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2003 DIGILAW 1015 (PAT)

Fulo Mandal @ Rajiv Mandal v. State Of Bihar

2003-09-15

BRAJ NANDAN PRASAD SINGH

body2003
Judgment BRAJ NAnDAN PRASAD SINGH, J. 1. Though appellant suffered conviction under Sections 376 and 323 of the Indian Penal Code, he was sentenced only on the first count to undergo rigorous imprisonment for a term of ten years and also to pay fine of Rs. 2,000/- with a default rider, not sentencing him on the second count. 2. The salient features of the prosecution case which are without much details can be recaptulated with brevity. Allegedly Rubi Kumari, a teen aged girl (PW 1), while returnixig to her house in company of her mother, after attending to natures call, was dragged by the appellant to a nearby orchard where he violated her person and also cautioned her not to raise alarm or disclose his complicity to others. The prosecutrix shortly thereafter informed her mother who had gone ahead of her, pursuant to which, a police ease was registered with all these accusations attributed to the appellant the prosecutrix during pendency of investigation was also examined before a Magistrate under Section 164, Cr PC and the Police Officer entrusted with onerous task of investigation after collecting evidence, getting the prosecutrix clinically examined by the doctor, laid charge-sheet before the Court. In the eventual trial that followed the State examined altogether six witnesses including parents of the prosecutrix and other witnesses some of whom in fact, turned volte face to the State. 3. The defence of the appellant both before the Court below and this court had been that of innocence. However, the defence had not chosen to examine any defence witness during trial. The trial Court on evaluating probative value of the testimony of prosecutrix while rejecting plea of innocence of the appellant, recorded finding of guilt and sentenced the appellant in the manner stated above. 4. The narrations made by the witnesses can be stated with brevity to appreciate the contentions raised. Those who turned volte face to the State were Sita Ram Singh, PW 2, Surendra Prasad Singh, PW 3, and Mukesh Kumar, PW 6. Among them, while Mala Devi, PW 4, happens to be mother, Sita Ram Mandal, PW 5, happens to be father of the prosecutrix and as has been noticed, they too had turned volte face to the State about sexual violation allegedly committed by appellant on the prosecutrix, who happens to be none else but their daughter. Among them, while Mala Devi, PW 4, happens to be mother, Sita Ram Mandal, PW 5, happens to be father of the prosecutrix and as has been noticed, they too had turned volte face to the State about sexual violation allegedly committed by appellant on the prosecutrix, who happens to be none else but their daughter. As for testimony of prosecutrix Rubi, she reiterated her earliest version when she was examined by the Court on 5th April, 2002, and it seems that for some reason or others which can only be gauged by the Court, her cross-examination had been deferred, and when her cross-examination was resumed on 12th May, 2002 she made altogether a different version before the Court disowning all the allegations attributed to the appellant and even not identifying the rapist, due to night being darkened and foggy, and that apart, she stated that the prosecution against the appellant was launched on pressure of the villagers, though she could not disclose as to the nature of pressure exhorted on her. The prosecutrix resoling from previous version which she rendered before the Court on 5th April, 2002, was admittedly a disturbing feature of the prosecution case. The appellant happens to be none else but the next door neighbour and the prosecutrix was reading in a school at the relevant time of incident. The Court below while marshalling evidence of the prosecutrix has found that the circumstances under which she resoled from previous version, can be well imagined, as she must have stated a different version before the Court, only to help the defence. I am not oblivious that in the matter of sex violation, the Courts are required to act with all sensitivity. This fact too cannot be lost sight of that the prosecutrix happens to be teenager girl but at the same time narrations made by her on subsequent date at trial, which are on her own volition, cannot be lost sight of when she absolved the appellant from the charges attributed to him. Even at this stage, her attention had not been drawn by the State to the earliest version to suggest her incredible, which was well within domain of the State counsel. There is yet other feature of the prosecution case which too merits consideration. Even at this stage, her attention had not been drawn by the State to the earliest version to suggest her incredible, which was well within domain of the State counsel. There is yet other feature of the prosecution case which too merits consideration. Admittedly, no one can be ocular witness to such ghastly incident except the prosecutrix who happens to be victim, in majority of cases which we come across. The prosecutrix on her own showing had gone to the field to respond to natures call in company of her mother who too was informed shortly after incident by her about sexual assault committed by the appellant upon her. However, there seems no good reason as to why mother too would not lend assurance to her testimony as both parents like other witnesses had turned volte face to the State disowning all allegations attributed to the appellant. 5. There is yet another feature which would merit consideration. Though the Court below took into consideration the positive finding of the doctor, at the request of the defence, wnich is fact did not explicitly suggest commission of sexual assault on the prosecutrix, neither doctor was examined at trial nor injury report of the prosecutrix was brought on the record. The documents which are in police diary can hardly be and taken into consideration, unless it be brought on the record during trial. Learned counsel for the appellant submits that the Court below appeared to be obsessed with the age of the prosecutrix in recording verdict of guilt as she happened to be teenager, though the Courts have reiterated from time to time that the sex violence is an intrusion on the right of privacy of a female and conviction even on the sole testimony of the prosecutrix without corroboration can be recorded if she found to be credible and trustworthy. The evidence of the prosecutrix, as I have noticed, suffers inherent frailitis and was not free from blemishes to persuade Court to record conviction, and in backdrop of these disturbing features of the prosecution case, I find that finding of guilt recorded by the Court below cannot be sustained. 6. Having given my anxious and deepest consideration to the facts and circumstances of the case and also the evidences placed on the record, I upset the finding recorded by the trial Court and acquit the appellant of the charges. 6. Having given my anxious and deepest consideration to the facts and circumstances of the case and also the evidences placed on the record, I upset the finding recorded by the trial Court and acquit the appellant of the charges. Since appellant happens to be in custody, it is directed that he shall be set free forthwith if not wanted in any other case. The appeal accordingly succeeds.