-2017 3

6. The learned counsel for the appellant while assailing

the finding recorded by the learned lower court has submitted that

during course of recording guilt of the appellant, the learned lower

court had acted in mechanical manner. To support the same, it has

been submitted that learned lower court had failed to appreciate that

FIR named witness at least the cousin brother Kaushlendra Prasad

including other witnesses having been withheld by the prosecution

without any plausible explanation is indicative of the fact that they,

being not in toe with the prosecution on one pretext or other were

given up. That being so, due to their non-examination the authenticity

of the prosecution case became doubtful. Furthermore, it has been

submitted that victim was not medically examined. In case, so

examined would have disclosed whether she had sustained injury as,

the victim herself had stated that she was caught hold by the

appellant, threw her on the ground and while frustrating the effort of

the appellant to commit rape, she had actively protested. Apart from

this, it has also been submitted that whoever been examined

excluding the victim happens to be her parents who, admittedly were

not an eye witness to the occurrence. In the aforesaid facts and

circumstances of the case, now the only evidence remains that of

victim and for that, it has been submitted that her evidence on

account of inconsistency happens to be unreliable.

7. In order to support the same, it has been submitted

that from the initial version there happens to be specific disclosure

that the accused came inside, had not locked the main door, the victim

got no opportunity to see the accused since before having been
Patna High Court CR. APP (SJ) No.221 of 2015 dt.16-10-2017 4

apprehended by him, which is found completely demolished during

course of cross-examination and for that referred para-10 of the cross-

examination wherefrom it is apparent that victim had seen the

appellant at a distance of two steps and further had not raised alarm.

She raised alarm after two minutes and this interval gives otherwise

picturisation of the incident than whatever been exposed by the

prosecution. Furthermore, referring the evidence of PW.3 in its

entirety in consonance with the evidence of I.O. PW.4, it has been

submitted that there happens to be complete absence of corroborative

evidence at the end of PW.4, I.O. whereupon, taking into account the

non-examination of the material witnesses, the witnesses who ever

examined being the parents who did not stood the test of an eye

witness, it looks unsafe to rely upon the evidence of PW.3, victim and

that being so, appeal is fit to be allowed.

8. On the other hand, repelling the argument having

made on behalf of learned counsel for the appellant, it has been

submitted at the end of learned Additional Public Prosecutor that

victim happens to be consistent so far manner of occurrence is

concerned. Minor inconsistency, though, the written report is not

expected to be an encyclopedia containing minute to minute details,

even then, the evidence happens to be intact. It has also been

submitted that from the cross-examination of the victim, it is apparent

that appellant happens to be her cousin brother and so, it was but

natural over absence of witnesses who happens to be related with both

of them otherwise than her family members and that happens to be

reason behind non-examination of other PWs. It has also been
Patna High Court CR. APP (SJ) No.221 of 2015 dt.16-10-2017 5

submitted that in terms of Section 134 of the evidence Act, it is the

quality not the quantity which is relevant for proper appreciation of

the evidence. Even evidence of single witness is found sufficient to

record conviction in case the same inspires reliability, credibility,

authenticity which, from the evidence of PW.3 is found.

9. After going through the evidence available on the

record, it is apparent that there happens to be no dispute amongst the

parties since before. From the evidence of PW.3, paragraph-18 she had

stated that no such kind of activity was ever taken up at the end of

appellant. That means to say there was no occasion for the

prosecution to have this case instituted with an ulterior motive. It is

further evident from the evidence of victim that she was alone at her

house during course of commission of the occurrence so alleged as, her

parents had gone to purchase medicine, which is found duly

substantiated by the PW.1 as well as PW.2 (parents) and on account

thereof happen to be hearsay witness to some extent could be

perceived admissible in terms of Section 6 of the Evidence Act as on

account of having been appraised by the victim on their arrival with

regard to activity having taken up by the appellant against her, they

were informed by the victim.

10. Now coming to the evidence of the victim, it is apparent

from her deposition that on the alleged date and time of occurrence

while she was alone in her courtyard, appellant Akhilesh Prasad made

house trespass silently, caught hold her hand and then, pushed her on

the ground. Then, thereafter, Akhilesh attempted to commit rape

whereupon she shouted attracting the Kauslendra ‘Ghamandi’ and
Patna High Court CR. APP (SJ) No.221 of 2015 dt.16-10-2017 6

other villagers, who, caught hold him, assaulted him and during

course thereof, managed to escape. After sometime, her parents came

whom she disclosed the event. Then thereafter, she had gone to P.S.

along with her parents where filed written report. During course of

cross-examination at para-9, she had stated that Akhilesh happens to

be son of his cousin uncle. Then had shown her location in the court

yard to be at extraneously southern side of her court yard. In para-10

she had stated that she saw Akhilesh from a distance of two hands.

She had not raised alarm after seeing him. She had raised alarm after

two minutes. At that very time, main gate was opened. In para-11 she

had stated that her house is density populated. She tried to flee

through main gate. In para-10, she had stated that she had not

sustained any injury. In para-14 she had stated that occurrence took

place for about two minutes, she had admitted presence of counter

case having instituted by the wife of the appellant. In para-20 she had

stated that her mother was suffering from ailment. She is not knowing

from where, she was to bring medicine. In para-21 she had stated that

she was lightening lamp over Tulsi. The occurrence took place near

Tulsi Chaura. She had denied the suggestion that no occurrence as

alleged had taken place.

11. From her evidence it is apparent that no contradiction

has been found. That being so, whatever been raised at the end of the

appellant that there happens to be inconsistency amongst the written

report as well as deposition of the PW.3, is found non-entertain able in

the eye of law as, unless and until attention of the witness is drawn to

that extent, could not be taken into consideration. Furthermore, it is
Patna High Court CR. APP (SJ) No.221 of 2015 dt.16-10-2017 7

also evident from the cross-examination of the PW.3 that she was not

at all cross-examined over the occurrence rather, the defence, due to

the reason best known to the defence itself, did not tried to test

veracity of the PW.3 on that very score. So, the manner of occurrence

remained unchallenged.

12. PW.4 is the Investigating Officer and from his evidence,

it is evident that after registration of the case, he took up

investigation, visited the place of occurrence (detailed under para-6)

examined the witnesses and then thereafter, submitted charge sheet.

During cross-examination at para-14 he had admitted that counter

case has been instituted at the end of the appellant which was lodged

by his wife and after completing the investigation, he submitted

charge sheet.

13. That being so, the learned lower court had rightly

inferred on no offence under Section 376/511 of the IPC are made out.

At the other end, Section 354 of the IPC was absolutely found

satisfied. The version of defence is found untenable as, though time of

occurrence has been shown prior to the time of instant occurrence, but

its institution happens to be after the occurrence. Moreover, injury

over person of appellant is found duly explained. In the aforesaid

background, the defence would have cross-examined the others, much

less PW.1 as well as PW.3 to the extent of manner of occurrence, as

well as weapon being used during course of occurrence. Therefore,

there happens to be no impediment in inferring that prosecution has

succeeded in proving its case at least attracting Section 354 IPC. So

far question of sentence is concerned, it is evident from the evidence of
Patna High Court CR. APP (SJ) No.221 of 2015 dt.16-10-2017 8

PW.3, para-18 that appellant had not indulged in such kind of activity

at an earlier occasion, on account thereof, sentence so inflicted by the

learned lower court needs reconsideration whereupon, is reduced to

undergo R.I. for one year as well as fine of rupees one thousand in

default thereof, to undergo S.I. for one month, additionally.

14. With the modification of sentence, instant appeal is

found devoid of merit and is, accordingly dismissed. Appellant is on

bail, hence his bail bond is hereby cancelled, directing him to

surrender before the learned lower court to serve out the remaining

part of sentence failing which, the learned lower court will be at

liberty to proceed against the appellant in accordance with law. The

period having undergone during trial will be set off in terms of Section

428 Cr.P.C.

(Aditya Kumar Trivedi, J.)

Prakash Narayan

AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 18.10.2017
Transmission 18.10.2017
Date

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