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2004 DIGILAW 148 (JHR)

Jamruddin Ansari v. State of Bihar (Now Jharkand)

2004-02-10

VISHNUDEO NARAYAN

body2004
Judgment Vishnudeo Narayan, J.- This appeal at the instance of the appellant stands directed against the impugned judgment and order dated 10.8.1998 and 12.8.1998 respectively passed in Sessions Trial No. 239 of 1996 by Shri B.N.P. Singh, Sessions Judge, Palamau at Daltonganj 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 and to pay a fine of Rs. 1000/- and in default thereof to further undergo rigorous imprisonment for six months. 2. The prosecution case has arisen on the basis of the Fardbeyan (Ext.2) of informant, P.W.2 Sona Sati Devi said to be the victim of ravishment in this case recorded by Sub-Inspector B.D. Singh, O/C Nagar Utari Police Station at 15.00 hours on 2.4.1996 at Bangipur Block chowk road regarding the occurrence which is said to have taken place on 1.4.1996 at 21.00 hours in the Rahar field in village Kachuwan, Police Station-Nagar Utari, District-Garhwa. The case was instituted by drawing of a formal first information report on 2.4.1996 at 16.00 hours which was received on 3.4.1996 in the Court empowered to take cognizance. 3. The prosecution case, in brief, is that the informant P.W.2 Sana Sati Devi had gone for nature's call in the Rahar field of one Hari Mistry, which is situated east of her house, at about 21.00 hours on 1.4.1996 and it was a moonlit night and she had found the appellant roaming on the ridge of the said Rahar field. It is alleged that the appellant entered in the said Rahar field and caught her and felled her on the ground and when she raised alarms, the appellant stuffed her mouth by putting his Gamcha and intimidated her to be done to death pointing a sixer-pistol at her taking out from his waist and out of fear she kept mum. The prosecution case further is that the appellant ravished her for ten minutes and after satisfying his lust, he stood up and removed the said Gamcha from her mouth and fled away and thereafter she cried and raised alarms, and at this, her husband P.W.1 AShok Prajapati and his father, P.W.6 Ram Briksh Prajapati came there and they were informed of the occurrence and they chased the appellant, who made good his escape. It is further alleged that there was a Panchayati to be held in the village in respect thereof and due to that there has been some delay in coming to the police station for lodging the case. 4. The appellant has pleaded not guilty to the charge leveled against him and he claims himself to be innocent and to have committed no offence and he has been falsely implicated in this case due to the demand of his wages from the husband of the informant for weaving carpet at his house. 5. The prosecution has, in all, examined nine witnesses to substantiate its case. P.W.2 Sana Sati Devi is the informant and said to be alleged victim of ravishment in this case and is a married wOll1an aged about 22 years. P.W.1 Ashok Prajapati is the husband of the informant. P.W.6 Ram Briksh Prajapti and P.W.3 Chhattu Prajapati are the father and uncle respectively of P.W1 aforesaid. P.W5 Bigu Mian has turned hostile and he does not support the prosecution case. P.W.4 Horil Prajapati and P.W.7 Hari Mistry have been tendered by the prosecution in this case. P.W.S Dr. Sima Singh has examined the informant on 3.4.1996 at 10.00 hours and the report per her pen is Ext. 1 in this case. P.W.9 Brahmdeo Singh is the Investigating Officer of this case. No oral or documentary evidence has been brought on record on behalf of the appellant. 6. Relying upon the testimony of P.W.2 Sona Sati Devi read with the evidence of P.W.1 and P.W.6 the learned court below had come 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 learned court below has utterly failed in scrutinizing and scanning the evidence on the record meticulously in proper perspective and has erroneously arrived at the finding of the guilt of the appellant. It has been submitted that there is cogent evidence on the record that the appellant used to work at the house of the husband of the informant for weaving carpet and his wages was due against him and when he demanded his back wages a quarrel has taken place between them and due to that he has been falsely implicated in this case. In support of his contention a reference has been to the evidence appearing in paragraph 3 of P.W.5 and paragraph 2 of P.W.? and thus the defence version of the appellant is natural and probable regarding his false implication in this got up case. It has also been contended that there is material contradictions and inconsistencies in the evidence of P.W2, P.W.1 and P.W.6 and in view thereof the entire occurrence of alleged ravishment of P.W.2, Sona Sati Devi by the appellant is highly improbable and equally unacceptable and in the facts and circumstances of the case the consented sexual intercourse between them, if proved, can easily be inferred as seeing the appellant roaming in the moonlit night. P.W.2 has entered inside the said Rahar field and when she happens to be noticed by P.W.1 and P.W.6 she has narrated a case of her ravishment against her will to them. Elucidating further it has been submitted that evidence of P.W.8 Dr. Sima Singh completely negates the fact of ravishment of P.W.2 by the appellant as alleged and the medical evidence is definitely not in conformity with the prosecution case of her' ravishment and the objective finding of the Investigating Officer regarding the place of occurrence also demolishes the prosecution case regarding any alleged occurrence having taken place in the Rahar field aforesaid. As such, the impugned judgment is unsustainable. 8. Learned Additional Public Prosecutor has submitted that P.Ws. 1,2,6 and 3 have categorically stated in their evidence that there is no business of weaving carpet is done at the house of P'W,1 and there is no reason for the appellant to work as such there. It has further been submitted that P.W.2 Sona Sati Devi in her evidence on oath has supported the prosecution case regarding her ravishment. P.W.1 and P.W.6 have deposed to have come to the said Rahar field on alarms and having been informed regarding her ravishment had chased the appellant who made good his escape but the presence of the appellant stands established at the place of occurrence and their evidence corroborates tile testimony of P.W.2 and in view of the evidence on record learned court below has rightly come to the finding of the guilt of the appellant. 9. Let us now advert to the evidence on the record. 9. Let us now advert to the evidence on the record. P.W2, Sona Sati Devi has deposed that at the time of the occurrence she had gone to ease herself in the Rahar field and the appellant came there and stuffed her mouth by his Gamcha and pointed a sixer-pistol at her and thereafter he has ravished her. She has further deposed that she started weeping and the appellant fled away and P.W1 and P.W6 came there and they had chased the appellant but he has fled away. In para-3 of her cross-examination she has deposed that she saw the appellant for the first time when he had caught her. She has further deposed that she has not stated before the police that while she was going for nature's call she had seen the appellant roaming on the ridge of the said Rahar field in the moonlit night and seeing him she has gone inside the said Rahar field. She has further deposed that the appellant caught her in the said Rahar field when she was about to sit for nature's call and after stuffing her mouth and putting a sixer at her he has felled her on the ground in the said Rahar field. Her evidence is further to the effect that there was no external injury caused on her person as a result of her jelling on the ground in the said. Rahar field and after felling her on the ground he has removed his pant and shirt and thereafter he had lifted her Sari and ravished her. She has further deposed that she did not resist the appellant in course of ravishment as he had put a sixer at her and after satisfying his lust he has left her. The manner of ravishment as deposed by P.W2 that after felling her on the ground he had removed his pant and shirt and thereafter he had lifted the Sari of P.W2and thereafter ravished her, appears highly improbable. There was sufficient opportunity to the informant P.W2 to remove Gamcha from her mouth and to raise alarms or to escape there from when the appellant was removing his pant and shirt prior to commission of the alleged sexual intercourse. There was sufficient opportunity to the informant P.W2 to remove Gamcha from her mouth and to raise alarms or to escape there from when the appellant was removing his pant and shirt prior to commission of the alleged sexual intercourse. In para-5 of her cross-examination she has stated that after fleeing of the appellant she came out of the Rahar field and she went to her house and she met P.W.1 and P.W.6 and informed them about the occurrence. It appears from the testimony of P.W.2, the informant, that her evidence is not in conformity with the prosecution case as averred by her Fard-bayan (Ext. 2). P.W.1, husband of the informant has deposed that at the time of occurrence he was sitting with his father, P.W.6 at the door of his house and at that time P.W.2, the informant, had gone for nature's call in the Rahar field and he heard the cry of his wife coming from the said Rahar field and he along with his father went there and enquired from his wife and she stated that the appellant has ravished her on the point of pistol after stuffing her mouth. He has also deposed that he had attempted to apprehend the appellant but he has escaped. He has further deposed in his cross-examination that the said Rahar field is east of his house which faces south and the Rahar crop if the said field was of man's height. He has also deposed that the night was dark and he has not seen the informant going to the Rahar field and inspite of dark night the Rahar crop aforesaid was visible. He has also deposed that he has not found any external injury on the person of his wife, the informant. His evidence is further to the effect that in the night of the occurrence his parent and brother were present in the house and he had a talk with them regarding the occurrence in the said night. P.W.6 father-in-law of the informant, has deposed that at the time of the occurrence he was sitting at the door of his house and after hearing the cry of the informant he along with P.W.1 went there and on query she has stated that the appellant has ravished her. P.W.6 father-in-law of the informant, has deposed that at the time of the occurrence he was sitting at the door of his house and after hearing the cry of the informant he along with P.W.1 went there and on query she has stated that the appellant has ravished her. He has deposed that there was a Panchayati to be held in the village regarding the said incident but the appellant did not attend the said Panchayat and thereafter this case was instituted. He has further deposed in the cross-examination that he had seen the informant from a distance of 150 chains standing with a Lata in her hand though the night was a dark one and he had also a torch in his hand. P.W.6 has not stated in his evidence to have seen the appellant fleeing away from the Rahar field aforesaid and also chasing him with his son, P.W.1. He has also deposed that he did not go in the night of the occurrence to the house of the appellant, which is at a distance of 16 chains from his house and he has also not informed regarding the incident to the Mukhiya or the Sarpanch or any other person of the village. P.W.3 has deposed that P.W.1 came to him and asked him to accompany him for his house and he went to the house of P.W.1 where P.W.2, the informant, told him in presence of P.WA Hari Prajapati that the appellant has ravished her at the point of a sixer. It is pertinent to mention here that P.W.1 and P.W.6 have not stated to him to have chased the appellant for apprehending him when they were told by the informant regarding her ravishment. The testimony of P.W.3 is hearsay. There is material contradictions and inconsistencies in the testimony of P.W.1 and P.W.6 regarding the fact that on being told by the informant they had chased the appellant. According to prosecution case, occurrence is said to have taken place in the Rahar field of Hari Mistry in which the Rahar crop was of man's height. P.W.9, the Investigating Officer has deposed to have inspected the place of occurrence but he did not find any incriminating material at the place of occurrence. According to prosecution case, occurrence is said to have taken place in the Rahar field of Hari Mistry in which the Rahar crop was of man's height. P.W.9, the Investigating Officer has deposed to have inspected the place of occurrence but he did not find any incriminating material at the place of occurrence. The objective finding of the Investigating Officer casts a cloud of suspicion to the credibility of the prosecution case of the ravishment of the informant in the said Rahar field in the manner as alleged. The objective finding of the Investigating Officer does not support the alleged occurrence having taken place in the said Rahar field. P.W.8, the medical witness, has deposed to have examined the informant on 3.4.1996 i.e. a day after the occurrence. She has deposed that she did not find any external injury on her person and any internal injury on her private parts i.e. vulva, vagina, perineum and on her other private parts. She has further deposed that no spermatozoa, dead or alive, was found in the introitus swab of the informant as per pathological report and she has also personally examined the slide of the said swab and has not found any spermatozoa. The medical witness has also assessed the age of the informant between 18 to 22 years as per radiological report. In view of her objective finding she has opined that it is difficult to say whether the informant has been ravished or not. Presence of human spermatozoa in the introitus swab of a married woman is a positive sign of the fact that she had recent sexual intercourse. Here in this case, as per prosecution case the appellant has released the information after satisfying his lust and P.W.2 the informant has categorically deposed that there was discharge of semen of the appellant inside her introitus but the medical witness has not found any spermatozoa, dead or alive, in the vaginal swab of the informant on the third day of her examination when as per medical jurisprudence, spermatozoa, dead or alive, are invariably found in the introitus for seventeen days as per Pollak and up-to nine days by Morrison and twelve days in the Cervix. Here in this case, the informant is said to have been ravished after felling on the ground in the Rahar field and she is said to have been ravished there and in such a situation there must exist abrasion, bruises and scratches 01) her back waist and gluteus. The medical evidence, referred to above, does not support the prosecution case of the ravishment of the informant in the Rahar field as alleged. The medical evidence negates the prosecution case of the ravishment of the informant in the manner as alleged and is not at all in conformity with the prosecution case. Here in this case, evidence of informant regarding her ravishment is not at all corroborated by the medical evidence as well as by the objective finding of the Investigating Officer regarding the~ alleged place of occurrence. There is material contradictions in the evidence of P.W.1 and P.W.6 regarding the chase of the appellant by them on alarms raised by the informant. Therefore, the evidence of the informant does not appear trustworthy in the "facts and circumstances of the case. No doubt, a prosecutrix of a sex offence cannot be put at par with an accomplice and she is, in fact, a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars and to insist on corroboration except in the rarest of rare cases is to equate a woman, who is victim of the lust of another with an accomplice to a crime and thereby insult womanhood and it would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. In the case of Bharwada Bhoginbhai Hirijibhai Vrs. State of Gujarat [ (1983) 3 SCC 217 ] it has been observed by the Apex Court that if the evidence of the victim does not suffer from any basic infirmity and the 'probablities factor' does not render it unworth of credence, as a general rule, corroboration cannot be" insisted upon, except from the medical evidence, where having regard to the circumstances of the case, medical evidence can be excepted to be forthcoming. Here in this case, there is no ring of truth in the testimony of the informant and the 'probabilities factor' appearing in the evidence of informant renders her evidence unworthy of credence in the facts and circumstances of the case. P.Ws. 1, 2, 3 and 6 in their evidence have stated that no work of carpet weaving is done in the house of the informant. However, P.w.7 and P.W.5 have deposed that work of weaving of carpet is done in the house of the husband of the informant and the appellant had worked, as a labourer in weaving carpet there and there had been a dispute between him and P.W.1 over the payment of wages. P.w.9, the Investigating Officer in para-5 of his evidence has deposed that P.W.3 Chhatu Prajapati has stated before him that the appellant had worked for four or five days prior to the occurrence in weaving carpet at the house of the husband of the informant. It, therefore, appears that P.Ws.1, 2 and 6 have deliberately suppressed the fact that the appellant was working in the house of the informant in weaving carpet which had led to a dispute regarding payment of his wages. In view of the evidence aforesaid, the false implication of the appellant in this case cannot be totally ruled out. The defence version of the appellant, therefore, appears to be natural and probable. And last but not the least, it appears from Ext. 1 the medical report that the under-garment of the infromant was sent to Forensic Science Laboratory, Patna for examination but surprisingly enough the report has not so far been received for the reason best known to the prosecution. Therefore, there is no iota of legal evidence on the record to substantiate the prosecution case regarding the ravishment of the informant as alleged. Learned court below did not at all consider the evidence on the record in proper perspective meticulously and has erroneously come 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 impugned judgment is set aside. The appellant is found not guilty and he is, accordingly, acquitted and discharged from the liability of his bail bond.