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Uttam Kumar vs The State Of Jharkhand on 1 February, 2019

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 181 of 2003
(Against the judgment of conviction and order of sentence dated 17.1.2003 passed by the 3rd Additional
Sessions Judge, Jamshedpur in connection with Sessions Trial Case No. 392 of 1998 arising out of Mango
(Olidih) P.S. Case no. 298 of 1997, G.R. no. 2346 of 1997)
——-

Uttam Kumar S/o Late Parmeshwar Sah, R/o Teacher’s Colony, P.S. Mango,
District- East Singhbhum …… Appellant

-Versus-

The State of Jharkhand …… Respondent
——
CORAM : HON’BLE MR. JUSTICE RATNAKER BHENGRA
——
For the Appellant : Mr. D.K.Karmakar, Advocate
For the Respondent : Mr. Nehru Mahto, A.P.P.
——–
C.A.V. On 27.4.2018 Pronounced On:

RATNAKER BHENGRA,J

This Criminal Appeal has been preferred against the judgment of
conviction and order of sentence dated 17.1.2003 passed by 3rd
Additional Sessions Judge, Jamshedpur in S.T. No. 392 of 1998, whereby
and whereunder the appellant was convicted u/s 354,323 and 342 of the
IPC and sentenced for rigorous imprisonment for one year under section
354 of the Indian Penal Code. So far conviction under section 323 and
342 of the Indian Penal Code is concerned no separate sentence for the
same was awarded.

2. The case of the prosecution in brief as per written report of the
informant Chandana Dutta PW-1 wife of Subhas Dutta is that on
27.12.1997 at about 10:00 a.m. accused Uttam Kumar came to the house
of the informant and asked her daughter to show the result. The accused
was teaching the informant’s daughter. The informant’s daughter gave
report card to the accused who asked her to call her mother. When the
informant came the accused caught hold her saree and started pulling it.
She tried to escape but the accused caught hold her and threw her and
started undressing her. Informant’s daughter shouted loudly then some
women came and tried to save her. In the meantime, the accused
assaulted her with fist and slaps. Accused attempted to commit rape on
her but he could not succeed.

3. On the basis of written report of informant a case was registered
U/Ss. 342,376/511 and 323 of the Indian Penal Code against the
accused. On completion of investigation, charge-sheet was submitted and
cognizance of the offence was taken and the case was committed to the
court of Sessions for trial. Charge was framed against the accused to
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which he pleaded not guilty and claimed to be tried.

4. Trial was held and on conclusion of trial accused was convicted and
sentenced as aforesaid. Hence, this appeal.

5. C.W.-1 Dolly Dutta was examined as Court witness.The Prosecution
has examined altogether six witnesses to prove its case.

PW-1 Chandana Dutta
P.W.-2 Sandhaya Das
P.W.-3 Sikha Dutta
P.W.-4 Ajay Mandal
P.W.-5 Subhas Dutta
P.W.-6 Vijay Mandal

6. Informant PW-1 Chandana Dutta stated that on 27.12.1997 at about
10:00 a.m. teacher Uttam Kumar came to her house and asked her
daughter to give her result. Her daughter gave her result card to the
teacher then the teacher asked her to call her mother. When she went
near the accused he asked her daughter to go out. Then the accused
caught her saree and started to undress her. She shouted then her
daughter came and she also shouted. The accused tore her saree and
started pressing her neck. She became restless then the accused
assaulted her with fist blow on her leg. She gave information to the police
upon which her signature was marked as Ext.1. She had stated in her
cross-examination that she had passed class VIII. She does not know
how to write Hindi. Her son is a student of class VI and her daughter is a
student of class V. The teacher teaches both of them. She does not know
about the amount of tuition fee rather her husband knows it. She does
not know that when tuition fee used to be paid to the teacher. She does
not know about any dues regarding tuition fee.

7. P.W.2, Sandhaya Das is the sister-in-law of the informant and she
had stated that at about 10:00 a.m. she was cooking in the kitchen when
she heard sound and came out. She saw that the accused was lying on
the body of PW-1. The accused had torn saree of PW-1 and attempted to
commit rape. She shouted when her sister in law Sikha Das came.

8. P.W.-3, Sikha Dutta has stated that on 27.12.1997 at about 10:00
a.m. she was present in her room in the same house when heard sound.
She saw that Uttam Kumar, the accused was attempting to commit rape
on PW-1 and he was lying on the body of the victim. Accused tore her
blouse and saree.

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9. PW-4, Ajay Mandal has stated that about one and half years ago at
about 9-10 a.m. he was present in his house when heard sound from the
neighbours house. He went and saw that the teacher (accused) was
pressing neck of PW-1. Her blouse was torn. He sent one person for
calling her husband.

10. PW-5, Subhas Dutta had stated that on 27.12.1997 at about 10:00
a.m. he was present in his shop situated at Sakchi when nephew Nandi
Kumar came and informed that the teacher Uttam Kumar assaulted aunty.
He went home by vehicle and he saw that many persons were present
and they surrounded the accused. He saw that has wife’s saree was torn.
His wife was weeping and blood was coming out of her neck. His wife
informed that the teacher attempted to commit rape on her and assaulted
her.

11. P.W.-6, Bijay Mandal has stated that the occurrence took place
about one and half year ago at about 10:00 p.m. He heard sound and
went to the house of PW-1 and saw that Uttam Kumar was pressing neck
of PW-1 and he was lying on her. He get them separated.

12. C.W.-1, Dolly Dutta is daughter of informant. She deposed that the
occurrence took place about five years ago. She was in her house at
about 9 a.m. Uttam Kumar who was teaching her came and asked to give
the result of herself and her brother. She gave result to the teacher. Then
he asked to call her mother. She called her mother. The teacher started
pulling saree of her mother and caught hold her and she fell down. She
shouted. Her mother sustained injury on her neck and cheek.
ARGUMENTS ON BEHALF OF APPELLANT:-

13. Learned counsel for the appellant has submitted that the entire
allegation is false and fabricated because the accused or the appellant
herein had been working as teacher for quite some time and giving tuition
to the children of the informant. During this period of teaching the children
of the informant made no complaint whatsoever earlier against the
appellant regarding any misconduct or behaviour that would be construed
as criminal in nature. His behaviour also in the alleged incident seems to
be that of a gentleman in the sense that he had denied the occurrence
and not even run away from the alleged place of occurrence which as is
expected of a criminal. Therefore, his past history and his behavior at the
alleged place of occurrence is exemplary.

14. Learned Counsel for the appellant also pointed out that apparently
there is some dispute regarding education fee which was given or not
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given to the accused or the appellant herein. The wife has denied the
knowledge of the tuition fees. The alleged victim herself in her evidence
stated that she does not know the tuition fee and only her husband knows
about it and she does not even know when the tuition fees were given.
However, she had admitted that when the exam of the children was
finished then their tuition had been stopped.

15. Learned counsel for the appellant had also argued that there is no
particular time that has been determined regarding the alleged time of
occurrence by all of the witnesses. He deposed that while the informant
and PW-2,PW-3 have indicated the time of occurrence is 10:00 a.m. PW-
4 and PW-5 have indicated the time as being between 9 to 10 a.m. and
CW-1 on the other hand indicated the time as 9:00 a.m. Learned counsel
for the appellant therefore said that there is variation in the timing of the
occurrence as given by the various witnesses and therefore it does create
some doubts regarding the allegation. Learned counsel had also argued
that the place of occurrence or the exact place in the house or the
premises of the house where the occurrence took place is also not clearly
established neither has it been said so by the witnesses. As per
Sandhaya Das, the nanad she has deposed that the occurrence took
place in which the area where the accused or the appellant herein used to
teach the children. In the evidence of PW-4 Ajay Mandal who happens to
be a neighbour, has in his evidence deposed that he saw the accused
pressing neck in the verandah. PW-5, Subhas Dutta or the husband has
in para 4 of his evidence deposed that the attempt was made in the room
where they slept. PW-6, Bijay Mandal who is another neighbour has
deposed that he saw the incident in victim’s bed room. C.W.-1 the
daughter who has been made a court witness and was fourteen years at
the time of deposition and around 9 years at the time of occurrence has in
para-3 deposed that during the occurrence the master was in the room
while mother was in varandah. PW-1, who is the alleged victim on the
other hand said that the occurrence took place in the bed room.
Therefore, when there is variations regarding the place of occurrence by
all the prosecution witnesses as to whether the offence took place in the
bed room of the victim or whether it took place where the accused taught
the children or whether the occurrence took place in the varandah ,
suggests three different places where the offence is allegedly said to have
been happened. Since the conviction of the appellant is for sexual
assault which had allegedly taken place so it is most crucial that the
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witnesses must be consistent regarding the place of occurrence, but this
is not the case and, therefore, this is the great lacunae on the part of the
prosecution, raising much doubt and therefore conviction against the
appellant cannot be sustained or upheld.

16. Learned counsel then argued that the conviction is one of being
under sections 354, 323 and 342 of the Indian Penal Code. He says none
of the Sections can be established by the evidences. If there are sufficient
doubt created in the story of the prosecution or regarding vital aspects of
the case then the entire case is liable to be thrown out. He has argued
that apart from there being no sexual harassment there has been no
injury on the woman concerned and neither there was any illegal
confinement. Learned counsel argued that there has been no medical
report produced or exhibited in court. Learned counsel says that this is
only because there was no such alleged incident so naturally no medical
report can be produced or exhibited. Learned counsel also argued that
neither had any doctor been examined, he again reiterated that this is so
because there was no incident, and there being no injury on the body of
the alleged victim, no doctor was examined. Counsel again reiterated that
when no such incident alleged had taken place then naturally there was
no injury of any kind that would be indicate any sexual assault and
therefore there was no production or exhibition of any injury report.
Counsel then said that on the basis of medical criteria also, no case is
made out so judgment of conviction and order of sentence dated
17.1.2003 passed by the 3rd Additional Sessions Judge-Jamshedpur
cannot be upheld and sustained.

17. Learned counsel has also further argued that no incriminating article
was produced and exhibited in court such as torn blouse or torn saree or
any such similar clothes which also shows that no such alleged incident
had taken place.

18. Learned counsel then also argued that there are no independent
witness to have supported the prosecution case. All the witnesses are
family members and most of them are definitely interested witnesses and
therefore, in the background of some transactional differences regarding
tuition fees and also possibility of dispute, it would have been most
important to have independent witnesses also to support the case. The
lack of independent witnesses creates doubts and therefore conviction
and sentence imposed cannot be sustained or upheld. Counsel also says
that all the family witnesses deposed in very similar fashion and seem to
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have been tutored. Counsel also argued that minor girl is not a competent
witness and she has also been tutored to depose in the manner she has
deposed only to ensure conviction of the appellant. Counsel also argued
that investigating officer has also not been examined even though there is
variation in the alleged place of occurrence i.e. in the bed room, it is also
said to be the place where the children were taught and also said to be
the verandah. Determining the timing of the alleged occurrence was also
most crucial. Since I.O. of the case has not been examined the time of the
occurrence and place of occurrence are doubtful. So, when the IO has not
been examined the evidence regarding the manner of occurrence or what
kind of sexual assault took place or did not take place is a question still to
be answered. In such circumstances given the other weaknesses of the
prosecution case, non-examination of the I.O. also would not help to
sustain the case. Learned Counsel lastly argued that the case is of the
year 1997 and much time has passed since the alleged occurrence and
further the appellant was allegedly was at the time of occurrence only
about 21 years old and, therefore, without admitting his guilt counsel
pleads that the age of the case and also the age of the appellant may be
taken into consideration while deciding the case. Counsel had also cited a
case of Hon’ble Apex Court reported in 2005 1 East.Cr.C. 161 (S.C.)
Pandurang Sitaram Bhagwat Vs. State of Maharastra, paragraph nos.
21 to 24 to buttress his case.

19. ARGUMENTS ON BEHALF OF STATE:-

Learned counsel for the State argued that for the sake of argument
even if it is conceded that PW-1 who is the victim and who has been
significantly affected by the case and therefore her evidences should be
taken as face value particularly because there is no medical evidence to
support the case. There are three other witnesses who have claimed to
be eye witnesses and supported the case then it is not so easy to
demolish the prosecution case. The evidence of PW-2, PW-3, PW.4 and
PW-5 along with the evidence of alleged victim P.W.1 are sufficient to
uphold the conviction and sentence of the appellant.

20. Learned counsel further pointed out that PW-1 who is the victim is
the most important witness. She has been fully supported by PW-2 and
PW-3 who are her family members and only because they are family
members they should not be disbelieved. PW-2, PW-3, PW.4 and PW-5
are consistent in their evidence regarding the main substance of the
assault made by the appellant on the victim PW-1.

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21. Learned counsel for the State also argued that CW-1 is a child
witness is a most competent witness and cannot be brushed aside simply
on technical ground. The child has supported the case to the extent of
sexual outrage of pulling of saree therefore, it cannot be denied that some
attempt was made to outrage the modesty of a woman.

22. Learned counsel for the state further argued that the non-
examination of the doctor and non-availability of medical report and non-
examination of the IO are not fatal when there is a witness who has been
a victim of sexual assault resulting in conviction u/s 354 IPC and this
assault has been witnessed by PW-2 and PW-3 and also ably supported
by CW-1 who is a child witness. There is no reason why these witnesses
PW-1 ,PW-2 and PW-3 and C.W.-1 should not be believed. He further
argued that when there are four consistent witnesses and their testimony
does not have serious deviations then there is no reason why conviction
cannot be upheld. Referring to the judgment that has been cited counsel
for the State has argued that this ruling is not relevant in the facts and
circumstances of the case because witnesses in this case has fully
proved the place and time of occurrence.

FINDINGS:

23. Having heard both counsels, having gone through the records of the
case and the evidences and in the facts and circumstances, it is seen that
the appellant has been convicted for section 354,323 and 342 of the
Indian Penal Code. However, sentence imposed was for section 354 IPC,
and not under the sections 323 and 354 of the IPC.

24. The most crucial argument of the learned counsel for the appellant
is that different witnesses including the victim have indicted the place of
occurrence in different parts of different places in their residences itself,
and therefore, this may seem to show some doubt. Appellant’s counsel
has submitted that in the evidence of PW-4 Ajay Mandal he has however
deposed that he saw the accused pressing neck in the verandah.
Thereafter PW-5 the husband has deposed that the attempt was made in
the room where they slept. PW-6 Bijay Mandal who is another neighbor
has deposed that he saw the incidence in the victim bed room. CW-1 who
is the daughter of the victim and has been made a witness by the court
and was aged 14 years at the time of deposition has deposed that during
the occurrence the master was in the room while the mother was in the
verandah. This witness or CW-1 seems to place the occurrence at two
different places. Therefore, it was submitted there is variations regarding
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the place of occurrence as to whether it took place in the bed room or it
took place in the area where the children were taught or whether it
occurred in the verandah.

25. What is now important to note is that there may be variation in the
place of occurrence in the house itself to some extent and that could be
attributed to movement occurring while advances were made by the
appellant against PW-1. Therefore, there is variations in the precise place
in the house because of the movement of both the accused and PW-1.
So, Pandurang Sitgaram Bhagwat (supra) case is not applicable in the
facts and circumstances of the case. From the written report of the victim
it is only revealed that accused had started undressing her but to what
extent of stage she has been undressed that has not been indicated.
Further she said in her written report that accused assaulted her with fists
and slaps. The next most important in my opinion would be the daughter
whom the court had rightly made a court witness and she had deposed
that the teacher started pulling her mother’s saree and caught hold of her
mother and she fell down and that her mother sustained injuries on her
neck and cheek. In the evidence of PW-2,PW-3,PW-4 and PW-5 there is
reference to saree and blouse being torn. This has been made by
witnesses who later arrived in the scene, but I am more inclined to go by
the evidence of victim herself and her daughter who had been made a
court witness.

26. The picture that emerges is that seemingly an assault was made by
the young teacher and it is testified by victim and her daughter. Her
daughter at the time of occurrence was 9 and at the time of giving
evidence was 14 years of age and she seems to be a reliable and
believable witness. Regarding the other witnesses PW-2,PW-3,PW-4 and
PW-5 they have arrived immediately after the occurrence and these
witnesses have seen the situation immediately and they were able to be
informed by the victim and the daughter as to what has transpired and
assessed the situation by themselves and have also testified regarding
the assaults. Though, I am inclined to believe that there is some
exaggeration in their evidence, I am not inclined to believe that nothing
has occurred. Based on the aforesaid facts and circumstances the
conviction of the appellant u/s 354 IPC was rightly made by the learned
court below.

27. So far as conviction u/s 323 IPC is concerned, in absence of injury
report or non-examination of doctor conviction of appellant u/s 323 IPC is
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set aside. Likewise, conviction u/s 342 IPC in the facts and circumstances
is also set aside for the reason that place of occurrence is said to be in
the house of the victim itself where other members were also present. So
the question of wrongful confinement does not arise.

28. Hence, the judgment of conviction of the appellant u/s 323 and 342
IPC is set aside. Conviction of the appellant u/s 354 IPC passed by the
learned court below is upheld. Regarding sentencing the occurrence is of
1991 and almost 21 years have passed and at the time of occurrence
appellant was of young age of 21 years old. Hence, considering this
mitigating circumstances, the sentence is modified to three months
rigorous imprisonment and any period undergone to be subtracted from
the modified sentence imposed by this Court.

29. Bail bond of the appellant is cancelled. Learned court below is
directed to take steps as per law to carry out the sentence of the
appellant.

30. Accordingly, appeal is dismissed with above modification in
conviction and in sentence.

(Ratnaker Bhengra,J)
KNR/-

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