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2003 DIGILAW 963 (JHR)

Ramay Gope @ Rameshwar Gope v. State Of Jharkhand

2003-08-07

VISHNUDEO NARAYAN

body2003
ORDER Vishnudeo Narayan, J. 1. This appeal has been directed by the appellant named above against the impugned judgment and order dated 13.1.2003 and 16.1.2003 respectively passed in Sessions Trial No. 177 of 2000 by Shri Binod Prasad Singh, Additional Sessions Judge, Fast Track Court No. 1. Chaibasa, whereunder the appellant was found guilty for the offence punishable under Sections 376 and 380 of the Indian Penal Code and he was convicted and sentenced to undergo RI for seven years and a fine of Rs. 1,000/- for the offence punishable under Section 376 and in default to undergo RI for six months and the appellant was further sentenced to undergo RI for one year for the offence under Section 380 of the Indian Penal Code. 2. The prosecution has arisen on the basis of the written report (Ext. 3) of PW 1, Raday Bodra lodged before Muffasil PS Chaibasa on 29.10.1999 at 11.30 hours regarding the occurrence which is said to have taken place on 25.10.1999 at 18.00 hours in the room inside the house of the informant situate in village Jugidaru, PS Muffasil, District Chaibasa and the case was instituted against the appellant by drawing of the formal FIR (Ext. 4) 3. The prosecution case, in brief, is that PW 1, the informant Raday Bodra was sleeping in her house at 6 oclock in the evening of 25.10.1999 and her mother and brother had gone in the field to look after the paddy cultivation and her father PW 2, Moti Ram Bodra had gone to the house of her uncle and she was alone in her house at that time. It is alleged that the appellant who is the resident of village Singijari surreptitiously entered in her house and he caught her and pulled her sari and the informant awoke and saw the appellant sitting over her and she attempted hard to get herself released and she also started slapping him and raising alarm and was also crying but she was overpowered by the appellant who ravished her. It is alleged that his father came running to her house on her cry but the appellant had fled away from there hearing the sound of running of her father. It is alleged that his father came running to her house on her cry but the appellant had fled away from there hearing the sound of running of her father. The prosecution case further is that the father of the informant saw the appellant fleeing away and he also raised alarms and her father had narrated the incident to PW 3 Vishal Bodra and other members of the family and some of the co- villagers including Laucan Gope, the husband of the sister of the appellant. The prosecution case further is that the informant, thereafter, came to another room of the house where she found the clothes scattered hither and thither and sum of Rs. 1,000/- kept by her father was also found missing and it appears that the appellant has also committed theft of the said amount. 4. The appellant has pleaded not guilty to the charges 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. 5. The prosecution has in all examined five witnesses to substantiate its case PW 1, Raday Bodra is the informant of this case and said to be the victim of ravishment in this case and she is the only ocular witness of the occurrence in question. PW 2, Modi Ram Bodra is her father and he is not the ocular witness of the occurrence and he is a hearsay witness in respect thereof but claims to have seen the appellant fleeing away when he reached there on alarms. PW 3, Vishal Bodra, the cousin brother of the informant is a hearsay witness of the occurrence. PW 4, Dr. Niru Jha has examined the informant on 29.10.1999 at 16.10 hours in the Sadar Hospital, Chaibasa and the report in respect thereof per her pen in Ext. 2 in this case. PW 5. Md. Kalam is the 10 of this case. No oral and documentary evidence has been brought on the record on behalf of the appellant. 6. Relying upon the solitary testimony of the informant, the learned Court below came to the finding on the guilt of the appellant and 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 Mrs. 6. Relying upon the solitary testimony of the informant, the learned Court below came to the finding on the guilt of the appellant and 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 Mrs. Jasvindra Mazumdar, learned counsel for the appellant that the learned Court below did not at all meticulously consider the evidence on the record and has committed a manifest error in coming to the finding of the guilt of the appellant and there is no iota of legal evidence on the record to substantiate the fact that the appellant had ravished the informant and has committed theft of Rs. 1,000/- from her house. Elucidating further she has submitted that there is unexplained delay of four days in instituting the case by the informant regarding the occurrence and no explanation is forthcoming on the record in respect thereof and the written report (Ext. 3) is the result of afterthought due to deliberation and consultation among the informant and other members of her family and it is replete with embellishment and is equally bereft of spontaneity. It has also been contended that there is no legal evidence to substantiate the place of occurrence in this case in view of the fact that the evidence of the informant is itself inconsistent and the PW 5, the 10 has not found any incriminating material to establish the fact that the occurrence has taken place in the room of the informant as alleged and not only this even the clothes of the informant and the bed sheet said to have been spread on the cot besmeared with blood have neither been shown to the 10 nor to the medical witness and those blood stained clothes and bed sheet have also not been seized in this case for the reasons best known to the prosecution and, therefore, there will be natural inferences that the entire occurrence is a got up one. Lastly it has been contended that the medical witness does not at all corroborate the factum of ravishment of the informant in the alleged occurrence as the medical witness has neither found any injuries external or internal on the person of the informant nor sperm, dead or alive, and her hymen had old rupture and her introitus admits two fingers easily and in view of the finding aforesaid the medical witness have ruled out that the informant has been ravished or there had been any recent sexual intercourse with her. Lastly it has been contended that there is total absence of any evidence on the record to substantiate the charge under Section 380 of the Indian Penal Code levelled against the appellant and, therefore, in the facts and circumstances of this case the entire occurrence is highly improbable and viewed thus the impugned Judgment is unsustainable. 8. Refuting the contention aforesaid Shri S.K. Dutta, learned APP has submitted that delay in instituting the case has been caused due to the absence of the village Munda as soon after the occurrence as well as on the following day the father of the informant had gone to the house of village Munda to report the matter but when the village Munda did not return till Thursday, the informant along with others went to the PS to lodge the case and in this view of the matter there is satisfactory explanation on the record regarding the delay caused in instituting the case. He has further submitted that the testimony of PW 1 the informant, read with the testimony of PW 2 clearly substantiates the prosecution case that she has been ravished in her room by the appellant in the manner as alleged and there is no reason for her at all to falsely implicate the appellant in this case. It has also been contended that the informant was examined on the 5th day of the occurrence by the medical witness and, therefore, the doctor could not find any positive materials in the examination of the informant and, therefore, it cannot be said that the medical witness does not support the prosecution case. Lastly it has been contended that an unmarried girl aged about 19-20 years will not invite stigma on her character by instituting a false case regard her ravishment. 9. Lastly it has been contended that an unmarried girl aged about 19-20 years will not invite stigma on her character by instituting a false case regard her ravishment. 9. It is pertinent to mention at the very outset that the appellant is a resident of village Singijari a distant village under Muffasil PS, Chaibasa. His sister is married in village Jugidaru, the village of the informant with Laucan Gope and the appellant used to visit the house of his sister invariably. It appears from the evidence on the record that the appellant and the informant were known and acquainted with each other. According to the prosecution case the informant is said to be alone in her house and sleeping in the interior room in her house and the said house consists of three rooms as deposed by the informant and the appellant surreptitiously enters in her room and ravishes her in spite of her resistance offered to him and after satisfying his lust he fled away from there on the alarms of the informant. The prosecution case further is that the father of the informant came running to his house and he saw the appellant fleeing away from there. The occurrence is said to have taken place at 18.00 hours on 25.10.1999. PW 1, the informant has deposed that she was sleeping in the room in her house at the time of occurrence and she was alone in the house and the appellant came in her room, lifted her clothes and ravished her. She has also deposed that she attempted to resist him but she was overpowered. She has also deposed that the informant has ravished her against her will. In her cross- examination she has deposed that her house consists of three rooms and she was sleeping in the most interior room of the house. In para 7 of her cross- examination she has deposed that the appellant caught her while she was asleep as a result of which she woke up. Her evidence is further to the effect that the appellant caught her hand and she raised alarms and attempted to rescue herself but in vain and the appellant did not allow her to get up from the cot and she was ravished as a result of which there was profuse bleeding which besmeared the bed sheet spread on the cot as well as her clothes. She has also deposed that there were injuries caused on her private part. She has further deposed that the appellant fled away after hearing the sound of coming of her father. In para 8 of her cross-examination she has specifically deposed not to have shown or handed over the said bed sheet and her clothes said to be besmeared with blood to the 10 PW 2, the father of the informant has deposed that he was told about the incident regarding her ravishment by the appellant but he is not the ocular witness in respect thereof. His evidence is that he has seen the appellant fleeing away. It is pertinent to mention here that he is not very specific as to where he has seen the appellant fleeing away. He has not specifically stated that he has seen the appellant coming out of his house in course of fleeing away. In his cross-examination he has deposed that his house consists of two rooms and thereby contradicts the testimony of the informant. PW 5, the 10 has also deposed that the house of the informant faces east and it consists of two rooms only. His evidence is further to the effect that he found a cot made of bamboo in a room which is said to be the place of occurrence. He has also deposed that he has not found any incriminating material at the place of occurrence. In para 8 of his cross-examination he has also stated that the clothes of the informant as well as the bed sheet has not been seized by him in this case. It is equally relevant to mention here that PW 1, the informant has deposed in her evidence on oath that she had handed over her clothes besmeared with blood to the medical witness but PW 4, the medical witness does not corroborate the said fact. PW 4, the medical witness has deposed very specially that there was no sign of sexual intercourse found in the examination of the informant. She has also deposed that there was no external or internal injury either on the person of the informant or on her private part. Her hymen had old rupture and tenderness in her private part was totally absent and her introitus admits two fingers and there is also absence of sperm dead or alive in her vaginal swab. She has also deposed that there was no external or internal injury either on the person of the informant or on her private part. Her hymen had old rupture and tenderness in her private part was totally absent and her introitus admits two fingers and there is also absence of sperm dead or alive in her vaginal swab. Therefore, the medical evidence does not at all support the factum of ravishment of the informant by the appellant in the manner as alleged. It is pertinent to mention here that the informant has deposed very specifically that she has received injuries on her private part in course of her ravishment which did bleed profusely as a result of which her clothes and bed sheet were besmeared with blood. The medical witness in her evidence on oath totally negates the existence of any injuries on the private part of the informant. Normally such injuries heel within 2-3 weeks. The absence of any such injury as per medical evidence casts a cloud of suspicion to the very credibility of the warp and woof of the prosecution case. Therefore, the medical evidence does not at all corroborate the existence of ravishment of the informant in the manner as alleged. The delay of five days in instituting the case when the Muffasil PS is at a distance of only one hour and conveyance is available on a regular basis everyday equally casts a cloud of suspicion to the very credibility of the prosecution case and it can safely be said that the written report of the informant is the result of an afterthought due to deliberation and consultation to implicate the appellant in this case for the reasons best known to the prosecution. The submission of the learned APP that the informant is unwedded girl aged about 19-20 years and she will not invite stigma on her character and reputation by instituting a false case of rape does not have any bearing in the facts and circumstances of this case in view of the objective finding of the medical witness that her hymen had old rupture and she was accustomed to sexual intercourse. Therefore, in the facts and circumstances of this case I see substance in the contention of the learned counsel for the appellant. Therefore, in the facts and circumstances of this case I see substance in the contention of the learned counsel for the appellant. Therefore is no legal evidence on the record to substantiate the prosecution case of ravishment of the informant as alleged by the prosecution. It is equally pertinent to mention here that neither PW 1, the informant, nor her father PW 2 has seen the appellant taking away Rs. 1,000/- from their house. The prosecution is conspicuously silent regarding recovery of any incriminating material from the appellant on his arrest on the following day of the occurrence. Therefore, there is no evidence at all on the record implicating the appellant for the offence under Section 380 of the Indian Penal Code. The learned Court below did not at all scrutinize and scan the evidence meticulously and in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant arid viewed thus the impugned cannot be sustained. 10. 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.