Saiyad Raju vs State of Jharkhand

Heard, learned counsel for the appellant, Mr. B. K. Sinha and Mr. Arun Kumar Pandey, learned Additional Public Prosecutor appearing for the

State.

The instant Criminal appeal is directed against the judgment of conviction dated 08.09.2003 and order of sentence dated 10.09.2003, passed by the

learned Sessions Judge, Jamtara, in Sessions Case No.483 of 2001 (arising out of Mihijam P. S. Case No. 72 of 1998 dated 01.05.1998, corresponding

to G. R. No. 159 of 1998), whereby the sole appellant, Saiyad Raju has been convicted by the learned trial court for the offences committed under

Sections 354 and 454 of the Indian Penal Code and awarded simple imprisonment for two years for the offence committed under section 354 IPC and

imprisonment for two years for the offence committed under section 454 IPC along with a fine amount of Rs. 500/- and in default of payment of fine,

to further undergo simple imprisonment for a period of six months.Â

Being aggrieved by and dissatisfied with the judgment of conviction and order of sentence, the present Criminal appeal has been preferred on

27.09.2003, which was admitted on 30.09.2003 and by the same order, provisional bail of the appellant was confirmed and since then, this case is

pending before this Hon'ble Court.Â

The prosecution case is based upon, the written report filed by SajadaBegum (P.W.2- mother of the victim), before the Officer In-charge, Mihijam

Police Station, on 30.04.1998, wherein, the informant has stated that she has gone to the house of neighbour, on 29.4.1998 (Wednesday), at about 1.30

p.m. to see the new guest and after half an hour, when she returned to her house, she saw plastic slipper lying at the door of her house. She got

suspicious, that some thieves might have entered into the house with intention to commit theft and thus, she entered into the room and saw that Saiyad

Raju, a neighbour and relative of the informant, is committing indecent activities with her 3 years' old daughter, Barkha by standing her on a

chair. Saiyad Raju was rubbing his penis upon the private part of her daughter, Barkha, as such, she raised  alarm whereupon Saiyad Raju

escaped from the room. The informant has further stated, that on hearing alarm, her neighbour- the mother of Rina came there. The private part of

her daughter, Barkha appeared red and on being enquired about, Barkha has narrated, that Saiyad Raju was doing “galat kam' (ChhiChhi)

upon her and in the meantime, her husband, Saiyad Jahir Hussain also returned to the house, who was disclosed about the occurrence. The informant

has further stated, that because of social prestige, the delay has occurred in lodging the First Information Report.

 On the basis of written report of the informant, the police instituted First Information Report bearing Mihijam P.S. Case No. 72 of 1998 dated

01.05.1998 under sections 376 and 511 of the Indian Penal Code.

After investigation, the Police submitted charge-sheet vide No. 12 of 1998 dated 30.06.1998, under sections 454, 376 and 511 of the Indian Penal

Code against the sole accused/appellant, Saiyad Raju. The cognizance of the offence has been taken vide order dated 01.07.1998 and the case has

been committed to the court of sessions vide order dated 14.10.1999.

The charge has been framed by the learned trial Court against the appellant, under sections 376, 511 and 454 of the Indian Penal Code, to which the

accused/appellant pleaded his innocence claimed to be tried and thus, the appellant was put under trial.

The prosecution, in order to prove its case, has examined altogether fourwitnesses and also adduced documentary evidence which has been proved

and marked as Exhibits.

 Saiyad Jahir Hussuain (father of the victim and husband of the informant), has been examined as P.W.1, Sajada Begum (informant and mother of

the victim) has been examined as P.W.2, Barkha (victim of this case) has been examined as P.W.3, Dr. Aruna Chatterjee (medical officer), who has

examined the victim, has been examined as P.W.4.

 Apart from the deposition of the witnesses, the prosecution has also proved signature of Saiyed Tahir Hussain (husband of the informant) on the

'fardbeyan', has been proved and marked as Exhibit -1 and the injury report of the victim (Barkha) has been proved and marked as Exhibit -2.

After closure of the prosecution evidence, the statement of the accused/appellant, under section 313 Cr. P.C., has been recorded, where appellant

has stated, that he is innocent and has been falsely implicated in this case.

The defence has exhibited charge-sheet of Jamtara (Mihijam) P. S. case No. 100 of 1998, which has been proved and marked as Exhibit 'A'.

    The learned trial court after hearing learned counsel for the parties has passed the impugned judgment of conviction and order of sentence,

as stated above, which has been assailed before this Hon'ble Court in the present Criminal Appeal.

Mr. B. K. Sinha, learned counsel appearing for the appellant has submitted that impugned judgment of conviction and order of sentence is bad in

law and cannot sustain in eyes of law.

 Learned counsel for the appellant has further submitted, that there is a delay in lodging the First Information Report and no proper explanation has

been given for such delay.

 Learned counsel for the appellant has further submitted, that because of the enmity prevailing between the parties, appellant has falsely been

implicated in this case and the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellant, without

having material on records and as such, the appellant may be acquitted of the conviction. 10. Learned counsel for the state, Mr. Arun Kumar Pandey,

Additional Public Prosecutor, while vehemently supporting the impugned judgment of conviction and order of sentence, has submitted, that the same

has been passed on the basis of the materials available on record, which has rightly been passed by the learned trial Court.      Â

Learned counsel for the State has further submitted, that this appellant has rubbed his penis over the private part of a minor child, aged about 3 years

and she (victim) has been examined as P.W.3 in this case and she has supported her version, as made out in the First Information Report.

Learned counsel for the state has further submitted, that P.W.2 Sajada Begum is also an eye witness to the occurrence, as she has returned to her

house and saw the occurrence, while the appellant Saiyad Raju was committing such indecent activities and thus, she raised alarm and on the basis

of that, neighbour came, as such, the learned trial court has passed the impugned judgment of conviction and order of sentence, against the appellant.

After hearing the learned counsel for the appellant, Mr. B. K. Sinha and learned counsel for the State, Mr. Arun Kumar Pandey, learned

Additional Public Prosecutor appearing for the state and on perusal of the evidence brought on records i.e. First Information Report, charge-sheet,

framing of charge, evidence of four witnesses, Exhibits, statement recorded under section 313 Cr. P. C. as well as defence exhibit, this court

is of the opinion, that P.W.1 Saiyad Jahir Hussain (husband of the informant) is a hearsay witness. P.W.2 Sajada Begum (informant and mother of

the victim) is an eye witness to the occurrence and her evidence is consistent to her 'fardbeyan'. The defence has cross-examined her, but nothing has

been elucidated to disbelieve her testimony. P. W.3 (Barkha) victim of the case and she has supported the prosecution case and the learned trial

Court has taken judicial notice of the fact that child (victim) has supported the prosecution case. Victim (P.W.3) has been cross-examined by the

defence, but nothing has been elucidated to disbelieve her testimony. P.W.4 Dr. Aruna Chatterjee (who has been referred as Reena Chatterjee in

the impugned judgment) was a member of a medical board, constituted of lady doctors. She (P.W.4) has examined the victim (P.W.3) and theÂ

injury report has been proved and marked as Exhibit 2.

 Since the evidence of P.W.3 (Barkha), victim of the case, is consistent to the prosecution case, as made out by P.W.2 (Sajada Begum). There is

nothing on record to disbelieve their depositions and the learned trial Court has taken judicial notice with respect to the entire material available on

records and evidence of P. W.3 (victim) is consistent, as she has stated that, while she was playing near the door and her mummy had gone to the

house of neighbour, at that time there was none present in the house, when Raju 'Chacha' came and took her inside and got her stood upon a chair

after removing her panty. Raju Chacha committed nasty work (chhi-chhi) and when her mother returned, Raju Chacha escaped. During her cross-

examination, she has stated, the she has not gone to the school, rather she was playing near the door of her house, when the accused lifted her in

lap and committed nasty work. This Court has no reason to disbelieve the testimony of P.W.3 (victim), who is a child witness and victim of the case.

 Considering this aspect of the matter and the evidence brought on records, I do not find any reason to interfere with the impugned judgment of

conviction and order of sentence.

Accordingly, the impugned judgment of conviction dated 08.09.2003 and order of sentence dated 10.09.2003, passed by the Learned Session

Judge, Jamtara, in Sessions Case No. 483 of 2001 (arising out of Mihijam P. S. Case No. 72 of 1998, corresponding to G. R. Case No. 159 of 1998) is

hereby upheld and confirmed.

The bail granted to the appellant, is hereby cancelled. Consequently bail bonds are cancelled. The appellant is directed to appear before the

court below to serve out the rest of the sentence, as stated above, failing which, the learned trial court will take all coercive steps for securing

appearance of the accused/appellant, so as to serve out rest of the sentence.

The period already undergone by the accused/appellant shall be set off under Section 428 Cr.P.C.

Accordingly, the instant Criminal appeal stands dismissed.

Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.