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2003 DIGILAW 472 (PAT)

Hari Mian @ Haro Mian v. State Of Bihar

2003-04-23

CHANDRA MOHAN PRASAD

body2003
Judgment CHANDRA MOHAN PRASAD, J. 1. This appeal arises out of the judgment dated 24th of December 2001, passed by the 2nd Additional Sessional Judge, Banka in Sessions Trial No. 29 of 1984 whereby the appellant has been convicted under Sections 376 and 458 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years under each count. However, the sentences were directed to run concurrently. 2. The victim informant Bibi Jaitun came to the Officer-in-Charge of Banka Police Station on 30.1.1978 along with her uncle and gave a written report i.e.fardbeyan alleging that in the preceding night at about 10 Oclock while she along with her dewar Adbul @ Mahboob aged ten years was sleeping in her house after completing her meal, her villager Hari Mian (Appellant) and Jattu Mian accused (absconding) came and they pushed the door from the outside due to which the door opened. Jattu Mian caught hold of her dewar and Hari Mian (appellant) came to her and started lifting her sari. She tried to raised hulla but Hari Mian gagged her mouth with cloth and he (Hari Mian), carrying a chhura threatened to kill her if she raised hulla. The informant further alleged that Hari Mian penetrated his penis into her vagina and ejaculated sperm inside her private part and thereafter Jattu Mian also came and committed rape on her making ejaculation inside. Then the two accused went away threatening to kill her if the occurrence was disclosed to anybody. After the departure of the accused the informant and her dewar raised hulla and the witnesses as named in the written report came there and they saw the accused fleeing away. The informant further alleged that her husband was working at Asansol, therefore, weeping she went to her mothers house and from there she came to the police station with her uncle and gave the written fardbeyan and put her LTI on the same. 3. As many as nine witnesses have been examined by the prosecution. PW 1 Abdul Mian said to be the dewar of the victim informant has turned hostile and he deposed that he knows nothing about the occurrence and that he does not know if any occurrence had ever taken place with respect to Bibi Jaitun. 4. PW 2 Sakina Bibi, PW 3 Munshi Mian,. PW 1 Abdul Mian said to be the dewar of the victim informant has turned hostile and he deposed that he knows nothing about the occurrence and that he does not know if any occurrence had ever taken place with respect to Bibi Jaitun. 4. PW 2 Sakina Bibi, PW 3 Munshi Mian,. PW 4 Doman Mian and PW 5 Israil Mian who are said to be the co-villagers have also turned hostile and they have said that they know nothing about the occurrence. The hostile witnesses have denied to have made any statement before the police supporting the case of the prosecution. PW 9 Samir Singh is a formal witness who has proved the writings of the formal first information report marked Ext. 3. 5. PW 6 Bibi Jaitun is the informant herself. She deposed that on the night of occurrence at 10 p.m. while she was sleeping in her house with her dewar aged about ten years the appellant Hari Mian and other accused Jattu Mian pushed the door from outside due to which the door opened and then Jattu Mian caught hold of her dewar and appellant Hari Mian committed rape on her by lifting her sari and he also penetrated his penis inside her private part. She further deposed that at the time of occurrence the accused had gagged her mouth with cloth and appellant Hari Mian also threatened her with chhura saying that she would be killed if she raised hulla. Thereafter she further alleged that Jattu Mian also committed rape on her making ejaculation inside the private part and then the accused persons fled away. She raised hulla. Then the villagers came and saw the accused fleeing away. At para 10 of her examination she deposed that accused Jattu is her bhagina and appellant Hari Mian is her nephew. She had given the report to the darogaji and darogaji thereafter sent her for medical examination to the doctor who examined her. She identified the appellant and other accused. In paragraph 8 of her cross-examination she deposed that the door was closed with sackle inside the door but the sackle was not very strong and that it had broken in two pieces. At paragraph 12 she further deposed that she has shown the broken sackle to darogaji when darogaji had visited her house. In paragraph 8 of her cross-examination she deposed that the door was closed with sackle inside the door but the sackle was not very strong and that it had broken in two pieces. At paragraph 12 she further deposed that she has shown the broken sackle to darogaji when darogaji had visited her house. At paragraph 14 she deposed that she had received scratch mark on her breast. 6. P.W. 7 Smt. Kishori Rai is the doctor who examined the victim informant on 31.1.1978. She deposed that she examined the informant Jaitun Bibi on that day at 10.30 a.m. and found as follows : (i) She was aged about 19 years. (ii) Breast well developed. There was not sign of any struggle semen dried stained was present on her petticoat. No semen stained was marked on her public hairs and thigh. There was no mark of struggle on her body or genital part. (iii) In P.V. examination hymen was found ruptured previously. Vaginal swab was taken and sent for microscopic examination and no Speramatoza was found. The medical examination report is in the pen of the doctor is marked as Ext. I. In cross-examination the doctor deposed that he did not find any mark on her breast or shoulder. 7. PW 8 Pran Mohan Das Munshi is a formal witness who has proved the thumb impression on the fardbeyan marked Ext. 2. The IO of this case has not been examined by the prosecution. 8. Learned counsel for the appellant submitted that in this case that it is only the victim informant who has come to say about the occurrence but he continued further to argue that the informant is not corroborated by any other evidence and that her evidence itself suffers with serious infirmities. Firstly the learned counsel for the appellant argued that the informant says that she was sleeping with her dewar Abdul Mian aged ten years at the time of occurrence but Abdul Mian turned hostile. He deposed that he knows nothing about the occurrence. No reason has been explained as to why the informants dewar who is the close family member living with her did not support the case of the prosecution. 9. He deposed that he knows nothing about the occurrence. No reason has been explained as to why the informants dewar who is the close family member living with her did not support the case of the prosecution. 9. The learned counsel argued that the PWs 2, 3, 4, and 5 were examined as the co-villagers who are said to have arrived at the P.O. on hulla but none of them say about any such occurrence. 10. It may be pointed out that the informant says in her evidence at para 11 and 12 that due to the dashing of the door by the accused persons from outside the sackle of the door broken into two pieces and the broken sackle was shown to the darogaji in this case.The IO has not been examined to say that he has found any broken sackle at the PO. The case diary is on the record and paragraph 7 of the case diary mentioned about the inspection of PC made by the IO. The perusal of paragraph 7 shows that on inspection the I.O. has not found any broken sackle. No doubt the contents of the case diary can not be used without examining the IO but under some circumstances it can be used for appreciation of the evidence. The learned counsel for the appellant argued that the informant categorically deposed that the appellant and the other accused had committed rape on her and ejaculated sperm in her private part. It is also pointed out that the medical evidence shows that on examination of the victim no spermatozoa was found. It is argued that in such a case when there is no categorical case of ejaculation of semen inside the private part, and no mark of struggle on her body or on genital part was found which affects the case of the prosecution. In the facts and circumstances of the case the arguments of the learned counsel for the appellant carry substantial force. 11. The learned counsel also pointed out that the informant at paragraph 14 says that the accused had pressed her breast and she received scratch mark on her breast. But the doctor (PW 7) in her medical evidence at paragraph 3 deposes that on examination she had not found any mark of nail on the breast and shoulder of the informant. The learned counsel also pointed out that the informant at paragraph 14 says that the accused had pressed her breast and she received scratch mark on her breast. But the doctor (PW 7) in her medical evidence at paragraph 3 deposes that on examination she had not found any mark of nail on the breast and shoulder of the informant. Thus the absence of any nail mark goes to discredit the testimony of the informant on the point of occurrence. 12. The learned counsel for the appellant saying further argued that in this case the time of occurrence is at about 10 p.m. which is such hour of the night when natural light is not available. Informant claims to have identified the appellant and the other accused but she does not disclose any means of identification in the whole of the evidence as adduced by the prosecution. Thus without there being any means of identification such claim of identification becomes doubtful and it is not safe to rely on such identification. 13. The learned APP argued that the victim informant has fully supported her case and he also argued that conviction can be based on the sole testimony of the victim informant. No doubt, a conviction can be based on he sole testimony of a lady who has been subjected to rape but for basing such conviction the sole evidence or the victim must be reliable and it must not carry any infirmity making the testimony of the victim doubtful. So far the present case is concerned, the victim informant says that she had been raped by the appellant and other accused but on careful and categorical analysis of her evidence it is found that it suffers with several infirmities, as discussed above, in detail. In view of the infirmities in the case of the prosecution, I find that there is no scope for passing any conviction on the sole testimony scope for passing any conviction on the sole testimony of th victim informant. 14. In view of the discussions made, above I find that the prosecution has not been able to prove the charge beyond the shadow of doubt. Therefore, the appellant deserve to be acquitted and he is so acquitted. 15. In the result the appeal is allowed. The judgment and order for conviction and sentence passed against the appellant by the trial Court is set aside. Therefore, the appellant deserve to be acquitted and he is so acquitted. 15. In the result the appeal is allowed. The judgment and order for conviction and sentence passed against the appellant by the trial Court is set aside. The appellant Hari Mian who is in custody is directed to be released forthwith if not required in any other case.