IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.345 OF 2007 Against the judgment of conviction dated 09.03.2007 and order of sentence dated 14.03.2007 passed by Sessions Judge, Madhubani in Sessions Trial No.119 of 2006. RAJ KUMAR MANDAL @ RAJU MANDAL, SON OF Late Ramjee Mandal, resident of Village-Ajrakhwe Simri(Mirzapur), P.S.Rajnagar, District-Madhubani .... Appellant Versus State Of Bihar.... .... Respondent For the Appellant: S/Sri Bhola Prasad & Avinash Kumar Sinha, Advocates For the Respondent: Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. A lady carrying the pregnancy of 6-7 months, in a sultry hot night was enjoying her privacy in the darkness by lying merely with a petticoat and a blouse on her physique, when this appellant at the dead of night, intruded into the privacy of the lady (P.W.3) and solicited sex from her. A dignified refusal resulted in infliction of a blow on her private part with as deadly weapon as a chhura. 2. The lady cried out. Her mother-in-law P.W.2 and her Gotani(P.W.1)woke up. The lady was bleeding profusely from the most tender part of her body. She was taken to Dr. Chandrakant Singh(P.W.5) who treated her and issued Ext-2, the injury report, indicating that there was 2 an incised wound on the right labia-minora above and lateral to external urethral orifice measuring 1”x1/4”x superficial layer, with bleeding point on the upper end of the wound. 3. The police came into the clinic of Dr.Chandrakant Singh(P.W.5) and recorded the fardbeyan of the lady at 12.30 A.M on 04.08.2005, the occurrence having taken place at 3 A.M. on 02.08.2005. It is not that the lady was not there-it was argued-as may appear from the evidence of P.W.5 Dr. Dr.Chandrakant Singh, she had been admitted into his private clinic on 02.08.2005 itself and he after examining her issued the injury certificate at 8 A.M. on that particular day. 4. The police after closing up the investigation submitted the chargesheet for trial of the present appellant. P.Ws.1 and 2 who were Gotani and mother-in-law of the lady and who were witnesses to some part or the other of the occurrence and above all the part of the occurrence when the present appellant was making good his escape, though supported the allegations to that effect but appear stating somewhere in their individual depositions that they had not made any statement earlier to the one which was recorded by the learned trial Judge. Thus, making it completely unsafe to place reliance upon the evidence of P.Ws.1 and 2. 5. P.W.3 supported herself. But, when it came to 3 her cross-examination after the same was adjourned on the first day, i.e., on 14.08.2006 and was taken up again on 09.10.2006, the lady appears gained over by the accused, as such, in spite of having supported herself on all material parts of the prosecution story, she was put only three questions by the defence to state that the place where she was lying was dark and as such she could not identify the man she had caught and further that she named the present appellant as told to her by others. 6. This court is not ready to act upon the subsequent statement of the lady recorded after about seven weeks of adjourning her first cross-examination on 14.08.2006, those seven weeks were quite sufficient and enough for gaining over the lady and to bring her on his side by the appellant. This court places reliance upon the lady, what was recorded in paragraph-6 of her evidence in examination-in-chief and on that account this Court does not have any hesitation in recording that it was this appellant who had trespassed into the house of the lady for soliciting sex from her and on being refused had attacked her with a chhura on her most vulnerable organ. 7. Then, the question which was raised before this Court was as to whether the above facts constituted the offences under Sections 307 and 376 read with Section 511 IPC, Sri S.N.Prasad, learned Additional Public Prosecutor was strenuously submitting that the facts may 4 constitute those two offences. However, the court does not subscribe to the views of Sri Prasad inasmuch as in spite of the part of the body being the most vulnerable, there was no opinion of the doctor that the injury was dangerous to life or it was even grievous in nature. Thus, what appears established from the fact is that the appellant voluntarily caused hurt by a weapon, like, chhura which was a dangerous weapon as also an instrument which could be used for cutting, etc. As such, the appellant appears rightly convicted under Section 324 IPC. He further appears rightly convicted for an offence under Section 448 IPC as he had clearly trespassed into the house of the lady to intrude into her privacy by entering inside and remaining there inside the house of P.W.3 which was definitely a dwelling house. In that view, the conviction of the appellant under Section 448 IPC also appears justified. The conviction of the appellant under Section 307 IPC does not hold good in absence of the evidence which I have just discussed the injury which was inflicted by the appellant was neither endangering to life nor was dangerous to life, it was not even grievous. Likewise, the conviction of the appellant under Sections 376 and 511 IPC also appears unsustainable simply for the reason that what was proved or established by the evidence of P.W.3 was that the appellant entered inside her room and requested her for having sex with him. The lady 5 refused. There is no further evidence indicating that the appellant committed any act which could be falling in the realm of attempt as could be understood as one of the four steps to constitute a criminal act. In that view of the matter, the appellant has to be acquitted both under Sections 307 and 376/511 IPC. 8. So far as the sentences inflicted upon the appellant after being convicted under Sections 448 and 324 IPC is concerned, the court does not have any reason much less any special reason for scaling the same down. The sentences as such which were passed upon the appellant by the learned trial Judge are confirmed. The appeal is dismissed. It was informed that the appellant is in custody right from the inception of the case and, as such, it could be for more than two and half years that the appellant is lying imprisoned. The appellant has to be released from custody, if he has completed two and half years of imprison in total. Patna High Court, Dated, the 27th day of September, 2011, Brajesh Kumar/AFR. ( Dharnidhar Jha,J.)