NARESH YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) 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 ss. 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 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 Ss. 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 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.