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