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2003 DIGILAW 959 (JHR)

Lukin Deogam alias Chada v. State of Jharkhand

2003-08-06

VISHNUDEO NARAYAN

body2003
JUDGMENT : By Court.-This appeal has been directed by the sole appellant named above against the judgment and order dated 12.12.2002 passed in Sessions Trial No. 15 of 2002 by Shri S.N. Prasad, 2nd Additional Sessions Judge, West Singhbhum at Chaibasa whereby and where under the appellant was found guilty for the offence punishable under Section 376 and 448 of the Indian Penal Code and he was convicted and sentenced to undergo R.l. for five years for the offence punishable under Section 376 and a fine of Rs. 1,000/- and in default to undergo R.l. for six months and also to undergo R.l. for one year under Section 448 of the Indian Penal Code. However, both the sentences were ordered to run concurrently. 2. The prosecution case has arisen on the basis of the F.I.R. (Ext. 3) lodged before the Muffasil P.S., West Singhbhum on 23.10.2001 at 17.30 hours by P.W. 3 Rani Kui, the informant and said to be the victim of ravishment in this case, regarding the occurrence which is said to have taken place between 11.00 and 12.00 o'clock in the night of 17.10.2001 inside her room in her house situate in village Tekarakattu, P.S. Muffasil, District West Singhbhum and a case was instituted against the appellant under Sections 376 and 448 of the Indian Penal Code. 3. The prosecution case, in brief, is that P.W. 3, Rani Kui a married woman having two children aged about 27 years was sleeping on a cot in the room of her house along with her children at about 11.00 or 12.00 o'clock in the night of 17.10.2001 and her husband Ram Samaiya was also sleeping in another room situate on the verandah of the said house. It is alleged that the appellant entered in her room and he ravished her pressing her neck. It is also alleged that she raised alarms and her husband P.W. 5 Ram Samaiya awoke and he caught the appellant but no person of the village came there on her alarms and, thereafter, her husband tied the appellant with a tree nearby his house and also assaulted him by "danda". It is alleged that on the following morning the informant in the company of her husband went to the house of village Munda David Kalundia for holding Panchayat but the appellant escaped away from there as a result of which Panchayati could not be done. It is alleged that on the following morning the informant in the company of her husband went to the house of village Munda David Kalundia for holding Panchayat but the appellant escaped away from there as a result of which Panchayati could not be done. It is also alleged that she remained waiting for four days for holding Panchayati and finding no way out she carrier to the police station to lodge 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 that he has been falsely implicated in this case due to enmity. It has also been contended that he had also filed a case under Sections 323 and 341 of the Indian Penal Code against the appellant regarding the occurrence dated 23.10.2001 against the husband of the informant in which her husband was released on bail by the police and no occurrence as alleged by the informant has taken place on 17.10.2001 and she has filed this antedated case only with a view to wreck vengeance against the appellant. 5. The prosecution has, in all, examined seven witnesses to substantiate its case. P.W. 3, Rani Kui is the informant of this case and said to be the victim of ravishment in this case and she is said to be the solitary ocular witness of the occurrence in question. P.W. 5, Ram Samaiya is the husband of the informant and P.W. 2 Somu Samaiya is the uncle of the husband of the informant and they are not the ocular witnesses of the occurrence in question. P.W. 1 is a formal witness who has proved the F.I.R. (Ext. 3). P.W. 7 is also a formal witness. P.W. 4, Dr. Bela Rose Ekka has examined the informant in the Sadar hospital, Chaibasa, West Singhbhum on 27.10.2001 and a report in respect thereof per her pen is Ext. 2. P.W. 6, Birendra Kumar Rajbanshi is the I.O. of this case. No oral and documentary evidence has been brought on the record on behalf of the defence. 6. Relying upon the evidence of P.W. 3, Rani Kui, the informant read with the evidence of her husband P.W. 5, Ram Sawaiya, the learned court below came to the finding of the guilt of the appellant and has convicted and sentenced him as stated above. 7. 6. Relying upon the evidence of P.W. 3, Rani Kui, the informant read with the evidence of her husband P.W. 5, Ram Sawaiya, 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 it has been submitted by the learned counsel for the appellant that the entire prosecution case is false and concocted and highly improbable and no occurrence as alleged by the informant has at all taken place in the night of 17.10.2001. It has also been submitted that the appellant and the husband of the informant were woodcutters and a dispute arose between them regarding the sale proceeds of the wood which led to a scuffle between them and the husband of the informant has assaulted the appellant who had lodged a case against the husband of the informant and the said occurrence had taken place on 23.10.2001 and with a view to counter blast the case of the appellant the informant has roped him in this got up case. It is further submitted that the objective findings of the medical witness do not at all support the factum of ravishment of the informant as alleged and the objective finding of the I.O. further shows that there was no scope or opportunity for the appellant to have ingressed in the room of the informant for committing the said offence. It has also been contended that the manner of the occurrence as averred by the informant in the F.I.R. (Ext. 3) is highly improbable as there is nothing on the record to show as to why no resistance was put by her in course of the occurrence and to yell so that her husband who was sleeping in the nearby room inter-connected with the place of occurrence may come to her rescue and the case of apprehending the appellant by the husband and the informant and tying him with the tree is nothing but figment of imagination of the informant• and thus the uncorroborated solitary testimony of the informant is fit to be brushed aside in the facts and circumstances of this case. Lastly it has been submitted that the learned court below did not at all consider and scrutinize the evidence on the record meticulously and in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellant and viewed thus the impugned judgment cannot be sustained. 8. Refuting the contention aforesaid the learned A.P.P. has submitted that in this case the learned court below has rightly relied upon the testimony of P.W. 3 read with P.W. 5 for coming to the finding of the guilt of the appellant and P.W. 3, the informant has materially corroborated the prosecution case regarding her ravishment as averred in the F.I.R. 9. It is pertinent to mention at the very outset that the appellant is a co-villager of the informant and is a married person having children and he used to work as woodcutter with the husband of the informant. P.W. 6, the I.O. in para 13 of his evidence has deposed that he has instituted a case on the basis of the statement of the appellant against the husband of the informant and he has found injuries existing on the person of the appellant. In para 15 he has also deposed that he has got the appellant examined by the doctor. P.W. 3, the informant in para 34 of her evidence has feigned her ignorance regarding any case instituted against her husband by the appellant. P.W. 5, the husband of the informant in para 32 has also shown his ignorance that the appellant had instituted a case of assault against him but he admits that he stands enlarged on bail in a criminal case by the police. From the evidence aforesaid it is crystal clear that there is enmity between the husband of the informant on the one hand and the appellant on the other hand and they were on litigating terms and for the occurrence which had taken place on 23.10.2001, the appellant had lodged a criminal case against the husband of the informant and on that day also a case under Section 376 of the Indian Penal Code was lodged by the informant against the appellant alleging therein regarding the incident of ravishment having been taken place on 17.10.2001. Therefore, in this background of enmity, existing and alive we have to scrutinize the evidence of the informant and her husband with due care and caution. 10. Before adverting to the evidence of the informant it is necessary first to dilate the evidence of the medical witness. According to the prosecution case the occurrence of ravishment had taken place on 17.10.2001 between 11.00 or 12.00 o'clock in the night. The informant who is said to have been ravished in the said incident was examined by the medical witness on 24.10.2001 i.e. on the 10th day of the occurrence. The medical witness has deposed not have found any external injury on the person of the informant as well as any internal injury on her private part. Her hymen had rupture which was irregular and her vagina admits one finger loosely. The medical witness has further deposed that no sperm dead or alive was found in her vaginal swab. The medical witness, however, does not whisper in her evidence as well as in the medical report that the informant had recent sexual intercourse but on the contrary it has been mentioned that the informant is habitual to sexual act. P.W. 6, the I.O. has deposed that he has not seized the bed sheet spread on the cot on which the informant is said to have been ravished as well as her clothes which she was wearing at the time of the occurrence. Therefore, the objective finding of the medical witness as well as of the I.O. do not at all support the fact of ravishment of the informant by the appellant in the manner as alleged. The prosecution is conspicuously silent as to how and in what manner the appellant had surreptitiously entered into the room of the informant where she was sleeping on a cot with her two children. The I.O. has given the details in his objective finding regarding the topography of the house of the informant as well as the room in which she was sleeping. The house of the informant faces east and the main door of entry inside the house has an iron door and through that iron door one enters in the room situate on the verandah of the hosue in which the husband of the appellant (sic-informant?) is said to be sleeping on the alleged fateful night. The house of the informant faces east and the main door of entry inside the house has an iron door and through that iron door one enters in the room situate on the verandah of the hosue in which the husband of the appellant (sic-informant?) is said to be sleeping on the alleged fateful night. There is another room inter connected with the aforesaid room in which the appellant (sicinformant?) is said to be sleeping in the night of the occurrence. The door of the room in which the appellant (sicinformant ?) was sleeping has its opening in the room aforesaid on the verandah and in the room of the informant there was no other exterior door. There is specific evidence on the record and there is no other inlet or passage for entry in the room in which she was sleeping. The I.O. has not found any mark of violence on the main door of the house of the informant. Therefore, in view of the topography aforesaid it appears highly improbable as to how the appellant has ingressed in the room of the informant. This aspect of the matter goes at the very root of the prosecution case as highly improbable and equally unacceptable. Furthermore in view of the evidence on the record the informant is sleeping on a cot with her two children and her husband is sleeping on a cot in the other room inter connected with the room of the informant. The appellant enters in her room, presses her neck and ravished her. There is no whisper in the evidence of the informant on the record that she had ever put any resistance to the appellant in course of her ravishment. The absence of any resistance by the informant in course of the alleged ravishment by the appellant is a circumstance of an unimpeachable character which casts a cloud of suspicion to the very credibility of the warp and woof of the prosecution case. The informant has deposed to have raised alarms when ravishment in question was completed by the appellant and, thereafter, the appellant flees away from there through the room of the husband of the informant where he is caught but no persons of the vicinity comes there and he is tied with a tree with the help of a rope. The informant has deposed to have raised alarms when ravishment in question was completed by the appellant and, thereafter, the appellant flees away from there through the room of the husband of the informant where he is caught but no persons of the vicinity comes there and he is tied with a tree with the help of a rope. P.W. 3 the informant in para 4 of her evidence has deposed that after tying the appellant with the tree she along with her husband went to the house of the village Munda immediately but Munda did not come to the place of occurrence and, thereafter, they returned and found the appellant missing where he was tied with the tree. P.W. 5 has deposed that he had gone to the house of Munda in the early morning. The I.O. has not found any rope near the tree where the appellant is said to have been tied with the rope. P.W. 5 has deposed that P.W. 2 had brought the rope for tying the appellant with the tree. P.W. 2 in his evidence does not support this fact. Therefore, the story of the prosecution that appellant was caught by the husband of the informant and tied with the tree with the help of the rope is highly improbable and equally unacceptable. P.W. 5 has deposed that he has not seen the actual ravishment of the informant by the appellant. He has also deposed that he was told in respect thereof by his wife. P.W. 3, the informant has deposed that he had told regarding her ravishment to her husband when the appellant had been tied with the tree with the help of the rope. She has also deposed that she had told about her ravishment to P.W. 2 in the night itself. P.W. 2 has deposed that he came to know regarding the occurrence from the informant in the following morning at his own house where the informant had come. It, therefore, appears from the evidence referred to above that the evidence of the prosecution witnesses is replete with inherent improbabilities material contradictions and inconsistencies, which speak volumes against the authenticity of the prosecution case. It, therefore, appears from the evidence referred to above that the evidence of the prosecution witnesses is replete with inherent improbabilities material contradictions and inconsistencies, which speak volumes against the authenticity of the prosecution case. And last but not the least, the solitary testimony of the informant uncorroborated in material particulars by any other legal and reliable evidence on the record cannot be relied upon and is fit to be brushed aside in the facts and circumstances of this case. Lastly the occurrence is said to have taken place on 17.10.2001 in the night and the case is lodged on 23.10.2001 at 5.30 P.M. and as such there is delay of five days in lodging the case. The explanation of delay as furnished by the prosecution is that the informant was waiting for settlement in the Panchayati. No evidence has been brought on the record to substantiate the prosecution case by examining the village Pradhan and village Munda in his case to corroborate regarding any attempt of the Panchayati taken by the informant which has necessitated the delay in lodging of the F.I.R. Therefore, false implication of the appellant in this case cannot be totally ruled out in view of the enmity existing and alive between the parties. Therefore, the defence version in the facts and circumstances of this case appears to be natural and probable. I, therefore, see force in the contention of the learned counsel for the appellant. The learned court below did not meticulously scrutinize the evidence on the record in proper perspective and has materially erred in coming to the finding of the guilt of the appellant and viewed thus the impugned judgment cannot be sustained. 11. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order of the learned court below is hereby set aside. The appellant is found not guilty and he is, accordingly, acquitted. Let the appellant be set free forthwith if not wanted in any other case.