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