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2003 DIGILAW 504 (JHR)

BABLU CHANDRA GORAIN v. STATE OF BIHAR

2003-04-21

D.N.PRASAD

body2003
Judgment : D. N. PRASAD, J. ( 1 ) THIS Criminal Appeal is directed against the judgment of conviction and sentence dated 20/02/1999 (sentence passed on 22-2-1999) by the District and Sessions Judge, Dhanbad in connection with Sessions Case No. 83 of 1998, whereby and whereunder the learned sessions Judge convicted the appellant under Section 376 (i) of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for ten years and he also awarded a fine of Rs. 2000. 00 and in default further to undergo Rigorous Imprisonment for one year. ( 2 ) PROSECUTION case in brief is that one Lalita Kumari lodged a First Information Report by recording her Fardbayan alleging therein that she had gone to paddy field of her villager Prafulla Mandal. One Butu Modi, a labourer was also harvesting paddy at the relevant time but he left the field for taking wages and asking the prosecutrix to harvest the rest of paddy. At about 5 p. m. the appellant Bablu Chandra Gorain came there and caught hold of her and felled her down in the paddy field and thereafter committed rape on her forcibly. She raised alarm when one Gopal Mandal who was also harvesting paddy in his field rushed to the spot and caught hold of the accused while he was fleeing away. However, it is learnt later on that the appellant managed to escape. ( 3 ) ON the basis of fardbayan, the FIR was lodged by the police under Section 376, IPC. The Police investigated into the case and submitted charge-sheet. Later on, the case was committed to the Court of Session. The appellant appeared before the Sessions Judge and accordingly charge was framed for the offence under Section 376, IPC, to which the appellant pleaded not guilty. Witnesses were examined. After hearing both sides, the Sessions Judge convicted the appellant and sentenced him to undergo, in the manner as stated above. Hence, this appeal. ( 4 ) ALTOGETHER six witnesses have been examined on behalf of the prosecution in support of its case, of whom PW-5 is the doctor, who examined the victim Lalita Kumari but did not find any sign of rape nor any external or internal injury found on her person. There was no stain of either blood or semen on any part of the body. She was found to be aged between 18-20 years. There was no stain of either blood or semen on any part of the body. She was found to be aged between 18-20 years. ( 5 ) PW-3, Lalita Kumari, the victim stated that she had gone to paddy field for harvesting where the appellant came there and committed rape on her forcibly. She further stated that the appellant was also caught hold by some person but later on he fled away. She recorded her Farbdayan before the police, but in the cross-examination she stated to have gone to police station along with one Gouri Bharti, who is President of Mahila Society. She further deposed that she was wearing Salwar-Sameej at the time of harvesting and she was felled down forcibly on the field by the appellant. Admittedly, she had not handed over her cloth to the police to show about the fact that actually the said cloth (Salwar-Sameej) torn away in that incident. ( 6 ) PW-1 is the father of the prosecutrix. He stated that Lalita Kumari narrated the incident to him but also admitted in his cross-examination that the police did not visit his village at about 12. 30 p. m. and according to him he had also visited the police station on that very date. PW-2 is the mother of the prosecutrix and she also stated about the fact that she had gone to the police station for lodging FIR. She further deposed that Lalita Kumari was wearing Saree on that relevant date which itself contradicts the whole evidence of PW-3, the victim as well as the Fardbayan appears to have been recorded at the house of the victim and it does not appear that any FIR was lodged or recorded at the Police Station. ( 7 ) PW-6 is the Investigating Officer, who claimed to had examined the witnesses including one Gopal Mandal, but surprisingly enough that Gopal Mandal, who can be said to be the material witness on the point has not been examined as there is a specific allegation made in the Fardbayan that this Gopal Mandal had caught the appellant when he was fleeing away. Non-examination of Gopal Mandal falsified the whole prosecution case, in the manner as alleged and it creates much suspicion about the whole story. Non-examination of Gopal Mandal falsified the whole prosecution case, in the manner as alleged and it creates much suspicion about the whole story. ( 8 ) THERE is also much contradiction as regards to the lodging of F. I. R. as the Fardbayan said to have been recorded in the house of the victim but the witnesses including the father and mother of the prosecutrix have said that they visited the police station for lodging FIR. It is not known as to what report was actually made in the police station at the relevant time. It may be further noted here that the police claimed to have an information about such occurrence resulting his visit to the house of the prosecutrix, which also gives much suspicion about the whole incident as to from where and when the police got such information about the incident which is not mentioned in the Fardbayan or stated by any of the witnesses including the Investigating Officer. It is evident that the doctor who held the examination of the victim did not find any kind of injury on the person either external or internal, nor there is any specific evidence coming forward to show about resistance made by the prosecutrix which is quite natural in such type of cases. It is true that the conviction can be made even on the basis of sole evidence of the prosecutrix but it must be free from any doubt and it must be natural and trustworthy. But, in the instant case, there appears much contradiction about the whole story of incident and as such conviction of an accused on the basis of the testimony of the prosecutrix, which is suspicious and doubtful, cannot be affirmed. Prosecutrix evidence also does not inspire confidence and does not appear to be natural and truthful and as such the prosecution story reveals the factum of suspicion and for which the appellant may be allowed benefit of doubt. ( 9 ) IT is obvious that the Court below has not appreciated the evidence on record, nor he dealt with about the circumstances for non-examination of one Gopal Mandal and Gouri Bharti, whose evidence can be said to be very material on this score. ( 9 ) IT is obvious that the Court below has not appreciated the evidence on record, nor he dealt with about the circumstances for non-examination of one Gopal Mandal and Gouri Bharti, whose evidence can be said to be very material on this score. ( 10 ) HAVING regard to the above facts and circumstances, I find that the Court below committed error in convicting the appellant without appreciating the evidence in proper way and the order of conviction is liable to be set aside. ( 11 ) IN the result, I find merit in this application, which is allowed. The judgment of conviction and order of sentence passed by the Court below is, hereby, set aside. The appellant appears to be in custody, hence he is directed to be released forthwith, if not wanted in any other case. Appeal allowed. --- *** --- .