Patna High Court
Jagdish Chauhan vs The State Of Bihar on 25 October, 2018
Author: Prakash Chandra Jaiswal
Bench: Prakash Chandra Jaiswal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.101 of 2013
Arising Out of PS. Case No.-574 Year-2009 Thana- ARARIA District- Araria
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Jagdish Chauhan, S/o Lalu Pd. Chauhan, R/o Village-Gariya Baluwa, P.S.-K.
Nagar, District-Purnia.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ramesh Kumar Singh
Mr. Sanjay Kumar Singh
For the Respondent/s : Mrs. Abha Singh (App)
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CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA
JAISWAL
ORAL JUDGMENT
Date : 25-10-2018
Heard learned counsel for the appellant and
learned APP for the State on this Criminal Appeal.
2. This appeal has been preferred against the
judgment and order of conviction dated 18.07.2012 and order
of sentence dated 23.07.2012 passed by learned Adhoc
Additional Sessions Judge-IV, Araria in Sessions Trial no. 812
of 2010, Trial No. 52 of 2010/ 89 of 2012 arising out of
Bairgachhi P.S. Case No. 574 of 2009 whereby the learned
trial court convicted the accused, Jagdish Chauhan for the
offence punishable under Sections 506, 366(A)/ 511 of the
Indian Penal Code and sentenced him to undergo R.I. for five
years and also slapped him with a fine of Rs. 3000/- and in
case of default of payment of fine to further undergo S.I. for
three months under Sections 366 (A)/ 511 of the Indian Penal
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Code and also sentenced him to undergo S.I. for two years
under Section 506 of the Indian Penal Code. All the sentences
were directed to run concurrently.
3. The factual matrix of the case is that
Bairgachhi P.S. Case No. 574 of 2009 was instituted under
Sections 420, 467, 468, 471, 384 and 366(A)/ 511 of the
Indian Penal Code against accused Jagdish Chauhan on the
basis of written report of Jeevchhi Devi W/o Kamal Dev
Yadav dated 14.12.2009 with the allegation, in succinct that
the accused Jagdish Chauhan put his bad eye on her minor
daughter namely, Priyanka Kumari aged about 15 years in the
course of visiting the court in connection with a case. Taking
undue advantage of gullibleness of the informant and her
husband, he obtained photographs of the informant and her
daughter Priyanka Kumari during the course of visiting the
court and on the basis of said photographs got manufactured
the forged documents and started mounting pressure upon her
for marriage of her daughter with him and also lodged a false
and frivolous case against the informant and her family
members and getting news of his marriage with her daughter
published in the newspaper, compelled her to get her daughter
married with him. Succumbing his pressure, she sent her
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daughter to the in-law's house of her elder daughter located at
village Bochi, but the accused anyhow traced out her
whereabout and arrived at the aforesaid house on 14.12.2009
at 02:00 PM and tried to kidnap her minor daughter with
intent to perform marriage with her displaying the
photographs and forged affidavit regarding marriage. On
protest made by her daughter, the locals congregated there,
then the accused made good his escape extending threatening
of kidnapping her daughter. The accused is having criminal
antecedent and has also gone to the jail for forcibly marrying
with another girl namely, Rani Devi.
4. The aforesaid case was investigated by the
police and on conclusion of the investigation, I.O. submitted
charge-sheet under Sections 420, 468, 471, 506, 366(A)/511 of
the Indian Penal Code against the aforesaid accused.
5. On receiving the charge-sheet and the case
diary and perusing the same, the learned Magistrate took
cognizance of the offence and committed the case to the court
of sessions and after commitment and on transfer finally the
case came in seisin of the learned Adhoc Additional Sessions
Judge-IV, Araria for trial.
6. Charge against the aforesaid accused was
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framed under Sections 506, 366(A), 420, 468 and 471 of the
Indian Penal Code. Charge was read over and explained to the
accused by the court to which he pleaded not guilty and
claimed to be tried.
7. To substantiate its case, in ocular evidence,
the prosecution has examined altogether four prosecution
witnesses namely, Ramanand Yadav as PW-1, informant
Jeevchhi Devi as PW-2, Niyaz Ahmad as PW-3 and victim
Priyanka Kumari as PW-4. In documentary evidence, the
prosecution has filed and proved written report in the case.
8. The statement of the accused was recorded
under Section 313 of the Code of Criminal procedure. The
case of the defence is complete denial of the occurrence
claiming himself to be innocent. The accused has also
examined three witnesses, namely, Sakal Dev Chauhan as
DW-1, Manoj Kumar as DW-2, and Sanjeev Chauhan as DW-
3 in buttress of his case.
9. After hearing the parties and perusing the
record, the learned trial court passed the impugned judgment
and order of conviction and sentence as detailed in the earlier
paragraph.
10. Being aggrieved and dissatisfied with the
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aforesaid judgment and order of conviction and sentence, the
convict has preferred the present Criminal Appeal.
11. The point for consideration in this case is, as
to whether the prosecution has been able to bring home the
charges levelled against the appellant beyond all reasonable
doubts or not.
12. It is submitted by learned counsel for the
appellant that the appellant was pre-acquaintance to the victim
and was having visiting term to the victim. The victim has
developed love affair with him and also performed marriage
with him and as the informant and her family members has
detained the victim and did not perform her Bidai with the
appellant, the appellant has lodged a case against the victim
and her family members preceding the case under hand and in
a bid to mount pressure upon the appellant to get the aforesaid
case compromised, the informant has lodged this false and
frivolous case against the appellant. It is further submitted that
PW-2 does not happen to be eye witness of the occurrence
while PW-1 and PW-3 happen to be co-villager of the Samdhi
of the informant and are own man of the informant. It is
further submitted that PW-1, PW-3 and the victim PW-4 had
not supported the occurrence of extending threatening of
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kidnapping the victim by the appellant. It is also submitted
that the written report on the basis of which the FIR has been
lodged is anti-dated and creates serious doubt about the
prosecution case. It is further submitted that Dev Narayan
Yadav at whose house the victim was residing at the time of
occurrence, has not been examined by the prosecution and no
plausible and convincing explanation has been assigned by the
prosecution for non-examination of the aforesaid witness.
Hence, adverse inference shall be drawn against it. It is also
submitted, that the I.O. has not been examined by the
prosecution and for non-examination of the I.O. great
prejudice has been caused to the defence. Thus, the
prosecution has utterly and miserably failed to substantiate the
prosecution case against the appellant beyond all reasonable
doubt by adducing convincing, trustworthy and reliable
evidence. Hence, the impugned judgment and order of
conviction and sentence passed against the appellant by the
learned trail court is liable to be set aside and appellant is
entitled to be acquitted.
13. On the other hand, learned APP advocating
the correctness and validity of the impugned judgment and
order of conviction and sentence submitted that the victim has
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supported the occurrence in toto and other witnesses have also
corroborated the aforesaid occurrence and learned trial court
correctly appreciating the facts and evidence on record has
rightly passed the impugned judgment and order of conviction
and sentence which is liable to be upheld and this appeal is
shorn of merit and is liable to be dismissed.
14. From perusal of record it appears that to
substantiate its case the prosecution has examined four
material witnesses of the case. Out of the aforesaid witnesses,
PW-2 Jeevchhi Devi happens to be mother of the victim.
Though, PW-2 has made an abortive bid to support the
prosecution case deposing in consonance to the prosecution
case, claiming herself to be eye witness of the occurrence, but
from perusal of testimony of the victim PW-4 Priyanka
Kumari, it appears that PW-2 does not happen to be eye
witness of the occurrence as PW-4 has stated in paragraph 33
of her cross-examination that Dev Naryan Yadav gave
information of teasing her (PW-4) by the accused to her
mother on 15.12.2009 and called her, then her mother gave
information of the occurrence to the police at the Police
Station. The aforesaid statement of the victim candidly
indicates that her mother was not present at the place of
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occurrence at the time of occurrence rather she was called
there by her Samdhi Dev Narayan Yadav informing her about
teasing the victim by the appellant.
15. Though, PWs- 1, 3 and 4 have supported the
offence of attempt of kidnapping of the victim by the appellant
by deposing in their respective examination-in-chief in
consonance with the prosecution case, but from perusal of
their testimony, it appears that they have not whispered about
extending threatening by the appellant of kidnapping the
victim at the time of occurrence. It is the case of the
prosecution that the appellant made an attempt to kidnap
minor daughter of the informant from the house of Samdhi of
the informant, namely, Dev Narayan Yadav and PWs- 1, 2, 3
and 4 have also stated in consonance with the aforesaid
prosecution case in their respective examination-in-chief. But,
victim PW-4 has stated in paragraph 33 of her cross-
examination that Dev Narayan Yadav had given information to
her mother on 15.12.2009 regarding teasing her by the
appellant Jagdish Chauhan. The aforesaid statement of the
victim completely rules out the aforesaid allegation of attempt
of kidnapping the victim by the appellant and creates serious
doubt about the credibility of aforesaid witnesses and
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prosecution case. As as per the aforesaid account of the victim,
the appellant appears to have only teased the victim at the time
of occurrence and had not made any attempt to kidnap her or
extended threatening of he kidnapping.
16. From perusal of the written report, it appears
that the aforesaid written report was scribed by Dev Narayan
Yadav on 14.12.2009, but the victim PW-4 has stated in
paragraph 33 of her cross-examination that Dev Narayan
Yadav had called her mother giving information of teasing her
by the accused Jagdish Chauhan on 15.12.2009 and then her
mother had rushed to the police station and gave information
at the Police Station. The aforesaid statement of the victim
creates serious doubt about the aforesaid written report and
prosecution case due to following reasons. Firstly, as per the
statement of the victim her mother had arrived on 15.12.2009
at the place of occurrence on the call of Dev Narayan Yadav
and had rushed to the Police Station and informed the matter
to the police at the Police Station. But, the aforesaid written
report which is of 14.12.2009 bears LTI of the informant
which means that the said written report is anti-dated.
Secondly, as per the statement of the victim, her mother gave
information to the police at the Police Station regarding the
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occurrence of teasing her by the accused. In the said
paragraph, she has not stated about lodging of the written
report by the informant regarding the occurrence of attempt of
kidnapping etc. getting the same scribed by Deo Narayan
Yadav while aforesaid written report which has been made the
basis of the FIR is regarding the offence of kidnapping etc.
and not teasing the victim by the appellant. Thirdly, as per the
statement of the victim as given by her in paragraph 30 and
33 of her cross-examination, her mother had given
information of the occurrence at the Police Station on
15/12/2009at 05:00 PM while the occurrence is of 02:00 PM, but from perusal of the FIR, it appears that the information of the occurrence was given at the Police Station on 15.12.2009 at 01:40 PM i.e. preceding to the occurrence and giving information of the occurrence by the informant at the Police Station. Fourthly, as per the account of the victim as given by her in paragraph 30 and 33 of her cross-examination the occurrence is of 02:00 PM on Monday and her mother had given information to the Police at 05:00 PM on 15.12.2009 on giving information to her by Dev Narayan Yadav calling her at the place of occurrence. The aforesaid statement of the victim goes to indicate that the offence is of 15.12.2009 at 02:00 PM, Patna High Court CR. APP (SJ) No.101 of 2013 dt.25-10-2018 11/13 but in the written report the occurrence is said to be of 14.12.2009 at 02:00 PM.
17. As per the prosecution case, the informant had sent the victim to the house of her Samdhi Dev Narayan Yadav (Father-in-law of her elder daughter), at village Bochi where the aforesaid occurrence took place and PW-1, PW-2, PW-3 and PW-4 have also unanimously stated about the commission of the occurrence at the house of Dev Naryan Yadav located at village Bochi. But, in quite contradiction to the aforesaid prosecution case and account of the witnesses, the victim has stated in paragraph 30 of her cross-examination that accused Jagdish Chauhan had committed the occurrence against her on Monday at Madanpur. The aforesaid statement of victim completely changed the place of occurrence and rules out the aforesaid prosecution case and create serious doubt about the credibility of the aforesaid witnesses.
18. The victim has entirely changed the place of occurrence and I.O. of the case has not been examined by the prosecution to prove the place of occurrence. Thus, the place of occurrence does not stand established by the prosecution.
19. The informant PW-2 Jeevchhi Devi has stated in paragraph 22 of her cross-examination that the accused Patna High Court CR. APP (SJ) No.101 of 2013 dt.25-10-2018 12/13 Jagdish Chauhan had lodged the case against her and her daughter Priyanka on 21.07.2009. In paragraph 25 of her cross-examination, she has further stated that the aforesaid case was numbered as Bairgachhi P.S. Case No. 408 of 2009 and Priyanka, Dev Narayan Yadav, Vikas Yadav and she were summoned at the Police Station in connection with the said case, but they were released after grilling. In paragraph 26 of her cross-examination she has also stated that she had met accused Jagdish Chauhan to get the aforesaid Bairgachhi P.S. Case No. 408 of 2009 compromised. PW-4 Priyanka Kumari has also stated in paragraph 16 of her cross-examination that Jagdish Chauhan had lodged a case against her mother, brother-in-law (Behnoi) and others. In paragraph 25 of her cross-examination, she has further stated that Officer in-charge of P.S. Bairgachhi, namely, Lallan Paswan had visited her house twice in connection with the case lodged by Jagdish Chauhan. The aforesaid statement of the said witnesses indicates that the appellant had lodged the case against the informant, Dev Narayan Yadav, victim and others preceding to the case under hand and the informant wanted to get the aforesaid case lodged by the appellant compromised. Thus, there appears to be animosity between both the parties Patna High Court CR. APP (SJ) No.101 of 2013 dt.25-10-2018 13/13 in the case. Though, animosity cuts both the edges, but in view of aforesaid contradiction between lodging of the FIR, time of giving information to the Police Station, time of occurrence, manner of occurrence, place of occurrence, not establishing of place of occurrence false implication of the appellant due to the aforesaid animosity cannot be ruled out.
20. In the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to bring home the charges levelled against the appellant beyond all reasonable doubts by adducing convincing, cogent, consistent and worth credence evidence. Hence, the impugned judgment and order of conviction and sentence passed by learned trial court against the appellant is set aside and the appellant is acquitted of the charges levelled against him. As the appellant is on bail, he is discharged from the liability of the bail bonds. Accordingly, this Criminal Appeal is allowed.
(Prakash Chandra Jaiswal, J) rohit/-
AFR/NAFR NAFR CAV DATE N.A. Uploading Date 30-10-2018 Transmission Date 30-10-2018