GUNADHAR MAJHI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This criminal appeal is directed against the judgment of conviction and order of sentence passed by the learned Sessions Judge, Seraikella-Kharsawan in Sessions Trial No. 27 of 2002 by which the Appellant was convicted under Sections 452/323 Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and again rigorous imprisonment for six months on each count respectively with the observation that both the sentences would run concurrently.

(2.) Prosecution story in short was that in the night of 30.9.2001, while the informant Dipak Kalindi was sleeping in his house, he heard the cry of his wife at about 11:30 p.m., who was shouting that someone was trying to outrage her modesty. Upon such alarm, he rushed to the room of his wife where he noticed a man, who was attempting to commit rape on his wife. Informant tried to catch hold that person with the help of his wife Baisakhi Kalindi but he charged with the butt of the pistol causing injury on the head of the informant and even after sustaining such injury, the scuffle continued and the accused tried to escape. In the meantime, villagers arrived on hearing hulla whereupon the accused fired from his pistol to scare the villagers; however, he was overpowered by the villagers and assaulted by some of them. In the scuffle, he also sustained some injuries but it could not be ascertained by the informant as to by whom that culprit was assaulted in the night. The accused was identified when the light was brought near him and he was found holding a pistol in his hand and on query he disclosed his name as Gunadhar Majhi i.e. the Appellant herein. The informant took the pistol from his hand and in the same night, the accused Gunadhar Majhi was brought to Sini Police Camp with the witnesses where the statement of the informant was recorded. The case was instituted under Sections 458/341/323/307/376/511 Indian Penal Code as also under Sections 25(1-B)/26/27 of the Arms Act against the accused-Appellant Gunadhar Majhi of village Ulidih. Production-cum seizure list of the country made pistol with the loaded cartridge was prepared at the police camp. The informant was sent to the Medical Officer, Sub Divisional Hospital, Seraikella and his injury report was obtained. Police after investigation, submitted charge-sheet under Sections 458/341/323/307/376/511 Indian Penal Code as also under Sections 25(1-B)A/26/27 of the Arms Act against the accused-Appellant. Accused was sent to jail. After commitment of the case, the learned Sessions Judge, Seraikella-Kharsawan put the accused Gunadhar Majhi on trial after framing charge under Sections 452/376/511/307 Indian Penal Code against him besides separate charge under Section 25(1-B)A of the Arms Act to which the accused-Appellant denied his guilt and claimed his trial.

(3.) Learned Counsel for the Appellant , at the outset, submitted that though the charges were framed against the Appellant for the alleged offence including under Sections 376/511/307 Indian Penal Code but he was convicted only under Sections 452/323 Indian Penal Code and other allegations were disbelieved by the Trial Judge. The very genesis of the case that the Appellant had attempted to commit rape on the wife of the informant and in the same sequence, the informant arrived there to prevent the accused was disbelieved and therefore, it could be well presumed that the occurrence did not take place in the manner presented by the prosecution and the false implication of the Appellant could not be ruled out. No appeal has been preferred by the State-Respondent against the acquittal of the Appellant from the charge under Sections 307, 376/511 Indian Penal Code. As many as seven witnesses were produced and examined on behalf of the prosecution, including the independent witnesses, who were the villagers, but none except the informant has supported the case and the other witnesses viz. P.W. -3 Banmali Sardar, P.W.-4 Parmeshwar Sardar and P.W.-5 Anand Sardar were unfavorable to the prosecution and hence, they were declared hostile. Left out witnesses were P.W.-1 Prakash Singh, who was the Investigating Officer of the case; P.W.-2 Dipak Kalindi-Informant; P.W.-6 Baishaki Kalindi, who was the wife of the informant also turned hostile and P.W.-7 Dr. Rajendra Nath Soren supported the injuries on the informant, simple in nature and in that manner; the left out witness was the informant whose testimony could not be believed wholly by the Trial Judge. It would be relevant to mention that the wife of the informant P.W.-6 Baishaki Kalindi did not support the prosecution case much less the allegation against the Appellant that he attempted to commit rape on her and that the informant intervened which resulted into scuffle between the two. On the other hand, she testified that on the night of alleged occurrence while she was sleeping inside her house, she woke up at 11:00 p.m. on hearing alarm to which she came out from the house and found a person quarreling with her husband. She did not identify the person, as such, she raised alarm whereupon the other witnesses arrived at the place of occurrence. She did not support the allegation that the Appellant attempted to ravish her nor did she corroborate that any shot was fired by the Appellant by his pistol to attract the charge under Section 307 Indian Penal Code. The statements of the informant-husband did not find support from the statement of his wife P.W.-6 Baishaki Kalindi and therefore, prosecution story was liable to be thrown out as cannot be relied upon. Admittedly, certain injuries were found on the person of the informant when he was examined by P.W.-7 Dr. Rajendra Nath Soren on 1.10.2001 and the Doctor found the following injuries: