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2000 DIGILAW 235 (PAT)

Ram Ashray Singh And Another v. State Of Bihar

2000-02-11

D.P.S.CHOUDHARY

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Judgment D.P.S.Choudhary, J. 1. This appeal has been preferred against the judgment and order dated 4th of May, 1996 passed by the Sessions Judge, Jehanabad in Sessions trial No. 10 of 1995 convicting the appellant Ram Ashraya Singh under Secs. 376 and 448 of the Indian Penal Code (hereinafter referred to as the (I.P.C.) and he has been sentenced to undergo R.I. for 10 years and one year respectively. His sentences were ordered to run concurrently. Appellant Amarik Singh has been convicted under Sec. 225 of the I.P.C. and sentenced to undergo R.I. for three years. 2. The prosecution case in brief is that accused Ram Ashraya Singh committed lurking house trespass into the house of the informant situated at village Sewabigha, P.S. Kurtha and committed rape on Shakila Khatoon, the wife of the informant in the night of 9.6.1994. In the fardbeyan (Ext. 2) Sharfuddin Shall, the husband of Shakila Khatoon (P.W.-2) further alleged that on hulla of his wife he rushed inside the house and caught hold of the accused-appellant Ram Ashraya Singh whom he had seen committing rape on his wife. On hulla the uncle of accused Ram Ashraya Singh, namely, Amarik Singh arrived at the place of occurrence and forcibly rescued accused Ram Ashraya Singh. Several witnesses had arrived at the place of occurrence and had seen the appellant Ram Ashraya Singh being caught by the informant and other persons. There was a talk of panchayati in the village, therefore, F.I.R. could not be lodged on the next day of the occurrence but panchayati failed and thereafter on 11.6.1994 the ford bey an was lodged in the police station, on the basis of which formal F.I.R. (Ext. 3) was drawn up and after investigation charge-sheet submitted against both the accused-persons and after commitment the trial proceeded in the Court below. 3. The case of the defence is that they have been falsely implicated in the case at the instance of P.W.-7 (Narendra Prasad) who has earlier duped accused Rama Ashraya Singh of a sum of Rs. 12,000 on the false promise of providing him employment and when he failed to provide any job he made demand of his money several times and being annoyed, he falsely implicated him and his uncle in this case. 4. The prosecution in all examined 11 witnesses, out of which P.W.-8 (Sheo Pujan Singh) and P.W.-9 (Ram Dass Maharaj were tendered. 12,000 on the false promise of providing him employment and when he failed to provide any job he made demand of his money several times and being annoyed, he falsely implicated him and his uncle in this case. 4. The prosecution in all examined 11 witnesses, out of which P.W.-8 (Sheo Pujan Singh) and P.W.-9 (Ram Dass Maharaj were tendered. The I.O. of this case is P.W.-10. He has prepared the requisition for injury (Ext. 4) and sent her for medical examination. The victim lady was examined by the lady Dr. Shanti Jaiswal (P.W.-6) on 11.6.1994 and her certificate has been marked Ext. 1. In the opinion of the lady doctor, there was no apparent sign found on her private part. The hymen was old ruptured. She also did not find mark of semen over her private part. However, she further opined that possibility of rape could hot be ruled out. In substance the evidence of lady doctor (P.W.-6) arid her report (Ext. 1) is neutral in character and no definite conclusion could be arrived from her evidence. 5. The evidence of victim lady Shakila Khatoon (P.W.-5) has to be considered with care and caution. She is married lady having children and aged 30-32 years. She stated that on the relevant night she was sleeping along with her children on a mat on the floor of the room of her house. At about 10.00 p.m., all of a sudden, she found that appellant accused Ram Ashraya Singh mounted over her body and started committing sexual intercourse with her forcibly. At first instance, she thought that he was her husband but subsequently she noticed that he was an. other man. She raised alarm. Thereupon his father-in-law Sakur Sah (P.W.-4) and her husbands brother Mudi Sah (P.W.-3) arrived there and apprehended accused Ram Ashraya Singh. Her father-in-law had flashed torchlight in which they identified the accused. She further stated that in the meantime, Amarik Singh, uncle of accused-appellant Ram Ashraya Singh arrived there and forcibly rescued Ram Ashraya Singh by threatening all the persons present there. She further stated that semen of accused Ram Ashraya Singh had fallen over her Saya which she was wearing at the time of occurrence, and she had handed dyer the said Saya to the I.O. of the case. The said Saya has been marked material Ext. III. She further stated that semen of accused Ram Ashraya Singh had fallen over her Saya which she was wearing at the time of occurrence, and she had handed dyer the said Saya to the I.O. of the case. The said Saya has been marked material Ext. III. The Saya was sent for chemical examination by the Forensic Science Laboratory, Patna and the report has been received (Ext. C/6) which mentions that the old Saya marked-A bore some greyish white stains which were stiff to feel and which produced characteristic bluish whites fluorescence in ultra violet light. The expert opined that semen has been detected in the said Saya. The victim lady stated that after the occurrence on the next day she has taken bath but thereafter she had worn the said saya again. The trial Court has given finding that because of acute poverty, it was natural that she had worn the said Saya after her bath on the next day. The I.O. (P.W.-10) has stated that through P.W.-11, a Homeguard constable he had sent the said saya under the sealed envelope (material Ext. I) and a sealed envelope (Ext. II) to Forensic Science Laboratory, Patna for its examination. 6. On the point of apprehension of accused Ram Ashraya Singh at the place of occurrence, the prosecution has adduced evidence of the victim lady (P.W.-5) besides P.W.-1 (Kamaruddin Sah) who is neighbour. He stated that, on hulla when he went to the house of the informant he saw accused Ram Ashraya Singh being caught hold by the informant and his family member (P.W.-2). The informant stated that he had caught hold the person who was found committing rape on her wife, but since it was dark he could not identify him on the spot and in the meantime the said accused fled away. Other family members including P.W.-3 and P.W.-4 turned hostile and stated that on hulla when they went near the victim lady they did not find any accused there. 7. P.W.-7 (Narender Prasad) stated that on hulla when he went to the house of the informant and saw Rani Ashraya Singh being apprehended by his family members. He further stated that informant told him that this accused committed rape on his wife. In the meantime, accused Amarik Singh arrived and forcibly rescued accused Ram Ashraya Singh. 8. 7. P.W.-7 (Narender Prasad) stated that on hulla when he went to the house of the informant and saw Rani Ashraya Singh being apprehended by his family members. He further stated that informant told him that this accused committed rape on his wife. In the meantime, accused Amarik Singh arrived and forcibly rescued accused Ram Ashraya Singh. 8. On the basis of the evidence discussed above, the trial Court has come to the finding that prosecution has been able to substantiate the charges levelled against both the accused-appellants beyond all reasonable doubts. 9. The learned appellants lawyer submitted that in her evidence the victim lady (P.W.-5), stated that she had married thrice and the present husband (informant) is her-third husband. The I.O. (P.W.-10) during the course of investigation has learnt from the witnesses of the village that the character of the victim lady is suspicious (para-11). In the background of this fact, her evidence is to be scrutinized with care and caution. Her husband lives on aim having no job. She also worked as a labourer. In para 8, she stated that after 2 to 3 months of this occurrence Narendra Prasad (P.W.-7) has given her three munds of wheat and Rs. 500 in cash. In para 9 of her cross-examination, she admitted that she went to the police station along with Narendra Prasad (P.W.-7) and she give her statement before the I.O. on the dictation of Narendra Prasad. She further clarified that before one day of the occurrence, Narendra Prasad had tutored her on the point what she has to narrate before the I.O. in the police station. In view of the evidence of victim lady the case of the defence get support that this false case has been instituted at the instance of Narendra Prasad (P.W.-7) who has grudge and enmity against the appellants. 10. The learned appellants lawyer further submitted that the case of the defence gets corroboration from the evidence of P.W.-9 (Ram Dass Mahton) who stated that Narendra Prasad (P.W.-7) had duped appellant Ram Ashraya Singh of Rs. 12,000 on the promise of giving him employment and there was a quarrel in between them for the refund of money. He further stated that Narendra Prasad had forced the victim lady Shakila Khatoon to institute this case against the appellants. 11. 12,000 on the promise of giving him employment and there was a quarrel in between them for the refund of money. He further stated that Narendra Prasad had forced the victim lady Shakila Khatoon to institute this case against the appellants. 11. The trial Court has considered these submissions of the defence in paragraphs 12 to 14 and has come to the finding that evidence of P.W.-9 is not reliable and it appears that he was out and to support the defence case though surprisingly he has not been declared hostile by the prosecution. 12. The learned appellants lawyer further submitted that there is no reliable evidence against appellant No. 2 that he forcibly rescued appellant No. 1 from the legal custody of the informant and his family members. The family members, including P.Ws.-3 and 4 have turned hostile and even the informant (P.W.-1) has not supported this part of prosecution case. The evidence of P.Ws.-1 and 9 does not inspire confidence because P.W.-1 admitted that he had litigations with the family members of accused Ram Ashraya Singh and as stated earlier P.W.-9 has tried to support the defence case, though he has been examined on behalf of the prosecution. As such, there is no independent and reliable evidence on the point that P.W.-2 has rescued P.W.-1 from the legal custody of the informant. 13. I have carefully scrutinized the evidence on this point and find substance in the contention of the learned appellants lawyer. Even the informant P.W.-2 has not stated that appellant No. 2 has rescued the appellant No. 1 from the legal custody of P.Ws.-3 and 4 who have turned hostile. P.Ws.-1, 7 and 9 have supported this part of the prosecution case but for the reasons stated above they appears to be interested witnesses and in absence of corroboration by any independent witness it is not safe to rely on the evidence of these interested witnesses. 14. In the facts and circumstances of the case, I come to the conclusion that prosecution has not been able to substantiate the charge under Sec. 225 of the I.P.C. against accused appellant Amarik Singh. In the result, his conviction and sentence is set aside and he is acquitted and discharged from the liability of bail bonds. 15. 14. In the facts and circumstances of the case, I come to the conclusion that prosecution has not been able to substantiate the charge under Sec. 225 of the I.P.C. against accused appellant Amarik Singh. In the result, his conviction and sentence is set aside and he is acquitted and discharged from the liability of bail bonds. 15. With regard to appellant No. 1, the evidence of the victim lady read with the evidence of the lady Doctor (P.W.-6) the I.O. (P.W.-10) and the report of the Forensic Science Laboratory (Ext. 6) the offence of rape committed on victim lady is proved beyond all reasonable doubts. The victim lady has no personal grudge against appellant Ram Ashraya Singh. She did not know him from before as stated by her in her evidence. Therefore, it does not appeal to the reasoning that she will falsely implicate an innocent person for the offence of rape after staking her own prestige and the prestige of her family. As such, I do not find any reason to interfere with the finding of the trial Court with regard to the conviction of appellant Ram Ashraya Singh under Sec. 376 of the I.P.C. 16. The learned appellants lawyer submitted that appellant has been in custody since 28.7.1994 and he has not been enlarged on bail by this Court, as such he has remained in jail custody for about six years. Considering the facts and circumstances of the case, his period of sentence may be reduced to the period already undergone in custody. 17. Heard the learned A.P.P. 18. In the facts and circumstances of the case, the prayer of the appellant No. 1 is allowed and his period of sentence is reduced to the period already undergone in custody. Sent the release order to the jail authority. 19. With these modifications in the judgment and order of the Court below, the appeal is allowed, in part.