Badal Mahatha vs State of Jharkhand

The instant Criminal Appeal has been preferred against judgment of conviction and order of sentence, both dated 23.12.2003, passed by learned

Additional Sessions Judge, Fast Track Court  No. I, Bokaro, in Sessions Trial No. 242/2000, whereby the appellant has been convicted by the

learned Trial Court for offence punishable under Sections 448 and 354 of the Indian Penal Code and directed to furnish probation bond under Section

4 of the Probation of offenders Act of Rs. 2000/- with two sureties of the like amount each for maintaining peace and good behavior for a period of

one year and to appear and receive sentence when called upon during such period. The State has preferred Acquittal Appeal no. 34 of 2004 against

acquittal of the appellant under Sections 376/511, 504, 323, 356, 327 of the Indian Penal Code.Â

Heard, learned counsel for the appellant [in Cr. Appeal (SJ) No. 94 of 2004], Mr. Ramakant Tiwari assisted by his junior Mr. Shubham Dubey,

Advocate and learned counsel for the State, Mr. Vikash Kishor, Additional Public Prosecutor.

The State has preferred Acquittal Appeal No. 34 of 2004. The prosecution case is based upon a complaint petition filed before the court on

18.11.1999 with respect to an alleged offence committed on 07.11.1999. The complainant-informant, Shanti Devi has alleged that her husband was

staying at Mandir in the night as there was a Kali puja, thus the informant along with her children came to her house leaving the door open, as her

husband had to come in the night, while she was cleaning utensils, the appellant entered into her house and outraged her modesty. In the night when

her husband returned, she informed him about the occurrence and when she was going towards the police station, she was threatened by the accused-

appellant, Badal Mahata with dire consequences and thereafter she came to the court somehow and filed this complaint case. The complaint petition

was referred to the police by Chief Judicial Magistrate, Bokaro under Section 156 (3) Cr.P.C. on behalf of which, F.I.R. was instituted by the police,

as Pindrajora P.S. Case No. 15 of 2000 dated 02.04.2000 corresponding G.R. No. 335/2000 under Sections 448, 511, 385, 323, 504, 376 of the Indian

Penal Code and after investigation the police submitted chargesheet vide no. 14 of 2000 dated 30.04.2000 under Sections 448, 323, 356, 327, 504,

376/511 of the Indian Penal Code.

The cognizance of the offence has been taken vide order dated 05.06.2000 and case has been committed to the court of Sessions vide order dated

31.07.2000, where charge under Section 376/511, 504, 323, 448, 356, 327 of the Indian Penal Code was framed against the appellant, to which the

appellant has pleaded his innocence and thus he was put under trial.

The prosecution has examined altogether five witnesses.

Shanti Devi has been examined as P.W. 1, Chutiya Kumari @ Urmila Kumari (first daughter of the informant) has been examined as P.W. 2,

Santosh Thakur (husband of the informant) has been examined as P.W. 3, Rakhohari Thakur has been examined as P.W. 4 and Futia Kumari (second

daughter of the informant) has been examined as P.W. 5.Â

        The prosecution has not exhibited any documentary evidence.

   After closure of the prosecution evidence, the statement of the appellant under Section 313 Cr.P.C. was recorded on 17.09.2003, where the

appellant has categorically stated that prior to the occurrence, a case between the parties, under Section 107 Cr.P.C. was pending in the court of

S.D.O. and as his son has fought with Shanti Devi, for which she has filed a case against this appellant with false allegation.

Heard, learned counsel for the appellant, Mr. Ramakant Tiwari assisted by his junior Mr. Shubham Dubey, Advocate and learned counsel for the

State, Mr. Vikash Kishore.Â

Since the acquittal appeal has been preferred by the State, it would be proper that the acquittal appeal be taken first.

Learned counsel for the State has submitted, that the evidences are corroborative in nature and the learned Trial Court has not convicted the

respondent under Sections 323, 376/511, 356, 504, 327 of the Indian Penal Code and only convicted under Sections 448 and 354 of the Indian Penal

Code. Â

Learned counsel for the appellant in Acquittal Appeal has further submitted, that an attempt was made by the respondent to commit rape upon

Shanti Devi by disrobing her cloth. Learned counsel for the appellant has further submitted, that the complainant was only in her petticoat, when the

respondent tried to commit rape upon her. Learned counsel for the appellant has further submitted, that the learned Trial Court ought to have taken

judicial notice with regard to the commission of the offence and as such, the learned Trial Court has wrongly acquitted the respondent under Sections

376/511 of the Indian Penal Code.

Learned counsel for the Appellant-State has further submitted that respondent is also accused under Section 356 of the Indian Penal Code as the

accused has also taken away the ornaments of the complainant.Â

Learned counsel for the respondent, Mr. Ramakant Tiwari has submitted that due to litigation pending between the parties under Section 107

Cr.P.C., this complaint case has been filed to pressurize the accused, Badal Mahata to withdraw the case. Learned counsel for the respondent (Badal

Mahata) has further submitted, that the investigating officer of this case has not been examined nor there is any material to prove that the blouse of

the victim â€"complainant has been torned by this respondent, as there is no legal material, which have been exhibited in the learned Trial Court. Both

the parties are neighbours and they have litigating terms with each other.

   Learned counsel for the respondent has further submitted that if a cognizable offence is committed, the complainant must file an F.I.R. before

the police, if she was unable to file the case before the police, she could have informed the Superintendent of Police about the occurrence. Learned

counsel for the respondent has further submitted that complainant has filed a complaint petition after a delay of eleven days. The complaint petition

was referred to the police, on the basis of which, F.I.R. was instituted.

   Learned counsel for the respondent has further submitted that Shanti Devi (P.W. 1), Chutiya Kumari @ Urmila Kumari (P.W. 2), Futia

Kumari (P.W. 5) and Santosh Thakur (P.W. 3) are interested witnesses as they are the complainant herself, her daughters and her husband. The

learned counsel for the respondent has further submitted that Rakhoben Thakur, brother of Santosh Thakur has submitted that after return from the

Mandir, he got the information that Badal Mahatha has entered into the house of Shanti Devi and assaulted her and tried to disrobe her cloths and has

taken away the earrings and other ornaments of silver.

    Learned counsel for the respondent has further submitted that even the F.I.R., which is on the basis of the complaint petition has not been

marked as exhibit, nor the investigating officer has been examined in this case and it is only the outcome of the litigation pending under Section 107

Cr.P.C., such case has been filed with an intention to pressurize the respondent Badal Mahata.

   Cr. Appeal (SJ) No. 94 of 2003:Â

Learned counsel for the appellant in Cr. Appeal (SJ) No. 94 of 2003, Mr. Rama Kant Tiwari, Advocate, has submitted that it is a false case

instituted against the appellant because of 107 Cr.P.C. proceeding between the parties. Learned counsel has further submitted, that there is a delay of

eleven days in lodging the complaint case and the F.I.R. and even Investigating Officer of this case has not been examined nor any medical report is

brought on record to substantiate that the complainant was assaulted by the appellant. Learned counsel for the appellant has further submitted, that the

occurrence took place in the village, in the night, when there was a kali puja in the temple but none of the independent witnesses have been examined

except the inmates of the house and the brother- in- law of the complainant, who is a hearsay witness. Learned counsel for the appellant has further

submitted, that non-examination of the Investigating Officer has caused serious prejudice to the appellant, as the appellant could not draw the attention,

with regard to the manner of occurrence and time of occurrence and none of the documents were produced. Even the F.I.R., which has been filed, on

the basis of the complaint petition has not been exhibited in this case. Learned counsel for the appellant has further submitted, that there is a

contradiction in the evidence of the prosecution witnesses and the same has not been considered by the learned Trial Court. Learned counsel for the

appellant has further submitted, that the appellant has no criminal antecedent and it is only because of the 107 Cr.P.C. litigation between the parties,

such case has been filed to malign his (appellant) character.Â

Heard, learned counsel for the appellant, Mr. Ramakant Tiwari assisted by Mr. Shubham Dubey, Advocate, learned counsel for the State, Mr.

Vikash Kishore, Additional Public Prosecutor and perused all the record. From perusal of the record, it appears that the prosecution has not even

marked the complaint case as Exhibit, nor the Investigating Officer has been examined. The witnesses are interested witnesses and they have

developed their case during cross-examination in the court. The complaint case filed by the complainant, the learned Trial Court was justified in

passing the impugned judgment of conviction and order of sentence. Under such background, where the case is based on a complaint petition and the

complaint case, has not been exhibited nor the Investigating Officer has been examined, the learned Trial Court is justified in convicting the appellant

under Sections 448 and 354 of the Indian Penal Code.

The judgment of conviction passed by the learned Trial Court is hereby affirmed. The counsel for the appellant has submitted that pursuant to the

order of sentence passed by the learned Trial Court, the appellant has already executed the bond under Section 4 of the Probation of Offenders Act of

Rs. 2000/- for a period of one year, which has already been lapsed and nothing has happened between the parties for a long period of 15 years.

Considering these aspects of the matter, the impugned judgment of conviction and order of sentence, both dated 23.12.2003, passed by learned

Additional Sessions Judge, Fast Track Court  No. I, Bokaro, in Sessions Trial No. 242/2000 in connection with Pindrajora P.S. Case No. 15 of

2000, corresponding to G. R. No. 335/2000 (in Cr. Appeal (SJ) No. 94 of 2004) and (in Acq. Appeal (SJ) No. 34 of 2004) are hereby

affirmed.   Â

The appellant, who is on bail, is discharged from liability of his bail bond considering that the appellant has already executed the bond under Section

4 of the Probation of Offenders Act of Rs. 2000/- for a period of one year, which has already been lapsed.Â

Accordingly, both the acquittal appeal preferred by the State and the appeal preferred by the appellant are hereby dismissed.  Â

Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.Â