Nagendra Prasad vs The State of Jharkhand

D.K. Sinha, J.—Instant criminal appeal is directed against the judgment of conviction and order of sentence, passed by Shri A.K. Roy,

Additional Sessions Judge, F.T.C.-II, Dhanbad in S.T. No. 228/99, by which the sole appellant was convicted u/s 225 of the Indian Penal Code

and sentenced to undergo imprisonment for one month twenty-five days.

Prosecution story in short as stands narrated in the fardbeyan of the informant P.W.-7 Babita Devi was that on 16.10.1998 at about 8:00 a.m.

while she was carrying food for her husband from home village Nipania towards Rakhitpur railway station and arrived near Mangala Bandh, she

was forcibly overpowered by a fat man of fair complexion, aged about 25-30 years, who dragged her towards (sic) place and forcibly committed

rape on her. After commission of the offence, the culprit proceeded towards Rakhitpur railway station and she followed the culprit in the same

direction to Rakhitpur railway station where her husband used to (sic) as labourer. As soon as she came across her husband, she raised alarm by

pointing out towards the person who had committed rape on her, whereupon her husband Bishun Mahato immediately rushed there and caught

hold of him, to which there started scuffle between the two. It was stated that in the meantime an employee of the station, namely, Nagendra

Prasad intervened and restrained her husband by holding him. In the meantime, the train arrived and the principal accused immediately boarded the

train and escaped by removing his body from the arms of the husband of the informant. On the alarm there being raised by her husband, by-

passers assembled there and it could be gathered that the appellant Nagendra Prasad, who was an employee of railway, voluntarily facilitated the

principal accused to escape. Her statement was recorded by the police at her home in presence of the witnesses on the basis of which, Baliapur

P.S. Case No. 97/98 was registered for the alleged offence under Sections 376/225 of the Indian Penal Code and the police after investigation

submitted charge-sheet against both the accused Nagendra Prasad (appellant) and Raj Kumar Yadav @ Raju under Sections 376/225 of the

Indian Penal Code.

Charge against the principal accused Raj Kumar Yadav @ Raju was framed u/s 376 of the Indian Penal Code, whereas against the appellant

Nagendra Prasad charge was framed only u/s 225 of the Indian Penal Code and both were put on trial. After criminal trial of both the accused, the

appellant-Nagendra Prasad was convicted u/s 225 of the Indian Penal Code and accordingly, sentenced to undergo imprisonment for one month

twenty-five days i.e. the period already undergone by him in the custody during trial, whereas the principal accused Raj Kumar Yadav @ Raju

was convicted u/s 354 of the Indian Penal Code and similar sentence for the period already undergone by him in the judicial custody was awarded

to him.

Appellant Nagendra Prasad preferred the instant appeal having been sissatisfied with the judgment of his conviction and order of sentence that

he had already served out.

Mr. Chatterjee, the learned Counsel appearing on behalf of the appellant at the outset submitted that the appellant was convicted by the Trial

Court without legal evidence on the record and Trial Judge failed to appreciate the provisions of Section 225 of the Indian Penal Code, which

speaks,

Resistance or obstruction to lawful apprehension of another person.- Whoever intentinally offers any resistance or illegal obstruction to the

lawful apprehension of any other person ofr an offence, or rescues or attempts to rescue any other person from any custody in which that person is

lawfully detained for an offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine,

or with both;

By explaining the provision of law, Mr. Chatterjee submitted that it was nowhere alleged that the appellant Nagendra Prasad got the principal

accused released from the lawful custody or her put obstruction in lawful apprehension of the appellant. Defence of the appellant was that he

intervened only with a view to pacifying the matter but he was falsely implicated in the instant case. There was no eye-witness of the occurrence

except the informant P.W.-7 Babita Devi and her husband P.W.-8 Bishun Mahato, yet, the credibility of their statements can very well be

impeached.

Advancing his argument, Mr. Chatterjee submitted that it would be relevant to mention that the informant P.W.-7 Babita Devi did not support

the complicity of the appellant Nagendra Prasad at all in her substantive evidence, as such she was declared hostile. In the cross-examination, she

clearly stated that she had not introduced the name of the appellant Nagendra Prasad before the police. Similarly, P.W.-8 Bishun Mahato also did

not support the complicity of the appellant Nagendra Prasad in any manner for the alleged offence u/s 225 of the Indian Penal Code.

Mr. Chatterjee strongly contended that the appellant Nagendra Prasad was confronted with such materials during his statement recorded u/s

313 of the Code of Criminal Procedure, which were never brought on the record on behalf of the prosecution, for that the appellant is higly

prejudiced and on this ground alone, the appellant may be acquitted, None of the material witnesses either P.W.-7 or P.W.-8 has implicated the

appellant in any manner but a question was put to him that he facilitated the principal accused to escape from the arms of P.W.-8 by catching hold

of him whereas this fact was never brought on the record. As matter of fact, there was no legal evidence at all against the appellant, therefore, he

may be acquitted.

Mr. Hatim, the learned A.P.P. fairly conceded that P.W.-7 Babita Devi and P.W.-8 Bishun Mahato have not supported the complicity of the

appellant for the alleged charge u/s 225 of the Indian Penal Code.

Having regard to the facts and circumstances of the case, I find that the appellant Nagendra Prasad has been convicted u/s 225 of the Indian

Penal Code for the allegation that he got a person released, who was an accused for the alleged offence of rape from the arms of the P.W.-8. I

find substance in the argument that the principal accused Raj Kumar Yadav @ Raju was not in the lawful custody of P.W.-8 Bishun Mahato if at

all the prosecution case could be considered but this fact could not be substantiated by the evidence (sic) on behalf of the prosecution. Neither the

prosecutrix nor her husband P.W.-8 supported the complicity of the appellant for the alleged charge and I find that the learned Trial Judge without

material on the record committed gross error in convicting the appellant u/s 225 of the Indian Penal Code and sentencing (sic).

(sic).