Ram Sagun Yadav vs The State Of Bihar on 20 November, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.405 of 2015
Arising Out of PS.Case No. -99 Year- 2004 Thana -BHAGWANPUR District- BEGUSARAI

Ram Sagun Yadav, son of Late Bhola Yadav, Resident of Village- Banwaripur, P.S.
Bhagwanpur, Dist- Begusarai.

…. …. Appellant
Versus
The State of Bihar

…. …. Respondent

Appearance :

For the Appellant/s : M/S Arbind Kumar Sharma, Kiran Sharma,
Saroj Kumar Sharma, Randhir Kumar
No.1, Advocates
For the Respondent/s : Mr. Sujit Kumar Singh, APP
For the Informant : M/S Sanjeev Kumar, Shamshad Alam,
Advocates

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 20-11-2017

This appeal arises out of the judgment of conviction dated

26.6.2015 and order of sentence dated 1.7.2015 passed by

learned Sessions Judge, Begusarai in Sessions Case No. 49 of

2006 whereby appellant has been convicted under Sections 376

and 511 of the Indian Penal Code and sentenced him to undergo

rigorous imprisonment for five years and imposed a fine of

Rs.10,000/- and in case of default in payment of fine, to

undergo simple imprisonment for six months.

2. Prosecution case, in short, is that the victim informant

Sanju Kumari (P.W.4) has lodged fardbeyan stating, inter alia,
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therein that while she was going to school on 28.8.2014 at

about 8 A.M. and when she reached southern side of bamboo

clumps of Fathi Mian, a boy caught her and forcibly brought

her in the Maize field of Shiv Sah and after removing her

undergarments, attempted to commit rape upon her and also

molested her. On alarm raised by her, villagers, namely,

Rajendra Poddar, Sudhir Singh and school teacher Ashok Singh

came there and appellant fled away from the place of

occurrence.

3. On the basis of aforesaid fardbeyan Bhagwanpur

P.S.Case No. 99 of 2004 was registered under Sections 376 and

511 IPC against the appellant and after investigation charge

sheet has been submitted against the appellant, on which

cognizance of the offences has been taken and the case was

committed to the court of sessions, which was kept by the

learned Sessions Judge to his own file for trial and disposal.

4. On behalf of prosecution altogether 12 witnesses have

been examined, they are : P.W.1 Ram Pravesh Poddar (brother

of victim), P.W.2 Urmila Kumari @ Urmila Devi (mother of

victim), P.W.3 Bhagwan Poddar (father of victim), P.W.4 Sanju

Kumari (victim and informant), P.W.5 Rajendra Poddar
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(hostile), P.W.6 Vijay Sah (hostile), P.W.7 Ashok Kumar

(teacher of school), P.W.8 Sudhir Singh (hostile), P.W.9

Dr.Gopal Mishra (Medical Officer, Sadar Hospital, Begusarai),

P.W.10 Dr.Ram Pravesh Rai (Surgeon, Sadar Hospital,

Begusarai), P.W.11 Dr. N.K.Choudhary (Medical Officer,

P.H.C. Saraiya Garha, Supaul) and P.W.12 Dr.Shashi Prabha

(In-charge Medical Officer, Birpur Primary Health Centre,

Begusarai).

5. Apart from the said oral evidence the prosecution had

brought the following documents : Ext.1 Signature of victim

Sanju Devi on fardbeyan and Exts. 2 to 2/4 Medical Board

Reports.

6. Defence has not adduced any evidence either oral or

documentary in support of its case but plea of defence is simply

denial of the occurrence and of false implication.

7. After trial learned trial court has convicted the

appellant under Sections 376 and 511 IPC and sentenced him as

stated above.

8. Against the aforesaid judgment and order the appellant

has preferred this appeal on the ground that the victim (P.W.4)

claims that Rajendra Poddar (P.W.5) and Sudhir Singh (P.W.8)
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had disclosed the name of appellant, whereas Rajendra Poddar

and Sudhir Singh had not supported the prosecution case, being

identified by them and so far P.W.7, Ashok Singh, is

concerned, his evidence shows that he had not seen the

occurrence and he saw the victim crying. It has also been

submitted that the evidence of P.W.7 discloses that other

teachers and 400 to 500 students were present but it looks

absurd that they have not heard the hulla and only P.W.7

rushed to the placed of occurrence. Further submission of

learned counsel for the appellant is that identification of the

appellant in court is not admissible as her fardbeyan shows that

name of appellant has been disclosed by Rajendra Poddar,

Sudhir Singh and Ashok Singh to the informant and she was not

knowing the name of the appellant but in the court she claimed

that she was knowing the appellant from before, which

contradicts her earlier statement (fardbeyan). Further

submission is that in such a circumstance, non-examination of

I.O. is also fatal in this case, as had the I.O. been examined,

defence may cross examine him on those points, as such,

serious prejudice has been caused and appellant is entitled for

the benefit. Submission of learned counsel for appellant is also
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that Doctor has been examined in this case but evidence of

doctor as well as medical report does not show any mark of

injury on her private part or any other part of body, which also

falsifies the prosecution story of attempt to commit rape. It has

also been argued that FIR itself shows that it was rainy day but

nothing is available on record to show that her cloth was

muddy. It has also been argued that P.Ws. 1 and 2 are brother

and mother of the victim but they are not eye-witnesses to the

occurrence. It has also been argued that the informant is aged

about 13-15 years and those should be taken with great scrutiny

and should not be accepted without corroboration as it may be

tutored.

9. On the basis of above submission, learned counsel for

the appellant has submitted that in spite of any corroboration so

far identification of appellant and relying only on evidence of

victim, as there is no other witness except the victim girl,

conviction of the appellant under Section 376/511 IPC is not

just and proper.

10. On the other hand, contention of learned APP is that

the victim girl has supported the occurrence in her evidence in

court and she named the appellant also in court and it is her
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evidence in court, which is substantive evidence and she had

not been confronted with the fact that she has not identified the

appellant earlier and his name was disclosed by the other

witnesses and for the first time she has identified him in court.

Apart from that it is also submitted by learned counsel for the

State that the statement of the appellant under Section 313

Cr.P.C. clearly shows that he had not denied his presence at the

place of occurrence, rather he has stated that he was there to

unload gunny bags containing fertilizer and that also shows the

presence of the appellant at the place of occurrence. Hence

there is no infirmity in the judgment.

11. This Court examined the evidence available on

record. Prosecution case as per fardbeyan is that while she was

going to school the appellant caught her hand and taken her to

maize field, remove her paint and attempted to commit rape

and pressed her breast and on hulla Rajendra Poddar and Sudhir

Singh came there and Ashok Kumar, the teacher of the school,

also came running there and the appellant fled away, and his

name was disclosed by Rajendra Poddar (P.W.5) and Sudhir

Singh (P.W.8). In her evidence in court, P.W.4

(informant/victim) has stated that the appellant apprehended
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her, taken her to maize field, undressed her and attempted to

commit rape upon her. Her evidence further shows that on her

alarm, Rajendra (P.W.5), Sudhir (P.W.8) and Ashok (P.W.7)

came there and seeing them Ram Sagun (appellant) fled away.

In court she has also identified appellant Ram Sagun Yadav. In

her cross examination she claims to know the appellant from

before. Her cross examination also shows that when accused

dragged her, she raised alarm and on arrival of persons the

appellant fled away. She has stated in her cross examination

that she knows the name of the appellant as Ram Sagun Yadav

and none disclosed the name to her, rather she knows him from

before. She has also denied a suggestion that she had stated

before police that Sudhir (P.W.5) disclosed name of accused

fleeing away, is Ram Sagun. Even she has denied the

suggestion that appellant has not tried to commit rape upon her.

12. On consideration of the whole evidence it appears

that there is nothing in her cross examination to disbelieve the

manner of occurrence. The defence has challenged

identification of the appellant in court as she has stated in her

fardbeyan that witnesses, Rajendra (P.W.5) and Sudhir (P.W.8),

who had been declared hostile, disclosed the name of the
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appellant. Law is well settled that evidence in court is

substantive evidence and not the fardbeyan, fardbeyan is

needed only for the purpose of corroboration and contradiction.

13. It appears that evidence of P.W.5 and 6, who are said

to be eye-witnesses to the occurrence and disclosed the name to

the informant in the FIR, have been declared hostile by the

prosecution as they have not supported the prosecution case.

Evidence of P.W.7 disclosed that he heard hulla and on hulla he

went there and saw the victim in naked condition and saw two

to three persons were also there and the victim girl told that

Ram Sagun Yadav was trying to commit rape upon her. This

witness has further stated in chief that he has not seen the

appellant at the place of occurrence. This witness has also been

cross examined by defence and he has stated that his statement

was not recorded by police and even in his cross examination

he has stated that he reached there and saw the victim

complaining and crying.

14. It has been submitted on behalf of defence that the

cross examination of this witness shows that his statement has

not been recorded by police and also doubted the presence of

P.W.7 at the place of occurrence as his evidence in cross
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examination shows that there were eleven teachers and 300

students were in school, but in spite of hulla, non else reached

there.

15. P.W.1 is brother of victim informant (P.W.4) and he

heard that some boy had misbehaved with her sister on which

he and his mother (P.W.2) went there and there the victim

narrated the occurrence and also disclosed the name of

appellant.

16. P.W.2 is mother of victim and she has also stated that

on hulla when she went there her daughter has narrated the

occurrence to her. Both the witnesses, P.Ws. 1 and 2, are not

eye-witnesses, however just after the occurrence when they

went there, the victim has narrated the occurrence in detail and

they have been cross examined at length but there is nothing in

their cross examination to show that the victim has not narrated

the occurrence to them.

17. P.W.3 who is father of victim and his evidence

disclosed that Ram Sagun Yadav has thrashed the victim and on

her cry and hulla they had gone there and accused had fled

away from the place of occurrence.

18. Apart from that, Vijay Sah has also been examined as
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P.W.6, who has not supported the prosecution case, as such, he

has been declared hostile and he has been confronted with the

statement made before the I.O.

19. P.Ws. 9 to 11 are the doctors and members of

Medical Board, who have examined the victim and after

scanning the evidence of P.Ws.9 to 11 it reveals that at the time

of occurrence the age of victim was about 13-15 years.

20. P.W.12 is In-charge Medical Officer, Health Centre,

Begusarai, who has examined the victim girl and found the

following :

(1) Height 4‟ 5″, weight 30 kgs, no. of teeth
14/14, M.I. Old scar Mark on left elbow, old scar
Mark on left index finger, secondary sex character,
breast only nodule, pubic hair and auxiliary hair not
developed. No external injury on chest, breast and
abdomen and back.

Pelvic Examination :- No injury on private part.
No meshing of under garments. No foreign material
on private parts.

Internal Examination :- No injury in outside
and inside vagina. Vaginal swab smeared made and
sent to pathology deptt. for presence of
spermatozoa. Spermatozoa not found. Investigation
suggested- X-ray of right wrist joint, X-ray of right
knee joint, X-ray of Pelvic A/P view, X-ray of
mandible lateral view.

Opinion :- No definite opinion about rape
can be given. Age of Sanju Kumari according to
Medical Board members 13-15. This report is in my
writing. It bears my signature. It is marked as
Ext.”2/3″. This is my signature which is marked as
Ext.”2/4″.

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21. Considering the entire evidence discussed above, no

doubt P.Ws. 5 and 8, who claimed to be eye-witness to the

occurrence, as stated in FIR, have been declared hostile in this case

but there is evidence of P.W.4, the victim informant is available on

record and she has supported the prosecution case. The evidence of

P.W.4 has been corroborated by evidence of P.Ws. 1 and 2, who are

brother and mother of the victim and they have stated that the

informant victim has narrated the occurrence to them just after

occurrence that appellant has tried to commit rape upon her. The

evidence of P.Ws. 1 and 2 is admissible under Section 118 of Indian

Evidence Act. Further the evidence of Ashok Kumar (P.W.7) shows

that he found the victim girl crying and he has supported the

prosecution case and there is nothing to show that the same is tutored.

Further there is nothing on record to show that there was strange

relationship between the appellant and victim girl, as such, she has

implicated the appellant in this case and victim girl was aged 13-15

years at the time of occurrence and there is nothing on record to show

that her evidence was tutored, rather the same has been corroborated

by evidence of P.W.7 as well as evidence of P.Ws. 1 and 2, as such,

there is prosecution evidence is available in support of prosecution
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case. It is relevant to mention here that the appellant has also

admitted his presence at the place of occurrence.

22. Further submission of learned counsel for the

appellant is that appellant is only bread earner in his family and

moreover he is in custody for more than three years and further no

case is made out under Sections 376/511 IPC against the appellant as

at best, if the evidence is believed, it is a case of preparation and

attempt to outrage her modesty and nothing else and Doctor has found

no injury on the person of victim.

23. The aforesaid contention has been discussed by the

Hon‟ble Apex Court in the case of Aman Kumar vs. State of

Haryana : AIR 2004 SC 1497 and in paragraphs 10, 11, 12 and 13 of

the said judgment it has been held as follows :

“10. An attempt to commit an offence is
an act, or a series of acts, which leads inevitably to the
commission of the offence, unless something, which
the doer of the act neither foresaw nor intended,
happens to prevent this. An attempt may be described
to be an act done in part execution of a criminal design,
amounting to more than mere preparation, but falling
short of actual consummation, and, possessing, except
for failure to consummate, all the elements of the
substantive crime. In other words, an attempt consists
in it the intent to commit a crime, falling short of, its
actual commission, it may consequently be defined as
that which if not prevented would have resulted in the
full consummation of the act attempted. The
illustrations given in Section 511 clearly shows the
legislative intention to make a difference between the
cases of a mere preparation and an attempt.

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11. In order to find an accused guilty of an
attempt with intent to commit a rape, Court has to be
satisfied that the accused, when he laid hold of the
prosecutrix, not only desired to gratify his passions
upon her person, but that he intended to do so at all
events, and notwithstanding any resistance on her part.
Indecent assaults are often magnified into attempts at
rape. In order to come to a conclusion that the conduct
of the accused was indicative of a determination to
gratify his passion at all events, and in spite of all
resistance, materials must exist. Surrounding
circumstances many times throw beacon light on that
aspect.

12. Though the prosecutrix‟s version in
Court was of rape, when it is compared with the one
given during investigation, certain irreconcilable
discrepancies are noticed. The evidence regarding
actual commission of rape is at variance from what was
recorded by police during evidence. The evidence of
P.W.11, the father who according to prosecution made
departure from what he allegedly stated during
investigation is to the effect that his wife P.W.9 told
her that the prosecutrix was teased by the accused
persons. Merely because he was termed as a hostile
witness his entire evidence does not get effected.
Significantly, the evidence of prosecutrix and the
doctor does not specifically refer to penetration which
is sine qua non for the offence of rape.

13. There is no material to show that the
accused were determined to have sexual intercourse in
all events. In the aforesaid background, the offence
cannot be said to be an attempt to commit rape to
attract culpability under
Section 376/511 IPC. But the
case is certainly one of indecent assault upon a woman.
Essential ingredients of the offence punishable under
Section 354 IPC are that the person assaulted must
have used criminal force on her intending thereby to
outrage her modesty. What constitutes an outrage to
female modesty is nowhere defined. The essence of a
woman‟s modesty is her sex. The culpable intention of
the accused is the crux of the matter. The reaction of
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the woman is very relevant, but its absence is not
always decisive. Modesty in this Section is an attribute
associated with female human beings as a class. It is a
virtue which attaches to a female owing to her sex. The
act of pulling a woman, removing her dress coupled
with a request for sexual intercourse, is such as would
be an outrage to the modesty of a woman, and
knowledge that modesty is likely to be outraged, is
sufficient to constitute the offence without any
deliberate intention having such outrage alone for its
object. As indicated above, the word „modesty‟ is not
defined in
IPC. The Shorter Oxford Dictionary (Third
Edn.) defines the word „modesty‟ in relation to woman
as follows :

“Decorous in manner and conduct; not
forward or lowe; Shame-fast; Scrupulously chest.””

24. If the prosecution evidence is discussed in the

background of ratio decided in the above judgment it appears that in

the present case there is only evidence that appellant has dragged the

victim to a maize field and got her naked and tried to commit rape and

thereafter people assembled there and appellant fled away and nothing

is available on record to show that she was further physically

assaulted and Doctor has not found any injury on the person of victim

girl. Hence at best, the evidences are there against the appellant under

Section 354 IPC.

25. In such view of the matter, justice will be served if the

conviction of the appellant under Sections 376/511 IPC is modified to

a conviction under Section 354 IPC, which is a minor offence of

offence under Sections 376/511 IPC. Further it appears that appellant
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has remained in custody for more than three years and submission is

that he is only bread earner of his family.

26. Accordingly, the appeal is partly allowed to the extent

that conviction of the appellant is modified to a conviction under

Section 354 IPC and sentence is reduced to the period already

undergone by him. As the appellant is in custody, he is directed to be

released forthwith if not required in any other case.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE
Uploading Date 20.11.2017
Transmission 24.11.2017
Date

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