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2003 DIGILAW 927 (JHR)

Manjura Bouri v. State Of Jharkhand

2003-07-31

VISHNUDEO NARAYAN

body2003
ORDER Vishnudeo Narayan, J. 1. This appeal has been directed by the sole appellant named above against the judgment and order dated 18.5.2001 passed by Shri Dhananjay Prasad Singh, Sessions Judge, Dumka at Camp Jamtara 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 RI for seven years. 2. The prosecution case has arisen on the basis of the fardbeyan, Ext. 1 of PW 6 Durga Dasi, the informant and the alleged victim of ravishment of this case, recorded by SI. Shri B.K. Choudhary on 9.6.1997 at 16.25 hours at Binda Pathar Police Station regarding the occurrence which is said to have taken place on 8.6.1997 at 16.00 hours at the bank of Dhoba Pond east of the village Simaldubi, P.S. Binda Pathar, District Dumka (now Jamtara). The case was instituted by drawing a formal FIR on 10.6.1997 at 16.15 hours. 3. The prosecution case, in brief, is that PW 6, Durga Dasi, the informant is a 20 years old widow having two children and she had gone to the said pond for washing her clothes and immediately prior to the occurrence she was washing her cloths and she saw the appellant coming there. It is alleged that she attempted to flee away from the said pond seeing the appellant but the appellant caught and overpowered her and felled her on the ground and ravished her inspite of the resistance put by her. It is also alleged that the informant attempted to raise alarms but her mouth was gaged. The prosecution case further is that the appellant fled away from there after ravishing her and the informant went to her house weeping and she narrated the incident to her family inmates as well as other co-villagers. 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 at the instance of the informant in conspiracy with her agnates to debar him of the payment of his due yield for working as share cropper over the land of the informant prior to the occurrence. 5. The prosecution has examined in all 17 witnesses. The evidence of PW 6, the informant and PW 17, Dr. 5. The prosecution has examined in all 17 witnesses. The evidence of PW 6, the informant and PW 17, Dr. Mridula Bibhakar is only relevant in this case as all other witnesses are either hearsay witnesses or have been tendered. However, the evidence of PW 8 appearing in para 2 has its relevancy to probabilise the defence version of the false implication of the appellant in the occurrence in question. The IO has not taken oath in this case for the reasons best known to the prosecution. No oral and documentary evidence has been brought on the record on behalf of the defence. 6. In view of the oral and documentary evidence on the record the learned Court below came to the finding of the guilt of the appellant and convicted and sentenced him as stated above. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the entire occurrence is highly improbable and there is no legal evidence on the record to support the prosecution case about the fact of ravishment of the informant by the appellant in the manner as alleged in the broad day light at the bank of the pond which is in the close vicinity of a school where as per the evidence of PW 6 several students were playing though it was a Sunday day. It has further been submitted that PW 6 was examined by the medical witness on 10.6.1997 and it is queer enough as to why she was not sent for her medical test on 8.6.1997 itself when her fardbeyan was recorded at the police station. It has also been submitted that the medical witness has not found any external injury on the person of the informant as well as any internal injury on her private part when as per the prosecution, case the informant was felled on the ground on the bank of the pond which has rough substance and the absence of any injury negates the prosecution case of the ravishment of the informant as alleged. It has also been submitted that the medical witness has also not found sperm dead or alive in the vaginal swab of the informant which equally casts a cloud of suspicion to the very warp and woof of the prosecution case. It has also been submitted that the medical witness has also not found sperm dead or alive in the vaginal swab of the informant which equally casts a cloud of suspicion to the very warp and woof of the prosecution case. Elucidating further it has been submitted that the informant is 20 years old healthy lady and the appellant who is alleged to have ravished her is said to be unarmed and it appears queer enough that in such a situation how a woman who puts resistance can be ravished. It has also been submitted that this appellant has been falsely implicated in this case due to enmity as he was claiming the yield of the land of the informant which he had cultivated as share cropper and PW 8 in para 2 has admitted that the appellant had earlier worked as share cropper of the informant and it appears that the informant has falsely roped this appellant in this got up case to grab the yield of the land which the appellant was entitled as share cropper. Lastly it has been contended that the IO has not taken oath in this case for the prosecution which has caused serious prejudice to the appellant for the reasons that no objective finding of the place of occurrence has come to exist on the record and the appellant was also debarred of the opportunity of eliciting facts in the cross-examination of the IO showing his innocence. Lastly it has been contended that the learned Court below did not consider and scrutinize the evidence on the record in proper perspective and has committed an error in coming to the finding of the guilt of the appellant and viewed thus the impugned judgment is unsustainable. 8. The learned APP has submitted that evidence of PW 6 supports the prosecution case in material and particulars regarding her ravishment by the appellant and her testimony cannot be lightly brushed aside and for that no corroboration is also required and the learned Court below had scanned her evidence properly as well as the evidence of the other hearsay witnesses whom she had narrated the incident and as such the finding of guilt of the appellant is quite sustainable. 9. 9. According to the prosecution case PW 6, the informant was at Dhoba pond east of the village and she was washing her clothes there at 16.00 hours on 8.6.1997 and the appellant is said to have come there and seeing him she attempted to escape from there but she was caught, overpowered and felled on the ground and ravished by gagging her mouth. It, therefore, appears from the prosecution case that this occurrence of ravishment of the informant by the appellant has taken in the broad day light. PW 6, the informant in the concluding portion of para 3 in her evidence has deposed that there is a school in the close proximity of the said pond and several children were playing near the school at the time of the occurrence. She has deposed that the appellant caught her and felled her on the bank of the pond and ravished her. She has also deposed that she attempted to raise alarms but the appellant stuffed her mouth by putting clothes therein. She has also deposed that the appellant fled away after ravishing her. It is surprising enough as to what prevented her in raising the alarms when the appellant had left her after ravishment, had she raised the alarms the children who were playing near the school must have come there and seen the appellant fleeing away from the place of occurrence. Moreover as per the prosecution case her mouth was gagged and not stuffed with her clothes as deposed by her in her evidence on oath. The fardbeyan of the informant further gives an inkling of the fact that seeing the appellant coming to the pond she attempted to escape away. No explanation for that is forthcoming on the record. There was no reason of any apprehension for the informant to escape away from the pond when she saw the appellant coming there because there had been no enmity existing and alive between her and the appellant as per the prosecution case. She has deposed to have been examined by the doctor. The evidence of the medical witness does not at all support the factum of ravishment of the informant as the medical witness did not find external or internal injury on the person of the informant as well as any sperm dead or alive in her vaginal swab. She has deposed to have been examined by the doctor. The evidence of the medical witness does not at all support the factum of ravishment of the informant as the medical witness did not find external or internal injury on the person of the informant as well as any sperm dead or alive in her vaginal swab. Ravishment on the rough surface after felling the victim definitely, causes injuries on the back portion of the victim. The absence of such injuries casts a cloud of suspicion to the very credibility of the warp and woof of the prosecution case that PW 6 the informant was felled on the ground on the bank of the pond having rough substance and she was ravished there. Therefore, the medical evidence does not corroborate the prosecution case as well as the evidence of PW 6, the informant. The IO has not taken oath in this case for the reasons best known to the prosecution and prejudice has definitely been caused to the appellant in the facts and circumstances of- this case for the reasons that no objective finding of the place, of occurrence has been brought on the record and also the appellant stands debarred of the opportunity of eliciting facts in the cross examination of the IO showing his innocence. And last but not the least the informant and the other prosecution witnesses have denied that the appellant had worked as share cropper on her land and non-payment of the yield of the share of the appellant by her. However, PW 8 in para 2 has admitted that the appellant used to work as share cropper on the land of the informant. Therefore, in the facts and circumstances of this case coupled with the admission of PW 8 referred to above it becomes crystal clear that the appellant has cultivated the land of the informant and his share of the yield was not given to him and for that he was roped in this case. Therefore, the defence version in the facts and circumstances of this case appears to be natural and probable and his false implication cannot be totally ruled out. Therefore, the defence version in the facts and circumstances of this case appears to be natural and probable and his false implication cannot be totally ruled out. There is also no legal and reliable evidence on the record to substantiate the prosecution case and the solitary uncorroborated testimony of PW 6, the informant is replete with inherent improbabilities and the same is unworthy of credit and there is no ring of truth therein. There is substance in the contention of the learned counsel for the appellant in the facts and circumstances of this case. The learned Court below did not meticulously consider the evidence on the record and has committed a manifest error in coming to the finding of the guilt of the appellant. 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 not found guilty and he is, accordingly, acquitted. Let appellant Manjura Bouri be set free forthwith if not wanted in any other case.