RAJESH VISHWAKARMA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This Criminal Appeal is directed against the judgment of conviction and order of sentence dated 4.10.2002 and 5.10.2002 respectively passed by Sri. Krishna Kant Sahay, the learned Sessions Judge Garhwa by which the sole Appellant was convicted under Sections 376/511 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a term of three and half years. He was further convicted under Section 341 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one month in S.T. No. 427(P) of 1997/S.T. No. 929(G) of 2001 and both the sentences to run concurrently.

(2.) The law was set on motion on the Fardbeyan of the informant Udai Ram giving rise to Nagar Untari P.S. case No. 79 of 1996 corresponding to G.R. No. 644 of 1996 on 6.10.1996 for the alleged offence under Sections 376/511/341/323 of the Indian Penal Code. The informant narrated that on 5.10.1996 his sister Shakuntala Kumari had proceeded towards forest with her friend and co-villager Parvati Kumari with their cattles. It was alleged against the Appellant Rajesh Vishawkarma that all on a sudden, he raised alarm in the forest by playing hoax that they (Naxalites) were coming with the guns and then he started running. Pursuant to such hoax played by him, Shakuntala Kumari also started running with Parvati Kumari towards village but Rajesh Vishawkarma caught hold his sister Shakuntala from her behind, pulled her down on the earth and attempted to outrage her modesty. However, Parvati Kumari made for good escape from the place of occurrence and narrated the occurrence to the villagers. The informant upon such information proceeded with his father towards the forest and found his sister Shakuntala coming in a state of partially naked. Being called upon she narrated that Rajesh Vishawkarma had attempted to ravish her by tearing her pantee and gagged her mouth with his one hand and molested with his another hand, yet getting opportunity she kicked on his testicles and escaped. The informant covered her body with his towel. On the subsequent day i.e on 6.10.1996 a panchayati was held, as such, the informant went to the house of the Appellant calling upon him and his father and uncle to attend the Panchayati but he was assaulted by them at their doors. The informant then decided to inform the police and came across the police on his way to police station with his father and sister and that his fardbeyan was recorded giving rise to Nagar Untari P.S. Case No. 79 of 1996 for the offence under Sections 376/511/341/323 of the Indian Penal Code against the accused Rajesh Vishwakarma ,his father and uncle. After investigation, charge sheet was submitted against the Appellant Rajesh Vishawkarma, Kameshwar Vishawkarma and Vishawnath Vishawkarma under Sections 376/511/341/323 of the Indian Penal Code. Charge against the accused-Appellant Rajesh Vishawkarma was framed under Sections 341, 376/511 of the Indian Penal Code whereas separate charge under Section 323 of the Indian Penal Code was framed against each of the other two accused Kameshwar Vishawkarma and Vishawnath Vishawkarma on 27.8.1998 and all the three were put on trial. The learned Sessions Judge, after appreciation of the materials on record, convicted the Appellant-accused for the offence under Sections 376/511/341 of the Indian Penal Code but the charge under Section 323 IPC could not be proved against the other two accused Kameshwer Vishawkarma and Vishawnath Vishawkarma, hence they were acquitted.

(3.) Mr. A.K. Kashyap, the learned Sr. Counsel, submitted that the prosecution failed to produce any corroborative and consistent witness supporting the allegation against the Appellant that he attempted to ravish the girl Shakuntala Kumari in the forest. The Investigating Officer of the case abstained from the witness box during trial which caused prejudice to the defense of the Appellant immensely as the Appellant denied opportunity to cross examine the I.O. on certain points. Mr. A.K. Kashyap further pointed out that there was no medical evidence on the record in support of the contention that Shakuntala had sustained lacerated injury on her back side and her clothes were found smeared with a little blood. Mr. Kashyap further asserted that she admitted that at the relevant time of occurrence she was wearing frock, pantee and Salvar and that her pantee was torn by the Appellant and she admitted that she had delivered her pantee to her father but none of her clothes was ever produced before the police for seizure. Mr. A.K. Kashyap explained that the Appellant had never intention either to outrage the modesty of the girl or to commit rape on her because it was no where alleged by Shakuntala that the Appellant had undressed himself and in that manner he had crossed the limit of intention and preparation and thereafter attempted to commit rap. Even there was no intervening circumstance which could prevent, had there been intention of the Appellant to commit rape on the girl. Mr. Kashyap submitted that in the given facts and circumstances, though denied, the offence, if at all could be made out may be categorized under Section 354 IPC. The victim girl testified during trial that the house of the accused was situated in her neighbor having land dispute going on between her father and the father of the Appellant and therefore, false implication of the Appellant on account of prevailing enmity cannot be ruled out.