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2002 DIGILAW 1060 (PAT)

Raj Kumar Sah @ Rajo Sah v. State Of Bihar

2002-09-30

S.N.PATHAK

body2002
Judgment S.N.Pathak, J. 1. Appellant was convicted by the trial court under section 376/511 lPC and was sentenced to undergo RI for 7 years although he was charged under section 376 IPC itself. 2. The prosecution case originated on the fardbeyan of Munuwati Devi (PW 6), wherein she alleged that two months prior to 12.8.89 (on which date she had given fardbeyan) her daughter aged about 3 years, then, (PW 10) was playing in the Bamboo orchard at 10 a.m. Suddenly convict-appellant Raj Kr. Sah lifted her and carried her to the courtyard of one Sunaina Devi, where he (appellant) committed criminal assault upon her. When she raised alarm, the appellant fled away. Victim received blood-stains on her thigh and bed-sheet (Gendera) of Sunaina Devi also got soiled with blood. The victim went to her house and narrated the said occurrence to parents. There was panchayati in the village and the Panches imposed a fine of Rs. 500/- upon the appellant. Appellant failed to pay the fine. Thereafter informant went to police station and gave her fardbeyan, on the basis of which the case was registered and after investigation, chargesheet was submitted, and the appellant faced trial. Out of ten witnesses examined in the trial court, PW 10 was victim herself, PW 9 was the doctor, PW 1 was the so called one of the Panches, PWs 3 and 4 turned hostile, PWs 2 and 5 were tendered. PW 6 was the informant, mother of the victim, and PW 7 was father of the victim, PW 8 has also turned hostile. Thus, on record, there remains PWs 6, 7 and 10 only to support the alleged occurrence perpetrated by the appellant. In this connection, evidence of PW 2 Sunaina Devi also gains significance because in the fardbeyan or in the evidence of PWs 6 and 7, there is a statement that alleged occurrence was committed in absence of Sunaina Devi from her house. Informant and her husband alongwith the victrim had gone to the house of Sunaina Devi and they all had seen the soiled bedsheet (Gendra), but Sunaina Devi failed to support the prosecution case that there was any bloodstain on the "Gendra" in her house. She had said that she knew nothing about the case. Informant and her husband alongwith the victrim had gone to the house of Sunaina Devi and they all had seen the soiled bedsheet (Gendra), but Sunaina Devi failed to support the prosecution case that there was any bloodstain on the "Gendra" in her house. She had said that she knew nothing about the case. The evidence of the victim is to the effect that the appellant had attempted to thrust his private parts into her private parts, which resulted in bloodstain on her thighs and upon private parts of the appellant as also on bedsheet. But non-examination of the I.O. has resulted in absence of the objective evidence regarding bloodstain in the house of Sunaina Devi or any sign of the alleged occurrence in the house of Sunaina Devi. The case itself was reported to the police after two months of the alleged occurrence and explanation for delay has come in the evidence of the informant and her husband to the effect that the informant had gone to the police station in the night of the date of the occurrence, but the police turned her away and did not record her statement. Subsequently, there was panchayati and at the instance of the S.P., case was entertained by the police, but PW 6 failed to say whether they had petitioned the S.P. and as to at whose instance S.P. had intervened and directed institution of the case. At para 7, PW 6 said that she neither informed the S.P., nor D.S.P. At the same para she said that the S.P. had come to the village on his own. It is not understandable how the S.P. will go to the village without any intimation in this connection. So, it appears that delay in intimation to the police about the alleged occurrence has not been satisfactorily explained. PW 1 was one of the Panches and he said that he had prepared a paper for the decision of Panchayati, but this paper was missing because Panches did not think it necessary to preserve it because already police case was instituted. Panchayati was held next day of the alleged date of the occurrence. The case was that the appellant did not need to the decision of the Panches. Panchayati was held next day of the alleged date of the occurrence. The case was that the appellant did not need to the decision of the Panches. In such a circumstance, informant should have rushed to the police station immediately after the Panchayati, and in this view of the matter also, the delay does not appear to have been satisfactorily explained. 3. So far the alleged occurrence in particular is concerned, victim said in court that accused-appellant had held her on the ground and after undressing her of her pant, and himself of his own lungi, he had tried to enter his penis into her private parts as a result of which blood fell on her thighs and upon Gendra in the house of Sunaina Devi. In view of the aforesaid allegations, there were chances of private parts of the victim receiving an injury, which will give pain and suffering to her which will require immediate medical treatment, but there is no evidence on the record that the victim was taken to any doctor for treatment. PW 9 is the doctor who has not found any external or internal injury upon the body of the victim. Private parts was also without any scratch, Hymen was found intact. I have already said above that evidence of the victim would indicate that she must have received some injury on her private parts. Allegations should, therefore, make it probable that her hymen might have got injured also. Doctors evidence, therefore, in this connection, is totally negative which will belie the alleged offence itself. PW 3, hostile witness at para 5 said in cross-examination that there was land dispute between the informant and the appellant. PW 4 who had affixed his signature on the fardbeyan (exhibit 1) also failed to support the alleged occurrence committed upon PW 10. 4. The aforesaid discussion of the evidence on record show that there was unsatisfactory and inordinate delay in lodging the case before the police. There was evidence of only interested witnesses and the circumstances unleased by the evidence on record also indicated that there was chance of false implication on accont of land dispute. 5. In such circumstances, I think the order of conviction recorded by the trial court was not warranted by the evidences on record. There is therefore no alternative but to allow this appeal. 6. 5. In such circumstances, I think the order of conviction recorded by the trial court was not warranted by the evidences on record. There is therefore no alternative but to allow this appeal. 6. In the result, this appeal is allowed and the order of conviction and sentence passed against the appellant is set aside, Appellant is directed to be set at liberty forthwith, if not wanted in any other case.