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2003 DIGILAW 825 (JHR)

Khublal Mahto v. State Of Bihar (Now Jharkhand)

2003-07-16

VISHNUDEO NARAYAN

body2003
ORDER Vishnudeo Narayan, J. 1. This appeal has been preferred by the appellant named above against the impugned judgment and order dated 7.9.1990 passed in Sessions Case Nos. 152 of 1987/163 of 1989 by Shri A.C. Das, Third Additional Sessions Judge, Dumka at camp Jamtara whereby and whereunder the appellant was found guilty for the offence under Section 376 of the Indian Penal Code and he was convicted and sentenced to undergo RI for six years. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 1) of PW 7, Rekha Turi, the informant and said to be the victim of ravishment in this case recorded by ASI, Yadu Paswan of Jamtara PS on 30.9.1986 at 15.00 hours at C.I. Office, Jamtara regarding the occurrence which is said to have taken place on 23.9.1986 at 12 Oclock in the day in her house situate in village Amdiha where she is said to have been ravished by the appellant. The case was instituted by drawing of the formal FIR (Ext. 2) on 1.10.1986 at 16.00 hours. 3. The prosecution case, in brief, is that PW 7, the informant was daubing the room of her house which is situated at a lonely place in the village and she was alone in her house and her husband had gone to Bengal. It is alleged that appellant Khublal Mahto who has criminal antecedent and also had been to jail on several occasions, entered in her house and closed the door of that house and, thereafter, he has ravished her. It is also alleged that she has raised alarms and the appellant, thereafter. fled away and the co-villagers besides chowkidar came there and they were informed about the occurrence. It is also alleged that the chowkidar, Kartik Maridal was asked to report the matter at the police station but he did not go there, The prosecution case further is that the husband of the informant came to her house from Bengal on Thursday i.e., 25.9.1986 and he was told about the occurrence by her and, thereafter, she went to the police station at 3 Oclock in the day on that day and the Officer-in- Charge took Rs. 60/-from her and told her that he will come at her house to make enquiry but the police did not come and, thereafter, the informant went to the Deputy Superintendent of Police but she could not meet him and from there she has come to this office where her fardbeyan has been recorded. It is also alleged that she has handed over her petticoat and sari alleged to have stains of semen thereof. 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 that he has been falsely implicated in this case in view of the enmity existing and alive between the parties prior to the alleged occurrence. 5. The prosecution has in all examined eight witnesses to substantiate its case. PW 7, Rekha Turi is the informant and the alleged victim of ravishment in this case. PW 3, Ramu Turi, the husband of the informant, and PW 5, Damodar Turi are the hearsay witnesses of the occurrence in question. PW 1, Shakuntala Turin, PW 4, Lilawati Turi and PW 2, Rabindra Turi @ Robin Turi though closely related with the informant, claim themselves to Have seen the appellant coming out of the house of the informant when they reached the house of the informant on her alarms. PW 6, Mithilesh Kumar and PW 8 Indra Narain Mishra are the Investigating Officers of this case. It is pertinent to mention here that PW 7, the informant has not been examined by any doctor and the report of the Forensic Science Laboratory where her clothes were sent for chemical examination has also not been received in this case. Certified copy of the trial register of the Sub- Divisional Judicial Magistrate, Jamtara has been brought on the record and marked as Ext. "A" in this case to probablise the defence version of their false implication due to enmity. Ext. "B" is the certified copy of the order-sheet along with the final report of G.R. Case No. 86 of 1980 under Sections 427 and 511 of the Indian Penal Code between the parties. 6. In view of the evidence oral and documentary on the record the learned Court below has come to the finding of the guilt of the appellant and has convicted and sentenced the appellant as stated above. 7. 6. In view of the evidence oral and documentary on the record the learned Court below has come to the finding of the guilt of the appellant and has convicted and sentenced the appellant 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 Shri Ram Prakash Singh, learned amicus curiae that the learned Court below did not scrutinize 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. It has been submitted that there is no iota of any evidence on the record even to connect or implicate this appellant in the occurrence in question and this appellant has been falsely Implicated in this got up case due to the enmity existing and alive between the parties prior to the occurrence and Ext. A and Ext. B on the record clearly establish the fact of existence of enmity and the learned Court below has not properly considered Exts. A and B. It has also been contended that there is inordinate and unexplained delay in instituting the case by the informant and she has also not been examined by the doctor and her sari and peticoat have been sent to the Forensic Science Laboratory for chemical examination regarding the stains appearing thereon but no report of the Forensic Science Laboratory has been received in this case and as such an adverse inference has to be drawn against the prosecution case. It has further been submitted that PW 3, PW 5, PW 1, PW 2 and PW 4 are heresay witnesses and the evidence of PW 1, PW 2 and PW 4 that they have been the appellant fleeing away from the house of the appellant is totally false and incorrect because in view of their evidence they can have no occasion at all to see the appellant coming out of the house of the informant besides the fact that there is inherent contradictions and inconsistencies in the evidence of the informant read with the testimony of other witnesses aforesaid and the non-examination of the chowkidar in this case also casts a cloud of suspicion to the credibility of the prosecution case. Referring the evidence of the 10 it has been submitted that the IO has not found any mark of violence or any material at the place of occurrence to establish that the informant has been ravished there and even the broken bangles were also not found at the alleged place of occurrence. Lastly it has been submitted that as per the prosecution case a written report was handed over to the officials at Narayanpur police station on 25.9.1986 and the said written report is the earliest version of the alleged occurrence and the said written report has not been brought on the record by the prosecution and in this view of the matter the fardbeyan dated 30.9.1986 of PW 7, the informant cannot form the basis for the prosecution of the appellant in this case as it is in contravention of Section 162 of the Code of Criminal Procedure and thus the impugned judgment is unsustainable. 8. It has been submitted very fairly by the learned APP that there is no positive evidence of the ravishment of the informant by the appellant as alleged but the circumstances emanating on the record led to the hypothesis of the guilt of the appellant unerringly and these circumstances are that the PW 1, PW 2 and PW 4 had the occasion to see the appellant fleeing away from the house of the informant and the appellant has ravished the informant with a view to take revenge due to enmity. 9. Before adverting to the evidence on the record it is pertinent to mention at the very outset that there is enmity between the parties existing and alive prior to the occurrence and both the parties were at daggers drawn. There had been a criminal case bearing G.R. Case No. 210 of 1964 under Section 395 of the Indian Penal Code between Ziya Mandal, father of this appellant on the one hand and Jagdish Turi, Jagannath Turi, Baidyanath Turi and Veeru Turi on the other hand. PW 3, Ramu Turi, the husband of the informant has deposed in para 4 of his evidence that Jagdish Turi and Veeru Turi are the husbands of his sisters and Jagannath Turi and Baidyanath Turi are his brothers. Ext. A is the certified copy of the trial register which shows that the said G.R. Case No. 210 of 1964 was committed to the Court of Sessions for trial. Ext. A is the certified copy of the trial register which shows that the said G.R. Case No. 210 of 1964 was committed to the Court of Sessions for trial. Ext. B is the certified copy of G.R. Case No. 86 of 1980 under Sections 457 and 511 of the Indian Penal Code and it shows that appellant is the informant in this case and Mithu Turi figures as an accused therein. PW 5 in para 4 has admitted that Ramu Turi, the husband of the informant is his maternal uncle and the said Mithu Turi, lived with him in his house. PW 5 has further deposed that Mithu Turi aforesaid is his maternal cousin brother and he was done to death by villagers of Amdiha for committing theft in the house of the appellant. Therefore, it is established from Ext. A and Ext. B that both the parties are at daggers drawn since long and there was enmity existing and alive between them prior to the alleged occurrence. Now in this backdrop we have to scan the evidence on the record. PW 7, the informant is the solitary witness regarding her alleged ravishment. She has deposed that she was alone In her house daubing the room and her house is situated in a lonely place away from the Basti portion of the village. Her evidence is further to the effect that the appellant all of a sudden entered into her house and bolted the door from inside and, thereafter, ravished her. Her evidence is further to the effect that in course of ravishment she had raised alarms and the appellant fled away from there. It is relevant to mention here that the informant is conspicuously silent in her evidence on oath regarding any resistance made by her in course of her alleged ravishment by the appellant. She did not also go to the police station immediately after the occurrence when the police station is hardly at a distance of 12 km. from her house and especially when it was the day time. Furthermore there is no medical evidence on the record to substantiate the fact regarding her ravishment as alleged as well as regarding any injury either on her person or on her private part. from her house and especially when it was the day time. Furthermore there is no medical evidence on the record to substantiate the fact regarding her ravishment as alleged as well as regarding any injury either on her person or on her private part. Her petticoat and sort to have contained stains of semen have been handed over to PW 6 at the time of recording of her fardbeyan and the said clothes were sent to the Forensic Science Laboratory for chemical examination but surprisingly enough the report of the Forensic Science Laboratory has not so far been received and brought on the record. Therefore, there is no iota of legal evidence at all on the record to establish the fact that the appellant has committed rape on her. There is also inordinate delay in instituting the case and setting the law in motion against the appellant. It has been averred in the fardbeyan, that on 25.9.1986 the informant had gone to the police station when her husband had come from Bengal but here the informant is lying on the most material aspect of the matter because there is evidence on the record to show that PW 3, Ramu Turi, her husband had come to his house in the night of the occurrence itself and this fact has been admitted by none else but PW 3, Ramu Turi, the husband of the informant himself. Furthermore the PO house is a common house having a common courtyard in which three families live together but it is surprisingly enough that none of them came forward to apprehend the appellant in course of commission of the said occurrence. PW 3 and PW 5 are heresay witnesses and their evidence has no relevancy. PW 2, Rabindra Turi @ Robin Turi is the son of the sister of PW 3 and he is a child witness aged about ten years. He belongs to village Paralberia and at the time of the occurrence he was residing at Siantand. He has deposed that at the time of the alleged occurrence he was getting the cattle grazed in front of his house. He has further deposed that PW 7, the informant had called him. He has also deposed that he had gone to call PW 1, Shakuntala Turi at the instance of the informant. He has deposed that at the time of the alleged occurrence he was getting the cattle grazed in front of his house. He has further deposed that PW 7, the informant had called him. He has also deposed that he had gone to call PW 1, Shakuntala Turi at the instance of the informant. He has also deposed that he had seen the appellant fleeing away from the house of the informant. This evidence of PW 2, a child witness aged about ten years is self inconsistent and contradictory in the facts and circumstances of this case and PW 2 cannot be said to have the occasion to see the appellant coming out from the house and fleeing away in view of the fact that when she raised alarms the appellant had fled away from there. Therefore, the question of calling of PW 2, Rabindra Turi @ Robin Turi only comes by the informant after the fleeing away of the appellant. Furthermore there is definitely considerable distance between the house of the informant situate in village Amdiha and the place where the cattle was being grazed in front of the house of PW 2. PW 2 as per his evidence goes to PW 1 Shakuntala Turi to call her and PW 1, Shakuntala Turi comes to the house of the informant. She has deposed that she has seen the appellant fleeing away from the house of the informant. Her evidence is equally palpably false and incorrect because when she was given information by PW 2, she was working in the house of Chando Mandal and from there she comes to the place of the occurrence. Therefore, there is no occasion also for her to see the appellant coming out of the house of the informant and fleeing away. Similarly on that every score the evidence of Leelawati Turi is fit to be brushed aside. Therefore, the evidence of PW 1, PW 4 and PW 2 seeing the appellant coming from the house of the appellant is unworthy of credit and no reliance can be placed on their evidence. Therefore, there is no iota of legal evidence at all on the record to substantiate the prosecution case that the appellant had ravished the informant as alleged. Therefore, there is no iota of legal evidence at all on the record to substantiate the prosecution case that the appellant had ravished the informant as alleged. Furthermore in the facts and circumstances of this case coupled with the existence of enmity referred to above, the false implication of this appellant in this got up case cannot be ruled out. All the witnesses aforesaid are inimical to the appellant and they have animus to depose falsely against him. Therefore, the defence version of the false implication of the appellant appears to be natural and probable in the facts and circumstances this case. The learned Court below did not at all meticulously consider the evidence on the record and has gravely erred in coming to the finding of the guilt of the appellant and viewed thus the impugned judgment cannot be sustained. 10. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The appellant is found not guilty to the charge levelled against him and he is, accordingly, acquitted and discharged from the liability of his bail bond.