Criminal Appeal (S.J.) No. 736 of 2009 **** Against the judgment of conviction, dated 27.08.2009, and order of sentence, dated 28.08.2009, passed in Session's Trial Case No. 522 of 2003 by Additional Sessions Judge, Fast Track Court, IV, Bhagalpur **** 1. Md. Anwar, son of Yasin 2. Md. Yasin, son of late Abdul Hafiz 3. Bibi Rehana, wife of Md. Yasin 4. Noori Begum wife of Md. Ansar 5. Md. Anwar, son of Md. Yasin 6. Md. Iqbal, son of Md. Yasin All residents of Paranmati Lane (Barahpura), P.S. Ishaqechak, district Bhagalpur .. Appellants Versus The State of Bihar .. Respondent **** For the appellants .. M/S Abdul Mannan Khan & Najmul Hoda Kha, Advs. For the respondent .. Mr. S.N. Prasad, A.P.P. **** P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Appellant no. 1, Md. Anwar, has been convicted under section 354 as well as 448 of the Penal Code and has been sentenced to undergo rigorous imprisonment for one year for offence under Section 354 of the Penal Code and to undergo rigorous imprisonment for six months for offence 448 of the Penal Code and further appellants 2, 3 and 4, namely, Md. Yasin, Bibi Rehana and Noori Begum, have been 2 convicted under Sections 448, 504 and 323 of the Penal Code and sentenced to undergo simple imprisonment for six months each and further appellants 5 and 6, namely, Md. Ansar and Md. Iqbal, have been convicted under Sections 448, 504 and 323 of the Penal Code and have been sentenced to undergo rigorous imprisonment for six months. However, it has been order that all the sentences shall run concurrently. 2. The prosecution case, as alleged, in the first information report by the informant, Nagma Nisha, that on 22.10.2002 at about four in the night of Shabebarat the informant was sleeping in her room after dinner, celebrating Shabebarat and her mother and sister were sleeping in the adjacent room and other members were preparing for Namaz. At 04.00 A.M. Anwar @ Tetar entered into the room and caught hold her hands and legs with ulterior motive and tried to rape her on which the informant made hulla than the mother and sister got up and rushed to the place of occurrence and tried to caught hold Anwar @ Tetar, but, Anwar managed to escape in the garden. The further case of the prosecution is that after hulla, Md. Answar, Md. Iqbal, Noori Begum, wife, of Anwar and Rehana, wife of Yasin, came in the house and started abusing and assaulting by lathi and torch by which the informant, her mother and sister, Parveen and Sabia Khatoon got injured. The brother of the informant, a driver of Civil Surgeon, who was there and there was no other male member. 3. On the fardbeyan the first information report was lodged for offence under Sections 376, 511, 353, 448, 307, 341, 323 and 504/34 of the Penal Code and after investigation the charge sheet 3 was submitted under Sections 376, 511, 354, 341, 341 and 323 of the Penal Code and subsequently cognizance was taken under these sections. The charge was framed under Sections 376 read with Sections 511, 354, 307, 448, 504 and 323 of the Penal Code against all the accused persons. During 4. During the trial six witnesses were examined on behalf of the prosecution, who are P.W. 1, Reshma Parveen, P.W. 2, Shahzadi Khatoon, P.W. 3, Sakia Khatoon, P.W. 4, Nagma Nisha, P.W. 5, Dr. Mritunjay Kumar, and P.W. 6, Md. Shakoor. The informant, P.W. 5 and P.W. 6 are formal witnesses who have proved the fardbeyan. 5. The documentary evidences adduced on behalf of the prosecution are Exhibits 1 to 3. Exhibit 1 is the signature of the informant on the fardbeyan, Exhibits 2 to 2/c is the injury report, Exhibits 3 and 3/1 is forwarding on the fardbeyan and Exhibit 4 is a formal first information report. 6. The defence has also adduced oral evidence and D.W. 1 is Md. Moinuddin. D.W. 2 is Md. Shamsar, D.W. 3 is Md. Mokiya, and D.W. 4 is Sheikh Haleem. 7. The defence of the accused persons, as per the suggestion and the evidence adduced is that both the prosecution party and accused persons are pattedar and the accused, Anwar, is the cousin brother of the informant, Nagma Nisha, and the accused, Yasin and Rehana are uncle and aunt, i.e., full brother of the father of the informant and his wife respectively and the other accused persons are the sons of Yasin, i.e., the cousin brother of the informant. The house 4 of both the parties is adjoining and no occurrence has really occurred. However, there was dispute between the pattedar regarding taking the electric connection through the house of the accused persons, which was being objected and so the false case has been instituted to malign and no injury ever inflicted on the prosecution party and the injury reports are false and fabricated and the injury has been procured as the brother of the informant is the driver of Civil Surgeon. Further, defence that the occurrence is of the night of Shabebarat and that night is a period of Ibadat and the Muslims do not sleep in that night, hence, the prosecution story that while she was sleeping the occurrence took place does not inspire confidence and further there is development in prosecution story from stage-to-stage in the first information report that there is only mention that Anwar caught hold the hands and feet of victim, but, at the stage of evidence there are further developments. 8. After considering the oral and documentary evidences, adduced by the parties and on hearing the respective submissions, the impugned judgment passed. The learned lower Court convicted and sentenced the appellants, as stated above. 9. The learned counsel for the appellants, however, contends that the appellants have falsely been implicated. There is two part of the occurrence, the first part relates with allegation against Anwar and the second part relates with Anwar and other family members, all the injuries proved as superfluous in nature and the investigating officer has not been examined this case and further both the parties are gotia and the occurrence took place in the night, which is 5 a night of Shabebarat when the Muslims does not sleep and there is contradiction in the prosecution story and the evidence of the witness and no independent witness has come forward or no witness of the neighbourhood has come forward to support the prosecution case, even the brother of the informant has not turned up to depose in the case though in the first information report it has been mentioned that he was present. 10. The learned counsel for the State, however, contended that the there is allegation of false implication, but, the enmity has not been proved and the victim is unmarried of aged about eighteen years and false implication of such a nature may have jeopardize the future of the victim and, hence, contended the possibility of false implication is not accepted or made out, hence, the prosecution has proved the case beyond reasonable doubt. 11. On the rival contention of the party the question for consideration is whether the prosecution has been able to prove the charge beyond reasonable doubt. 12. The prosecution case in the fardbeyan is in two parts. The first part mentions that Anwar entered into the house/room of the informant and caught hold of her hands and feet on which the informant made a hulla and the sister and mother of the informant came and tried to catch hold of Anwar, but, Anwar managed to escape. The second part of prosecution story is taht Anwar with the other accused persons came and started assaulting the prosecution party. The evidence adduced on behalf of prosecution, P.W. 1, however, in his 6 evidence has stated that his cousin brother, Tetar @ Anwar, had tried to use force and he threw the victim, Nagma, on the bed and when P.W. 1 came there then Anwar fled away towards the garden. However, the part of the evidence is quite contrary to the prosecution story is mentioned in the fardbeyan. She has stated that the other accused persons on hulla came and Md. Yasin and Rehana, along with other accused persons came and assaulted her causing the blood oozing out. However, she has stated that none came from outside and she does not identify the person of the neighbourhood. However, she has stated that her sister has not stated any details about the act of Anwar. P.W. 4 is the informant herself. She has stated that Anwar came, pressed her mouth and, thereafter, tried to rape her and she tried her best to save herself and in the process she cried as the hand of Anwar catching hold of her mouth loosen when he started untying the dori of pajama. P.Ws. 2 and 3 are the mother and sister of the victim who had reached at the place of occurrence on the cry of the victim. P.Ws. 2 and 3 do not say about any disclosure of the victim about the abuses and assault of Anwar and even regarding the act do not alleged attempt to rape. However, it has also come that Anwar is married and P.W. 2 has stated that she did not give anything in writing to the Association regarding the occurrence. She has further stated that there is no eye witness of Mohalla or out of the house. P.W. 5 is the doctor, who has proved the injury. Further, P.W. 5 has found no injury on the person of Nagma Nisha or any injury on the persons of Shahzadi Khatoon, Reshma Parveen and Sakia Khatoon and there was some swelling, which is 7 superfluous in nature. However, injuries are with regard to the second part of the occurrence. It is stated that 10 to 15 persons were collected as per the evidence of P.W. 1. However, except three witnesses none turned up to support the prosecution case. Even the brother of the informant has not come forward to support the prosecution case though in the fardbeyan it has been mentioned that brother of the informant was there who is driver of the Civil Surgeon. If he has not come forward to depose and there is allegation that there is 3 to 6 persons came in a group, but, the injury report does not suggests any fatal injury or serious injury on the alleged injured persons. Further, three persons have been examined, who are the mother and sisters of the informant. The defence has been set up that the dispute arose for having the electric connection and, however, adduced oral evidence. No occurrence, as alleged, occurred and it was a night of Shabebarat and no independent witness has come forward to support the prosecution case. 13. However, so far the first part of the evidence is concerned, the victim and the mother and sister of the informant had supported the prosecution regarding the abuse and attempt to outrage the modesty or even alleged attempt to a rape. In the fardbeyan there is mention that the accused person caught holds the hands and feet. P.W. 4, the informant, further stated about the act and catches hold of the breast. The other witness has not supported the prosecution case as regarding the development made therein and the statement of the witnesses, however, the occurrence is of the night and regarding this 8 part of the evidence one can not expect to independent witness when the occurrence is of a wee hours at 04.00 A.M. and for the allegation regarding outraging the modesty the informant an unmarried lady may not make such false allegation, which may amounts to jeopardize the future of the victim and the victim is unmarried girl and there is no enmity between the parties for false implication, nothing has been shown that there was prior enmity. However, with regard to the second part of the occurrence is concerned, it is alleged that on hulla that accused come, who were non-else than father, mother and brother of the accused, who also happens to be the uncle, aunt and cousin brother of the informant and the allegation that they came and assaulted, but, no reason has been said that why they assaulted and when on hulla the prosecution party will come and Anwar himself alleged to have come to assault in the subsequent part and there is allegation. However, the doctor has given the injury report and the age of the injury has been stated to be six hours. However, in cross examination it has been stated that he has assessed the injury on the basis of the colour. However, the injury has been found to be superfluous and simple in nature and there is allegation that none of the independent witnesses has come forward as it is stated it was a night of Shabebarat and it was a Muslim area and there was an assault by the accused persons causing great hue and cry and even it has been stated that 10-15 persons came, but, none come forward to support the prosecution case, no independent eye witness has come forward to support even the brother of the informant has not been examined and except the female members neither the brother of 9 the informant nor any person in the neighbourhood though it has come that there are seven houses in the neighbour and entire area is of the Muslim, who were celebrating Shabebarat. 14. Having regard to the facts and circumstances, I find and hold that appellants 2 to 6, who are alleged to have been responsible regarding the second part of the occurrence under Sections 448, 504 and 323 of the Penal Code are concerned the witnesses have also not stated in details about the specific overt act who assaulted whom and there is a vague and omni bus allegation and the evidence is also vague that all the accused persons have come and assaulted, hence, under the facts and circumstances they are entitled for benefit of doubt and, hence, I find and hold that the prosecution has not been able to prove the charges leveled against them. The learned lower Court misdirected itself in holding that the prosecution has proved the case of appellants 2 to 6 when there is no specific allegation that who assaulted to whom and no independent witness come forward to support the prosecution case. The brother of the informant has also not come forward to support the case of assault when the allegation against them is omni bus and vague not mentioned that what weapons are used to assault to particular injured. Hence, I acquit appellants 2 to 6 for offence under Sections 448, 504 and 323 of the Penal Code. 15. However, so far the allegation against Anwar is concerned, the witnesses have deposed and in the trial it has come that there is no enmity why Anwar was falsely implicated does not stand to reason and the allegation normally may not have been leveled falsely to 10 jeopardize the future of the informant and the prosecution has adduced evidence and witness have specifically stated about occurrence though there may have been some exaggeration about the occurrence. Taking into consideration the entire facts and circumstances I find and hold that the prosecution has been able to establish the offence under Sections 354 and 448 of the Penal Code against Anwar. However, taking into consideration the fact that the offence is of the year of 2002 and since both the prosecution party are pattedars and, hence, so far the sentence under Sections 354 and 448 of the Penal Code is concerned, one year and six months rigorous imprisonment respectively appears to be more severe and, hence, taking into consideration the fact of the case the end of justice shall meet by sentencing period of custody already undergone by Anwar during the trial and, hence, the appeal is allowed in part. ( Gopal Prasad, J. ) Patna High Court The 2nd April, 2010, N.A.F.R./S.A.