Criminal Appeal (SJ) No. 283 of 1993 *** Against the judgment dt. 17.8.93 and the order dt. 18.8.93 passed by Sri Rameshwar Prasad Verma Verma, 5th Additional Sessions Judge, Bhagalpur, in Sessions Trial No.13 of 1984. *** 1. Sk. Sekhawat alias Sukhia & 2. Sk. Mohammad ……. Appellants Versus The State of Bihar …….Respondent *** For the appellants : M/s Uma Kant Prasad & Rajiv Ranjan Singh, Advocates For the State : Mr. Nand Kishore Prasad, A.P.P. *** P R E S E N T Hon’ble Mr. Justice Syed Md. Mahfooz Alam *** S.M.M.Alam, J. This criminal appeal is directed against the judgment dated 17th August, 1993 and the order dated 18th August, 1993 passed in Sessions Trial No.13/84 by Sri Rameshwar Pd. Verma, 5th Additional Sessions Judge, Bhagalpur, whereby he has convicted both the appellants under section 395 of the Indian Penal Code and further convicted appellant Sk. Mohammad under section 376 of the Indian Penal Code. The learned court below after convicting both the appellants under section 395 of the Indian Penal Code sentenced them to undergo rigorous imprisonment for seven years. The court below further sentenced appellant Sk. Mohammad to undergo rigorous - 2 - imprisonment for ten yeas under section 376 of the Indian Penal Code and directed that both the sentences shall run concurrently. 2. The prosecution case as per the statement of the informant Patti Yadav (P.W.2) recorded by the Officer in Charge of Sanhaula P.S. on 15.2.1983 at about 11.00 am at the Police Station, in brief, is that in the previous night in between the night of 14/15.2.83 at about 1.15 AM the informant was lying on a cot at his Bungalow. One Sk. Tameez was sleeping with the informant. The informant’s wife Sharda Devi was sleeping on the ground near the cot of the informant. At about 1.30/2.00 AM three persons came there and after flashing torch light asked him to serve water to them. The informant suspected that all the three persons were criminals. He informed Sk. Tameez about their presence. In the meantime, one of the miscreants, who was armed with a pipe gun, put the gun on the chest of the informant and other two miscreants tied the hands of Sk. Tameez and threatened that if they would raise hall they would be shot dead. Thereafter, eight miscreants entered into the house of the informant. One of them picked up the informant’s wife and forced her to go inside the house. The miscreants asked her to get the door of the room opened, whereupon, informant’s wife called her daughter-in-law and asked her to open the door. As soon as the informant’s daughter-in-law opened the door three miscreants, namely, Sk. Irfan (not appellant), Sk. Mohammad (appellant no.2) and Sk. Sukhiya, all co-villagers of the informant, entered into the room of the informant’s daughter-in-law. - 3 - The informant’s wife was forced to sit down in the court yard. The dacoits picked up utensils, food grains and cash valued at Rs.750/-. After fleeing away of the dacoits, the informant’s wife told the informant that out of the three dacoits, who had entered into the room of her daughter-in-law, two had outraged the modesty of her daughter- in-law. 3. On the basis of the statement of informant Patti Yadav (P.W.2), Sanhaula P.S. case no.14 of 1983 under sections 395 and 376 of the Indian Penal Code was instituted against the appellants and one Sk. Irfan and investigation of the case was taken up. After investigation of the case, the police submitted charge sheet against accused Sk. Irfan, Sk. Mohammad and Sk. Sukhiya on the basis of which cognizance was taken and the case of the appellants was committed to the court of Sessions. During the pendency of the case, Sk. Irfan died and, as such, only two persons, who are appellants before me, were put on trial and by the impugned judgment the appellants were convicted and sentenced as stated above. 4. The defence of the appellants was that they are co- villagers of the informant and they have got their lands adjacent to the lands of the informant and due to the land dispute between the informant on the one side and the accused on other side the appellants have been falsely implicated in this case. 5. From perusal of the judgment of the trial court, it appears that in order to prove its case the prosecution has examined nine - 4 - witnesses, namely, Prabha Kumari (P.W.1), Patii Yadav (P.W.2), Naresh Yadav (P.W.3), Sikandar Yadav (P.W.4), Narsingh Thakur (P.W.5), Gore Lal Yadav (P.W.6), Ramayan Mishra (P.W.7), K.K.Singh (P.W.8) and Jitani Devi (P.W.9). Out of the above said witnesses, P.W.2 Patti Yadav is the informant of this case, P.W.1 Prabha Kumari is the minor daughter of the informant, P.W.4 Sikandar Yadav is the son of the informant, P.W.9 Jitani Devi is the victim, whose modesty had been outraged by the two dacoits, P.W.6 Gore Lal Yadav is a tendered witness, P.W.7 Ramayan Mishra is the Police Officer, who had produced the seized Saya/ Sarree/ Blouse of the victim (P.W.9) which have been marked as material Ext. I,II and III respectively. P.W.8 K. K. Singh is the Investigating Officer of the case, P.W.5 Narsingh Thakur is a co-villager of the informant but he has been declared hostile. 6. P.W.2 Patti Yadav, who is the informant of this case, has deposed that about five years ago in the night the occurrence had taken place. At that time, he was sleeping with one Sk. Tameez (not examined). At about 1.30 AM, three miscreants having pistol and torch in their hands came to his house and asked for providing water to them. One of the miscreants after assaulting the informant with pistol on his head put the barrel of the pistol on his chest and tied his hands and feet. They also gave threat that he would be killed if he raised halla. He has further deposed that his wife was also sleeping in front of him. In the meantime, 7-8 other miscreants entered into the - 5 - house of the informant and they forced the informant’s wife to ask her daughter-in-law to open the door of the room which was closed from inside. P.W.2 has further deposed that as soon as her daughter-in-law opened the door Sk. Irfan and Sk. Shekhawat entered into the room of informant’s daughter-in-law. All the three miscreants, namely, Sk. Shekhawat, Sk. Irfan and Md. Sheikh were identified by the informant’s wife Sharda Devi and his daughter-in-law (P.W.9) in the torch light of the miscreants. P.W.2 has further deposed that the miscreants also committed rape upon his daughter-in-law and his daughter-in-law informed him about the commission of rape. He has further deposed that the dacoits after committing dacoity fled away with the booty. P.W.2 has also identified Sk. Shekhawat and Sk. Mohammad. He has also stated that Sk. Irfan died during the pendency of the trial. From para 23 and 24 of his cross-examination, it appears that the defence has tried to bring the factum of enmity with the informant on record but to strengthen this defence, the defence has not brought any documentary or oral evidence on record. 7. Let me see whether the evidence of P.W.2 (informant) has been corroborated by other witnesses or not. In this regard, evidence of P.W.9 is very important because of the fact that she is the victim and the prosecution case is that during the commission of dacoity two of the dacoits had committed rape upon her. Her evidence is that in the night of the occurrence in between 12-1 PM she was sleeping with her Nanad Prabha Devi (P.W.1). At that time, her - 6 - mother-in-law Sharda Devi knocked the door, whereupon, she opened the door. As soon as, she opened the door three persons entered into her room. They had torch in their hands and in the flash of torch light she identified all the three persons. She has further deposed that out of the three persons two had committed rape upon her and the third one broke open the lock of the box and took out Thalee, Lota etc. She has further deposed that two persons, who had committed rape upon her, were Sk. Mohammad and Irfan and third one was Sukhia @ Sk. Shekhawat. She has further deposed that she narrated the incident to her mother-in-law and father in law and the occurrence was also witnessed by her Nanad Prabha. 8. The evidence of P.W.9 shows that she has fully supported the factum of dacoity as well as commission of sexual act with her by the dacoits during the commission of dacoity. According to her statement, Sk. Mohammad (appellant) and Irfan had committed rape upon her but when she was asked to identify the accused persons, who were present in the dock, she refused to identify them and further stated at para 7 that the above mentioned persons were not known to her from before and at the instance of her mother-in-law she had named the three miscreants. Thus, the evidence of P.W.9 shows that her statement that appellant Sk. Mohammad and Sk. Irfan had committed rape upon her was based upon the statement of her mother- in-law but her mother-in-law namely, Sharda Devi has not been examined in the case and, therefore, in view of the statement of P.W.9 - 7 - made at para 9 of her evidence that the miscreants were not known to her from before, it is difficult to hold that at the time of commission of dacoity and rape she had identified appellant Sk. Mohammad, and Sk. Sekhawat alias Sukhia. Further, her evidence shows that her Nanad Prabha Devi was sleeping with her and she had also witnessed the occurrence. The said Prabha Devi is P.W.1 in this case and according to her evidence she had named only two dacoits, namely, Sukhia alias Sk. Shekhawat and Irfan, who had committed dacoity in her house and had also committed rape on her Bhabhi. She has categorically stated that Irfan and Sukhia alias Sk. Shekhawat had entered into the room in which she was sleeping along with her Bhabhi. Both the persons slapped her and Sukhia alias Shekhawat and Irfan both committed sexual act with her Bhabhi. She has stated that she had identified both the persons in the torch light. She has also deposed that Sukhia alias Sk. Shekhawat had also committed loot. Her evidence shows that she has not named appellant Sk. Mohammad. Likewise the evidence of P.W.4 Sikandar Yadav, who is no other person than the son of the informant, also shows that Irfan and Sukhia alias Sk. Shekhawat had committed dacoity and rape in her house. Although he appears to be a hear say witness and he has been declared hostile by the prosecution but his evidence is intact to this extent that when he came back he was told by his father that Irfan and appellant Sukhia alias Sk. Shekhawat had committed dacoity in her house. The evidence of P.W.2, who is the informant of the case, also shows that - 8 - only Irfan and Sk. Shekhawat had entered into the room of her daughter-in-law (vide para 4 of his evidence). This goes to show that there is sufficient evidence on record to support the prosecution case that in the night of alleged occurrence appellant Sukhia alias Sk. Shekhawat had committed dacoity in the house of the informant along with other dacoits and both the persons had committed rape upon P.W.9, daughter-in-law of the informant. So far appellant Sk. Mohammad is concerned, I do not find any sufficient material on record to hold that he was also one of the dacoits, who had committed dacoity in the house of the informant and had also committed rape upon the informant’s daughter-in-law. Therefore, conviction of the appellant Sk. Mohammad does not appear to be sustainable. So far other witnesses are concerned, they are either formal witnesses or the Police Officers and I do not think it necessary to make discussion on their evidences here. 9. On the basis of the discussions made above, I am of the view that so far appellant Sk. Mohammad is concerned, his appeal should be allowed but so far Sukhia alias Sk. Shekhawat is concerned, there appears no merit in his appeal and, so, I am of the view that the appeal filed on behalf of the appellant Sukhia alias Sk. Shekhawat should be dismissed. 10. Accordingly, the conviction and sentence of the appellant Sk. Mohammad under section 395 and 376 of the Indian Penal Code are hereby set aside and he is acquitted of the said charges, and he is - 9 - also discharged from the liabilities of his bail bond. However, the conviction and sentence of the appellant Sk. Sekhawat alias Sukhia passed by the court below are hereby upheld. Bail bond of appellant Sk. Sekhawat alias Sukhia is hereby cancelled and he is directed to surrender before the trial court, failing which, the trial court shall take necessary steps for getting him arrested. 11. In the result, this Cr. Appeal is allowed in part. (Syed Md. Mahfooz Alam, J.) Patna High Court Patna. Dated the 17th July, 2008. NAFR. 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