Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.47 of 2000 =========================================================== AGAINST THE JUDGMENT OF CONVICTION DATED 14.12.1999 AND ORDER OF SENTENCE DATED 15.12.1999, PASSED IN SESSIONs TRIAL NO. 56 OF 1997/335 OF 1994 (D.J.) BY THE ADDITIONAL SESSIONS JUDGE, 5TH, GAYA. =========================================================== Vijay Choudhary, son of Nandu Choudhary, resident of Village Jondhi, P.S. Raushanganj (Banke Bazar), District Gaya. .... .... Appellant Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant : For the State : =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 24-08-2012 S.A. Khan, J. This appeal is directed against the judgment of conviction dated 14.12.1999 and order of sentence dated 15.12.1999, passed in Sessions Trial No. 56 of 1997/335 of 1994 (D.J.) by the Additional Sessions Judge, 5th, Gaya convicting the sole appellant for offences under [STATUTE] to undergo R.I. for 7 years. 2. On the basis of a written report of Gayatri Kumari this case was instituted. She has stated that she was going to learn stitching at ‘Prayas Sanstha’ which is situated at Banke Bazar. On the way, just before the river, when she came near an orchard, she saw the appellant. He was carrying a container of toddy. When he reached Patna High Court CR. APP (SJ) No.47 of 2000 dt.24-08-2012 2 / 5 2 near her, he grabbed her neck. She tried to free herself and fell down in the process. The informant then took out her slippers and assaulted him and shouted for help. It is said that Karu Yadav, Raju Singh and Rameshwar Mahto had witnessed the said occurrence. To explain the delay in lodging the First Information Report, it is stated that the male members of her family were not present in the house and, therefore, she could not report the matter to the police. She has also stated that after the occurrence she went to complaint to the Mukhiya of the village and narrated the occurrence to him. 3. The defence on behalf of the appellant is that no such occurrence took place and that he has been implicated at the instance of the persons named as witnesses as he did not allow them to collect toddy from the trees. 4. Counsel for the appellant submits that no offence is made out under [STATUTE] or for that matter [STATUTE] . It is submitted that the ingredients of Section 354 are that some attempts should be made to outrage the modesty of a girl/lady or that the offender should commit an overt act which would be constituted to be sexually oriented. 5. In order to prove the prosecution case eight witnesses have been examined. P.W. 8 is merely a formal witness. P.W. 7 has been declared hostile. This Court, therefore, has to examine the five Patna High Court CR. APP (SJ) No.47 of 2000 dt.24-08-2012 3 / 5 3 witnesses in support of the prosecution case. 6. P.W. 1 claims to be an eye witness to the occurrence. In his chief he has stated that he was sitting near the river when he saw Vijay Choudhary. It is alleged that he threw her on the ground in order to outrage her modesty. He also supported the prosecution case to the extent that he says that after the occurrence the victim girl along with the persons who were present at the place of occurrence went to the house of the Mukhiya. 7. P.W. 2, Arjun Prasad is not named in the First Information Report. According to him he went to the place of occurrence when he heard a sound of voices and saw Vijay Choudhary assaulting Gayatri Kumari. 8. P.W. 3, Rameshwar Mahto although claims to be an eye witness has stated at paragraph 4 that he came to the place of occurrence when he heard the sound of alarm. He also states that he went to the house of Mukhiya to make a complaint. 9. P.Ws. 4 and 5 are hearsay witnesses to the occurrence. They have supported the case of the prosecution to the extent that they had also heard of the occurrence and learnt that Vijay Choudhary had threw the victim girl on the ground in order to outrage her modesty. 10. On perusal of the evidence, certain other facts are Patna High Court CR. APP (SJ) No.47 of 2000 dt.24-08-2012 4 / 5 4 relevant. That all the witnesses have denied the suggestion and some of them have stated that there was some sort of dispute between the witnesses and the appellant with respect to collection of toddy. Infact P.W. 4 says that these witnesses have prevented the appellant from collecting toddy from the trees which according to P.W. 4 created heart burn between the parties. To this extent the defence on behalf of the appellant appears to be correct, in as much that there is obvious rivalry between the appellant and the witnesses. It may be further pointed out that as far as P.Ws. 2, 3 and 4 are concerned, they have not seen the occurrence taking place and as such their evidence regarding the manner of occurrence cannot be considered to be an authentic reproduction of the occurrence. Although P.W. 3 claims to be an eye witness, he has stated in his cross-examination, that he only came to the place of occurrence after it had taken place, therefore, apart from P.W. 1 and the informant there are no eye witnesses to the occurrence. On perusal of the evidence, this Court finds that even if the evidence of P.W. 1 and the informant, P.W. 7 is accepted in his entirety, no case is made out under [STATUTE] in view of the statement of the girl that Vijay Choudhary had attacked her by catching hold of her neck and she had responded by hitting him with her slippers. Thus the facts narrated by her leads this Court to conclude that Vijay Choudhary was not trying to outrage Patna High Court CR. APP (SJ) No.47 of 2000 dt.24-08-2012 5 / 5 5 her modesty. On the other hand, the narration of Gayatri Kumari tha

Applicable IPC Section: 376

Statute Text:
Section 376 of the Indian Penal Code. Rape. Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.