Criminal Appeal (S.J.) No. 864 of 2004
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Against the judgment of conviction and order of sentence 12.05.2004 passed by the learned 1st Additional Sessions Judge, Seraikella in G.R. Case No.01 of 1998(A) arising out of Kharsawan P.S. Case No.41 of 1997.
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Sk. Halim
Son of Sk. Ahmad, resident of Village Gondpur, P.S. Kharsawan, District­ Seraikella Kharsawan
…. …. …. Appellant
­­Versus­­
The State of Jharkhand
…. …. …. Respondent
For the Appellant : Mr. R.C.P. Sah, Advocate
Ms. Vandana Sinha, Advocate
For the State
: Mr. Tapas Roy, A.P.P.
PRESENT
HON’BLE MR. JUSTICE RAVI NATH VERMA
JUDGMENT
C.A.V. ON: 29/01/2015 PRONOUNCED ON: 06/02/2015
Challenge in this appeal is to the judgment of conviction and order of sentence passed by Shri B.K. Goswami learned 1st Additional Sessions Judge, Seraikella in G.R. Case No.1 of 1998(A) arising out of Kharsawan P.S. Case No.41 of 1997 holding the sole appellant guilty of offence punishable under Sections 354 & 504 and sentenced to undergo simple imprisonment for one year on each count and also to pay a fine of Rupees One thousand and in default of fine to further undergo simple imprisonment for 30 days on each count and further sentenced the appellant under Section 323 of the Indian Penal Code with fine of Rupees One thousand only and in default to undergo simple imprisonment for two months. No sentence was passed under Section 341 of the Indian Penal Code and all sentences have been directed to run concurrently.
2.
The prosecution case as unfolded during the trial is that while the informant Thuni Kumari Soy was going to grocery shop of Shantanu Mandal at about 10 a.m., the appellant intercepted her near Panchayat Bhawan and offered her for lustful act but she anyhow moved from there silently and 2
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when she was coming back, again she was intercepted by this appellant at the same place and the appellant requested her to come for his sexual desire and when the informant protested, the appellant grappled her and assaulted her with Chappal on her head and on back. On hearing the alarm raised by the informant, the local people assembled there. Her family members also came there after hearing her cry whereafter the appellant escaped from the place of occurrence.
3.
On the basis of the fardbeyan, the F.I.R. was lodged and after investigation the police submitted charge sheet under Sections 341, 323, 354 & 504 of the Indian Penal Code and also under Section 3/4 (XIV) of the Scheduled Caste and Scheduled Tribe Atrocities Act and since the case was triable by Special Court under the Scheduled Caste and Scheduled Tribe Atrocities Act, the case was committed to the court of 1st Additional Sessions Judge. Whereafter the charges were framed against the appellant in the aforesaid Sections. The defence, as it appears from the impugned judgment, was complete denial of the accusation and that the accused is innocent and has not committed any offence as alleged. In his statement recorded under Section 313 of the Code of Criminal Procedure, the appellant has stated that he was working as a mason and the informant was also working alongwith him as a Reja (female labourer) under the same contractor but as she was a habitual late comer on duty, she was removed from the job and so he has been falsely implicated in this case. 4.
In course of trial, the prosecution examined seven witnesses. Of them prosecutrix is P.W.1, her mother Randai Kui and brother Mangal Soy are P.W.2 & P.W.3 respectively, Dr. Paul, who had examined prosecutrix is P.W.4, P.W.5 is Sadan Soy, P.W.6 is I.O. of the case and P.W.7 is Birsha Soy who was declared hostile. 3
5.
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The trial court on consideration of the evidence and materials on record came to the conclusion that prosecution has been able to prove the charges against the appellant. Hence, the appellant was convicted as already noticed above. 6.
Having heard the learned counsel for the appellant as well as the learned A.P.P. for the State, I find from the impugned judgment that relying upon evidence of P.W.1 and corroborated by medical evidence of P.W.4, the court has come to the finding that the allegation has been sufficiently proved except the provisions of Scheduled Caste and Scheduled Tribe Atrocities Act but I would like to examine the evidence of the prosecution witnesses before coming to any conclusion. 7.
P.W.1 the prosecutrix while reiterating the story further confirmed that she was interrupted by the appellant who tried to molest her but she ignored and moved from there peacefully but while coming back from the grocery shop, she was again intercepted near the Panchayat Bhawan and the appellant asked her to talk and caught her hand and when she protested, he assaulted her with slaps on her back and when she raised alarm local people assembled there. She further stated that her brother Mangal Soy and mother Randai Kui also came there to whom she narrated everything. The witness was subjected to extensive cross examination but nothing was elicited from her to demolish the prosecution story except minor contradictions and omissions. The witness in her cross examination has stated that Panchayat Bhawan is situated 50­60 yards from her house. The evidence of prosecutrix that on her raising alarm several local people assembled there and her mother and brother also came there, has been confirmed by P.W.2 the mother and P.W.3 the brother in their evidence. They have also confirmed that the prosecutrix had gone to grocery shop to purchase some articles and when the witnesses reached near the place of occurrence after hearing alarm saw the appellant assaulting her daughter and before their 4
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arrival near the place of occurrence, local people like Sadan Soy, Mangal Soy and Birsha Soy had assembled there. This fact has been corroborated by P.W.3 Mangal Soy, P.W.5 Sadan Soy and P.W.7 Birsha Soy in their evidence. The doctor, who had examined the P.W.1 informant, had simply confirmed that the lady had complaint of pain in her back and there was no sign of any injury on her body. 8.
Apparently, there is some minor contradiction relating to assault by Chappal or slaps but this does not anyway affect the prosecution case of intercepting prosecutrix and showing his lustful desire. Though the appellant in his statement under Section 313 of the Code of Criminal Procedure has taken the defence of false implication due to removal of prosecutrix from job of Reja (female labourer) but nothing has been brought on record to show that the appellant was anyway instrumental in her removal. Besides the above, there is no animus to the prosecution witnesses to depose falsely against the appellant. These witnesses appears to be most natural competent and independent witnesses of the occurrence, specially P.Ws. 3, 5 & 7 have not been shown to have any grudge or vendetta against the appellant to depose falsely against him. 9.
After going through the entire material and evidence available on record and on their critical analysis, I donot find any reason to disbelieve the evidence of the prosecutrix P.W.1 and other witnesses. The learned court below has meticulously considered the evidence on record. Hence, the finding recorded by the learned trial court convicting the appellant as aforesaid, in my opinion, was proper and justified and needs no interference. However, as it appears from the impugned judgment that this was first offence of the appellant, in my opinion, the sentences are too harsh. The occurrence took place almost 17 years ago and by this time the appellant has suffered the pangs of criminal prosecution and pendency of the appeal. There was also sufferance mentally, 5
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physically and financially. Considering that aspect, I do not find it a fit case wherein the appellant should be asked to go back to judicial custody for serving balance of sentences as the appellant had remained in jail custody for more than three and half months during course of trial. Hence, I reduce the sentence passed against the appellant by the trial court to the period suffered by him.
10.
In the result, the appeal is dismissed with modification in the sentences as mentioned above. Since the appellant is on bail, he is discharged from the liabilities of his bail bond.
(R.N. Verma, J.)
Jharkhand High Court, Ranchi
Dated, 6th February, 2015
Anit/N.A.F.R.