CRIMINAL APPEAL No.224 OF 1993 *** Against the judgment and order dated 27th July, 1993 passed by Sri R.K.Choudhary, 12th Additional Sessions Judge, Munger in Sessions Case No.105/89. *** NARESH YADAV--------------------------------------Appellant Versus THE STATE OF BIHAR--------------------------------Respondent *** For the Appellant: - Mr. Arun Kumar Tripathi, Advocate (Amicus Curiae) For the State : - Mr. Amitesh Kumar, Addl. P.P. P R E S E N T THE HON'BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM *** S.M.M.Alam,J. This criminal appeal has been preferred by the appellant against the judgment and order dated 27.7.1993 passed by Sri R.K.Choudhary, 12th Additional Sessions Judge, Munger in Sessions Case No.105/89 whereby he has been pleased to convict the appellant (Naresh Yadav) under Sections 376/511 of the Indian Penal Code and sentenced him to undergo three years’ rigorous imprisonment besides fine of Rs.2000/- and in default of payment of fine, to undergo rigorous imprisonment for two years. The appellant being aggrieved and dissatisfied with the said judgment and order has preferred this appeal. 2. The prosecution case, as per fardbeyan of the informant Harni Devi (P.W.5) recorded by A.S.I. Garj Narain Singh of Sangrampur Police Station on 26.6.1988 at 4 A.M. at village Bhandara within Sangrampur Police Station, District Munger is that in the night of 25th/26th June, 1988 at midnight while the 2 informant was sleeping at the verandah of her house and her husband was sleeping in the courtyard, the appellant (Naresh Yadav) came near her, concealed her face with his Lungi, caught her breast and started removing her Saree. The informant firstly thought that her husband was beside her but when she removed Lungi from her face she found that it was appellant Naresh Yadav, who had removed her Saree. Then she raised hulla whereupon her husband immediately rushed towards her and caught hold of the appellant. In the meantime, some villagers also arrived on hearing hulla. They tied the hands and feet of the appellant and also thrashed the appellant who tried to escape by biting the informant and her husband with his teeth but failed in his attempt and in the meantime, the police patrolling party reached there and then the appellant was handed over to the police. Then at the spot, the police recorded the fardbeyan of the informant on the basis of which Sangrampur P.S. Case No.51/88 was instituted. After investigation, the police submitted charge sheet in the case against the appellant on the basis of which cognizance was taken and then the appellant was tried for the offence under Section 376/511 I.P.C. and convicted by the impugned judgment. 3. The learned Amicus Curiae appearing on behalf of the appellant assailed the findings of the court below mainly on the ground that due to the non-examination of the doctor and the investigating officer, the defence has been highly prejudiced. Another ground advanced by the Amicus Curiae is that the story of attempt to commit rape, as alleged by the prosecution, is not believable and as a matter of fact, the appellant has been falsely implicated in the case because of the fact that the cattle of the informant had grazed the maize crop grown in the field of the appellant for which some quarrel had taken place between the informant and the 3 appellant and due to that quarrel, the appellant has been falsely implicated in this case. Further defence is that for the incident of cattle trespass, the appellant had lodged a complaint case against the informant and others. 4. From perusal of the judgment of the court below it appears that in this case the prosecution has examined altogether five witnesses in order to prove the prosecution case. P.W.1 is Rajpati Yadav; P.W.2 is Sunder Yadav; P.W.3 is Devan Yadav alias Devendra Yadav; P.W.4 is Bishundeo Yadav and P.W.5 is Harni Devi, the informant. Out of the abovesaid witnesses, P.W.5 Harni Devi is the informant of this case and P.W.4 Bishundeo Yadav is her husband. 5. From perusal of the evidence of P.W.5 Harni Devi it appears that she has fully supported the prosecution case, as disclosed in her fardbeyan. She has categorically deposed that in the midnight of the occurrence while she was sleeping in the verandah, the appellant came near her and put his Lungi on her mouth, caught hold her breast and removed her Saree and thereafter he tried to touch his private part (pennis) with her private part but in the meantime, she removed Lungi from her face and identified the appellant and then she raised hulla whereupon her husband rushed towards her and caught the appellant and on hulla, several persons also reached there. 6. It has been submitted by the learned Advocate of the appellant that the manner of occurrence, as stated by P.W.5 in her deposition does not find corroboration from her fardbeyan. He submitted that the statement of the prosecutrix (P.W.5) that the appellant after removing her Saree had touched his private part with her private part does not find mention in her fardbeyan and this statement has been made by the prosecutrix in order to make the offence grave. 4 7. It appears that the same argument was advanced by the learned Advocate of the defence before the trial court and the trial court has given cogent reason for not believing the plea of the appellant. The trial court after making discussion on this point has held that P.W.5 has successfully explained this contradiction by saying that as she was feeling ashamed, as such in her fardbeyan she did not disclose the fact that the appellant had tried to touch his private part with her private part. I am also of the view that this explanation given by the prosecutrix is very much satisfactory. In such view of the matter, I am of the view that this argument of the learned Advocate that the manner of occurrence, as stated by P.W.5 in her deposition and the manner of occurrence as stated in her fardbeyan is contradictory, does not appeal to me and hence, this argument is rejected. 8. From the evidence of P.W.4 who is the husband of the informant it appears that he has fully corroborated the evidence of P.W.5 as he has deposed that immediately, on hearing hulla of his wife, he awoke and saw that one person was lying on the body of his wife and he was trying to run away but his wife was catching him. He has further deposed that he also rushed and caught hold of him who was appellant. P.W.1 Rajpati Yadav, who is the father-in-law of the prosecutrix, has also fully supported the prosecution case. The other witnesses, namely, (P.W.2) Sunder Yadav and (P.W.3) Devan Yadav alias Devendra Yadav have deposed that on hearing hulla on that very night they went to the house of the informant and saw Naresh Yadav being apprehended in the courtyard of the informant. They also deposed that Bishundeo Yadav (P.W.4, husband of the informant) had told them that the appellant had tried to outrage the modesty of his wife. Thus, it appears that all the prosecution witnesses have fully 5 supported the prosecution case and there is no reasonable ground to disbelieve the testimony of the abovesaid witnesses as the defence has miserably failed to bring on record any reason of possible false implication. 9. It has been submitted by the learned Amicus Curiae that the appellant has brought the complaint petition of Complaint Case No.336©/88 lodged by the appellant’s father Baudhu Yadav for the incident of grazing the maize crop grown in the filed of the appellant by the cattle of the informant. The said complaint petition has been marked Exhibit A in this case on the basis of statement of D.W.1. He submitted that the said complaint petition shows that when the appellant’s father lodged complaint for the incident of grazing the maize crop grown in the field of the appellant, the appellant has been falsely implicated in this case. I am of the view that this argument is not acceptable in view of the fact that this complaint was lodged just one day after lodging of the first information report of this case. Moreover, it appears that on the very night on which day the occurrence of attempt to commit rape had taken place, the appellant was apprehended by the police at the place of occurrence itself who was kept confined in the house of the informant by several persons and the independent witnesses i.e. P.Ws. 2 and 3 besides the informant, her husband and her father-in-law, have also supported this fact in their evidence. In such view of the matter, I am of the opinion that the prosecution case has fully been proved beyond all reasonable doubts. 10. So far as non-examination of the doctor is concerned, there was no necessity of examining the doctor as it is a case of attempt to commit rape and it is not the case of the prosecution that the appellant had committed rape upon the prosecutrix and, therefore, there is absolutely no need to 6 examine the doctor in this case and non-examination of the doctor did not cause any prejudice to the defence. 11. As regards the non-examination of the Investigating officer, I am of the view that since the place of occurrence and the manner of occurrence have well been proved by the witnesses and there is no ambiguity on this point, as such the non-examination of the Investigating Officer has also not caused any prejudice to the defence. 12. In the result, I do not find any merit in this appeal and so, the same is hereby dismissed. The judgment and order of conviction and sentence passed against the appellant are hereby confirmed. The appellants are on bail, his bail bonds are cancelled and he is directed to appear before the court below to serve out the remaining part of the sentence. The trial court is also directed to take necessary steps for surrender of the appellant. (Syed Md. Mahfooz Alam, J.) Patna High Court, Patna The 27th June, 2008. N.A.F.R. (B.T.)