Jharkhand High Court
Dhananjay Choudhary vs The State Of Jharkhand on 19 July, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Revisional Jurisdiction)
Criminal Revision No. 462 of 2015
Dhananjay Choudhary, s/o Sri Ram Niwas Choudhary, r/o Qr. No.
New B/2, Gayatri Colony, Kathara, C.C.L, PO-Kathara, PS-
B.T.P.S., District-Bokaro. ... Petitioner
Versus
The State of Jharkhand ... Opposite Party
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner : Mr. Naresh Pd. Thakur, Advocate
For the State : Mr. Bishwambhar Shastri, APP
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Order No.8/Dated: 19th July 2022
The petitioner has been convicted and sentenced to RI
for 3 years and a fine of Rs.1000/- under sections 377/511 of the
Indian Penal Code (in short, IPC) with a default stipulation to
undergo RI for further one month.
2. Mr. Naresh Pd. Thakur, the learned counsel for the
petitioner states that after conviction of the petitioner in T.R
No. 170 of 2009 he remained in jail for about 5 months, before bail
was granted to him by a co-ordinate Bench of this Court vide order
dated 10th October 2017.
3. Briefly stated, on the basis of a written report given by
Girija Nandan Pd. Singh who is father of the victim boy, a First
Information Report vide B.T.P.S PS Case No. 5 of 2007 was drawn
on 31st January 2007 under sections 377/511 IPC. After the
investigation, the petitioner was sent up for trial and a charge for
the aforesaid offence was framed against him on 23 rd May 2007. In
the trial, the prosecution examined six witnesses to prove the
charge under sections 377/511 IPC - PW3 is the informant of this
case.
4. The learned trial Judge believed evidence of PW1 who is
the victim boy and PW3 who is the informant and arrived at a
conclusion that the prosecution succeeded in proving the charge
under sections 377/511 IPC against the accused.
5. The learned A.C.J.M, Bermo at Tenughat pronounced
2 Criminal Revision No. 462 of 2015
the judgment of conviction in T.R. No. 170 of 2009 on 30 th April
2009 holding the petitioner guilty under sections 377/511 IPC
and, as noticed above, sentenced him to undergo RI for 3 years
and a fine of Rs.1000/-.
6. Criminal Appeal No. 49 of 2009 filed by the convict was
dismissed on 22nd January 2015 on the ground that the convict
could not prove any evidence showing his innocence nor the
defence witnesses could satisfactorily prove his evidence rather
they made contradictory statements.
7. This is fundamental in criminal jurisprudence that
except in a very limited class of cases in which the accused suffers
reverse burden it is the prosecution which has to prove its case
beyond all reasonable doubt. Even in cases where by operation of
statutory provisions such as section 106 of the Indian Evidence
Act the burden shifts on the accused, to show by preponderance of
probability that the accusations against him are not proved, the
persecution cannot shy away from its duty to prove its case.
8. In "Shambhu Nath Mehra v. The State of Ajmer" AIR
1956 SC 404 the Hon'ble Supreme Court has held that section 106
of the Indian Evidence Act cannot be used to undermine the well
established rule of law that, save in a very exceptional class of
cases, the burden is on the prosecution and that never shifts.
9. The reasoning provided by the appellate Court recorded
in paragraph no.21 of the judgment in Criminal Appeal No. 49 of
2009 reveals that the criminal appeal preferred by the petitioner
was dismissed on a wrong legal premise, assuming that the
accused has to prove his innocence.
10. In paragraph no.21, the appellate Court has held as
under :
"21. Having considered the oral and documentary evidences as
well as the materials and circumstances available in the record
this court arrived at that Dhananjay Choudhary has committed
the offence U/S 377/511 IPC. It further appears that the Ld.
Counsel appearing on behalf of the appellant neither produced
any evidence for his innocence in the cross-examination of the
P.Ws nor the defence witnesses examined on his behalf have
satisfactorily proved about his innocence rather the defence
witnesses made contradictory statements."
3 Criminal Revision No. 462 of 2015
11. Even on merits, this Court is satisfied that the charge
under sections 377/511 IPC was not proved against the petitioner.
12. The offence under section 377 IPC requires voluntary
carnal intercourse against the order of nature with any man,
woman or animal. Explanation to section 377 IPC clarifies that
penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section. On admitted
facts, carnal intercourse did not happen and, as provided under
section 511 IPC which concerns attempt to commit offence, there
was an attempt by the petitioner to commit the offence under
section 377 IPC is not proved. From the evidence of PW1, it is
evident that the petitioner unbuttoned his trouser and asked the
victim boy also to remove his pants but beyond that there is
nothing in the statement of PW1 which would establish that the
petitioner attempted to commit the offence under section 377 IPC.
All that can be gathered from the evidence of PW1 who is the
victim boy is that the petitioner had the intention/motive to
commit the offence but then except the offence of dacoity the
Indian Penal Code does not make preparation an offence.
13. The learned A.C.J.M, Bermo at Tenughat accepted the
stand of the accused that PW2, PW4 and PW5 are hearsay
witnesses who came to know about the occurrence as informed to
them by the father of the victim boy. The evidence tendered by the
defence witnesses who spoke about a dispute between the
petitioner and the father of the victim boy regarding transaction of
Rs.50,000/-, in the aforesaid facts, could not have been brushed
aside by the Courts below, which plea was set up by the petitioner
to put forth a defence that he has been falsely implicated in the
case on account of previous enmity. The Courts below did not
accord same evidenciary value to the defence evidence and ignored
the same without any consideration. In my opinion, the petitioner
is entitled for benefit of doubt.
14. Having found so, this Court is of the view that the
conviction and sentence of the petitioner recorded in T.R. No. 170
of 2009 arising out of G.R. No.76 of 2007 corresponding to B.T.P.S
4 Criminal Revision No. 462 of 2015
PS Case No. 5 of 2007 as affirmed by the appellate Court in
Criminal Appeal No. 49 of 2009 do not stand scrutiny in law and
are, accordingly, set-aside.
15. Criminal Revision No. 462 of 2015 is allowed.
16. The petitioner is discharged of liability of the bail-bonds
furnished by him pursuant to the order dated 10 th October 2017
passed in the present proceeding.
17. Let the lower Court records be sent to the Court
concerned, forthwith.
(Shree Chandrashekhar, J.)
Amit/
