Attempt to commit rape - Appellant was co-accused in offence and convicted under Section 458 IPC - His presence in room denied by brother of victim - In view of weak and contradictory evidence of his presence at the place of occurance accused given benefit of doubt

Attempt to commit rape - Appellant was co-accused in offence and convicted under Section 458 IPC - His presence in room denied by brother of victim - In view of weak and contradictory evidence of his presence at the place of occurance accused given benefit of doubt

JHARKHAND HIGH COURT

Before :- Amareshwar Sahay, J.
Cri. Appeal No. 7 of 1994. D/d. 7.4.2006

Babloo Singh - Appellant
Versus
The State of Bihar (now Jharkhand) - Respondent


For the Appellant :- A.K. Kashyap and Din Dayal Saha, Advocates.
For the Respondent :- A.P.P.

JUDGMENT


Amareshwar Sahay, J. - This appeal has been filed by one of the convicts namely Babloo Singh who along with other co-convict namely Bansidhar Ghosh was charged for commission of the offence under Section 376/511 and 458 of the Indian Penal Code. By the impugned judgment passed by the Assistant Sessions Judge, Raj Mahal in Sessions Case No. 14 of 1993. the accused, Bansidharj Ghosh was convicted for committing the offence under Section 376/511 of Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of ten years for the offence under Section 376/511 IPC and seven years for the offence under Section 458 IPC.
2. So far the present appellant Babloo Singh is concerned he was convicted only for the offence under Section 458 IPC and was sentenced to undergo rigorous imprisonment for a period of seven years. The co-convict Bansidhar Ghosh did file a separate Criminal Appeal before this Court being Cr. Appeal No. 255 of 1994 challenging the judgment of conviction and sentence against him passed by the trial Court. It appears that the appeal filed by the said Bansidhar Ghosh was heard by a Bench of this Court and by judgment dated 13-9-05 the appeal filed by Bansidhar Gasha was dismissed with modification in sentence by reducing the sentence of rigorous imprisonment for seven years to the period already undergone by him.
3. The prosecution case in short is that on 22-9-80 at about 8-9 p.m. while the informant Geeta Devi (P.W.5) was sleeping on a cot with her brother Raj Kumar aged about thirteen years, at that time she felt that some one was sitting on her thighs and was molesting her and he was also trying to commit rape. She woke up and raised alarm. According to her one Diya (earthenpot) was also burning in the room and in that light she saw that Bansidhar Ghosh the other co-convict was sitting on her thigh and by removing her clothes, he was trying to have intercourse with her. At that time Babloo Singh the present appellant was standing there with a sickle in his hand and was threatening her as well as her brother that if they would raise alarm then they would be killed. It was further alleged that as soon as the informant raised alarm Babloo Singh this appellant fled away from that place leaving sickle in that very room itself. Thereafter Bansidhar Ghosh closed the door of the room from inside and started threatening the informant that if she or her brother would raise hulla then they would be killed. It is stated that after some time the Police party arrived at place and broke open the door and then arrested the accused Bansidhar Ghosh along with a sickle.
4. Curiously enough, neither the Fardbeyan nor the formal FIR was proved by the prosecution and the FIR was not brought on the record.
5. In course of trial altogether five witnesses were examined by the prosecution. P.W.1 was the father of the informant, who was sleeping in another room and he woke up on hearing the alarm of his daughter Geeta Devi. P.W.2 was declared hostile. P.W.3 was tendered for cross-examination. P.W.4 Raj Kumar Mandal, the brother of the informant Geeta Devi who was also sleeping with the informant is an eye-witness to the occurrence. P.W.5 is the informant herself.
6. So far as the present appellant is concerned, the only allegation against him was that at the alleged time of occurrence he was present in the room with a sickle in his hand and was threatening the informant and her brother not to raise alarm and as soon as the alarm was raised by the informant he fled away from there leaving the sickle in that room itself. P.W 4 the brother of the informant in paragraph 3 of his evidence has clearly stated that he did not see Babloo Singh the present appellant at the time of occurrence. P.W.5 the informant in her evidence in Court in paragraph 1 has stated that she was sleeping with her brother Raj Kumar and she woke up only when she felt that somebody was sitting on her thighs. At that time she saw Babloo Singh the present appellant was trying to assault her and her brother with a sickle in his hand but when she raised alarm, he fled away after leaving his sickle. She specifically stated that Police entered into the said room after breaking open the door and the other convict Bansidhar Ghosh was arrested at the spot with sickle. Though saree, petticot etc. of the informant and sickle were seized from the place of occurrence and a seizure list was prepared, but it is very surprising that neither Investigating Officer was examined in this case nor the seizure list was produced and was brought on record. Even the mother of the victim girl who was sleeping outside the room and was an important witness to the occurrence was not examined by the prosecution. Therefore, I find that the trial Court rightly observed in the impugned judgment that the case was badly conducted by the prosecution.
7. I find from the evidence of P.W.4 and P.W.5 that there is vital contradiction in their evidence with regard to the presence of present appellant at the place of occurrence. P.W.4 who was sleeping with the victim girl P.W.5 in that very room, has stated that he did not see Babloo Singh at the time of occurrence, whereas the victim girl P.W.5 says that Babloo Singh was threatening her and her brother showing a sickle in his hand. Therefore, on the basis of such weak and contradictory evidence it is not safe to hold this appellant guilty for the offence under Section 458 I.P.C. The evidence of P.W.1, the father of the victim also is contrary to the case of the prosecution itself because he in his examination in chief as well as in his cross-examination has stated that the accused person raped his daughter, whereas the case of the prosecution is that only attempt to rape was made and in fact victim was not raped.
8. In view of the above facts and evidence of P.W.s, I find the presence of this appellant at the place of occurrence on the alleged date and time of occurrence becomes doubtful and as such he is given the benefit of doubt.
9. Accordingly, this appeal is allowed and the conviction and sentence passed by the trial Court against the appellant is hereby set aside. The appellant who is on bail is discharged from the liabilities of the bail bonds.

Appeal allowed.
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