Sahman Mian vs State Of Jharkhand

Heard, Mr. Ranjan Kumar Singh, learned counsel for the appellants and Mr. Vinay Kumar Tiwari, learned Additional Public Prosecutor appearing

for the State.

The instant Criminal appeal is directed against the Judgment of conviction and order of sentence, both dated 17.06.2004, passed by the learned

Additional Sessions Judge, Fast Track Court-IV, Deoghar, in Sessions Case No.45 of 1989, whereby both these appellants have been convicted under

Sections 451/ 34 I.P.C., but by the same impugned judgment, these two appellants have been acquitted of the charge, under Sections 376/34 I.P.C.

The learned trial court has awarded rigorous imprisonment for 2 years and fine amount of Rs.1,000/- each, for the offence committed and punishable

under Sections 451/ 34 I.P.C. and in case of default in payment of fine, to further undergo one month imprisonment each.

The prosecution case is based upon fardbeyan of one Chameli Devi, before the Officer In-Charge, Karaon Police Station, wherein, the informant

has alleged, that on 16.02.1989, at around 10.30 P.M., while the informant along with younger brother, Meghu Pujhar were sleeping in the house, the

accused persons were pushing the door of the informant, on hearing the sound of the door, the informant woke up and recognized the voice of Saman

@ Sahman Mian (appellant No.1), who was asking to open the door and when the informant did not open the door, then the accused persons abused

and threatened them and tried to damage the door. Under such fear, younger brother of the informant, Meghu Pujhar opened the door. The informant

has alleged, that Sahman Mian, Kanu Mian and Sanaul Mian were forcibly entering into her house. They dragged the informant, Chameli Devi in the

courtyard and locked the younger brother of the informant inside the adjacent room and committed sexual assault upon the informant. After

committing crime, the accused persons locked the informant from outside of the house and fled away, in the morning on brawl raised by the informant,

mother of informant's and a co-villager, namely, Mahadev Pujhar opened the door and in the meantime, mother of the informant also came to the

house, to which the informant disclosed the entire incident. Subsequently, the informant went to maternal uncle's house and thereafter, they met

'Mukhiya' and then on advice by the Mukhiya, the informant went to the Police Station, where her statement was recorded by the Officer in-charge

Karaon Police Station.

On the basis of the fardbeyan of informant, the Police instituted First Information Report bearing Karaon P.S. Case No. 9 of 1989, dated

21.02.1989, under Sections 448,376, 34 of the Indian Penal Code.

After investigation, the Police has submitted charge-sheet against all the three accused accused persons vide charge-sheet No. 11 of 1989 dated

30th  March of 1989, under sections 448/ 376/ 34 of the Indian Penal Code.

The cognizance of the offence has been taken vide order dated 28.04.1989 and the case was committed to the Court of Sessions vide dated

23.06.1989.The charge has been framed against all three accused persons on 29.4.1991, under sections 451 /34 and 376/34 of the Indian Penal Code,

to which the appellants have pleaded their innocence and thus, were put under trial.

The prosecution, in order to prove its case, has examined altogether four witnesses.

P. W. 1 is Dr. Gita Biswas, who has proved the injury report of victim (Chameli Devi) as Exhibit â€" 1, P.W.2 is Meghu Pujhar, who is younger

brother of the informant and eye witness to the occurrence, P.W. 3 is Chhabi Pujhiran, mother of the informant and a hearsay witness and P.W.4 is

Md. Yunus, who has been declared hostile by the prosecution.

The prosecution has also proved one document, which is medical evidence of victim (Chameli Devi), which has been proved and marked as Exhibit -1.

After closure of the prosecution evidence, the statement of the appellants/ accused has been recorded under section 313 Cr.P.C. on 10.06.2004, to

which they have pleaded that false evidence has been brought on record and they are innocent.

After hearing learned counsel for the parties and from the material available on record, the learned trial Court passed the impugned judgment of

conviction and order of sentence against these appellants namely Sahman Mian, Kanu Mian including one Sanaul Mian, who died during the trial.

Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, both the appellants have preferred the instant

Criminal Appeal, assailing the impugned judgment of conviction and order of sentence.

Heard, learned counsel for the appellants, Mr. Ranjan Kumar Singh.

 Learned counsel appearing for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and

cannot sustain in the eyes of law.

Learned counsel for the appellants has further submitted that there is inordinate delay in lodging the First Informant Report as the occurrence took

place on 16.02.1989, but the First Informant Report has been lodged on 21.02.1989. There is no explanation for such delay.

Learned counsel for the appellants has further submitted that the appellants have already been acquitted for the charge under Section 376 of the

Indian Penal Code and the State or the informant has not preferred any acquittal appeal before this Hon’ble Court and, as such, the same reached

its finality.

Learned counsel for the appellants has further submitted, that the informant, Chameli Devi and Investigating Officer of the case have not been

examined in this case and as such, the appellants have been seriously prejudiced because of non-examination of the Investigating Officer and the

informant of the case, as such, they could not draw the attention of the court by elucidating the facts, that they have been falsely implicated at the

hands of the informant, Chameli Devi in connivance with the Police officer for ulterior motive.

Learned counsel for the appellants has further submitted, that Maghu Pujhar (P.W.2) is the only eye witness to the occurrence and the independent

witness, examined as P.W.4 (Md. Yunus), has been declared hostile by the prosecution.

Learned counsel appearing for the appellants has further submitted that First Informant Report has not been proved and exhibited and as such, the

evidence of P. W.2 (Meghu Pujhar) is not consistent with the prosecution case.

Learned counsel appearing for the appellants relying on the aforesaid submissions, has submitted that under the aforesaid background, the appellants

may be acquitted of the charge and conviction under sections 451/34 of the Indian Penal Code.

Mr. Vinay Kumar Tiwari, learned Additional Public Prosecutor appearing for the State, has submitted that the impugned judgment of conviction

and order sentence has been passed on the material available on record, as such, the learned trial Court has rightly convicted the appellants under

Sections 451/34 of the Indian Penal Code.

Heard, Mr. Ranjan Kumar Singh, learned counsel appearing for the appellants, and Mr. Vinay Kumar Tiwari, learned Additional Public Prosecutor

appearing for the State and from perusal of the material available on record i.e. the injury report (which has been proved and marked as Exhibit 1) and

the depositions of four prosecution witnesses, statement of the appellants recorded under Section 313 Cr.P.C., this Court is of the opinion that the First

Information Report has not been proved and exhibited. Exhibit-1 is the medical evidence which has no relevancy with respect to the present appeal, as

the appeal has been filed against the conviction of the appellants under Sections 451/34 of the Indian Penal Code.

This Court has also found that P.W.1 (Dr. Gita Biswas) has proved medical report, which has no relevancy with the present case. The mother of the

informant, Chhabbi Pujhiran, who has been examined as P.W. 3, is a hearsay witness.

This Court has also found that the independent witness, namely Md. Yunus (P.W.4) has been declared hostile by the prosecution. The Court has

examined the evidence of P.W.2 (Meghu Pujhar), but in absence of First Information Report, which has not been brought on record, the conviction

of the appellants under Sections 451/34 of the Indian Penal Code, is not sustainable in the eyes of law, as the informant (Chameli Devi) and the

investigating officer of the case have not been examined in this case.

Considering the above facts and discussions made herein-above, this Court is of the opinion, that the appellants Sahman Mian and Kanu Mian be

acquitted of the charge and conviction under Sections 451/34 of the Indian Penal Code by giving benefit doubt, in absence of proving the fardbeyan

and for non-examination of the informant as well as Investigating Officer of the case.

Thus, the Judgment of conviction and order of sentence, both dated 17.06.2004, passed by the learned Addl. Sessions Judge, Fast Track

CourtIV, Deoghar, in Sessions Case No.45 of 1989Â is hereby set aside by giving benefit of doubt to the appellants.

The appellants, who are already on bail and as such, they are discharged from the liability of their bail bonds.

Accordingly, the instant Criminal appeal stands allowed.

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