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Judgment
Date : 06-08-2026
Heard learned counsel for the appellant and learned A.P.P. for the State.
This appeal has been filed challenging the judgment of conviction and order of sentence dated 16.03.2019 passed in Sessions Trial No. 95 of 2015 arising out of Banka P.S. Case No. 334 of 2012 by learned P.O., F.T.C.-I, Banka whereby the sole appellant has been convicted under Sections 452, 354 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for seven years under Section 452 IPC and rigorous imprisonment for two years under Section 354 IPC and a fine of Rs. 25,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year. All sentences have been directed to run concurrently.
The prosecution case, as unfolded in the written report of informant Beby Devi, is that on the intervening night of 01.11.2012, while she was sleeping in her house with her children and her husband was working outside the State, the appellant along with two unknown associates trespassed into her house, by scaling the boundary wall. It is alleged that one of the intruders attempted to remove her Machhardani (mosquito net). When she raised alarm, the appellant pressed her mouth, threatened to kill her if she shouted and assaulted her. Thereafter, appellant attempted to remove her saree and outrage her modesty. On her cries, the villagers and her mother-in-law reached the place whereupon the accused persons fled away. The informant claimed to have identified the appellant as Vikash Yadav @Dharba Yadav from his voice. Initially a village Panchayati was convened but no settlement could be reached. Subsequently, the FIR was instituted and after investigation charge-sheet was submitted under Sections 376, 511, 354, 452/34 of the Indian Penal Code.
To prove the case, prosecution has examined eleven witnesses out of which P.W. 1, P.W. 2, P.W. 3, P.W. 7 and P.W. 9 were declared hostile. P.W. 4 is post-occurrence witness. P.W. 5, namely, Anil Mandal is the husband of informant who is a hearsay witness. P.W. 6, Md. Jainul Haque is the Investigating Officer and during cross-examination he admitted that vicitm was never examined medically nor her statement under Section 164 Cr.P.C. was recorded. P.W. 8, Beby Devi, is the informant/victim. P.W. 10, Sunita Devi, is the mother-in-law of P.W. 8 who stated that she saw the accused assaulting her daughter-in-law and admitted that F.I.R. was lodged after 11 days of the occurrence. P.W. 11, namely, Jagdish Hairjan is a hearsay witness.
On the other hand, no defence witness was examined.
After hearing the parties, the learned trial court convicted the appellant and sentenced him as indicated in the opening paragraph of this order.
Learned counsel appearing for the appellant assails the order of conviction. He contends that P.W. 8, who is the victim, did not support the prosecution case during cross-examination as she diluted the case by stating that at the time of occurrence, there was complete darkness and she could not see the appellant. Rather by hearing his voice, she only suspected that it must be this appellant who tried to outrage her modesty. Subsequently, P.W. 8 entered into a compromise with the accused and stated that she had no grievance against them. He further submits that P.W. 6, I.O. failed to conduct medical examination and record statement of the victim under Section 164 Cr.P.C. revealing material lapses in investigation. There is no independent eye witness supporting the occurrence and no recovery of clothes was made. Furthermore, there is delay of about 11 days in lodging the F.I.R., without any plausible explanation, which further weakens the prosecution case. P.W. 10 deposed that on hearing noise, she woke up and saw the accused assaulting her daughter-in-law but in cross-examination, she clarified before the police that she only recognized the appellant from his voice as there was complete absence of light during the incident. He further contends that neither any corroborative document relating to the prosecution case has been brought on record. Non-examination of informant has highly prejudiced the case of prosecution and the lapses in investigation do not go to the root of the prosecution case regarding offences under Sections 354, 452 IPC.
Learned A.P.P. for the State while opposing the submissions as advanced by learned counsel appearing on behalf of the appellant and submits that intentions of appellant were not appearing good and prosecution has successfully established that he committed house trespass and assaulted the victim intending to outrage her modesty. Minor contradictions are bound to surface and merely on that score only it cannot be said that prosecution did not establish its case beyond reasonable doubt. Learned APP submitted that recording of conviction by learned trial court is correct in eyes of law and same is not required to be interfered under present appeal
From perusal of the records, it appears that P.W. 8, who is the victim, did not support the case. The recognition of the appellant by voice carries little probative value and cannot be treated as reliable piece of identity in absence of independent corroboration and in the background of the statement of the victim P.W. 8. There is delay of eleven days in lodging the F.I.R. First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as names of eye witnesses present at the scene of occurrence. Delay in lodging the First Information Report often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In this case, there is no satisfactory explanation about delay of 11 days in lodging the F.I.R. which made the case of the prosecution doubtful.
Hence, the prosecution has failed to establish its case beyond the shadow of all reasonable doubts and the appellant is entitled to get the benefit of doubt. I am inclined to accept the proposition that in the facts of the case, no offence under Section 452, 354 IPC is made out. In this case, the appellant has already remained in custody for about two months and there is no complaint regarding conduct of the appellant during the said period.
In that view of the matter, the judgment of conviction and order of sentence dated 16.03.2019 passed in Sessions Trial No. 95 of 2015 arising out of Banka P.S. Case No. 334 of 2012 by learned P.O., F.T.C.-I, Banka is hereby set aside.
Appellant is acquitted of all the charges and is discharged from the liability of the bail bond in connection with this case.
Accordingly, this appeal stands allowed.
Interlocutory application/s, if any, also stands disposed of.