Dhuri Yadav vs The State of Jharkhand

Pradeep Kumar, J.

By Court:

Heard learned Counsel for the appellant and counsel for the State.

This appeal is directed against the judgment of conviction and sentence dated 17.8.2001 passed by Sri N. Mishra, 1st Additional Sessions Judge-cum-Special Judge, Godda in Special Case No. 3 of 1998 by which judgment, learned Additional Sessions Judge found the appellant guilty u/s 376/511 of the Indian Penal Code and convicted him there under. He sentenced the appellant to undergo rigorous imprisonment for five years and to pay a fine of Rupees one thousand and in default of payment of fine of Rs. 1, 000/- to undergo further rigorous imprisonment for three months.

The prosecution case started on the basis of the fard beyan given by P.W.8 Paro Devi on 5.3.1998 and on the same day of the occurrence stating therein that at about 2 P.M. in the afternoon when she had gone to village Ektara near a tank for collecting fire wood near ''arhar'' filed, then suddenly the accused Dhuri Yadav son of Sri Prasad Yadav came there and he caught hold of her and started squeezing her breast, thereafter, he lifted her and went towards the ''arhar'' field, whereupon after hearing hulla, Sebri Kumari, Meera Devi who were uprooting onion, came on hulla, seeing this, the accused left her on the ground and ran away. On hulla, other witnesses had also come there. She came to her Criminal Appeal 2 No. 399 of 2001(R) home and narrated the incident to her father, and then along with her father and others, she came to the police station and gave a written report. On the basis of the statement, police registered a case under Sections 341/354 of the Indian Penal Code and after investigation, submitted charge-sheet under the aforesaid Sections and under Sections 3(iv) of S.C. & S.T. (Prevention of Atrocities Act, 1989). Since, the case was exclusively triable by a court of Sessions-cum-Special Judge; hence the case was committed to Sessions and subsequently transferred to the court of 1st Additional Sessions Judge-cum-Special Judge. Before the 1st Additional Sessions Judge charges were framed under Sections 376 and 511 of the Indian Penal Code as well as 3(1)(XI) of the S.C. & S.T. (Prevention of Atrocities Act, 1989).

It appears that in course of trial, the prosecution has examined nine witnesses. P.W.1 is Saint Lal Das, father of the victim girl, P.W.2 is the Hari Das, P.W.3 is the Sunil Das, P.W.4 is Bindeshwari Das, P.W.5 is Garib Das, P.W.6 is Sevri Kumari, P.W.7 is Meera Devi, P.W.8 is Paro Devi, informant herself and P.W.9 is Raj Kumar Ojha, the Investigating Officer of the case. After trial and conviction, the trial court convicted the appellants as aforesaid.

It is submitted by the learned Counsel for the appellant that as per the F.I.R. there are three witnesses to the occurrence, namely, the informant, Sevri Kumari, and Meera Devi but their statement are not consistent and hence the prosecution case is doubtful. He has further submitted that the Investigating officer has not conducted the investigation properly and thus, no case is made out under Sections 376 and 511 of the Indian Penal Code but the case comes u/s 354 of the Indian Penal Code and as such the conviction under Sections 376 and 511 is bad and fit to be set aside. Criminal Appeal 3 No. 399 of 2001(R)

On the other hand, learned Counsel for the State submitted that there is no contradiction in the evidences of P.W.8, P.W.6 and P.W.7 and there is nothing wrong in the investigation. The investigating Officer has investigated the case properly. However, he has submitted that since there is direct allegation that the appellant came with intention to commit rape, lifted and was taking her to the ''arhar'' filed he has rightly been found guilty under Sections 376 and 511 of the Indian Penal Code.

After hearing the parties and going through the evidences, I find that as far as the evidence of eye-witnesses are concerned, P.W.8 is the informant when examined in the court, stated at para-3 that at Ektara when she was collecting fire wood, the accused came there, lifted her and started squeezing her breast and was taking her towards the filed of ''arhar'' crop, when she made hulla and on hearing hulla Sevri Kumari, Meera Devi, Sunil Das, Hari Das came, whereupon the accused left her and fled away. P.W.6 Sevri Kumari also stated in para-1 that on the date of occurrence when she was collecting fire wood at Ektara then, Dhuri Yadav came there, squeezed her breast and then he was taking her to a ''arhar'' field for committing rape, then on hearing hulla, Meera Devi, Hari Das, Bindeshwari Das, came there then Dhuri Yadav fled away leaving Paro Devi. P.W.7 Meera Devi stated that when she was collecting fire wood at Ektara, Dhuri Yadav came there. On hearing hulla P.W.6 came running and told her that Dhuri Yadav caught Paro devi and was taking her towards ''arhar'' field. When she was going to ''arhar'' filed she found Paro Devi coming weeping, Paro told her that Dhuri Yadav was taking her to ''arhar'' field, so there is no contradiction in the Statement of three witnesses and the P.O. whereupon the accused left Paro Devi and ran away. Other witnesses who were also present namely, P.W.2 Hari Das has also stated in para-2 that on hearing hulla of bachao-bachao by paro Devi, he came and saw that Criminal Appeal 4 No. 399 of 2001(R) Dhuri Yadav was taking Paro Devi towards ''arhar'' filed, seeing them, he left her and ran away. P.W.4 another witnesses, Bindeshwari Das has also stated in para-2 that on hulla, he saw that Dhuri Yadav was taking her towards ''arhar'' field. Hari Das, Meera Devi, and Severi Kumari were also there and the accused left Paro Devi and ran away. So there is consistent evidence of all the witnesses that the accused Dhuri Yadav squeezed her breast and tried to take her towards ''arhar'' field, whereupon seeing other witnesses, he left her and ran away. He had no occasion to attempt to commit rape and as such the evidences of all the witnesses are consistent that the appellant Dhuri Yadav outraged the modesty of the victim girl Paro Devi, P.W.8. Accordingly, I find and hold accused Dhuri Yadav guilty u/s 354 of the Indian Penal code and the conviction and sentence u/s 376 and 511 of the Indian Penal Code is bad and same is set aside. However, it has been submitted by the learned Counsel for the appellant the Dhuri Yadav was taken into custody on17.8.2001 and he was granted bail by this Court in appeal on 5.3.2002 and as such he has remained in jail for more than six months.

In view of the matter, the accused Dhuri Yadav is sentenced to under go six months custody already undergone during the pendency to the appeal alongwith fine of Rs two thousand and in default he will undergo six months simple imprisonment. The appeal is accordingly, allowed and the learned Trial Court is directed to issue warrant of arrest on the accused for serving out the sentence. His bail bond is cancelled.