Patna High Court
Ramesh SinghversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ALOK KUMAR PANDEY
Holding
The conviction under Section 354 IPC is set aside as the prosecution failed to prove the offence beyond reasonable doubt.
Summary
The appellant Ramesh Singh was convicted by a Fast‑Track Sessions Court for assaulting the daughter of an informant under Section 354 of the Indian Penal Code and sentenced to two years’ rigorous imprisonment. On appeal, the appellant contended that the prosecution evidence was riddled with contradictions, lacked material corroboration (no torch, broken bangles or pellet were seized), the investigating officer was not examined, and there was no proof of intent to outrage modesty. The High Court examined the testimonies of six prosecution witnesses, noting inconsistencies in their accounts of the firing, the victim’s position, and the alleged hand‑holding, and observed that the core element of Section 354 – intent to outrage modesty – was not established. Relying on precedents that non‑examination of the investigating officer can prejudice the defence and that conviction requires proof beyond reasonable doubt, the Court set aside the conviction and allowed the appeal. The appellant was discharged and released on bail.
Issues considered
- Whether the appellant committed the offence of outraging the modesty of a woman punishable under Section 354 IPC given the inconsistencies and lack of corroborative material evidence.
Legislation cited
- Arms Act — s. 27
- Code of Criminal Procedure, 1973 — s. 162, 313
- Indian Evidence Act, 1872 — s. 118
- Indian Penal Code — s. 307, 323, 341, 354
Subjects
- Section 354 IPC
- outrage of modesty
- conviction appeal
- evidentiary inconsistencies
- non‑examination of investigating officer
- criminal law
- criminal procedure
- evidence law
- child witness
- Arms Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.667 of 2010
======================================================
Ramesh Singh S/O Late Harsing Narayan Singh R/O Village-Ratwara, Tole-
Bishanpura, P.S-Bajpatti in the District of Sitamarhi.
... ... Appellant/s
Versus
The State of Bihar Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Mahendra Thakur, Advocate
Mr. Sanjay Kumar, Advocate
For the Respondent/s : Mrs. Anita Kumari Singh, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
Date : 20-01-2026
It is necessary to highlight certain correction
required which has not been made at an earlier stage and the
office has not taken pain at the time of admission to correct it
and they have not made objection on the same point and during
the course of dictation, it came to fore that in the impugned
judgment of conviction, “Bajpatti P.S. Case No. 18 of 2002” has
wrongly been mentioned as “Bajpatti P.S. Case No. 8 of 2002”.
From the perusal of all the record, it is found that everywhere
Bajpatti P.S. Case No. 18 of 2002 has been mentioned. Even in
the FIR, charge-sheet mentions Bajpatti P.S. Case No. 18 of
2002. However, the facts as asserted in judgment are same as
mentioned in the FIR. Hence, only it may be taken as
typographical error which has been left out inadvertently
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without having correction. So, no need to send the file for
correction as the appeal is pending since 2002 and on
20.01.2026 the judgment has already been orally pronounced.
2. Heard learned counsel for the appellant and
learned Additional Public Prosecutor for the State.
3. The name of the victim has not been disclosed
in the present judgment to protect her privacy, prestige and
dignity.
4. The present appeal is directed against the
judgment of conviction and order of sentence dated 26.06.2010
passed by learned Additional Sessions Judge, Fast Track Court
No.-III, Sitamarhi in Sessions Trial No. 298 of 2003/168 of 2005
whereby and whereunder the appellant has been convicted for
the offence punishable under Section 354 of the Indian Penal
Code and has been sentenced to undergo rigorous imprisonment
for two years.
5. On the basis of fardbeyan of informant/PW6
recorded at Bajpatti Police Station at 10:30 PM, the prosecution
case is that the informant (PW6) who is resident of village
Ratwara, tola Bishanpura and was doing business at Kolkata. On
21.03.2002 at 9:00 PM informant alongwith his daughter (PW5)
was sitting on cot in verandah of the house and wife (PW4) and
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daughter (PW1) of informant were sitting beside him on mat and
they were warming themselves by the fire. Meantime, appellant
along with other two persons came at the door of informant and
fired on him by means of pistol which hit the wall. Upon which,
while raising alarm wife (PW4) and daughter (PW1) of
informant came out of the house and the accused/appellant
caught hold the hand of victim (PW1) but on the alarm raised by
the informant’s wife and his daughter, villagers arrived at the
spot, causing the appellant to flee along with his associates,
leaving behind one slipper at the place of occurrence. It is
disclosed by the informant that appellant used to visit the house
of his cousin brother and the same was protested by him. So, the
appellant had grudge against the informant and on account of
the said annoyance, accused/appellant fired on him and caught
hold the hand of daughter of informant and assaulted the wife of
informant.
6. On the basis of written statement given by the
informant/PW-6, Bajpatti P.S. Case No. 18 of 2002 was
registered under Sections 307, 341, 323, 354 of the IPC and
Section 27 of the Arms Act. Routine investigation followed.
Statement of witnesses came to be recorded and on the
completion of investigation, charge sheet has been submitted
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against the appellant under Sections 307, 341, 323, 354 of the
IPC and Section 27 of the Arms Act. Thereafter, the learned trial
court took cognizance. The case was committed to the court of
sessions after following due procedure. The learned trial court
framed charges against the appellant under Sections 354, 307 of
the IPC and Section 27 of the Arms Act. Charges were read over
and explained to the appellant to which he pleaded not guilty
and claimed to be tried.
7. In order to bring home guilt of accused
person/appellant, prosecution has examined altogether six
witnesses. PW-1 daughter of informant/victim PW-2 Md. Juhi,
PW-3 Md. Bashir, PW-4 wife of informant, PW-5 daughter of
informant, PW-6 informant.
8. Prosecution has relied upon following
documentary evidence on record:-
Ext. 1- Signature of
informant on fardbeyan.
9. Defence has examined Munir Alam Khan as
D.W.1.
10. Defence has also produced following
documentary evidences:-
Ext. A- C.C. of formal FIR of Bajpatti P.S. Case
No. 60 of 2002
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Ext. B- C.C. of final form of Bajpatti P.S. Case
No. 8 of 2002
Ext. C- C.C. of final form of Bajpatti P.S. Case
No. 60 of 2002
Ext. D- C.C. of judgment dated 14.03.2007
passed by Sri Ravi Ranjan Mishra, J.M. in Tr. No. 129 of 2007.
Ext. E- Writing and signature of Shiv Prakash
on FIR of Bajpatti P.S. Case No. 18 of 2002.
11. However, defence of the appellant as
gathered from the line of cross examination of prosecution
witnesses as well as from the statement under Section 313 of the
Cr.P.C. is that of total denial.
12. After hearing the parties, the learned trial
court convicted the appellant and sentenced him as indicated in
the second paragraph of the judgment.
13. Following submissions have been made on
behalf of learned counsel for the appellant:-
Learned counsel for the appellant submits that so
far as the source of identification is concerned, torch has not
been seized and the bangles were broken but there were no
seizure of broken pieces of bangles. He further submits that the
very assertion of informant as well as other prosecution
witnesses and victim, have not been corroborated by any
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material regarding the core aspect of the prosecution-story.
Learned counsel for the appellant has submitted that out of six
witnesses examined, one prosecution witness (PW3) has not
supported the case of prosecution and has been declared hostile
and remaining witnesses are informant (PW6), his wife (PW4),
two daughters and his cousin brother. He further submits that the
investigating officer of the present case has not been examined
and no reason has been assigned by prosecution for withholding
the evidence of Investigating Officer and the prosecution has
been prejudiced thereby. He further submits that on same set of
facts, the prosecution case has been disbelieved under Section
307 of IPC and Section 27 of the Arms Act holding that
testimonies of prosecution witnesses are not reliable as
witnesses had disclosed that large number of persons assembled
at the place of occurrence but except the family members of
informant, no independent witnesses came forward to support
the case of prosecution. It has been submitted that prosecution
has failed to prove the charges under Section 307 of IPC and
Section 27 of the Arms Act. In this way, the very allegation of
firing has not been proved on the same set of facts and there was
no evidence of outraging the modesty available against the
appellant and the very core points under Section 354 which was
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required to be proved and the same has not been proved by any
of the prosecution witnesses and the judgment of conviction and
order of sentence passed by the concerned court is not justified
and legal. He further submits that PW6 (informant) in para 1 of
his examination-in-chief has deposed that he has instituted the
case by submitting his written application in the police station
but he further disclosed in his evidence that his statement was
also recorded at police station by officer in-charge of police
station but his written statement was deliberately suppressed by
prosecution and the case was instituted on his statement alleged
to have been recorded at the police station by the officer in-
charge. Therefore, FIR on the basis of which this case was
instituted is hit by Section 162 of Cr.P.C. It has been further
submitted that PW-6 in para 7 of his deposition, has stated that
he sent PW 2 to the police station after occurrence to inform and
bring the police at the place of occurrence and PW 2 returned at
about 11:00 PM along with sub inspector by vehicle and the said
police officer stayed with informant for about 10 minutes.
Thereafter, police had gone to the house of the accused with
PW2 and the informant by the police vehicle and when appellant
could not be traced at his residence, Police officer along with
informant and PW 2 came straight to the police station by the
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said vehicle at 1:00 AM where fardbeyan of the informant was
recorded in the morning at about 6:00 AM on which informant
put his signature and, surprisingly, the said FIR was sent to Sub
Divisional Judicial Magistrate on 24.02.2002 after two days. It
has been submitted that PW2, who is cousin brother of
informant, has deposed in his evidence that after the occurrence,
he reached at the place of occurrence and informant had
informed him about firing being taken place without taking the
name of any accused. Besides, there was no whispering in his
evidence regarding so called outraging the modesty of the
daughter of informant. Therefore, conviction of the appellant
under Section 354 of IPC is neither sustainable nor tenable in
the eye of law. It has been submitted that the learned trial court
has committed error by holding that the allegation of outraging
the modesty of the daughter of informant has not been
corroborated by evidence of PW-2 wherein he has not disclosed
that PW1 has narrated to him that accused caught hold her hand
and started pulling her and therefore, the allegation of outraging
the modesty of the informant’s daughter (PW1) has not been
corroborated by PW2. It has been submitted that informant
(PW6) has narrated that appellant had opened fire upon him
which did not hit the informant thereafter PW1 had flashed torch
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and tried to apprehend the accused but the accused caught hand
of PW 1 and when she raised alarm, her mother rushed there but
the appellant also slapped her mother and fled away. Therefore,
from evidence of PW6, it is clear that no offence under Section
354 of IPC has been made out as there is nothing in his evidence
to show that the accused ever tried to outrage the modesty of
informant’s daughter/victim rather the evidence is that when his
daughter/victim flashed torch and tried to apprehend the
accused/appellant, the accused/appellant had caught her hand in
order to prevent himself from being apprehended by the
informant’s daughter/victim. Therefore, conviction of the
appellant under Section 354 of IPC is neither sustainable nor
tenable in the eye of law. It has been submitted that PW1 has
deposed that when she flashed torch after firing, the accused has
caught her hand and pulled her and there is nothing in her
evidence to suggest that appellant had ever tried to outrage the
modesty of informant’s daughter in any way and outraging the
modesty of informant's daughter (PW1) is not corroborated by
even any of the prosecution witnesses (PW-4 and PW-5). There
is no evidence on record to prove the offence under Section 354
of the IPC even allegation as alleged by the witnesses are
considered to be true for the sake of evidence, no offence is
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made out against the appellant under Section 354 of IPC and
appellant has been prejudiced as the investigation officer has not
be examined by the prosecution as a result of which relevant
contradiction in evidence of witnesses could not be taken. The
learned trial court has acquitted the appellant of charges under
Section 307 of IPC and Section 27 of the Arms Act although a
large number of independent witnesses are present at the place
of occurrence but none of the them has been examined as
prosecution witnesses. Therefore, evidence of family members
held to be not reliable. He further submits that on the same set of
facts, there cannot be two opinion. If, on the one hand, the firing
and seizure list has not been proved, then, on the same set of
facts, the allegation of Section 354 is inconceivable. Learned
counsel for the appellant submits that even after the whole
prosecution story is assumed to be true, can it be come under the
purview of Section 354 of IPC. He further submits that in
absence of mens rea, it is inconceivable that the prosecution has
proved the case beyond reasonable doubt under the aforesaid
sections. He further submits that there are vital contradictions in
the evidences of prosecution witnesses and there is no material
exhibit, seizure list of slipper as well as seizure of torch, broken
bangles and non-examination of investigating officer and non-
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examination of any independent witnesses.
14. Learned counsel for the State submits that
judgment of conviction and order of sentence passed by the
concerned court is on the basis of material available on record
and the prosecution has proved the case under Section 354 of the
IPC and the court has analysed and appreciated the evidence of
all the prosecution witnesses in detail and there is no reason to
differ from the finding of concerned court. Accordingly, the
judgment of conviction and order of sentence passed by the
concerned court is justified and legal and no interference is
needed.
15. The question which arises for consideration
is:-
"Whether the appellant has
committed the offence punishable under
Section 354 of the IPC in the light of given
facts and circumstances of the case or not ?"
16. I have perused the impugned judgment,
order of trial court and trial court records. I have given my
thoughtful consideration to the rival contention made on behalf
of the parties as noted above.
17. It is necessary to evaluate, analyze and
screen out the evidences of witnesses adduced before the trial
court.
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18. PW1 :- She is the victim of the case and has
stated that the occurrence took place at 09:00 PM in night and
she was sitting at gate of her house and again she has stated that
she was sitting at verandah. She further stated that she was
sitting alongwith her mother (PW4) and her father (PW6) was
sitting on cot and her younger sister (PW5) was also in the lap of
her father. She has further stated that appellant came at her door
and fired upon her father (PW6) by means of pistol. She further
stated that she flashed torch as a result of which the appellant
caught hold her hand and started dragging her as a result of
which her bangles had broken. She further stated that when her
mother came for rescuing her, the appellant fled away after
slapping her mother. She further stated that she did not identify
others except appellant. In para 5, she has stated that the reason
behind the occurrence that the appellant used to come to the
adjacent house of the victim and the same was protested by
victim’s father and on account of said reason, the present
occurrence took place. During the course of cross-examination,
she has stated that that wife of Zamir to whom she knew, who is
her aunt and the said woman has filed the case against her
(PW1) and her mother (PW4) prior to the said case and the said
occurrence was related with marpit and in the said case
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appellant was witness. During the course of cross-examination,
in para 8, she is unable to point out the extent of boundary of
verandah in the terms of length and breadth. She further stated
that she is unable to point whether there was cot in south side.
She further stated that she has pointed out that on hearing the
sound of firing, several persons gathered in verandah. During
the course of cross-examination, in para 12 she has stated no one
came on verandah and no one entered inside the verandah. She
has stated that daroga came at 11 PM to 11:30 PM at night. She
got her statement recorded before Daroga. She further stated
that the date on which daroga came at her house, she did not
give her statement. She has stated in para 14 that she had shown
torch to Daroga by which she identified the appellant. She has
further stated that she has shown the torch on the date of
occurrence. She has shown the torch to Daroga ji at 11:00 PM to
11:30 PM on the date of occurrence and daroga ji returned the
torch after seeing the same. In para 15, she has deposed that she
has stated before the police that in the light of the torch she
identified the appellant. She has further stated that in para 16
that she had worn bangles which was broken and the bangles
were made up of glass (kanch) and she suffered scratch on her
hand due to broken bangles and daroga ji has not taken any step
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for her medical examination. She has stated before police that
appellant came to the house of her uncle always which was
protested by her father. She has further stated that the house of
her uncle is at some distance from her house. She further stated
that wife of the this Zamir had filed the case against her. She
further stated that the accused used to visit the house of Zamir.
On that point, no quarrel had taken place between her and
Zamir. She further stated that co-villagers used to visit her house
and the Md. Zamir had never protested the same. She further
stated that the house of the Ramesh Singh (appellant) was
situated in the southern direction of victim’s house, after two
plots. She had never visited the house of Ramesh Singh
(appellant).
18.1. From the perusal of evidence adduced by
PW1 (victim), it is crystal clear that she has shown the torch to
Daroga ji and the torch is source of identification and torch has
not been produced and no seizure list was made which is
available on record. The bangles of the victim was broken but
the same was not seized and no seizure list was available on
record. Even, on the point of firing, PW1 (victim) has stated that
the pellet hit her father, which is totally inconsistent with the
statements of PW 4 and 6 (informant) as their statements on the
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point of hitting the pellet are quite divergent from the statement
of PW-1 and, for the purpose of said contradiction, Investigating
Officer has also not been examined. So, no opportunity was
available to the defence either to draw attention or to contradict
the statement of PW1(victim). From the perusal of record, it is
clear that no material was available to support the allegation of
broken bangles, torch as well as pellet and her statement on the
point of sitting at a particular place is quite divergent. During
the course of examination-in-chief, at one time she has stated
that she was sitting at gate and again she has stated that she
sitting at verandah which is quite inconsistent. In this way, the
statement of victim suffers from infirmities, inconsistencies and
no reliance can be placed upon the statements of PW1 who is
victim of the present case.
19. PW-2 :- He is the cousin of the informant.
During the course of examination-in-chief, he has not stated
regarding the occurrence which has taken place with regard to
Section 354 of IPC. The very statement of victim (PW1) who
has stated in her deposition that her hand was caught hold by
appellant, is not spoken by the PW2 during the course of
examination-in-chief. He has only stated that he was working
for the purpose of Tazia and on hearing sound of pellet, he went
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towards south and he met the appellant in the way. He further
stated that when he asked the informant (PW6) and his wife
(PW4), thereafter they disclosed that Ramesh Singh (appellant)
tried to kill the informant by firing upon him. He further stated
that he saw the slipper of the appellant at the place of
occurrence.
19.1. From the perusal of examination-in-chief, it
is crystal clear that he has not seen the occurrence rather he
heard from the informant (PW6) and his wife (PW4) that
appellant fired with intention to kill and slipper of appellant was
left at the place of occurrence which was seen by this witness.
But so far as catching the hand of the victim is concerned, the
same was not witnesses by this witness. In this way, his
evidence is of no significance in the light of the allegation as
alleged by victim under Section 354 of IPC.
20. PW-3 :- He has not supported the case of
prosecution and has been declared hostile.
21. PW-4 :- She is the wife of informant and she
has stated that she was sitting alongwith her family members
and appellant came and fired upon his husband (PW6) and the
pellet hit the wall. In para 2, she has stated that on hearing the
sound of firing, PW-1/victim flashed torch due to which
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appellant caught hold the hand of her daughter/victim and pulled
her. Upon which PW1/victim raised alarm, after hearing the
alarm of victim, she came in a running condition and the
appellant slapped this witness and after slapping, the appellant
fled towards east from north. In para 3, she has not stated the
reason as to why the appellant has committed the said
occurrence.
21.1. From the perusal of evidence of PW4, it is
clear that in para 3 of her examination-in-chief, she has not
stated anything regarding the motive behind the occurrence
though motive behind the occurrence has been stated by the
victim (PW1). On the point of motive of occurrence, statement
of witnesses are quite contradictory. In para 1, PW 4 has stated
that she was alongwith her family members but in para 2 she has
stated that she came after hearing the alarm of victim. If PW-4
was already sitting along with family members including the
victim as claimed, the question of hearing the victim’s alarm
does not arise, since she herself has stated that she was sitting
with all the family members at the time of the occurrence.
Further, PW 1 (victim) has stated that firing caused injury to her
father and PW 4 has stated that firing hit the wall. In this way,
on the point of firing, the statement of PW4 is quite
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contradictory with the statement of PW 1 (victim). On the point
of motive behind the occurrence, she has stated that there is no
motive behind the occurrence though PW1 has stated that there
is motive behind the occurrence as victim’s father protested the
arrival of appellant in the house of his cousin brother. In this
way, evidence of PW 4 is of no significance in the light of the
allegation as alleged by victim under Section 354 of IPC.
22. PW-5:- She is the younger sister of the victim
and she is 10 years old and under Section 118 of the Evidence
Act, it is the primary duty of the court to testify the competency
of evidence while asking relevant questions but here no relevant
questions were asked to testify whether PW-5 is competent to
answer rational questions and here the evidence has been
recorded without taking the precautions which had been
mandatory requirements under Section 118 of the Evidence Act
which reads as under:-
118. who may testify- All
persons shall be competent to testify unless
the Court considers that they are prevented
from understanding the questions put to
them, or from giving rational answers to
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those questions, by tender years, extreme
old age, disease, whether of body or mind,
or any other cause of the same kind.
22.1. PW5 is also claiming that she was on cot.
She has stated that she was in the lap of her father and the
appellant came from North side and fired upon her father which
hit the wall and she has also stated on the hearing of alarm of
victim, her mother came. On the point of raising alarm, the
statement of PW-4 has been identically corroborated but the
question arose if persons are sitting at the same place, the raising
of alarm is not required if the occurrence occurred at the
particular point where all are present then, the raising of alarm is
exaggeration of fact which is not existing as truth stands alone.
She has also stated that motive behind the occurrence is that
appellant used to come at the house of Zamir which was
protested by her father and she has stated that Zamir belongs to
a particular community. So, the question was raised as to how he
used to come always. During the course of cross-examination,
she has admitted that at the time of occurrence she was studying
in Standard V and she has not pointed out the age. She has stated
that hand of victim was pulled by the person and when alarm
was raised then, her mother came to save the victim and she has
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stated that her sister/victim (PW4) disclosed the name of
accused who escaped.
22.2. From the perusal of evidence of PW5, it is
clear that on the point of raising alarm, the statement of PW-4
has been identically corroborated but the question arose if
persons are sitting at the same place, the raising of alarm is not
required if the occurrence occurred at the particular point where
all are present then, the raising of alarm is exaggeration of fact
which is not existing as truth stands alone. On the point of
firing, statement of PW5 has not been testified and on the point
of firing, she has stated that firing hit the wall, is totally
inconsistent with the statement of PW1 who is the victim and
being a minor child, her evidence is necessary to be testified
upon the touchstone of Section 118 of Evidence Act which court
has not bothered in light of the aforesaid facts and circumstances
of the case and the child witnesses is succumbed to tutoring and
no reliance can be placed in the light of the facts and
circumstances of the case.
23. PW6 :- He is the informant of the case and he
has stated that he has given written statement in police station.
He further stated that his statement was recorded by SHO and he
put signature after reading the contents which is marked as Ext.
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1. During the course of examination-in-chief, he has stated that
appellant fired upon him which hit on the wall just because he
knelt down. He further stated that the torch was flashed by the
victim (PW1) who tried to grab the appellant but appellant had
caught hold the victim upon which the victim raised alarm and
after hearing the said alarm her mother came in running
condition and appellant also assaulted upon the cheek of wife of
informant (PW4) by means of slap and when villagers came and
appellant fled away. He has also stated that the motive behind
the occurrence. He has stated that the house of cousin brother of
informant was situated beside the house of informant where
Ramesh Singh (appellant) used to visit there and the same was
protested by the informant due to which the alleged occurrence
took place.
23.1. From the perusal of evidence of PW6, it is
clear that the statement of informant is quite divergent on the
point of lodging FIR. On one hand, he has stated that written
statement was given by him and on the other hand, he has stated
that his fardbeyan was recorded which is evident from Ext. 1
itself and the firing materials were not available on record, torch
was source of identification but the same was not available on
record and bangles were broken and seizure list was not found
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on record. In this way, the statement of PW 6 is quite
contradictory, inconsistent and full of infirmities.
24. Apart from that, the Investigating Officer of this
case has not been examined who is the material witness on the
point of identifying the place of occurrence.
25. In Behari Prasad Vs. State of Bihar reported in
(1996) 2 SCC 317, the Hon’ble Supreme Court held that though
non-examination of the Investigating Officer may not always be
fatal where it causes prejudiced to the accused, it becomes a
significant infirmity, as observed in the judgment which reads as
under:-
"We may also indicate here
that it will not be correct to contend
that if an Investigating Officer is not
examined in a case, such case should
fail on the ground that the accused
were deprived of the opportunity to
effectively cross examine the witnesses
for the prosecution and to bring out
contradictions in their statements
before the police. A case of prejudice
likely to be suffered by an accused
must depend on the facts of the case
and no universal straight jacket
formula should be laid down that non
examination of investigating Officer
per se vitiates a criminal trial. These
appeals, therefore, fail and are
dismissed. The appellants who have
been released on bail should be taken
into custody to serve out the
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sentence."
26. Applying this principle to the present matter, this
Court finds that the omission to examine the Investigating
Officer has, in fact, caused serious prejudice to the defence. The
prosecution version suffers from contradictions and omissions in
the statements of the witnesses and the only person who could
have clarified or explained such contradictions was the
Investigating Officer.
27. The failure to examine the Investigating Officer
also means that the place of occurrence has not been duly
established. At this point, it would be relevant to take note of the
decision passed by the Hon'ble Supreme Court in the case of
Syed Ibrahim versus State of Andhra Pradesh, reported in
(2008) 10 SCC 601, wherein it has been held that "when place
of occurrence itself has not been established, it would not be
proper to accept the prosecution side.
28. In the present case, the concerned court has
convicted and sentenced the appellant under Section 354 of IPC
and it is necessary to quote the core aspect of the offence by
denoting the Section 354 of IPC assault or criminal force with
intent to outrage the modesty of women:
354. Assault or criminal force to
Patna High Court CR. APP (SJ) No.667 of 2010 dt.20-01-2026
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woman with intent to outrage her modesty. -
Whoever assaults or uses criminal force to any
woman, intending to outrage or knowing it to be
likely that he will there by outrage her modesty,
(shall be punished with imprisonment of either
description for a term which shall not be less than
one year but which may extend to five years, and
shall also be liable to fine).
29. In the present case, from the perusal of FIR,
it is clear that the occurrence took place in the night of
21.03.2002 at 9 PM. While narrating the story of prosecution,
informant(PW6) has stated that informant along with his
daughter (PW5), PW4 (informant’s wife) and PW 1 (victim)
were sitting and they were warming themselves by fire and the
appellant alongwith with other persons came at the door and
fired upon the informant (PW6) by means of pistol which hit the
wall. Upon which, while raising alarm informant’s wife (PW4)
and his daughter (PW1) came out of the house and the appellant
caught hold the hand of victim (PW1) and on alarm raised by
informant’s wife and victim, villagers arrived at the spot,
causing the appellant to flee away along with his associates
leaving behind one slipper at the place of occurrence. In initial
Patna High Court CR. APP (SJ) No.667 of 2010 dt.20-01-2026
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version of prosecution story, the informant has not mentioned
regarding the source of identification but while adducing
evidence before the Court, victim (PW1) has improved her
statement which has no spontaneity with the initial version of
prosecution story as victim (PW1) has stated that she flashed
torch as a result of which appellant caught hold her hand and
started dragging her as a result of which her bangles had broken.
The version of informant (PW6) is quite inconsistent on the
point of firing as informant has stated that firing hit the wall
whereas victim (PW1) has stated that firing hit her father. On the
point of firing, the statement of both the witnesses are quite
divergent and the defence has drawn attention that PW1 has
shown torch to Darogaji and on the said point, the examination
of Investigating Officer is needed. Further, broken pieces of
bangles were also not seized as claimed by PW1 and she
suffered scratch on her hand due to broken bangles and Daroga
ji has not taken any step for her medical examination. In the
light of the aforesaid fact, the examination of Investigating
Officer is required and the Investigating Officer in the present
case has not been examined. So, no opportunity was available to
the defence to draw attention or to contradict the statement of
PW1(victim). From the perusal of record, it is clear that no
Patna High Court CR. APP (SJ) No.667 of 2010 dt.20-01-2026
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material was available to support the allegation of broken
bangles, torch as well as pellet and her statement on the point of
sitting at a particular place is quite divergent. During the course
of examination-in-chief, at one time victim (PW1) has stated
that she was sitting at gate and again she has stated that she was
sitting at verandah which is quite inconsistent. In this way, the
statement of victim suffers from infirmities, inconsistencies and
no reliance can be placed upon the statements of PW1/victim.
Further, from the perusal of evidence of PW2, it is also clear that
PW2 has not seen the occurrence rather he heard from the
informant (PW6) and his wife (PW4) that appellant fired with
intention to kill and slipper of appellant was left at the place of
occurrence which was seen by PW2. But so far as catching the
hand of the victim (PW1) is concerned, the same was not
witnesses by PW2. In this way, the evidence of PW2 is of no
significance in the light of the allegation as alleged by victim
under Section 354 of IPC. From the perusal of evidence of PW4,
it is clear that PW4 has not stated anything regarding the motive
behind the occurrence though motive behind the occurrence has
been stated by the victim (PW1). On the point of motive behind
the occurrence, statement of witnesses are quite contradictory. In
para 1, PW 4 has stated that she was along with her family
Patna High Court CR. APP (SJ) No.667 of 2010 dt.20-01-2026
27/35
members but in para 2 she has stated that she came after hearing
the alarm of victim. If PW-4 was already sitting along with
family members including the victim as claimed, the question of
hearing the victim’s alarm does not arise as she herself has
stated that she was sitting with all the family members at the
time of the occurrence. Further, PW 1 (victim) has stated that
firing caused injury to her father (PW6) and PW 4 has stated
that firing hit the wall. In this way, on the point of firing, the
statement of PW4 is quite contradictory with the statement of
PW 1 (victim). On the point of motive behind the occurrence,
PW4 has stated that there is no motive behind the occurrence
though PW1 has stated that there is motive behind the
occurrence as victim’s father protested the arrival of appellant in
the house of his cousin brother. In this way, evidence of PW 4 is
of no significance in the light of the allegation as alleged by
victim under Section 354 of IPC. From the perusal of evidence
of PW5, it is clear that on the point of firing, statement of PW5
has not been testified and on the said point of firing, she has
stated that firing hit the wall which is totally inconsistent with
the statement of PW1 who is the victim and PW5 being a minor
child, her evidence is necessary to be testified upon the
touchstone of Section 118 of Evidence Act but the learned trial
Patna High Court CR. APP (SJ) No.667 of 2010 dt.20-01-2026
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court has not bothered in light of the aforesaid facts and
circumstances of the case and the child witnesses is succumbed
to tutoring and no reliance can be placed in the light of the facts
and circumstances of the case. From the perusal of evidence of
PW6 (informant), it is clear that the statement of informant
(PW6) is quite divergent on the point of lodging FIR. On one
hand, he has stated that written statement was given by him and
on the other hand, he has stated that his fardbeyan was recorded
which is evident from Ext. 1 itself and the firing materials were
not available on record. Torch was source of identification but
the same was not available on record and bangles were broken
and seizure list was not found on record. In this way, the
statement of PW 6 is quite contradictory, inconsistent and full of
infirmities.
30. For constituting the offence under Section
354 of IPC, the core aspect is that the intent is required to
commit the said offence but in the present case, there is nothing
on record to prove the intent as the evidence of prosecution
witnesses are full of contradictions, inconsistencies and
infirmities as discussed in foregoing paragraphs. Further, the
core aspect of offence is not proved by evidence of PWs. 1, 4, 5
and 6. Apart from that, the defence has stated that, as exhibited
Patna High Court CR. APP (SJ) No.667 of 2010 dt.20-01-2026
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through formal witness DW1, the cases have been cited by
defence counsel and even PW1 has categorically stated that
appellant is one of the witnesses in a case which has been filed
by a woman, i.e. wife of Md. Zamir. In this way, enmity
between the parties cannot be ruled out. In the present case, the
investigating officer has not been examined and defence has
been prejudiced thereby. The evidence of investigating officer is
very necessary to know the truth of the occurrence if
investigation has been conducted in a fair manner. Here, non
availability of the investigating officer put question mark on the
truthfulness of the investigation. There are several
contradictions, inconsistencies and discrepancies found in the
evidence of the all the prosecution witnesses and they are
alleging that the appellant has caught hold the hand of victim.
Prudently and pragmatically, without having any intention,
merely grabbing hand would prove the case of Section 354 of
IPC is beyond the reach of any imagination.
31. From the perusal of evidence adduced by all
the prosecution witnesses, it is crystal clear that their evidences
have not been corroborated by any material evidence and the
torch which is the source of identification is not seized in the
present case. The bangles which have been claimed by victim as
Patna High Court CR. APP (SJ) No.667 of 2010 dt.20-01-2026
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broken and the same is also not exhibited as material exhibit and
the pellets were also not shown as material exhibit on the record.
In this way, evidence of prosecution witnesses has not been
corroborated by material exhibit and the evidence of prosecution
witnesses does not inspire confidence and their statements
cannot be taken into account in light of the facts and
circumstances of the case. It is cardinal principle of law that
prosecution has to prove its case beyond the reasonable doubt.
32. The contention of the learned counsel for the
appellant is quite tenable and sustainable that on the same set of
facts and evidence, the offence under Section 307 of IPC and
Section 27 of the Arms Act has not been proved against the
appellant. The testimonies of PWs 1, 4 and 6 regarding firing
shot with pistol by the accused/appellant do not inspire
confidence and the learned trial court has recorded finding that
the firing shot by the accused/appellant is not proved beyond the
reasonable doubt. In the light of the reasoning given by the
learned trial court that if the manner of occurrence has not been
proved by the prosecution side on the basis of testimonies
available on record, then, it is inconceivable that on the same set
of facts another occurrence as alleged under Section 354 of IPC
is presumed to be inconceivable in the light of the several
Patna High Court CR. APP (SJ) No.667 of 2010 dt.20-01-2026
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inconsistencies, improvement and infirmities.
33. In the case on hand, one of the questions
which was put to the appellant is:-
“ vkids fo:) ;g Hkh lk{; gS fd mijksDr frfFk
,oa le; ij vkius xxx ds “khy gj.k djus dk
iz;kl fd;k FkkA ”
34. At this stage, the learned counsel for the
appellant has submitted that, in the present case, examination of
accused under Section 313 of Cr.P.C. is mere formality as the
questions which were put before the accused/appellant are
without having substance. Generally, all the incriminating
circumstances are put before the accused so that he can defend
his own side, but in the present case, the incriminating materials
which were put before the accused/appellant have no relevance
to the prosecution case as the pertinent question is as to whether
the appellant has made an effort to outrage the modesty of the
victim, but from the perusal of material available on record, the
specific word ““khy gj.k” which was put before the accused
under Section 313 of Cr.P.C. does not find place either in FIR or
in the evidence of the prosecution witnesses and none of the
prosecution witnesses has raised such allegation which was put
before the accused/appellant during the course of examination of
accused under Section 313 of Cr.PC which is not the spirit of
Patna High Court CR. APP (SJ) No.667 of 2010 dt.20-01-2026
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law under Section 313 of Cr.P.C. and the statement has casually
been taken by the court.
35. The law on the aspect of the importance of
Section 313 examination of an accused has now been so well
settled that it requires no further deliberation.
36. However, it would be with profit only to refer
to a judgment of the Supreme Court in Raj Kumar alias Suman
v. State (NCT of Delhi); AIR 2023 SC 3113, wherein the Bench
had referred to a number of decisions on Section 313 Cr.P.C. and
its importance and has very pithily summarized the requirements
under the Code.
37. The Bench, after referring to the judgments in
Tara Singh v. State: AIR 1951 SC 441; Shivaji Sahabrao Bobade
v. State of Maharastra: AIR 1973 SC 2622; S. Harnam Singh v.
State (Delhi Admn.): AIR 1976 SC 2140, has summarized the
law as follows:-
“16. The law consistently laid down by this
Court can be summarized as under:
(i) It is the duty of the Trial Court to put each
material circumstance appearing in the evidence against the
accused specifically, distinctively and separately. The material
circumstance means the circumstance or the material on the
Patna High Court CR. APP (SJ) No.667 of 2010 dt.20-01-2026
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basis of which the prosecution is seeking his conviction;
(ii) The object of examination of the accused
under Section 313 is to enable the accused to explain any
circumstance appearing against him in the evidence;
(iii) The Court must ordinarily eschew material
circumstances not put to the accused from consideration while
dealing with the case of the particular accused;
(iv) The failure to put material circumstances to
the accused amounts to a serious irregularity. It will vitiate the
trial if it is shown to have prejudiced the accused;
(v) If any irregularity in putting the material
circumstance to the accused does not result in failure of justice,
it becomes a curable defect. However, while deciding whether
the defect can be cured, one of the considerations will be the
passage of time from the date of the incident;
(vi) In case such irregularity is curable, even the
appellate court can question the accused on the material
circumstance which is not put to him; and
(vii) In a given case, the case can be remanded to
the Trial Court from the stage of recording the supplementary
statement of the concerned accused under Section 313 of CrPC.
(viii) While deciding the question whether
Patna High Court CR. APP (SJ) No.667 of 2010 dt.20-01-2026
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prejudice has been caused to the accused because of the
omission, the delay in raising the contention is only one of the
several factors to be considered.”
38. The Trial Court, in this instance, has very
lightly dealt with the requirement under Section 313 Cr.P.C. and
has practically put incriminating circumstance having no
spontaneity with the story of prosecution.
39. In this way, from the perusal of FIR as well
as evidence of PW 1, it is crystal clear that with regard to the
offence under Section 354 of IPC, there was no material to
prove the case and the learned trial court has failed in error of
law while appreciating the evidence of prosecution witnesses
and reached to the wrong conclusion.
40. In the result, in my view, prosecution-case
suffers from several infirmities, as noted above, and it was not a
fit case where conviction could have been recorded. The learned
trial court fell in error of law as well as appreciation of facts of
the case in view of the settled criminal jurisprudence. Hence,
impugned judgment of conviction and order of sentence is
hereby set aside and this appeal stands allowed. The appellant is
on bail, he is discharged from the liabilities of bail-bonds.
41. Pending Interlocutory Application(s), if any,
Patna High Court CR. APP (SJ) No.667 of 2010 dt.20-01-2026
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shall also stand disposed of.
42. Let a copy of this judgment be transmitted to
the Superintendent of the concerned jail for compliance and for
record.
43. The records of this case be also returned to
the concerned trial court forthwith.
(Alok Kumar Pandey, J)
alok/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 29.01.2026.
Transmission Date 29.01.2026.
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