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Kedar Yadav @ Kedar Singh & Ors vs State Of Bihar on 8 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.486 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- BUXAR

1. Kedar Yadav @ Kedar Singh

2. Hiraman @ Hirama Yadav, both sons of Late Mangru Yadav

3. Kariman Yadav, son of Saral Yadav

4. Bhikhari Yadav, son of Raj Girhi Yadav, all residents of village Giridhar
Beraon, P.S. Nawanagar, District Buxar
…. …. Appellants
Versus
The State of Bihar
…. …. Respondent

Appearance :

For the Appellant/s :Mr. Rajesh Kumar Sharma, Advocate (amicus curiae)
For the Respondent: Mr. Bipin Kumar, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 08-03-2018

All the appellants stand convicted under Sections 323/34 and

354/511 of the Indian Penal Code and sentenced to undergo rigorous

imprisonment for three months under both counts and both the

sentences were directed to run concurrently vide judgment and order

dated 16.8.2003 passed by Sri Sheo Nandan Yadav, the then 3 rd

Additional District and Sessions Judge, Buxar in Sessions Trial No.

195 of 1998.

2. Prosecution case as per the complaint lodged by P.W.4

Parwati Kumari is that while she was sitting in “dumukhua” accused

persons came and lifted her and brought her on a lane and they have

thrown her on the ground and appellant Kedar Yadav gagged her
Patna High Court CR. APP (SJ) No.486 of 2003 dt.08-03-2018

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mouth by “gamchi” and one of the accused caught hold of her hands

and one of the accused caught hold of her legs and thereafter Kedar

Yadav laid over her with bad intention. However, when her mother

came and raised alarm she was assaulted by accused persons and

thereafter when her brother and uncle came there, they have also been

assaulted by the accused persons and on arrival of the villagers they

fled away.

3. The aforesaid complaint was sent for registration under

Section 156(3) Cr.P.C. and on that basis Nawanagar P.S.Case No. 97

of 1995 was registered. Police after investigation submitted charge

sheet and cognizance of the offence has been taken and the case has

been committed to the court of sessions, which ultimately came to the

file of learned trial judge for trial and disposal.

4. During trial charges under Sections 323/34 and 376/511

were framed against all the accused appellants. It further appears that

during trial altogether seven witnesses have been examined on behalf

of prosecution, they are PW 1 Rajgrihi Sharma, who claims to be eye-

witness to the occurrence and uncle of the complainant/informant, PW

2 Bhuli Sharma, who claims to be one of the eye-witnesses and

injured, PW 3 Kalawati Devi, who is mother of the

complainant/informant and injured, PW 4 Parwati Kumari, who is

complainant/informant and injured, PW 5 Dharmender Sharma, who
Patna High Court CR. APP (SJ) No.486 of 2003 dt.08-03-2018

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claims to be one of the eye-witnesses to the occurrence and injured,

PW 6 Dr. Rajiv Ratan, who has examined the injured persons at Sub-

Divisional Hospital, Buxar and PW 7, Vedbrat, who is I.O. of the case

and has investigated the case.

5. On behalf of defence neither oral nor documentary

evidence has been adduced and their defence is false implication,

innocence and their further plea is that no such occurrence has taken

place.

6. Learned trial court on conclusion of trial, not finding the

appellants guilty for the offences under Sections 376/511 IPC, has

convicted the appellants under Sections 354 and 323 IPC and

sentenced them as stated above.

7. Since nobody appears on behalf of the appellants on

repeated calls, Mr. Rajesh Kumar Sharna, Advocate, who is present in

Court, has been appointed as amicus curiae to assist this Court.

8. Contention of learned amicus curiae is that in this case

allegation has not been found true by learned trial court as appellants

were not found guilty for the offences under Sections 376/511 IPC,

however, on the basis of same evidence, learned trial court has

convicted the appellants under Sections 354 and 323 IPC. Further

submission of learned counsel for the appellants is that all the

witnesses are related witnesses and no independent witness has been
Patna High Court CR. APP (SJ) No.486 of 2003 dt.08-03-2018

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examined and moreover case of the prosecution has been developed

stage by stage and no consistent story has been given by the

prosecution and even if the complaint is believed as true, at best it is a

case of fight between the parties and there was no intention to outrage

the modesty of the girl, as such, conviction of the appellants under

Sections 354 and 323 IPC is not sustainable in the eye of law.

9. On the other hand, learned counsel for the State has

defended the impugned judgment stating that the judgment of

conviction is just and proper which does not require any interference

as evidence is consistent on the point of outraging modesty and

assault are concerned.

10. Having heard both sides and considered the rival

submissions of the parties and perused the record, from which it

appears that PW 4 is the complainant/informant in this case and she

has supported the complaint case in the court stating that she was

thrown by appellant Kedar Yadav and one of the accused persons

caught hold of her hands and one accused caught hold of her legs and

appellant Kedar Yadav laid over her body and thereafter when her

mother came she was also assaulted and other family members were

also assaulted. However, on close scrutiny of the evidence of this

witness it appears that she has herself stated in cross examination that

she was not assaulted by any of the accused persons and also stated
Patna High Court CR. APP (SJ) No.486 of 2003 dt.08-03-2018

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that inside the house the accused appellants have not misbehaved with

her and whatever they have committed, they have committed in the

lane. Her evidence has further been corroborated by evidence of other

witnesses and Doctor has found injuries on their persons. However,

on close scrutiny of the evidence of PW 4 it appears that appellant

Kedar Yadav has not committed any wrong with her though she has

further stated that as her mother has come. Her evidence also shows

that a large number of persons are residing in the house and if there

was any intention on the part of appellants to outrage the modesty of

the complainant they ought not to have brought her in the lane and

thereafter tried to outrage her modesty, rather they could have

outraged her modesty inside the house itself. However, it appears that

those injuries are superficial in nature and the evidence available on

record is consistent on the point of assault only. There is also

allegation that frock and kachha were torn but evidence of PW 5,

brother of complainant, is that when he reached at the place of

occurrence he saw Parwati (PW 4) wearing samij and kachha and in

his cross examination he has not stated that her samij and kachha were

torn and he has stated that he does not know where the torn kachha

and frock were lying and PW 3, who is mother of the complainant,

has stated the kachha and frock were damaged. Hence, so far

conviction under Section 354 IPC is concerned, it appears that the
Patna High Court CR. APP (SJ) No.486 of 2003 dt.08-03-2018

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prosecution story does not look probable and suffers from

inconsistencies but the learned trial court has not considered the same.

11. As such, so far conviction of appellants under Section

354 IPC is concerned, the same does not inspire confidence as

evidence appears to be not free from inconsistencies and infirmities.

So far conviction under Section 323 IPC is concerned, there are

consistent evidence available on record, as such, the conviction of the

appellants under Section 323 IPC is affirmed and their conviction

under Section 354 IPC is set aside.

12. It appears that appellants were sentenced to undergo

rigorous imprisonment for three months in both counts and sentences

were directed to run concurrently and appellant No.1 Kedar Yadav

has remained in custody for two months and occurrence is of the year

1995 and 22 years long period have already passed and appellants

have suffered mental agony for long 22 years. Submission of learned

counsel for the appellants is that benefit of Probation of Offenders Act

has not been allowed to the appellants by learned trial court and for

that no reason has been assigned by the learned trial court, as such,

miscarriage of justice has been committed to the appellants.

13. Considering the aforesaid fact, so far sentence of

appellant No.1 Kedar Yadav is concerned, the same is reduced to the

period already undergone by him and so far sentence of appellants
Patna High Court CR. APP (SJ) No.486 of 2003 dt.08-03-2018

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Nos. 2 to 4, namely, Hiraman @ Hirama Yadav, Kariman Yadav and

Bhikhari Yadav is concerned, instead of affirming the sentence, they

are directed to be released on due admonition.

14. With the aforesaid modification in the judgment of

conviction and order of sentence, the appeal is disposed of.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE
Uploading Date 12.3.2018
Transmission 12.3.2018
Date

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