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2003 DIGILAW 789 (AP)

Ratan Keot v. State of Bihar (Now Jharkhand)

2003-06-23

D.N.PRASAD

body2003
JUDGMENT Deoki Nandan Prasad, J.— This appeal has been directed against the judgment of conviction dated 5th, June, 1992 and order of sentence dated 6th June, 1992 passed by Sri Om Prakash Sinha, Additional Sessions Judge, Pakur, Sahebganj in Sessions Case No. 111 of 1988/22 of 1989, whereby and where-under, the learned Additional Sessions Judge convicted the appellant under Sections 376 and 493 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of five. years under Section 376 of the Indian Penal Code and also for five years under Section 493 of the Indian Penal Code. However, both the sentences are ordered to run concurrently. 2. The case of the prosecution as alleged is that the informant Fuchani Keotin lodged a First Information Report claiming therein that in the month of chait the father and mother of the appellant came to the house of the informant and in presence of Mistri Soren, Bhola Keot, Jathlu Keot and others proposed to marry the informant with their son Ratan Keot (the appellant). The informant’s parents also agreed to marry the informant with the appellant. It is further alleged that in the evening on the day of occurrence, the informant was going to well to fetch water when the accused/appellant Ratan Keot caught hold the hand and asked her to accompany him for having sexual intercourse. The informant refused but the appellant said to have taken away her and thereafter committed rape on her. It is further alleged that the appellant assured to many with her as the marriage has already been settled by their parents and she also became pregnant. Thereafter she disclosed the fact to the appellant but the parents of the appellant refused to marry with the informant. There was a panchayat held in which the appellant was directed to marry but he refused to obey the direction of the panchas, on the basis of which, a First Information Report was lodged against the appellant. The police investigated into the case and submitted charge-sheet. 3. The appellant appeared before the Additional Sessions Judge and, accordingly, charge was framed under Sections 376 and 493 of the Indian Penal Code. The witnesses were examined in the Court below and after hearing both sides, the Court below convicted and sentenced the appellant in the manner as stated above. 4. 3. The appellant appeared before the Additional Sessions Judge and, accordingly, charge was framed under Sections 376 and 493 of the Indian Penal Code. The witnesses were examined in the Court below and after hearing both sides, the Court below convicted and sentenced the appellant in the manner as stated above. 4. Altogether nine witnesses have been examined on behalf of the prosecution in this case of whom PWs 3 and 4 have been tendered by the prosecution. PW 8 is a formal witness. 5. At the very outset, it may be mentioned here that the victim has never been examined by the Doctor either in respect of committing rape or having pregnancy, as a result of rape committed by the appellant. 6. PW 1 claimed to be an eye-witness about committing rape. She stated that she had seen the appellant committing rape on the victim Fuchani Keotin, but surprisingly enough to note that she has neither been named in the First Information Report as an eye-witness of the occurrence said to have taken place about three months prior or lodging of the First Information Report nor PW 1 had ever said such story to any other villager or the parents of the informant. She could have been a competent witness if her name would have been figured in the First Information Report as an eye-witness and also she would have narrated the incident to the parents of the informant at the earliest opportunity of time. What prevented her from disclosing the incident at the first opportunity of time. Moreover the First Information Report has been lodged admittedly after the lapse of more than three months for which no cogent explanation has been assigned. She clearly deposed in her cross­ examination that the night was dark and she had not raised any alarm at the relevant time. Her evidence appears to be very flinching when she narrated at one time that she had seen committing rape from eight to ten hands away but again she said that she had seen the said occurrence from a distance of four to five hands. It also appears to be quite unnatural that the appellant could not flee away after seeing her at the place of occurrence and the informant admittedly did not come to PW 1. It also appears to be quite unnatural that the appellant could not flee away after seeing her at the place of occurrence and the informant admittedly did not come to PW 1. She further deposed in paragraph 9 that panchayat was held on the next day and she was also present there when Ratan Keot (the appellant) refused to marry the informant because she is pregnant. In this way, the informant would have been pregnant from before and there was no reason as to why PW 1 did not disclose the said incident about committing rape before the panchayat, which gives much suspicious about her evidence. 7. PW 2 is a hearsay witness. According to him, the appellant did not obey the direction of panchayat. He clearly admitted in his cross-examina-tion that he could come to know about the pregnancy only when there was a panchayat held. He further stated that the parents of the appellant refused to marry with the informant because she was carrying pregnancy from before. 8. PW 5 stated that marriage between the informant and Ratan Keot (the appellant) was settled and later on he heard that marriage could not be solemnized. 9. PW 6 is the father of the informant. He stated that the father and mother of the appellant came to his house for settlement of the marriage of their son with his daughter. The marriage was settled. He further stated that on the same day at about 7 p.m., her daughter went to the well to fetch water when the appellant Ratan Keot committed rape on her. The father of Ratan Keot said that the child if born would be accepted since the marriage has already been settled. He further stated that the appellant refused to marry with the informant on the ground that she was carrying pregnancy. There was also panchayat held and there was direction by the panchas to marry which was denied. In his cross-examination, he stated that her daughter, who went to the well to fetch water, had returned with water and there was no injury caused on her person. He also deposed that her blouse was not torn, as rape was committed with consent. Admittedly she was not examined by the Doctor as admittedly the cloth (sari) was washed away. 10. He also deposed that her blouse was not torn, as rape was committed with consent. Admittedly she was not examined by the Doctor as admittedly the cloth (sari) was washed away. 10. PW 7 is the informant, claimed to have gone to fetch water to the well when she was taken away by the appellant Ratan Keot and thereafter he committed rape on her on the ground that the marriage has already been settled between them. She further deposed that the appellant committed rape on her four to five times later on. She became pregnant thereafter. She further deposed that the appellant refused to marry her. There was also panchayat held. She stated in her cross-examination that she had narrated the incident when she became pregnant. She further deposed that Ratan Keot (the appellant) caught hold her with consent. 11. PW 9 is the Investigating Officer claimed to have recorded the evidence of the witnesses and submitted charge sheet. The appellant was also examined under Section 313 of the Code of Criminal Procedure and he denied the allegation. 12. Obviously PW 1 (Panwati Keotin) who is said to be an eye-witness of the occurrence has not been described or cited as witness in the First Information Report which was recorded at the first instance. It is also not natural on the part of the eye-witness (PW 1) that she could not narrate the incident even to her husband or any other person including the parents of the informant, if actually she had seen the occurrence. Had there been such incident, she would have made hue and cry in the village at the first day of incident. None of the panchas has come forward to substantiate the story that actually the informant was carrying pregnancy from the appellant. PW 1 clearly stated that on the next day, there was panchayat held whereas the other witnesses stated that panchayat held after two to three months. I have already discussed above that the informant/victim has never been examined by the Doctor either on the point of rape or on the point of pregnancy, which would have been positive and definite evidence on this score. Non-examination of the victim by the Doctor makes the whole prosecution case suspicious and doubtful and for which the appellant is entitled for the benefit of doubts. There appears much contradictions in the testimony of the witnesses as well. Non-examination of the victim by the Doctor makes the whole prosecution case suspicious and doubtful and for which the appellant is entitled for the benefit of doubts. There appears much contradictions in the testimony of the witnesses as well. The Investigating Officer has neither seized any cloth nor any other material to throw any light of establishing the prosecution case. In absence of cogent and material corroboration it is difficult to rely upon the prosecution story in the manner as alleged. 13. Thus I find that the whole prosecution case suffers from discre-pancies and doubtful and, therefore, the appellant is entitled for the benefit of doubts. 14. In the result, it is evident that the prosecution has failed to establish the charges against the appellant beyond all reasonable doubts. Thus I find that the Court below committed error in convicting the appellant for the offences charged, which is liable to be set aside. Accordingly, I find merit in this appeal, which is allowed and the order of conviction and sentence passed by the learned trial Court is, hereby, set aside. The appellant is on bail. He is discharged from the liability of the bail bonds. Appeal allowed.