Patna High Court
Kalendra Yadav vs The State Of Bihar on 18 April, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.164 of 2008
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Kalendra Yadav, Son of Naresh Yadav, resident of Village- Shakhuana, P.S.
Sahar, District- Bhojpur at Ara.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Abhas Chandra, Advocate (Amicus Curiae)
For the Respondent/s : Mr. Satya Narayan Prasad, APP
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
Date: 18-04-2025
Heard Mr. Abhas Chandra learned Amicus
Curiae for the appellant and Mr. Satya Narayan Prasad learned
APP for the State.
2. This appeal has been filed under Section
374(2) of the Code of Criminal Procedure, 1973 (hereinafter
referred to as the 'Code') against the Judgment and Order dated
05.11.2007
and 08.11.2007 in Sessions Trial No. 141 of 2002,
arising out of Sahar P.S. Case No. 119 of 1998 corresponding to
G.R. No. 2330 of 1998 passed by the learned Additional District
and Sessions Judge (F.T.C.)-IVth, Bhojpur at Ara whereby and
where-under the appellant has been convicted for the offence
punishable under Sections 376 and 511 of the Indian Penal Code
and sentenced to under go rigorous imprisonment for five years.
3. The prosecution case is based on the
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Fardbeyan of the informant before the police of Sahar P.S. Case
No. 119 of 1998 stating therein that on 08.10.1998 at about 12
AM the informant went to the canal with her goat, in the
meantime, Kalendra Yadav came their and tried to outrage her
modesty after opening her panty, but she put a bite in his hand,
raised alarm, after which one Mushhar (villager) came and the
appellant fled away. Thereafter the informant came at his house
narrated the story to her parents after which the Panchayati was
desirous but due to failure thereof the informant with her mother
reached at the Police Station and lodged this case.
4. On the basis of Fardbeyan, a formal First
Information Report was registered as Sahar P.S. Case No. 119 of
1998 dated 10.10.2008 for the offence punishable under
Sections 376 and 511 of the Indian Penal Code. The police after
investigation submitted charge-sheet under Sections 376 and
511 of the Indian Penal Code and the learned Magistrate
committed the case to the Court of Sessions.
5. During the trial the prosecution has examined
seven witnesses to substantiate this case. Out of them, PW-1
Jagadish Sharma, PW-2 Sheo Kumari Devi, PW-3 Jiwan
Kumari (informant), PW-4 Tapeshwar Singh, PW-5 Nand
Kishore Singh, PW-6 Harischandra Paswan and PW-7
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Brahmdeo Singh.
6. PW-1 Jagadish Sharma (father of the
informant), who is hearsay witness. In his examination-in-chief
stated that occurrence took place at 12pm in the year 1998 and
at that time he was working in some other place and he came to
know about the incident by her daughter. In his cross-
examination, he stated that the place where his daughter went to
graze the goats that place does not belongs to Kalendra Yadav
and Kalendra Yadav does not have any field. He said that his
daughter did not tell the name of that people from Mushar
community who has come there at the time of occurrence.
7. PW-2 Sheo Kumari Devi (mother of the
informant), who is also the hearsay witness. In her examination-
in-chief stated that occurrence took place around four and half
years ago in the noon and she was at home when the daughter
narrated the incident to her. She further stated that her daughter
told that she had gone to gaze the goats then Kalendr Yadav
opened her pant and tried to insult her due to which she shouted
and a passerby came there after hearing her cry then Kalendra
Yadav fled away. She further stated that when the panchyati was
called Kalendra’s father refused to consider the decision of the
panches, thereafter she went to the police station and lodged a
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case against accused person. She further gave her thumb
impression before the Sub-Inspector on the fardbeyan.
8. PW-3 Jiwan Kumari (informant), she was of
about 13 years of age at the time of alleged occurrence. In her
examination-in-chief stated that occurrence took place four and
half years ago, it was noon time and she was not married at that
time. She went to graze goats near the canal in the west side of
the village there in the field then the sole accused firstly told her
to step aside when she was in paddy field with her goats. She
also stated that her frock had been torn which she was wearing
on that day. She has stated that she bite on the hands of the
accused/appellant, when he tried to molest her. On hearing the
noise/alarm a passerby came there, seeing which the
accused/appellant fled away from the place of occurrence. After
3 days of the occurrence she went to the police station with her
mother and father.
8.i. On cross-examination, she further stated that
accused did not ask her to move from there and he had not torn
her clothes. She further stated that she did not know the
passerby before the occurrence and after the occurrence it took
30 minutes to return to her house.
9. PW-4 and 5 Tapeshwar Singh and Nand
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Kishore Singh (Independent witness). have been declared
hostile.
10. PW-6 Harishchandra Paswan (Investigating
Officer) in his examination-in-chief stated that he was posted as
an SHO at Sahar PS on 10.10.1998 and recorded Jiwani
Kumari’s fardbeyan and the same has been is marked as Ext-1
and the formal FIR is marked as Ext-2. He further stated that he
recorded the statements of the witnesses and inspected the place
of occurrence. In his cross-examination vide para-4, he stated
that the informant has not disclosed that the accused/appellant
molested her, therefore, she was not sent for Medical
Examination.
11. PW-7 Sramhdeo Singh (Panch), was the then
Mukhiya of the village. He stated in examination-in-chief that
occurrence took place about 5-6 years ago and he had done
Panchayati and has disclosed the names of other panches in
whose presence the Panchayati was done. In his cross-
examination he has stated that no document was exhibited
during the trial that Panchyati was done and the Investigating
Officer had not recorded his statement. There were only
interested witnesses or hearsay witnesses and the informant was
not medically examined. He further stated the Investigating
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Officer has not recorded his statement.
12. Learned amicus curiae for the appellant
submits that appellant has falsely been implicated in this case
and the impugned judgment of conviction and order of sentence
are not sustainable in the eye of law or on facts. Learned trial
Court has not applied its judicial mind and erroneously passed
the judgment of conviction and order of sentence. From perusal
of the evidences adduced on behalf of the prosecution, it is
crystal clear that the prosecution case has not been supported by
anyone other than the informant/victim herself and it is relevant
to note here that all other witnesses are interested witnesses.
Learned counsel further submitted that there is delay of 3 days
in filing the FIR. He further submitted that PW-1 and 2 are
hearsay witnesses and they have not seen the occurrence nor
tried to search for that mushar who was present at the time of
incidence. He further submitted that the said passerby was not
examined and neither the torn frock of the informant (victim)
was seized nor produced before the trial Court and the
accused/appellant was not medically examined by the Doctor to
prove that he had a bite sign on his hand.
12.i. Learned amicus curiae further contended
that informant/victim in her fardbeyan stated that upon seeing a
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mushar the appellant fled away but in her deposition she stated
that a passerby came then the appellant fled away. He submitted
that it is not understandable that how PW-3 knew that the person
who was cutting the wood was a mushar by caste. He further
submitted that PW-6 in his cross-examination stated that PW-3
did not disclosed that the appellant molested her and complete
investigation was not done by him and he had no knowledge
about investigation. He further submitted that except PW-7 no
one from the Panchayat was examined nor any documents were
exhibited to show that Panchayat was done and on failure of
such, the present case was registered.
12.ii. Learned amicus curiae further submitted
that there are material discrepancies in the statement of the
prosecution witnesses as other investigating officers who
investigated the present case were not examined to corroborate
with the prosecution story neither other panches were examined
to show that Panchayat was held, which implies that prosecution
has failed to prove its case beyond all reasonable doubt against
the appellants.
12.iii. The Learned trial Court has failed to
appreciate the evidence it’s right perspective and impugned
judgment of conviction is bad in law as well as on fact and such
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to set aside. Learned counsel further submitted that this appeal
is of the year 2008 and occurrence is of the year 1998, where,
the appellants have suffered and undergone persistent agony on
the account of the same and are struggling for the defence since
last 16-17 years. So, the appellants should have been acquitted
from the conviction as sentenced against them.
13. However, learned APP for the State defends
the impugned judgment of conviction and the order of sentence
submitting that there is no illegality or infirmity in the impugned
judgment and order of sentence, because prosecution has proved
its case against the appellant beyond all reasonable doubts. In
view of the aforesaid statements and the evidence on record,
learned trial Court has rightly convicted the appellant and the
present appeal should not be entertained.
14. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution and
defence before the Trial Court and have thoroughly perused the
materials on record as well as given thoughtful consideration to
the submissions advanced by both the parties.
15. On deeply studied and scrutinized all the
facts and materials available on record, it is evident to note that
the informant/victim in her fardbeyan stated that upon seeing a
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mushar the appellant fled away but in her deposition she stated
that a passerby came then the appellant fled away. It is not
understandable that how PW-3 knew that the person who was
cutting the wood was a mushar by caste. There are material
discrepancies in the statement of the prosecution witnesses as
none of the prosecution witnesses have seen the appellant nor
PW-1 and 2, father and mother of the victim tried to bring the
passerby person during the course of trial to substantiate the
allegation leveled on the appellant and other investigating
officers who investigated the present case were not also
examined to corroborate with the prosecution story neither other
panches were examined nor any documents were exhibited to
show that Panchayat was held and PW-7 in his cross-
examination further stated that at the date of occurrence he was
outstation and informant had already lodged a case, there the
Panchayat was not held. There is also two days delay in lodging
of the FIR and there is no explanation for the same.
16. In the case of Jabir and others versus State
of Uttarakhand reported in AIR 2023 SC 1239 held on the
point that where all witnesses are related, there being serious
inconsistencies in deposition of the witnesses as well as delay in
lodging of the FIR, the sole reliance on the last seen
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circumstance, even if assumed to have been proved the
conviction of the accused would not be justified. Also relied
upon the Supreme court ruling in the case of Ram Swaroop vs.
Ravi reported in 2004 (13) SCC 134 held that the version
disclosed by witness is quite different from what he stated in the
FIR and in the statement recorded during investigation such a
witness is not a credible witness.
17. Further, Investigating Officer has also not
been examined who has investigated the case during the course
of trial as it was fatal since he could have adduced the expected
evidence and his non-examination creates a material lacuna in
the effort of the prosecution to nail the appellant, thereby
creating reasonable doubt in the prosecution case and the
learned trial Court failed to scrutinize the evidence brought on
record regarding deficiencies, drawbacks and infirmities crept
during course of trial and passed the impugned judgment in
complete ignorance of criminal jurisprudence. Further, there is
no eyewitnesses to the said occurrence and all the PW’s were
hearsay witnesses and have not seen the occurrence.
18. The learned trial Court failed to scrutinize the
evidence brought on record regarding deficiencies, drawbacks
and infirmities crept during course of trial and passed the
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impugned judgment in complete ignorance of criminal
jurisprudence and passed this judgment. Moreover, there are
discrepancies regarding the sequence of events and the presence
of individuals at the place of occurrence. Considering this fact,
prosecution has failed to establish this case beyond shadow of
all reasonable doubts, therefore, in such circumstances, it may
not be proper to convict the appellant/accused on the materials
available on record. Hence, the judgment of conviction and
order of sentence in this present matter is fit to be set aside.
19. Hence, the Judgment of conviction dated
05.11.2007 and order of sentence dated 08.11.2007 passed in
Sessions Trial Case No. 141 of 2002 arising out of Sahar P.S.
Case No. 119 of 1998 dated 10.10.1998 passed by the learned
Additional District and Sessions Judge (FTC)-IV, Ara, Bhojpur,
is set aside and the accused/appellant is acquitted from the
charges leveled against him. As the appellant is on bail, he is
discharged from the liability of his bail bonds.
20. Before parting with this appeal, Secretary,
Patna High Court Legal Services Committee is directed to pay
Rs. 5,000/- (five thousand) to the learned Amicus Curiae,
namely, Mr. Abhas Chandra towards honorarium for assisting
this Court in the present appeal.
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21. Let a copy of first and last page of this
judgment be handed over to the advocate Mr. Abhas Chandra,
learned Amicus Curiae and Office is directed to proceed further
in granting honorarium to him which is to be paid by Patna High
Court Legal Services Committee.
22. Accordingly, this appeal stands allowed.
(Ramesh Chand Malviya, J)
Anand Kr.
AFR/NAFR NAFR CAV DATE N/A Uploading Date 23.04.2025 Transmission Date 23.04.2025
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