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2003 DIGILAW 536 (JHR)

Soukhi Pasi v. State Of Bihar (Now Jharkhand)

2003-04-28

D.N.PRASAD

body2003
JUDGMENT Deoki Nandan Prasad, J. 1. This appeal is directed against the judgment of conviction dated 7.12.1999 and order of sentence dated 8.12.1999 passed by Shri Vinod Kumar Sinha, 5th Additional Sessions Judge, Giridih in Sessions Trial No. 200 of 1998 whereby and whereunder, the learned 5th Additional Sessions Judge convicted the appellants under Sections 376(g), 323/34 and 341 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years under Section 376(g) of the Indian Penal Code and awarded a fine of Rs. 2000/- and in default to undergo simple imprisonment for three months; three months simple imprisonment under Section 323 of the Indian Penal Code and one month simple imprisonment under Section 341 of the Indian Penal Code. However, all the sentences were ordered to run concurrently. 2. The case of the prosecution in brief is that Anita Devi given her fardbeyan before the Assistant Sub-Inspector of Police on 29.4.1998 stating therein that on 22.4.1998 at 10 a.m. while she was coming after taking bath and washing clothes along with the wife of Sudhir Pasi, the appellants Sokhi Pasi and Manoj Pasi intercepted her and when she protested, Manoj Pasi caught her hand and told to obey whatever he was saying and she caught hold the hand of the wife of Sudhir Pasi (Kaushalaya Devi) but they had threatened her and thereafter both the accused persons caught hold of her and started assaulting her and thereafter both the appellants committed rape on her forcibly one after another and they have threatened the informant/victim to keep mum and not to disclose the incident any where, failing which, dire consequences will follow. Accordingly first information report was lodged. The police investigated into the case and submitted charge-sheet. The appellants appeared in the Court of the Additional Sessions Judge. Charge was framed accordingly, to which they pleaded not guilty. Witnesses were examined from both sides and after hearing both sides, the appellants were convicted and sentenced for the said offences in the manner as stated above, hence this appeal. 3. Altogether eight witness have been examined on behalf of the prosecution in support of its case, of whom PW 8 is a formal witness. PW 2 is the victim, who claimed that when she was coming after taking bath along with Kaushalya Devi, the appellants intercepted her and thereafter they assaulted her. 3. Altogether eight witness have been examined on behalf of the prosecution in support of its case, of whom PW 8 is a formal witness. PW 2 is the victim, who claimed that when she was coming after taking bath along with Kaushalya Devi, the appellants intercepted her and thereafter they assaulted her. It is further stated that they got her down and thereafter first appellant Sokhi Pasi committed rape on her and then second appellant Manoj Pasi also committed rape on her. It is stated in clear terms by her in her cross-examination that Kaushalya Devi (PW 4) was with her but she did not try to save her and fled away. Surprisingly enough this Kaushalaya Devi (PW 4) has not supported the prosecution case in any manner. PW 2 further admitted in her cross-examination that she sustained injury on her person and her bangles were also broken at the place of occurrence but the Investigating Officer (WP 7) clearly deposed that nothing could be seized from the place of occurrence and, as such, this fact also becomes falsified. 4. Admittedly first information report was lodged after seven days of the occurrence. It is true that delay in loding the first information report was narrated to the effect that her husband was not present in the house as he had been working at Banaras at the relevant time, but it is not known as to why such occurrence has not been narrated to the villagers or any other person. Even the Bengali Doctor who admittedly examined her at the first point of time has not stated anything about the rape. She has admitted in her cross-examination that she called Bengali Doctor of her village through one Murari, who is also a resident of the same village, but the said Murari has also not come forward to depose on this score. The said Bengali Doctor has been examined on behalf of the defence as DW 3 and he clearly deposed that the informant Anita Devi did not disclose anything to him about the incident of rape. PW 2 (Anita Devi) further admitted that she had also not narrated the incident of rape of Murari. It is not known as to why she remained silent on this point and did not disclose anything even to the villagers, the Bengali Doctor or Murari who were present in the village. 5. PW 2 (Anita Devi) further admitted that she had also not narrated the incident of rape of Murari. It is not known as to why she remained silent on this point and did not disclose anything even to the villagers, the Bengali Doctor or Murari who were present in the village. 5. PW 3 is Dr. Rekha Jha who examined Anita Devi (PW 2) on 30.4.1998 and she did not find any kind of injury on the person of the victim. She is also not definite about committing of rape, as definite opinion has not been given; 6. PWs 4 and 5 have not supported the prosecution case in any manner though PW 4 (Kaushalaiya Devi) can be said to be a competent and independent witness in the case, said to have accompanied the victim at the relevant time. PW 6 (Bipti Devi) is the mother-in-law of Anita Devi (PW 2). She stated that Kaushalaiya Devi (PW 4) deposed before her about the occurrence. I have already discussed above that Kaushalaiya Devi was herself a competent witness about the occurrence who denied about the incident. PW 6 further stated in her cross-examination that there was a compromise document over which Left Thumb Impression (LTI) was given which is evident itself from Annexure-2 (Affidavit) to the memo of appeal which itself falsifies the whole prosecution case. This witness also admitted that the place of occurrence is busy passage and the villagers used to walk there frequently but not a single villager said anything about the prosecution case. 7. PW 7 is the Investigation Officer. According to him, first of all he recorded Sanha and thereafter started investigation on that basis and thereafter he recorded the fardbeyan of the victim. He admitted that nothing could have been detected at the place of occurrence nor anything was seized by him in connection with committing rape though the victim claimed in her evidence that her bangles were broken at the place of occurrence but the Investigating Officer did not say anything on this score which also falsified the incident itself. He further deposed that the informant Anita Devi (PW 2) never came to the Police Station for lodging the first information report. This statement also leads to a reasonable doubt about correctness of recording of fardbeyan. He further deposed that the informant Anita Devi (PW 2) never came to the Police Station for lodging the first information report. This statement also leads to a reasonable doubt about correctness of recording of fardbeyan. Her mother-in-law (Bipti Devi) PW 6 in her examination-in-chief stated that PW 2 came weeping at that time and she narrated about the incident of rape to her, but none of the neighbours come forward to support such story, which itself makes the whole story suspicious and doubtful. PW 1, the husband of the victim, claimed that he has been working at Banaras and his wife Anita Devi disclosed about the occurrence. He is also a hearsay witness and thus cannot be said to be a competent witness on that score. 8. Obviously, first information report has been lodged after much delay of the occurrence. Witness Kaushalaya Devi who is said to be a companion of the victim at the relevant time and Independent witness has not supported the prosecution case in any manner. The other villagers have not come forward to support the prosecution case. The Doctor is also not definite about the incident of committing rape, Annexure-2 is another document to indicate about the fact that no such occurrence of rape took place rather she gave her statement before the police and the Magistrate out of fear of one Baldeo Hazra, an Ex. MLA and actually at the instance of Baldeo Hazra, she made out a case of rape but the accused persons have never committed rape on her but the Trial Judge did not consider this aspect. 9. Three witnesses have also been examined from the side of the defence of whom DW 3 can be said to be competent witness as he claimed to have gone to the house of Anita Devi for medical examination but admittedly Anita Devi did not say a single word as regards to the incident of rape. DW 3 also stated clearly that he did not examine her. Other defence witnesses i.e. DWs 1 and 2 stated about the incident occurred earlier as regards to the dispute over Government Hand-Pipe and that was the dispute in between the ladies i.e. the wife of the appellants and the informant, as a result of which, this false case said to have been filed. 10. Other defence witnesses i.e. DWs 1 and 2 stated about the incident occurred earlier as regards to the dispute over Government Hand-Pipe and that was the dispute in between the ladies i.e. the wife of the appellants and the informant, as a result of which, this false case said to have been filed. 10. From the evidence collected it is apparent that there is much contradictions in the testimony of the informant and that testimony in absence of corroboration cannot be taken as gospel truth. Omissions and discrepancies are sufficient to create a reasonable doubt as to the genuineness of the prosecution case. Thus the accused persons are entitled to the benefit of doubts. No doubt conviction can be made on the basis of sole evidence of the prosecutrix but the testimony of prosecutrix must be truthful, trustworthy and free from any doubt. On the facts held above, it was not possible to draw a reasonable conclusion that the appellants had raped. 11. Thus I find that the learned Court below committed error in passing the judgment of conviction and order of sentence against the appellants without appreciating the vital contradictions and discrepancies in the evidence. It may be noted here that the Doctor, who examined the victim even after seven days of the occurrence, did not find any sign of scratch on her person when there is specific allegation that she was also assaulted by the appellants. This also adds to the bundle of suspicious circumstances noted hereinafter in the prosecuting case and even a slightest doubt shall be fatal to the prosecution case. From a perusal of the judgment of the trial Court, it is evident that the above said omissions and discrepancies have not been given due weight while appreciating the prosecution case by the trial Court which has proceeded mechanically to accept the evidence of sole witness PW 2 (victim) inspite of the fact her, evidence is contradictory and not reliable. 12. In the result, I find merit in this appeal, which is, accordingly, allowed. The impugned judgment of conviction and order of sentence passed by 5th Additional Sessions Judge, Giridih in Sessions Trial No. 200 of 1998 are set aside. Both the appellants, namely, Soukhi Pasi and Manoj Pasi are in custody. They are directed to be released forthwith, if not wanted in any other case.