DEVENDRA TIWARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The instant appeal is directed against the judgment and order dated 23.5.2000 passed by Shri Gopal Mahto, Additional Sessions Judge VIII, Gaya in Sessions Trial No. 147 of 1989/409 of 1999 whereby and whereunder he found at held the appellant guilty and convicted him for the offence under Sections 376/511 and 448 of the Indian Penal Code (Hereinafter referred to as the Code) and sentenced him to undergo rigorous imprisonment for five years under the first count and six months under the second count, both the sentences having been ordered to run concurrently.

(2.) The prosecution case, as unfolded in the FIR and the evidence of the prosecution witnesses, lay within a narrow compass. The victim girl Karuna Kumari (PW 9) is the daughter of the cousin (Mamera Bhai) of the informant Gupteshwar Prasad (PW 7). She had been at the house of the informant to look after his old and ailing mother Lakshmi Devi (PW 6). At about 7.30 p.m. on 5.7.1988 Karuna Kumari along with her girl friends went to attend marriage of the grand daughter of co-villager, named, Dwarika Tiwary. She returned home at about 9.30 P.M. She went in slumber on a cot by the side of the cot on which her grand mother i.e., mother of the informant, was aslept. At about mid night while Karuna Kumari was aslept, she felt some male member putting his fingers on her person. She woke up and started crying. The miscreants untied lace (Dori) of her Salwar. When the victim girl started shouting at the top of her voice, the miscreant pressed her mouth. However, though he caught hold of her, he could not succeed in ravishing her. On hearing her cry, the informant's mother (PW 6) also woke up and started raising alarm. The miscreant then fled away after opening the door. Both Karuna Kumari and Laxmi Devi claimed to have identified the miscreant in the moon light. The miscreant was none but the appellant. Hearing hue and cry, PW 10 Bankey Singh. PW 11 Siya Sharan Singh and certain other villagers arrived at the scene. Karuna Kumari and Laxmi Devi narrated to them how the appellant in an attempt to commit rape caught hold on the victim Karuna Kumari and untied the lace of her Salwar but he could not succeed in his ill motive and design in consequence of awakening of the victim and her grand mother and raising alarm by them and he made good escape after opening the door.

(3.) The informant was lecturer at Gaya College, Gaya. He had been at Gaya. Surendra Sharma (PW 3) went to him and informed him of the incident, at about 11.30 a.m. on 7.7.1988. After getting information, he rushed to his house situated at village Kurkihat under the jurisdiction of Wazirganj police station in the district of Gaya. He learnt from his mother (PW 6) and Karuna Kumari (PW 9) that the appellant had entered into his house and he had attempted to ravish his niece Karuna Kumari. He, thereafter submitted a written report (Ext. 1) to the Officer-in-Charge of Wazirganj police station on the basis of which formal FIR (Ext. 2) was drawn up and the case was registered under Sections 354 and 448 of the Code. The investigation was entrusted to Abdul Wasi (PW 12). He conducted investigation and after completion thereof submitted charge-sheet under Sections 376/511 and 448 of the Code and finally the trial commenced after commitment.