In this criminal appeal, the High Court upheld the conviction for molestation and outraging modesty. It modified the sentence to the period already undergone by the appellant, while retaining the fine.
Appeal dismissed; sentence restricted to period undergone; fine of Rs. 500 retained.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction)
Cr. Appeal (SJ) No. 761 of 2010
(Against the judgment of conviction and order of sentence both dated 10.08.2010 passed in Sessions Trial No. 08 of 2008 by the Additional Sessions Judge, Fast Track Court, Simdega.)
Farukh Khalifa son of Md. Ekramul Khalifa, resident of village- Tamra, P.O.-Simdega, District-Simdega .......Appellant
Versus
The State of Jharkhand … .... Respondent
HON’BLE MR. JUSTICE RATNAKER BHENGRA
------For the Appellant : Mr. Atul Kumar,Advocate For the State : Mr. S.K. Srivastava, APP -------
By Court:
Heard Mr. Atul Kumar, the learned counsel for the appellant and Mr. S.K. Srivastava, the learned counsel for the State.
2. This criminal appeal is directed against the judgment of conviction and order of sentence both dated 10.08.2010 passed by the Additional Sessions Judge, Fast Track Court, Simdega in Sessions Trial No. 08 of 2008, whereby and where under appellant was convicted under sections 451 and 354 of the Indian Penal Code. The appellant was sentenced to undergo Rigorous Imprisonment of one year and a fine of Rs 500/- under section 451 of IPC and in default of payment of fine SI for one month was awarded. The appellant was further sentenced to RI for two years under section 354 of IPC. Both the sentences were ordered to run concurrently and period undergone was ordered to be set-off.
3. The prosecution story, in brief, as per the fardbeyan dated 30.09.2007 of the PW-1 informant victim (name concealed) is that her husband Rajesh Baitha and father-in-law Bhola Baitha (PW-4) had gone to dam for fishing on last Thursday. On 27.09.2007 at about 10.00 pm, in the night, she was cooking fish keeping the door of her house closed. In the meantime appellant Farukh Khalifa of her village came to her house and asked about her husband, to which she replied that her husband had gone for fishing. Thereafter, appellant Farukh Khalifa pushed the informant on the bed and gagged her mouth with cloth and when informant tried to raise
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halla , then, appellant threatened her to kill. Appellant removed her clothes and committed rape upon her. Informant further stated that in the meantime her husband came and inquired from the appellant, but the appellant succeeded in escaping from the house of the informant. Her husband raised halla and narrated the incident to all. It is further alleged that on the next day, villagers stopped them to go to the police station and threatened that if the case was lodged, then they would be ousted from the village. Informant further stated that due to fear he did not go to police station and on the next day informant went to her brother-in-law ( jija ) Ganga Baitha’s house. On Saturday at about 9 am, a panchyati was held at village-Tamra and in the panchayat Naushad Khalifa and Murshid Khan abused her husband and Naushad Khalifa pressed her husband’s neck. Then some people saved her husband and, thereafter, police came in the village. But, out of fear she did not state the occurrence to the police.
4. On the basis of fardbayan of the informant Simdega P.S. case no. 148/07 dated 30.09.2007 was lodged against the three accused persons including the appellant under sections 376, 449, 323 and 120(B) of IPC. After investigation charge sheet was submitted against the accused persons under sections 376, 449, 323 and 120(B) of IPC and cognizance of the offences were taken and the case was committed to the court of Sessions. Charges were framed against the appellant under sections 376, 450 and 307/34 of IPC and the trial was held. At the conclusion of the trial appellant was convicted and sentenced as aforesaid. Here it is pertinent to note that charges under sections 449, 323 and 307/34 of IPC were framed against the other two accused persons, but, they were acquitted of the charges by the learned trial court.
5. The prosecution has examined altogether ten witnesses, in support of its case out of whom PW-1 is the victim or informant of the case; PW-9 is Jateshwar Mishra, who is the Investigating Officer of the case and PW-10 is Dr. Olympia Kerketta, who had examined the informant. PW-2 Krishna Baraik, PW-3 Shambhu Baitha, PW-4 Bhola Baitha, PW-5 Arjun Saw, PW-6 Piyush Kujur, PW-7 Moti Saw and PW-8 Ramesh Baraik and all these witnesses PW-2 to PW-8 were declared hostile. PW-1 informant was also declared hostile.
6. PW-1 is the victim or informant of the case. Informant had
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stated in her evidence that on the day of occurrence that at about10:00 pm, she was in her house at Tamra and her husband had gone for fishing. Accused Farukh came to her house and started joking and teased her. She further stated that Farukh did not commit rape upon her. Victim was declared hostile. In her cross-examination victim deposed that police had not taken her statement.
7. PW-9 Jateshwar Mishra is the Investigating Officer of the case. Investigating Officer had proved the fardbayan of the informant and formal FIR which were marked as Ext.-1 and Ext.-2 respectively. Investigating Officer further stated that he took the re-statement of the informant. He sent the informant to Sadar Hospital for medical examination and inspected the place of occurrence at village-Tamra, District- Simdega. Investigating Officer had proved the medical requisition of the informant which was marked as Ext.-4.
8. PW-10 is Dr. Olympia Kerketta, who had examined the informant. Doctor opined that no sign and symptoms of rape were clinically established. Doctor has proved the medical report of the informant which was marked as Ext.-5.
ARGUMENTS OF THE APPELLANTS
9. Learned counsel for the appellant has submitted that in this case very little evidence is there against the appellant to convict him under sections 451 and 354 of the Indian Penal Code. Learned counsel first and foremost submitted that the victim herself is not trustworthy and reliable and pointed that in her fardbeyan she had alleged that she was raped, but, in her evidence, she only deposed that appellant had joked with her and teased her. Informant had emphatically deposed that appellant had not committed rape with her. Learned counsel for the appellant submitted that when the primary witness herself is not trustworthy, therefore, no sexual offence of any nature can be made out. Learned counsel for the appellant then referred to the evidence of other witnesses and pointed out that out of the ten prosecution witnesses, eight prosecution witnesses were declared hostile leaving only the doctor and Investigating Officer and therefore, the entire prosecution case can be considered to have collapsed. In particular learned counsel has pointed out the evidence of PW-4 Bhola Baitha, who is the father-in-law of the informant wherein, PW-4 had stated that he himself does not know
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anything about the incident and was declared hostile.
10. Learned counsel for the appellant further referred to the evidence of doctor and submitted that doctor in her evidence had indicated that it was clinically established that there was no sign of rape. Learned counsel for the appellant further pointed to the husband of the victim and submitted that Rajesh Baitha is the husband of the victim and he had put his thumb impression on the fardbayan of his wife, however, Rajesh Baitha did not turn up to give evidence though he was a charge-sheeted witness. Learned counsel for the appellant submitted that this is more shocking because even though he is a husband of the informant, but he had not appeared as a witness to support the case of the prosecution and in this manner he has gone against his wife which is very unnatural and this raises much doubt in the case of the prosecution. Learned counsel for the appellant also referred to one Ganga Baitha, whose name appeared in the fardbeyan and after the alleged incident, victim had gone to his house, but, said Ganga Baitha was not examined as a witness by the prosecution. Learned counsel for the appellant then referred to the evidence of other prosecution witnesses and submitted that they are co-villagers and in an incident of rape or molestation they could have been sympathetic to the case of the victim but they have not supported the case of the prosecution and were declared hostile.
11. Learned counsel for the appellant without admitting the guilt of the appellant submitted that even otherwise the appellant has spent about 10 month 25 days in custody and the case is almost 14 years old and the appellant was at the time of offence a very young man of around 23 years of age and he had no criminal record prior to this incident and, therefore, these mitigating circumstances should otherwise also be taken into consideration. Learned counsel has also cited the case of Jamshed Mian (Ansari) v. State of Jharkhand reported in 2009(2) JLJR 6 and submitted that on the basis of this judgment the offence under section 354 of the Indian Penal Code cannot be made out. Learned counsel also referred to the judgment of Manjappa v. State of Karnataka reported in (2007) 6 SCC 231 in which Apex Court had held that the substantive sentence which the appellant had already undergone was held sufficient. Learned counsel for the appellant further referred to the case of Tejpal v. State of M.P. reported in (2006) 9 SCC 762
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delivered by the Hon’ble Apex Court hand pointed in para-4 of this judgment, which reads as :
“4.Accordingly, we allow the appeal in part, set aside the conviction under Section 376 IPC and convict the appellant under Section 354 IPC. It has been stated that the appellant has remained in custody for a period of about thirteen months. In the facts and circumstances of the case we are of the view that ends of justice would be met in case the appellant is awarded sentence of imprisonment for the period already undergone. The appellant is convicted under Section 354 IPC and sentenced to imprisonment for the period already undergone. The appellant, who is in custody, is directed to be released forthwith, if not required in connection with any other case.”
Therefore, the learned counsel for the appellant submitted that while he is pleading for total acquittal, he is otherwise also placing an alternative plea for mitigation of sentence.
ARGUMENTS ON BEHALF OF THE STATE
12. Learned counsel for the State has on the other hand submitted that the evidence of the victim/ informant cannot be disregarded because though she has denied rape in her evidence, the accusation of molestation was supported by her in her evidence. Learned APP also submitted that from the evidence of the Investigating Officer also the charges of sexual offence can be sustained even if rape is denied by the victim herself. So at least the conviction under sections 354 and 451 of the Indian Penal Code is sustained against the appellant based on the evidence of the victim and the evidence of the Investigating Officer. Learned APP submitted that the impugned judgment of conviction and order of sentence against the appellant passed by the learned trial court requires no interference and be sustained and upheld.
FINDINGS AND CONCLUSIONS
13. Having heard, both the counsels and gone through the records and circumstances of the case, I find that appellant Farukh Khalifa was convicted and sentenced under sections 451 and 354 of IPC.
14. From the evidence of the victim or the informant PW-1, I find that PW-1 informant had deposed in her examination-in-chief that appellant Farukh Khalifa had entered into her house and had joked with her and teased her. Though initially FIR was registered against the appellant under section 376 IPC, but, the appellant, on the basis of the evidence of the victim was convicted under section 354 IPC by the learned trial Court.
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15. Hence, I find that the appellant Farukh Khalifa had entered into the house of the informant and used criminal force and molested her with an intent to outrage her modesty. Hence, prosecution has proved the charges under sections 451 and 354 of IPC against the appellant.
16. Accordingly, the impugned judgment of conviction of the appellant dated 10.08.2010 passed by the learned Additional Sessions Judge, Fast Track Court, Simdega in Sessions Trial No. 08 of 2008, is sustained and upheld.
17. So far as sentence is concerned, I find that the learned counsel for the appellant has relied on the judgment of Tejpal (Supra) in which Hon’ble Apex Court had awarded sentence of imprisonment for the period already undergone for the conviction under section 354 IPC. I find that appellant Farukh Khalifa has served about 10 months and 25 days in custody and almost 14 years have been passed and appellant has faced rigors and vigors of trial. Hence, drawing parallels from Tejpal (Supra) , the sentence of the appellant Farukh Khalifa is restricted to the period already undergone. However, the fine amount of Rs. 500/- as awarded by the learned trial court under section 451 IPC remains and shall be deposited to the learned trial court, if not deposited within three months of the receipt of the copy this judgment, otherwise default condition as imposed by the learned trial court will apply. The appellant shall be discharged from the liability of bail bond after the payment of the aforesaid fine amount.
18. Accordingly, this appeal is dismissed with modification in sentence.
( Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi Dated 03/12/2021 Sharda/NAFR
3 issues framed by the court
Whether the conviction for molestation under section 354 IPC and outraging modesty under section 451 IPC should be sustained given the witness contradiction?
Whether the appellant was entitled to a reduction in sentence based on the period already undergone in custody?
Whether the fine imposed under section 451 IPC should be maintained?
Colour shows how this judgement treated each authority
Jamshed Mian (Ansari) v. State of JharkhandReferred¶28
Jamshed Mian (Ansari) v. State of Jharkhand 2009(2) JLJR 6
Manjappa v. State of KarnatakaReferred¶28
Manjappa v. State of Karnataka (2007) 6 SCC 231 · Who else cites this
Tejpal v. State of M.P.Followed¶28
Tejpal v. State of M.P. (2006) 9 SCC 762 · Who else cites this
1 provisions across 1 enactments
Farukh Khalifa
The State of Jharkhand
Ratnaker Bhengra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
