Research › Search › Judgment

Jharkhand High Court · body

2003 DIGILAW 791 (JHR)

Dindayal Kewat v. State of Bihar (now Jharkhand)

2003-07-09

VISHNUDEO NARAYAN

body2003
Judgment Vishnudeo Narayan, J.- This appeal has been preferred by the sole appellant named above against the impugned judgment and order dated 30.6.1990 passed in Sessions Case No. 326/138 of 1986/1989 by Shri Sheo Dayal Prasad, Additional Sessions Judge, Pakur whereby and whereunder the appellant was found guilty for the offence punishable under Section 376 of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment for seven years. 2. The prosecution case has arisen on the basis of the Fardbeyan (Ext. 1) of P.W. 1, Chunia Keotin, the informant and the alleged victim of this case recorded by S.I., R.K. Sinha of Litipara P.S. on 1.1.1986 at 16.30 hours at village Badasarsa regarding the occurrence which is said to have taken place at about 12 o'clock in the day on 27.12.1985 in the field near a pond situate in village Fulpahari, P.S.-Litipara, District-Sahibganj and the case was instituted by drawing formal F.I.R. on that very day at 20.30 hours and the Fardbeyan and F.I.R. have been received in the Court empowered to take cognizance on 8.1.1986. 3. According to the prosecution case, P.W. 1, Chunia Keotin, the informant had gone to take bath in the pond in village Fulpahari on Friday i.e. 27.12.1985 and she was returning to her house from the pond at about 12 o'clock in the day and appellant Dindayal Kewat met her in the way and finding her alone caught her hand and dragged her inside a bush and felled her on the ground and ravished her. It is alleged that she started crying and P.W. 6, Babudhan Hansda and one Sakal Hembram, son of Budhroy Hansda came there from the "Khalian" and the appellant fled away from there seeing them. It is also alleged that the informant came to her house and narrated. the incident to her parents i.e. P.W. 2 and P.W. 3 and other covillagers and the matter was reported to the Village Pradhan for Panchayati but the appellant and his father did not abide by the verdict of the Panchayat and thereafter the Village Pradhan and Sarpanch asked the informant to get a case instituted in the police station. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and he has been falsely implicated in this case. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and he has been falsely implicated in this case. It has been contended that this appellant is the caste man of the informant and he is possessed of twelve bighas of agricultural land and the parent of the informant had a desire to get the marriage of the informant performed with the appellant and on his refusal, he has been falsely dragged in this case to put pressure on him. 5. The prosecution case has in all examined nine witnesses to substantiate its case. P.W.1, Chunia Keotin is the informant of this case. P.W. 2, Musiya Keotin and P.W. 3, Gulli Kewat are the mother and father respectively of the informant and they are hearsay witnesses of the alleged occurrence. P.W. 4, Chhutar Hansda, the Chowkidar of the village and P.W.5. Surju Kewat, a co-villager have been tendered in this case. P.W. 6, Babudhan Hansda is the alleged ocular witness of the occurrence in question. P.W. 7, Sakal Marandi, son of Bakai Marandi also claims himself to be an ocular witness of the alleged occurrence but his name does not appear in the Fardbeyan (Ext. 1) of the informant, rather, the name of one Sakal Hembram, son of Budhroy Hembram figures as an ocular witness in the Fardbeyan but the said Sakal Hembram has not taken oath in this case. The medical witness who has examined the informant and the I.O. of this case have not taken oath in support of the prosecution case and the report of the doctor and the Fardbeyan recorded by the I.O. have been proved by P.W. 8 and P.W. 9, who are formal witnesses in this case. No oral and documentary evidence has been brought on the record on behalf of the defence. 6. In view of the evidence oral and documentary on the record, the learned court below came to the finding of the guilt of the appellant and has convicted and sentenced him as stated above. 7. Assailing the impugned judgment as perverse and against the weight of the evidence on the record it has been submitted by Mr. 6. In view of the evidence oral and documentary on the record, the learned court below came to the finding of the guilt of the appellant and has convicted and sentenced him as stated above. 7. Assailing the impugned judgment as perverse and against the weight of the evidence on the record it has been submitted by Mr. Shahid Khan, the learned Amicus Curiae that the learned court below did not meticulously consider the evidence on the record and has erred gravely in coming to the finding of the guilt of the appellant. It has been submitted that there is unexplained delay in lodging the case by the informant and there is material contradictions and inconsistencies in the evidence of P.W. 1 regarding the manner of occurrence in question and the entire occurrence is improbable. It has further been submitted that there is no evidence on the record in respect of any Panchayati regarding the occurrence in question and the Pradhan and Sarpanch of the village had not been taken oath in this case to support the factum of Panchayati as alleged. It has also been contended that it appears from the evidence of P.W. 1, the informant that she had been to the police station on 1.1.1986 but it is surprising enough that she was not referred for a medical examination whereas it appears from the report of the doctor proved by P.W. 8, a formal fitness, that she has been examined by the doctor on 7.1 .1986 and the said report is not admissible in evidence. It has further been contended that the medical report (Ext. 2) on the record does not at all support the factum of ravishment of the informant as alleged as the doctor has neither found any external injury on the person of the informant nor any internal injury on her private part and there is no positive finding of rape having been committed on the informant. 2) on the record does not at all support the factum of ravishment of the informant as alleged as the doctor has neither found any external injury on the person of the informant nor any internal injury on her private part and there is no positive finding of rape having been committed on the informant. It has also been submitted that P.W. 1 as per her evidence appearing in para-15 has stated that she had been to the police station in the company of the Chowkidar and she has submitted her written report regarding the occurrence and had also shown her clothes to the police officer there, who had made certain interrogations from her but no case was instituted on that day and subsequently the Fardbeyan of the informant was recorded on 1.1.1986 which casts a cloud of suspicion to the very credibility of the prosecution case and it appears queer enough as to why the informant was not sent for her medical examination on that very day i.e. 27.12.1985 and the Fardbeyan (Ext. 1) is a result of after thought and it suffers with embellishment. It has been contended that P.W. 7, Sakal Marandi has been deliberately set up as an ocular witness of the occurrence in place of Sakal Hembram with mala fide intention by the prosecution and serious prejudice has also been caused to the appellant due to the non-examination of the medical witness and the I.O. in this case. Lastly, it has been contended that the appellant is possessed of twelve bighas of agricultural land and he is the caste man of the informant and the father of the informant had a desire to get the informant married with him which was refused by the appellant and prior to that the informant had also lived in the house of the father of this appellant and due to refusal of the appellant to solemnize his marriage with the informant, he has been falsely roped in this got up case and thus, the impugned judgment is unsustainable. 8. The learned A.P.P. has submitted that the evidence of P.W. 1, the informant stands corroborated by P.Ws. 6 and 7 and it appears from their evidence that the informant has been ravished by the appellant while she was returning to her house after taking bath from the village pond and testimony of both the ocular witnesses i.e. P.Ws. 8. The learned A.P.P. has submitted that the evidence of P.W. 1, the informant stands corroborated by P.Ws. 6 and 7 and it appears from their evidence that the informant has been ravished by the appellant while she was returning to her house after taking bath from the village pond and testimony of both the ocular witnesses i.e. P.Ws. 6 and 7 is worthy of credit as they have no reason to depose falsely against the appellant and viewed thus, there is no illegality or infirmity in the impugned judgment. 9. P.W. 1, the informant has deposed that on the day of the occurrence she had been to the village pond and from there she was returning in the mid day and the appellant caught her and brought her in the field and stuffed her mouth by clothes and also tied her hands and felled her on the ground and thereafter ravished her. She has further deposed that she had raised alarms and P.W. 6 Babudhan Hansda along with a person came there and the appellant had fled away from there. The medical report (Ext.2) however, does not support the factum of ravishment of the informant. The medical report shows the absence of any external injury on the person of the informant as well as any internal injury on her private part. The medical report further shows the absence of sperm in her vaginal swab and the hymen shows old rupture. The evidence of P.W. 1, the informant that the appellant after catching hold of her stuffed her mouth by clothes and tied her hands before ravishing her is inconsistent with the manner of occurrence as averred in the Fardbeyan (Ext.1). In para-12 of her evidence she has deposed that her clothes and blouse were torn in the occurrence and her clothes was also besmeared with mud when she was felled near the ridge in the paddy harvested field and in course of occurrence abrasions and scratches were caused on her back and buttock and blood has also oozed from the said injury. However, the medical report (Ext. 2) does not corroborate this fact. However, the medical report (Ext. 2) does not corroborate this fact. In para-11 of her cross-examination, she has also deposed ~hat she met the appellant while he was sitting near the bush by the side of the said pond and he caught her there but he did not fell her there and he brought her to the said paddy field at a distance of 70 meters and there the appellant felled her on the ground and ravished her. According to the prosecution case, the appellant is said to have dragged her after catching hold her hands and felled her inside the bush where the informant is said to have been ravished by him. But in her evidence on oath she has shifted the place of occurrence from the bush in the open paddy field for the reasons that P.Ws. 6 and 7 may have the occasion to see the alleged occurrence. In para-13, she has further deposed that she has stated before the I.O. that she was felled in the field where the appellant stuffed her mouth by clothes. The I.O. has not taken oath in this case and there is no objective finding on the record regarding the place of occurrence as to whether alleged the ravishment has taken place either in the bush or in the open paddy field near its ridge and the appellant stands seriously prejudiced in respect thereof due to the non-examination of the I.O. as he could not be able to contradict the statement of the informant as stated by her before the I.O. In para-12 of her evidence she has also deposed that she did put no resistance to the appellant when she was forcibly felled on the ground and she was being ravished. She has categorically deposed that she did not bite the appellant and also did not scratch his body in course of ravishment, which is the most unnatural conduct of the informant which leads to the inference that the prosecution case as alleged is highly improbable. P.W. 6, Babudhan Hansda has deposed that he has seen the occurrence from his "Khalian" which is at a distance of 70 meters from the place of occurrence. He has specifically deposed that he has not gone to the place of occurrence. P.W. 6, Babudhan Hansda has deposed that he has seen the occurrence from his "Khalian" which is at a distance of 70 meters from the place of occurrence. He has specifically deposed that he has not gone to the place of occurrence. Therefore, the prosecution case that the appellant had fled away from the place of occurrence when P.W. 6 came there running, is totally false. P.W. 7, Sakal Marandi has also deposed to have seen the occurrence from the "Khalian" of P.W. 6. According to him, the occurrence has taken place on the bank of the pond. He has also deposed that there was no scuffle between the informant and the appellant in course of occurrence. However, P.W.7 does not figure as a witness as per the averments made in the Fardbeyan of the informant whereas one Sakal Hembram figure as an ocular witness, who has not taken oath in this case and Sakal Hembram has been deliberately with mala fide motive substituted by P.W. 7, Sakal Marandi in this case. There is material contradictions and inconsistencies between the evidence of the informant on the one hand had the evidence of P.W. 6 and 7 on the other hand regarding the alleged place of ravishment and the manner of the occurrence in question. 10. There is delay of five days in instituting the case against the appellant and no explanation is forthcoming in respect thereof by the prosecution. The case of Panchayati as averred in the Fardbeyan does not stand substantiated at all by any legal evidence on the record in respect thereof. And to crown all, P.W. 1 has deposed in para-15 of her testimony that she had gone to the police station on the day of the occurrence with, a written report of the alleged occurrence in the company of the Chowkidar and she has handed over that written report to the police officer at the police station, who made certain queries from her as well as of the village Chowkidar. Surprising enough no case was instituted on the basis of the said written report and the informant has also not been referred for her medical examination on that day. Furthermore, the said written report has not been brought on the record for the reasons .best known to the prosecution. Surprising enough no case was instituted on the basis of the said written report and the informant has also not been referred for her medical examination on that day. Furthermore, the said written report has not been brought on the record for the reasons .best known to the prosecution. The I.O. has also not taken oath in this case and the true version of the occurrence as alleged in the said written report has not deliberately been brought on the record and it is shrouded in mystery. Therefore, in the facts and circumstances of the case, the appellant does stand seriously prejudiced due to the non-examination• of the I.O. The Fardbeyan dated 1.1.1986 of the informant and its receipt in the Court empowered to take cognizance on 8.1.86 are fatal infirmities of the prosecution case, the Fardbeyan in a criminal case and particularly in a case of rape is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. Section 156 of the Cr. P.C. mandates and casts a duty upon the investigating officer to forthwith send the report of the cognizable offence to the Magistrate empowered to take cognizance. Delay in sending the report to the concerned Magistrate is a circumstance, which provides a basis to raise suspicion that the F.I.R. is the result of consultation and it was recorded much later than the date and time mentioned in it and also discloses that the investigation is not fair and forthright. The object of insisting upon prompt lodging of the F.I.R. is to obtain the earliest information regarding the circumstance in which the crime was committed including the names of the actual culprits and the parts played by him, the weapons, if any, used as also the names of the eye witnesses, if any, and delay in lodging the F.I.R. often results in embellishment which is a creature of an after thought and on account of delay, the F.I.R. not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. Therefore, lodging of the case not on 27.12.1985 as per the written report of the informant, recording of the Fardbeyan of the informant on 1.1.1986 i.e. after five days of the occurrence, receipt of the said F.I.R. in the Court on 8.1.1986 coupled with the fact of not sending the informant for a medical test itself on 27.12.1985 as well as on 1.1.1986 also makes the prosecution case highly suspicious and unworthy of credit as well. P.W.2, the mother of the informant, has deposed that she had seen injuries on the person of the informant who was medically treated and her wounds were bandaged but there is no medical evidence on the record to corroborate her evidence. P.W. 3, the father of the informant, however, does not whisper regarding the existence of any external injury on the person of the informant. Hearsay statement of P.Ws. 2 and 3 is equally not worthy of credit and is fit to be brushed aside in the facts and circumstances of the case. P.W. 2 has denied that he had a desire to get the informant married with the appellant, as he is possessed of twelve" bighas of agricultural land. P.W. 3, the father of the informant has also denied that prior to the occurrence the informant had lived in the house of the father of the appellant for two days. It, therefore, appears from the scrutiny of the evidence on the record that there is no legal evidence at all on the record to substantiate the prosecution case of the ravishment of the informant by the appellant as alleged. The evidence of the informant read with P.W. 6 and P.W. 7 is replete with inherent improbabilities and material contradictions and inconsistencies which speak volumes against the authencity of the prosecution case and their evidence is unworthy of credit and is fit to be brushed aside. And last but not the least, the defence version in the facts and circumstances of the case appears to be probable and natural. The learned court below did not meticulously consider the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellant and thus, the impugned judgment is unsustainable. 11. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The learned court below did not meticulously consider the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellant and thus, the impugned judgment is unsustainable. 11. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned court below is hereby set aside. The appellant is found not guilty to the charge leveled against him and he is, accordingly, acquitted and discharged from the liability of his bail bond.