Jharkhand High Court
Bisheshwar Murmu vs State Of Bihar (Now Jharkhand) on 30 July, 2003
Equivalent citations: 2004CRILJ326, [2003(4)JCR468(JHR)]
Author: Lakshman Uraon
Bench: Lakshman Uraon
ORDER Lakshman Uraon, J.
1. This appeal is directed against the judgment and order of conviction and sentence dated 18.5.1991 and 21.5.1991 respectively passed by Sri Ram Vyas, Ram, 4th Additional Sessions Judge, Dumka in Sessions Case No. 422/ 1990, whereby and whereunder, the appellant was convicted under Section 376, IPC and sentenced to undergo RI for five years.
2. The prosecution case has arisen on the basis of the written report, given by the informant, Chanchalakali Dasi, PW 1, to the Officer-in-Charge, Masalia-P.S., on that the basis of formal FIR, Ext. 3, was drawn. The informant has alleged that as usual on 14.12.1987 at 6 a.m. she was going to sell murhi to Golbazar. On her way to Golbazar when she reached Sitpahari, then the appellant, Bisheshwar Murmu, who was sitting there, forcefully caught hold of her with an intention to outrage her modesty. When she raised alarm then the appellant fled away. Shivlal Murmu (not examined) of village Bediakla saw the alleged occurrence. She has alleged that the appellant carries a bad reputation and he always used to commit such type of offence in the village. On 15.12.1981 there was a panchaiti in the village regarding the alleged occurrence but the appellant did not participate in that meeting rather he threatened the informant that he would not spare the informant lightly. Therefore, on 17.12.1987 she informed the Officer-in-Charge of Masalia P.S. about the alleged occurrence.
3. The learned Court below, framed charge under Section 376/511, IPC against the appellant and examined PW 1, Chanchalakali Dasi, the informant, PW 2, Kashinath Mandal, PW 3, Kanto Goasai, PW 4, Hiralal Mandal, PW 5 Bablu Hembrom, PW 6, Nunu Lal Hembrom, PW 7, Shankar Gorai, PW 8, Radha Gupta and PW 9, Subhash Pd. Choudhary, IO of this case. The learned Court below found that the informant, PW 1, has supported her written information and she had informed about the alleged occurrence to all the village witnesses, PWs 2-7, who are hearsay witnesses but had seen the appellant fleeing away from the P.O. convinced by the evidence of these witnesses, the learned Court below Convicted the appellant under Section 376/511, IPC and sentenced him to undergo RI for five year.
4. Assailing the judgment and order of conviction and sentence passed by the learned Court below. Mr. Ravi Prakash, the learned amicas curiae on behalf of the appellant, has submitted that in this case the only eye-witness, Shivlal Murmu, who has been mentioned in the written information, has not been examined, PW 5, Bablu Hembrom, Pradhan of the village and PW 6, Nunu Lal Hembrom, are the hearsay witnesses. The informant has not alleged in the written information that she was made naked but she has improved her statement in course of evidence that the appellant caught hold of her, made her naked and threw on the ground with an intention to commit rape upon her. There is a delay of three days in institution of this case. The informant is an old aged lady having grand son aged about seven years. The appellant is also a married person having children. The enmity is admitted in between the parties and due to animosity the appellant has falsely been implicated in this case.
5. The learned APP refuting the argument advance on behalf of the appellant, has submitted that the informant, Chanchalakali Dasi, PW 1, has corroborated the prosecution case that this appellant caught hold of her at Sitpahari, made her naked, threw her on the ground and tried to commit rape on her. When she raised alarm, Shivlal Murmu reached there and then the appellant fled away. The other witnesses, PW 2, Kashinath Mandal, PW 3 Kanto Goasi, PW 4, Hiralal Mandal, PW 5, Bablu Hembrom, PW 6, Nunu Lal Hembrom and PW 7, Shankar Gorai, rushed to the P.O. on hearing the alarm of the informant and saw this appellant fleeing away from the P.O. The informant narrated before them regarding the attempt of the appellant to commit rape on her. In view of this fact, the learned APP has submitted that although the ingredients of Section 376 read with Section 511, IPC, is not attracted but there is reliable evidence of the witnesses that they saw the appellant fleeing away who had attempted to outrage the modesty of the informant, PW 1, Chanchalakali Dasi, who has alleged that the appellant had caught hold of her with an intention to commit rape on her. In view of this fact, the prosecution has proved its case for the charge punishable under Section 354, IPC.
6. Chanchalakali Dasi, the informant, PW 1, is a widow aged about 41 year. She used to earn her livelihood by selling murhi in Stipahari Market. On the alleged date of occurrence when she was going to market at 8 a.m. then the appellant who was sitting there, caught her hand. When she raised alarm, Shivlal Murmu reached there and then the appellant fled away. In her written information she has not alleged that the appellant made her naked and threw her on the ground to commit rape on her. But she simply stated that this appellant caught hold of her with an intention to commit rape on her. On hearing the alarm, PW 2 Kashinath Mandal, went there and saw the appellant fleeing away. He was informed by the informant that the petitioner had caught hold of her, made her naked and attempted to commit rape upon her. This witness, PW 2 did not see her in the naked position rather simply saw the appellant fleeing away. Similar is the evidence of PW 3, Kanto Gosai, PW 4, Hiralal Mandal, PW 5, Bablu Hembrom, PW 6, Nunu Lal Hembrom and PW 7, Shankar Gorai. There was a panchaiti regarding the alleged occurrence but in that panchaiti the appellant had not appeared. The witnesses have alleged that the conduct of the appellant is not good. In earlier occasions also he had attempted to commit rape in the village with other females. However, PW 8, Radha Gupta, oh 17.12.1987 examined the victim but he did not find any injury or sign of rape on her person. PW 9, Suibhash Pd. Chaudhary, I.O. of this case, has deposed that Shivlal Murmu who was the eye-witness, has died. He had stated before him that while he was grazing cow, he saw a man catching hold of the informant. When he rushed there then that man fled away. The informant, Chanchalakali Dasi, informed him that Bisheshwar Murmu, the appellant, tried to commit rape on her. The I.O., PW 9, has stated that in course of inquiry, Chanchalakali Dasi has not stated before him under Section 161, Cr PC that she was made naked and thrown on the ground with an intention to commit rape on her.
7. When considered all the pros and cons of the prosecution case, I find that the prosecution could not substantiate the charge levelled against the appellant under Section 376/511, IPC. On the other hand, I find that the informant, Chanchalakali Dasi, PW 1, has stated that she was caught hold by the appellant with an intention to commit rape on her. When she raised alarm, Shivlal Lal Murmu reached there and saw the appellant fleeing away. He alongwith the other witnesses, PW 2 to PW 6, have supported the prosecution case by stating that when he reached at the P.O., the informant narrated the entire story of the appellant who had caught hold of her with an intention to commit rape on her. In earlier occasions also the appellant had committed such offence with other girls and women of the village. A panchaiti was held regarding the alleged occurrence but in that panchaiti the appellant did not appear. When considered all these aspect, I find that only eye-witness, Shivlal Murmu, could not be examined as he is no more but his evidence, recorded by the I.O., and as deposed by PW 9 that he saw the appellant fleeing away from the P.O. who had tried to commit rape by catching hold of the hand of the informant, is supported by the informant and other witnesses. Hence an offence under Section 354, IPC is made out against the appellant for which he cannot escape from the punishment.
8. Viewed thus, I find that the prosecution has proved the charge under Section 354, IPC against the appellant and accordingly he is convicted under Section 354, IPC. As the prosecution could not establish the charge under Section 376/511, IPC, the judgment and order of conviction and sentence passed by the learned Court below under Section 376/511, IPC cannot be sustained.
9. In the result, this criminal appeal is, hereby, dismissed with the modification of conviction and sentence from Section 376/511 into that of Section 354, IPC and the period of sentence already undergone by the appellant. As the appellant is on bail, he is discharged from the liability of his bail-bonds, furnished in this case.