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2000 DIGILAW 676 (PAT)

Ganesh Sao v. State Of Bihar

2000-05-04

D.N.PRASAD

body2000
Judgment D.N.Prasad, J. 1. Both the appellants, namely, Ganesh Sao and Sita Ram Sao, filed this appeal against the judgment of conviction and order of sentence passed by learned 2nd Additional Session Judge, Hazaribagh, who convicted the appellants for the offence under Sec. 354 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of one year each in Sessions Trial No. 290/89. 2. The case of the prosecution in brief is that one Chakni Devi lodged a First Information Report alleging therein that her husband had gone to his sasural situated at village Barwadih whereas her mother-inlaw and minor daughter were lying on a cot in a room and she was busy in cooking food., when both the appellants/accused persons entered into the house and asked about her husband, on which she told them that he had gone to his sasural. It is further alleged that the appellant No.2, Sita Ram Sao, caught hold of the hand of the informant and got her down and thereafter the appellant No.1 Ganesh Sai pulled out her saree and thereafter committed rape on her forcibly. She was also threatened to be killed if she raised hulla It is also alleged that the appellant/accused persons committed theft of articles and thereafter they fled away. She raised hulla on which villagers rushed to the spot and saw the appellants fleeing away from the house of the informant. Accordingly, the FIR was lodged for the offence under Sections 376 and 380 of the Indian Penal Code. The police investigated into the case but submitted final report finding the case false. Thereafter, the informant filed an objection petition which was enquired into and thereafter cognizance was taken under Sec. 376, IPC. 3. Both the appellants appeared in the Trial Court and accordingly the charge under Sec. 376, IPC was framed, to which they pleaded not guilty. Witnesses were examined in the learned Court below. The learned Trial Court after going through the evidence on record convicted and sentenced the appellants by the, impugned judgment. 4. On being dissatisfied with the judgment, the appellants preferred this appeal claiming therein that the learned Court below committed error in, convicting the appellants for the offence under Sec. 354, IPC, when the Court below had already not found the case true under Sec. 376, IPC. 4. On being dissatisfied with the judgment, the appellants preferred this appeal claiming therein that the learned Court below committed error in, convicting the appellants for the offence under Sec. 354, IPC, when the Court below had already not found the case true under Sec. 376, IPC. It is also claimed that none of the villagers supported the prosecution case in any manner and there is no evidence to establish the charge for the offence under Sec. 354 of the Indian Penal Code and as such the judgment of conviction and sentence is fit to be set aside. 5. At the very outset, I would like to mention that learned Additional Sessions Judge already held that the prosecution has not succeeded in proving the charge under Sec. 376, IPC against both the appellants beyond all reasonable doubts and as such they were not held to be guilty for the charge under Sec. 376, IPC, but both the appellants have been convicted for the offence under Sec. 354, IPC. It may further be noted here that there was also allegation in the FIR about committing theft of article and a sum of Rs. 1,000.00 , but no charge was framed for the offence under Sec. 380, IPC against the appellants. 6. Altogether four witnesses have been examined in the case on behalf of the prosecution in support of its case. 7. PW 1 is said to be the mother-in-law of the victim deposed that her daughter-in-law was subjected to be raped by both the appellants. She further admitted in her cross-examination that none of the villagers came at the place of occurrence. She also admitted in her cross-examination that she was awaken by her grand-daughter and she saw two persons fleeing away but she has not named those two persons nor she had seen the occurrence in the manner as alleged. She also admitted that her daughter-in-law did not sustain any scratch on her person nor she had found any blood. 8. PW 2 is the husband of the Informant. Admittedly, he was not present at the time of occurrence as he had gone to sasural. He also admitted that he cannot say about the occurrence. But, he conceded in his cross - examination in clear terms in para 3 that there is a land dispute with the appellant, Sita Ram Sao from before. 9. Admittedly, he was not present at the time of occurrence as he had gone to sasural. He also admitted that he cannot say about the occurrence. But, he conceded in his cross - examination in clear terms in para 3 that there is a land dispute with the appellant, Sita Ram Sao from before. 9. PW 3, Kunti Kumari, the daughter of the victim stated that both the appellants committed rape, but admittedly she was sleeping with her grandmother at the relevant time. She also admitted that she alongwith her grandmother were sleeping in another room. 10. PW 4 is the informant/victim, who stated that both the appellants entered into her room and according to her, Sita Ram Sao lifted her saree and thereafter Ganesh Sao committed rape on her. She further stated that her mother in-law and her daughter Kunti also raised hulla when they were fleeing away. She has admitted in her cross - examination that she was not examined by doctor. She further admitted that none of the villagers rushed to the spot on hearing hulla but her daughter and mother-inlaw came there when she raised hulla. 11. Both the appellants were examined under Sec. 313, Cr. PC and they have denied the allegation. Three witnesses have also been examined from the side of the defence. According to them, both the appellants have been falsely implicated in this case out of enmity due to land dispute. 12. At the first instance the case was registered by the police for the offence under Sec. 376. IPC. The police also investigated-into the case but has not found the case true and as such the final report was submitted. However the case for the offence under Sec. 376 was proceeded on the basis of the protest petition. PW 1, the mother-in-law, PW 2, the husband and PW 3, daughter only have been examined from the side of the prosecution. Not a single witnesses from the village has come forward to support the prosecution case in any manner, though it has been stated at the early stage of institution of the case that the villagers also rushed to the spot when she raised alarm. The doctor has also not been examined in the case to support about the case of rape or assault, if any. 13. The doctor has also not been examined in the case to support about the case of rape or assault, if any. 13. I have already discussed above that the prosecution failed to establish the charge under Section 376, IPC but the appellants have been convicted under Sec. 354, IPC for which apparently here is no corroboration. PWs 1 and 3 said to be present in the house at the relevant time had also seen the appellants fleeing away and they cannot be said to be eye-witnesses on the point of occurrence. PW 2 is the husband, who was admittedly not present in his house at the relevant time. Thus, there is no corroboration of the prosecutrix allegation nor there is anything specific come forward to show that the appellants had indulged with intention or knowledge to outrage the modesty of the informant, Chakni Devi. 14. The learned counsel appearing on behalf of the appellants also raised grievance as regards to the statement recorded under Sec. 313, Code of Criminal Procedure and according to him, the appellants have not been given opportunity to explain the circumstances which itself falsified the whole prosecution case and becomes doubtful and as such both the appellants are entitled for the benefit of doubt. The learned counsel also relied upon the case of Sarad Birdhi Chandra Sarda V/s. State of Maharashtra. 15. It is true that both the appellants were examined under Sec. 313 of the Code of Criminal Procedure and a single question was put to both of them as regards to commit rape in a stereotype manner, though there is no specific allegation against the appellant No.2 for committing rape. It further appears that both the appellants were convicted under Sec. 354, IPC, but none of the circumstances constituting the ingredients for the offence under Sec. 354, IPC was put in question or recorded under Sec. 313 of the Code of Criminal Procedure. It is well settled that the statement under Section 313, Cr. P.C. must be specific and all the circumstances under which the accused are facing trial should 1?e put so that a definite and clear explanation may come from the mouth of the accused/appellants. 16. It is established that the circumstances in respect of which an accused was not examined under Sec. 313 of the Code of Criminal Procedure cannot be used against him. 16. It is established that the circumstances in respect of which an accused was not examined under Sec. 313 of the Code of Criminal Procedure cannot be used against him. There is catena of authorities uniformally taking the, view that unless circumstances appearing against the accused is put to him in his examination under Sec. 313 of the Code of Criminal Procedure, the same cannot be used against him. 17. In the instant case none of the circumstances: as regard to the offence under Sec. 354, IPC has been put to the appellants in their statement as such both the appellants cannot beheld to be responsible for the circumstances and acts which could never be interrogated or put to the appellants for which apparently the case of the appellants became prejudiced. Thus, the appellant is entitled for benefit of doubt. 18. For the reasons stated above, coupled with the evidence on record, it is established that the prosecution has failed to establish the charge against both the appellants beyond all reasonable doubts. 19. In the result, I find merit in the appeal, which is accordingly allowed. Hence the judgment of conviction and order of sentence passed by the learned trial Court is, hereby, set aside. Both the appellants are already on bail and as such they are discharged from the liability of the bail bonds.