Jharkhand High Court
Mathura Thakur vs The State Of Jharkhand on 17 April, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No.228 of 2012
Mathura Thakur ... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Sanjay Kumar Pandey, Advocate
For the Opp. Party State: Mr. Manoj Kumar Mishra, Advocate
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Through Video Conferencing
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09/17.04.2021 Heard Mr. Sanjay Kumar Pandey, learned counsel
appearing on behalf of the petitioner.
2. Heard Mr. Manoj Kumar Mishra, learned counsel
appearing on behalf of the opposite party - State.
Arguments of the petitioner
3. Learned counsel appearing on behalf of the petitioner
while advancing his arguments has submitted that the incident
of the present case is of 07.03.1985 at 11 p.m and the fardbeyan
was recorded on 08.03.1985 at 17.00 hours and the F.I.R was
registered on 09.03.1985 at 8.45 hours under Sections 376/511 of
Indian Penal Code. The charge sheet was submitted on
22.03.1985 and charge was framed on 03.07.1989 under the
aforesaid Sections.
4. The learned counsel has submitted that in the instant case
although there were 6 (six) witnesses, but only 5 (five) were
examined and the Investigating Officer of the case was not
examined. He has also submitted that except P.W.5 rest of the
witnesses are interested witnesses. P.W. 4 is the informant of
the case. P.W. 1 is the father of the victim. He further submits
that the informant of the case is the mother of the victim, but
she herself is hearsay witness as she has stated in her evidence
that she was sleeping inside the room and came out of the room
upon alarm raised by the victim. He further submits that P.W. 1
is the father of the victim, who was admittedly not available at
the time and place of occurrence and it was the mother, who
had narrated the entire incident to the father and accordingly
father and mother both are hearsay witnesses. He further
submits that P.W. 5 is also not the eye witness to the occurrence
and had arrived at the place of occurrence when there was
alarm raised by the informant and the other witnesses. The
learned counsel submits that P.W. 2 and P.W. 3 are the victim
witnesses. He submits that serious prejudice has been caused to
the petitioner as the Investigating Officer of the case has not
been examined and there is only one exhibit i.e., the fardbeyan,
which has been exhibited and the F.I.R itself has not been
exhibited.
5. The learned counsel has further submitted that there was
previous enmity and the learned Sessions Judge in para 8 of the
judgment instead of relying upon the prosecution evidence has
relied upon the fact that the defence did not led any evidence
regarding previous enmity.
6. The learned counsel submits that there are material
contradictions in the evidence of the witnesses and the
aforesaid aspects of the matter have not been properly
considered by the learned courts below.
7. The learned counsel has also submitted that at best the
present case is the case under Section 354 of Indian Penal Code
and the basic ingredient for attempt to commit rape and offence
under Sections 376/511 is not made out.
8. The learned counsel has referred to the judgments passed
by the Hon'ble Supreme Court reported in (2004) 4 SCC 379
paragraph nos.11, 13 and 14; (2006) 8 SCC 560 and (2004) 3 SCC
602 to submit in support of his contention that at best offence
under Section 354 of Indian Penal Code is made out. The
learned counsel has further submitted that the incident in the
present case is of the year 1985 and at that point of time, the
maximum punishment for offence under Section 354 of Indian
Penal Code was 2 years. He has also submitted that during the
pendency of the present criminal revision petition, the
petitioner had surrendered before the learned court below on
16.02.2012 and was enlarged on bail vide order dated
25.09.2012. The learned counsel submits that as per the
judgment of conviction, it has been recorded that the petitioner
was 35 years of age on 03.10.1994 and accordingly the present
age of the petitioner would be more than 60 years of age.
9. The learned counsel further submits that without
prejudice to the aforesaid, the present offence is the first offence
of the petitioner and the petitioner is already out of
employment. The learned courts below have refused to give the
benefit of Probation of Offenders Act, 1958 to the petitioner.
10. During the course of arguments, it is not in dispute in the
present case that no defence evidence was led by the petitioner
and the petitioner was in total denial of the incident while
recording his statement under Section 313 of Cr.P.C.
Arguments of the State
11. The learned counsel on behalf of the opposite party-State,
on the other hand, while opposing the prayer has submitted
that there are consistent findings recorded by the learned courts
below and there is no scope for reappreciation of evidences and
coming to a different finding. He has further submitted that
there is no illegality, perversity or impropriety in the impugned
judgments calling for any interference in revisional jurisdiction.
The learned counsel has also submitted that considering the
nature of offence, the petitioner is not entitled to the benefit of
Probation of Offenders Act, 1958 and this criminal revision
petition is fit to be dismissed.
12. Arguments concluded.
13. Order reserved.
(Anubha Rawat Choudhary, J.)
Saurav/
