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Firoz Khan vs The State Of Jharkhand on 14 December, 2018

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Cr. Appeal (SJ) No. 797 of 2004

[Against the judgment of conviction and order of sentence
dated 18.03.2004 passed by learned Sessions Judge,
Jamtara in Sessions Case No. 105 of 2002]

Firoz Khan, S/o Sri Tufani Khan, resident of Mohalla-New Colony
Pokhartalla, Mihijam, P.O. P.S.- Mihijam, District-Jamtara
…Appellant
–Versus-

The State of Jharkhand …. Respondent

PRESENT
THE HON’BLE MR JUSTICE RATNAKER BHENGRA

For the Appellant : Mr. Manoj Tandon, Advocate
For the State : Mr. Pankaj Kumar, A.P.P.

CAV on: 23.03.2018 Pronounced on: 14 / 12 /2018

1. Heard the parties.

2. This appeal is directed against the judgment of conviction and order
of sentence dated 18.03.2004 passed by learned Sessions Judge, Jamtara
in Sessions Case No. 105 of 2002 whereby and whereunder the appellant
has been convicted under section 354 IPC directing to undergo
imprisonment for two years and fine of Rs. 2000/-.

3. The prosecution was launched on the basis of a complaint vide PCR
Case No. 162/2002 by the complainant. It is alleged that the complainant
was the resident of New Colony, Pokhartala, Mihijam and that the accused
Firoz khan was her neighbor. In the night intervening 21/22.4.2002
complainant was sleeping on the roof of her house, the accused climbed on
the roof where the complainant was sleeping. The accused tore her nighty
and attempted to commit rape and also outrage her modesty. On the alarm
raised by the complainant the witnesses arrived and the accused escaped
on the arrival of the witnesses. Complainant presented a written report at
the police station but the police did not take action. Hence the complaint
case was filed for the offence under section 376/511 IPC against the
accused.

4. On the basis of investigation under section 156(3) Cr.P.C. Jamtara
P.S. Case No. 95 of 2002 was registered under section 376/511 of the IPC.

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5. Six witnesses were examined by the prosecution. On the conclusion
of the trial appellant was convicted and sentenced as aforesaid. Hence, this
appeal.

6. P.W. 5 is the complainant herself. She deposed that on the day of
occurrence she was sleeping on the open roof on account of summer
season. Her three daughters were also sleeping on the roof and since the
house was newly constructed, there was no door plank at the ground floor.
The accused Firoz came and pressed her breasts by both of his hands
and at that time, she was wearing nighty. She screamed and called upon
as to who was that, she identified in the light of bulb that it was Firoz. Her
daughters woke up and also raised alarm. Firoz torn her nighty from the
front side. He was sitting by her side and not climbed over her body. The
accused had come with the intention to commit rape on her but he escaped
on her raising alarm. None came from the neighbourhood. At about 11.00
a.m., she informed the police station, since there was no male member in
her house. Her husband was working at Lilua. When no action was taken
by the Mihijam Police she instituted a complaint at the Civil Court, Jamtara.
In the cross examination she admitted of having instituted the complaint
case at the court after about 1 ½ months of the occurrence and prior to that
she presented a written report at the Mihijam police Station on 24.4.2000.
She further deposed that she had dictated in the complaint petition that in
the night of occurrence her three daughters were also sleeping at the roof.
It was not a fact that she had dictated that she alone was sleeping on the
roof.

7. P.W. 1 Nisharat Jahan, is the daughter of the complainant. She
deposed that on the date of occurrence she was sleeping with her mother
and two sisters on the roof of the house. She woke up on the sound of
scuffle and altercation with her Mummy by someone. She identified that it
was Firoz khan who had put his hand on the breast of her mother and her
mother screamed. On hearing hulla Firoz Khan attempted to escape and
due to this the nighty of her mother was torn. Her father was informed who
was working at Lilua workshop, Howrah. In the cross examination, she
deposed that she had narrated before the police that Firoz had put his hand
on the soldier of her mother.

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8. P.W. 2 is Nikhat Parveen, another daughter of the complainant. She
deposed that on the date of occurrence she was sleeping with her mother
and two sisters. Firoz khan climbed over the roof, being to scuffle with her
mother and when her mother raised alarm, she woke up and witnessed that
he escaped after pushing her mother. The nighty of her mother was found
torn, none appeared on hearing halla from the neighbourhood. In the cross
examination she said that she was not interrogated by the police nor was
her statement recorded.

9. P.W. 6 is Md. Jamaluddin who is the I.O of the case. He deposed that
the copy of the complaint which was sent from the court of C.J.M., Jamtara
was received at the Mihijam Police Station on 04.06.2002. It was forwarded
by the officer Incharge of Mihijam Police Station with his endorsement to
the Jamtara Police Station which has been proved and marked exhibit-2.
On the basis of such endorsement Jamtara P.S. Case No. 95 of 2002 was
registered which is marked Exhibit-2/1. He proved the formal FIR which
has been proved and marked exhibit-3. In the cross examination, he
deposed that the complainant had not apprised that Firoz had caught her
breasts with both of his hands and that she had not narrated having
identified the accused in the street light as well as the light of verandah and
that Firoz had torn her nighty from the front side. The witness admitted that
complainant had narrated that the accused had come with the intention to
commit rape and that had she not raised alarm she would have been
ravished. In the court question, the I.O. deposed that no torn cloth or the
torn nighty was produced by the complainant before him.

ARGUMENTS OF THE APPELLANT

10. Learned counsel for the appellant has submitted that the appellant
has been convicted under section 354 IPC and has been imposed a
sentence of two years imprisonment with a fine of Rs. 2000/-. The
occurrence is of the night of the 21st and 22nd April 2002 at around 2 a.m.
However, the complaint case was lodged much-much later on 13.5.2002,
which is almost after 22 days from the alleged occurrence and there is no
proper explanation regarding this delay. Thereafter, the formal FIR was only
registered on 04.06.2002. Learned Counsel for the appellant has referred
to the text of the complaint and pointed out that the complainant has said
that at the time of occurrence she was alone at the time and the accused or
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the appellant herein had only tried to do something. Counsel says that she
has herself admitted that he had only tried to do a particular act, which
means that he had not really succeeded in whatever she is alleging the
appellant to have done. However, his argument is that nothing of the sort
had taken place which would convict the offence of which he has been
convicted. Counsel for the appellant has then highlighted some of the main
points from the deposition of the complainant P.W. 5. He has pointed out
referring to para 1 that in the complaint, the incident is said to have
occurred at 2 O’clock. However, in her evidence, she has said it occurred
around 12 or 1 O’clock, which is a considerable variation. Referring to
paragraph 2, counsel says that in her deposition or evidence she has said
she was there along with three daughter, however, in her complaint, she
has said that she was alone. Counsel says this is a major contradiction in
her evidence. Referring to paragraph 3, he has asserted that in her
evidence she has deposed that he had caught her breast with his hands,
but this is not that in the complaint at all. Counsel says this is major
departure from the complaint and this needs to be noted because the
offence is of a sexual nature. When variation or inconsistency is there
regarding the manner of occurrence itself then the case against the
appellant stands on very shaky grounds. Counsel further points out that
even the I.O or the Investigating Officer has said that she has not stated
about the said two major variations. Counsel for the appellant further
pointed out that in the complaint, she has vividly described how he had
tried to commit the sexual offence in detail in paragraph 5 of her complaint.
However, this is absent in the deposition. Therefore, he again says that on
the one hand there is vivid description of how he tried to commit the sexual
offence and this itself is not described as such in his evidence then this is a
major- major inconsistency or contradiction and therefore the appellant
cannot be convicted of any offence. Counsel also pointed out that she has
deposed that her husband came on the next day, at which counsel says
that then why the delay of 22 days had occurred. Counsel has also
submitted that she was not presented before doctor and that should have
been done but unfortunately that is a major omission on the part of the
prosecution. Counsel has referred to paragraph 14 where she has deposed
that three of the girls or daughters were also sleeping on the roof, and
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asserted that this is in contradiction or inconsistent with the complaint that
she has indicated that she was sleeping alone. Referring to paragraph 18
and 19, counsel for the appellant has pointed out that she is a mother of
nine children and so she must be of considerable age while the appellant
was young boy of 23 at the time of occurrence and there is no reason why
he would have been attracted to such an aged woman compared to him
and that too also who was mother of a nine children and that is simply not
believable. Counsel also refers to the suggestion that have been made
regarding money being advanced by the father of the accused or the
appellant to her for construction of the house. However, she had sought to
deny it. Counsel says that this is the reason for making the false
accusations against the complainant because the father of the appellant
was seeking and trying to get back the money which he had given to the
prosecutrix and her family but they were denying to return the same.

11. He has then referred to evidence of P.W. 1 who is Nisharat Jahan, a
daughter of the complainant and pointed out that her daughter like her
mother has also said that the sister was also sleeping along with the
mother at which counsel for the appellant has said this is also inconsistent
with what the informant or the prosectrix had said in the complaint. He has
referred to paragraph 4 of her evidence and pointed out that this witness
had deposed that she had seen that Firoz Khan had put his hands on the
breast of her mother, at which counsel says that no such description has
been given in the complaint, therefore, with such inconsistencies the
appellant cannot be convicted. Counsel for the appellant referred to
paragraph 7 and pointed out that she herself or this witness has herself
deposed that all these were told to her by her mother and accordingly she
has deposed and therefore, counsel has said that she is totally a tutored
witness by the mother and therefore she cannot be believed and she is
therefore also not an eye witness. Counsel for the appellant has then
referred to para 18 of the deposition of this witness and pointed out that
she has deposed that her elder sister is 30 years. Counsel therefore says
one can very well imagine the age of the mother a mother who has nine
children. He further says that due to such differences in age it is not
possible to believe that a 23 years young man was attracted to the aged
lady, therefore, the entire allegation is a concoction due to return of money
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loan that was being demanded by the father of the appellant. Counsel for
the appellant, has then referred to the evidence of P.W. 2 who is Nikhat
Parveen and also submitted that she has also described that they had gone
to sleep along with her mother and when the appellant had come and
started molesting her mother then she had made alarm. Then she had
awoken and all the sisters had also awoken. She has further deposed that
struggle was taking place with the accused and then he fled and that the
nighty of her mother was torn. Counsel for the appellant has again said that
this is again in contradiction or inconsistent with the complainant where the
informant has not said that the daughters were was sleeping with her
mother. Referring to the evidence of P.W. 3 Mosuma Khatun, counsel for
the appellant has said that she is not an eye witness and she herself has
said that she was not examined by the police.

12. Learned counsel has then referred to the deposition of P.W. 4
Sahabuddin, who is a neighbour and said that he has deposed that after
the incident the informant had come to his house along with her daughter
and informed him about what had taken place. Counsel for the appellant
says that this has not been informed in the complaint itself.

13. Learned counsel for the appellant has then referred to the evidence
of P.W. 6 or the Investigating Officer and pointed out that in paragraph 17
the I.O. had said that the informant did not disclose that the appellant has
put his hand on her breast, under investigation under section 161 of the
Cr.P.C. Neither is it mentioned in the complaint that the appellant has put
his hand on the chest or breast of the complainant but only it is said in her
deposition. Counsel also points out that the investigating officer had not
seized any nighty and torn clothes and said that this is a major lacuna on
the part of the prosecution witness because this could then have been a
material exhibit. However, since this has not been seized, the benefit of
such absence can only go to the appellant. In his submission, counsel for
the appellant has argued that initially charge was framed under section
376/511 of the IPC but however he was convicted under section 354 of the
IPC and he was not given opportunity to defend himself under section 354
of the IPC and therefore he cannot be convicted of the same. Counsel
pointed out that there is considerable variations in the time of occurrence
as given by various prosecution witnesses and as compared to the initial
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time and therefore with such inconsistency in time, the complaint cannot be
believed. Counsel also points out in reiteration that in the complaint she
had said that she was alone at the time the incidence while later on she
had said in her evidence that three of her daughters were sleeping along
with her and even two of her daughters have deposed in the same line and
this clearly a case of tutored corroboration. However, the I.O. has denied
that she has informed as such during the time of investigation. The counsel
for the appellant has also submitted that she was not sent to any doctor for
examination is also in favour of the appellant because she was not sent for
any examination or rather she did not go to any doctor for examination
because no incident as such even took place. Subsequently the non-
seizure of any torn clothes or nighty which is said to have been torn is also
a major disadvantage to the prosecution. This was one of the major
material evidences and if it had been produced which could easily had
been on the part of the prosecution then it would have led towards putting
some blame on the appellant. However, the allegedly torn nighty has not
been produced because it was not torn at all because the appellant did not
go to her house or to her roof top to commit such offence. Learned counsel
has also said that the delay of 22 days from the date of occurrence to the
lodging of the complaint is also totally not properly explained and the delay
can only be explained that the entire case against the appellant is a
concocted and manufacture one and therefore conviction against the
appellant be set aside. Counsel in his arguments has also cited the
following cases to buttress his arguments:-

1. K. Lakshmana Rao Vs. Public Prosecutor, State of A.P.
Reported in (1979)4SCC 638

2. Pandurang Sitaram Bhagwat V. State of Mahashtra reported in
(2005)9SCC 44

14. Learned counsel referring to decision of K. Lakshmana Rao ( supra)
said that new allegations and overt acts attributed to the accused at the trial
which were not mentioned in the FIR should not have been believed where
the FIR had been filed after due deliberations.

ARGUMENTS OF THE APP

15. Learned counsel for the State, learned APP has argued that the
conviction under section 354 of the IPC is fully justified and it does not have
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a totally different ingredients from sections 376/511 of the IPC. Since
sections 376/511 of the IPC was not established, therefore, the conviction
under section 354 of the IPC has been done and it was rightly done in the
facts and circumstances of the case which has also been supported by the
evidence of her daughters. Counsel for the State has also said that in para
3 of the complaint, it has been mentioned that she was sleeping on roof. It
is not indicted that she was alone on the roof. However, in para 5, where
accused came to assault her then at that time and exact spot she was
alone. Counsel says that the assault was made on her alone and she was
asleep and the others were also asleep so the assault was made on her
alone. However, her daughters were also sleeping nearby or in the vicinity.

16. Learned counsel has also argued that during investigation many
aspects may be left out during the stage of deposition or evidence many
things are clarified remembered and pointed out. It has come in the
evidences that the accused had gone at night and at very late in the night.
The question arises why he will go in the night unless it was for ulterior
purpose or intent. Therefore, as per the evidence of the prosecutirx as well
as the evidence of her daughters, the offence is fully made out and hence
the judgement of conviction passed by the learned court below require no
interference.

CONCLUSIONS

17. Having heard both counsels; having gone through the records of the
case and the evidences and in the facts and circumstances, I find that this
is allegedly an offence of sexual nature in which the accused or the
appellant Firoz Khan has been convicted for the offence under section 354
IPC and sentenced for imprisonment of two years. However, in the
complaint that has been lodged by the complainant, there is reasonable
description of the assault that was allegedly made on her. However, in her
deposition there is no such parallel description. More particularly, in the
evidence of the I.O., P.W. 6, the I.O. has deposed that in his deposition that
complainant had not described the sexual nature of the offence. In fact in
para 17 of the evidence of the I.O., he deposes that the complainant had
not stated to him that the appellant had put his hands on her breast, or that
even the appellant had torn her nighty from the front and thereafter climbed
on to her body. She had not stated that the appellant had bodily contact
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with her so as to sit upon her. In para 18, the I.O. has deposed that she
had told him that the appellant had come there with bad intentions and if
she had not made alarm then her honour would have been ruined.
Therefore, it is seen that while in the complaint, there is reasonable
description of the assault that she claims to have been made upon her but
in her deposition there is no such parallel description. And more particularly,
in her statement before the I.O, she seems to have completely denied
sexual assault of the kind which she has mentioned in her complaint
initially. Paragraph 18 is noteworthy in the sense she says that if she had
not made alarm then her honour would have been ruined, which suggests
that she was able to make alarm and the appellant was not really able to do
anything against her will or consent.

18. It is also seen that in the complaint she has not at all mentioned her
daughters that P.W. 1 and P.W. 2 has having heard about the incident then
and that they had also seen the incident. However, two daughters i.e. P.W.
1 and P.W. 2 have deposed in court as witnesses as if they had seen the
incident. This is a vital contradiction because if the daughters were
witnesses then it is rather strange that they have been left out in the body
of the complaint as having seen the offence alleged against the appellant.

19. It is alleged in the description of the offence and as tried to be made
out in the evidence of the complainant and also corroborated by one of the
daughters P.W. 2 that at the time of the occurrence the alleged victim was
sleeping in a nighty and that the accused had torn the nighty and assaulted
her. However, this would have a most important piece of evidence and I
see no reason why this vital piece reason was not handed over the police
or seized by the police as evidence. This would have at least a crucial
evidence particularly when the complainant was not examined by the
doctor. Of course, the alleged victim is a much matured woman with many
children and therefore, rape is of a not easily determined in the case of
such woman, nevertheless, it is rather strange as to why the nighty has not
been brought on record as exhibit. The other aspect is in the delay in
lodging of the case. The delay is indicated as being of 22 days which
seems considerable in nature, even though, the husband of the
complainant or the alleged victim was said to have not been present there.
However, he had arrived the next day as the pretext of no male members
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being present could also not be taken. Regarding the delay, it is not
mentioned in the complaint also, which has however, been mentioned in
the evidence of the complainant, that when she had gone to lodged the
case with the police on the next after the alleged occurrence, the accused
or the appellant was also present at the police and he had threatened her
and thereby obstructing lodging of the FIR. Now, this information should
have been disclosed in the complaint but this has not been done so and
since it has not been done so but it has been referred to in the evidence of
the complainant only, therefore, there is some doubt raised about this
suggestion.

20. In conclusion, the lack of description regarding the assault made by
the accused or the appellant in the alleged victim’s statement to the police
under section 161 Cr.P.C., the doubtful nature of the witness or evidence of
P.W. 1 or the daughters of the appellant regarding there being present, or
having seen the alleged assault at the time of the occurrence, the absence
of the nighty which could have proved a valuable piece of evidence and the
delay of 22 days and not bringing into the complaint itself that the accused
or the appellant had threatened her at the police station all raise
considerable doubt which all raise considerable doubt regarding the
veracity of the allegation made against the appellant and therefore, some
benefit of doubt is also allowable to the accused or the appellant in this
case.

21. Accordingly the judgement of conviction and order of sentence dated
18.03.2004 passed by learned Sessions Judge, Jamtara in Sessions Case
No. 105 of 2002 whereby and whereunder the accused or the appellant
herein had been convicted under section 354 of the IPC and directed to
undergo imprisonment for two years with a fine of Rs. 2000/- is hereby set
aside. The appellant is given the benefit of doubts because of the doubtful
issues raised and he is set free of the liabilities of his bail bonds.

22. Accordingly, appeal is allowed.

(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated 14 / 12 /2018
Sharda/NAFR

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