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2004 DIGILAW 63 (JHR)

Brajesh Rajwar v. State of Bihar (now Jharkhand)

2004-01-13

VISHNUDEO NARAYAN

body2004
Judgment Vishnudeo Narayan, J.-This appeal at the instance of the appellant named above is directed against the impugned judgment and order dated 8.7.1998 and 10.7.1998 respectively passed in S.T. No. 195 of 1997/ T.R. No. 29 of 1997 by Sri Anant Vijay Singh, 3rd Additional Judicial Commissioner, Ranchi whereby and whereunder the appellant was found guilty for the offence punishable under Sections 376, 323 and 448 of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment for ten years, one year and one year for the offence under Sections 376, 323 and 448 of the Indian Penal Code respectively. However, the sentences were ordered to run concurrently. 2. The prosecution case has arisen on the basis of the written report of P.W. 6 Lila Kumari, the informant, said to be the alleged victim of ravishment lodged before Dy. S.P. Sill, Ranchi on 19.7.1996 regarding the occurrence which is said to have taken place on 15.7.1996 at 10:30 hours in her house situate in village Silli District Ranchi and a case was instituted by drawing of a formal FIR on 19.7.1996 at 19:30 hours. The written report and the FIR was received on 21.7.1996 in the Court empowered to take cognizance. 3. The prosecution case, in brief, is that the informant is a member of the Scheduled Caste residing in her parent's house in Lupung Tola of village Silli. It is alleged that the appellant entered in her house at 10:30 hours on 15.7.1996 and he caught her breast and forcibly removed her pant and after stuffing her mouth ravished her and she raised alarms in course of the occurrence and a large number of villagers assembled there and the appellant fled away. It is also alleged that the said appellant had earlier forcibly ravished her elder sister, Subhadra Kumari @ Dhibri as a result of that she had become pregnant and had delivered a child. The prosecution case further is that the appellant in course of her (informant) ravishment had also assaulted her by fist and slap and she has lodged a report before the Silli Police Station in respect of the occurrence but the Silli police has taken no step in the matter. It is also alleged that she is being intimated to be done to death by the appellant which has compelled her to come before the Dy. It is also alleged that she is being intimated to be done to death by the appellant which has compelled her to come before the Dy. S.P. Silli in the company of her father along with Narendra Kumar Singh, Gayatri Kumari and Geeta Singh to lodge this written report for taking necessary steps in the matter so that she may not be done to death. 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 due to enmity existing and alive between the parties regarding land dispute. 5. The prosecution has in all examined seven witnesses to substantiate its case. P.W. 6 Lila Kumari is the informant of this case and she is alleged to have been ravished by the appellant and she is aged about between 17 and 19 years on the day of the occurrence. P.W. 1 Bhudeo Rajwar, P.W. 2 Subhadra Kumari and P.W. 3 Bhukuwa Rajwar are the father, sister and brother of the informant and they are hearsay witnesses of the alleged occurrence. P.W. 5 Narendra Kumar Singh is a neighbour of the informant, resident of the same village and he has turned hostile and does not support the prosecution case. P.W. 4 Dr. Minoo Mukherjee has examined the informant on 20.7.1996 at 14.00 hours and the report in respect thereof per her pen is Ext. 1 in this case. P.W. 7 Pritam Sharma is the I.O. of this case. Ext. 2 is the signature of the informant on her written report. Ext. 3/1 is the requisition of the I.O. for the medical examination of P.W. 2 Subhadra Kumari and the report of the doctor on examination of P.W. 2 is Ext. 3 in this case. No oral and documentary evidence has been brought on the record on behalf of the defence. 6. Relying upon the testimony of P.W.6, the informant, corroborated by the hearsay evidence of her father P.W. 1 the learned court below found the appellant guilty and convicted and sentenced him as stated above. 7. 3 in this case. No oral and documentary evidence has been brought on the record on behalf of the defence. 6. Relying upon the testimony of P.W.6, the informant, corroborated by the hearsay evidence of her father P.W. 1 the learned court below found the appellant guilty 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 there is no iota of legal evidence on the record to substal1tiate the prosecution case of the ravishment of P.W. 6 the informant by the appellant as alleged and the medical evidence on the record deposed by P.W. 4 Dr. Minoo Mukherjee does not at all corroborate the factum of ravishment of the informant and the medical report is not at all in conformity with the manner of tile occurrence as alleged. It has further been submitted that the case of P.W. 2 Subhadra Kumari having been ravished by the appellant earlier as a result of which she has become pregnant and aborted at the instance of the parents of the appellant is totally false and has been deliberately introduced in this case to give a colour of seriousness to the prosecution case and for that also there is no legal evidence on the record rather Ext. 3 completely demolishes the fact that soon before her examination by the medical witness she has aborted. It has further been contended that P.Ws. 1, 2 and 3 are the hearsay witnesses regarding the occurrence in question and admittedly there are several houses in the close vicinity of the place of occurrence but none of the persons of vicinity has come forward to support the prosecution case. It has further been submitted that the prosecution case is highly improbable in view of the topography of the room in which the alleged occurrence is said to have taken place as the said room has beer partitioned having one entrance therein and the other room stand connected having a door in the partition wall with the said room and the first room is used as a kitchen and the room by its side is used as bed room in which the mother of the informant was sleeping at the time of the alleged occurrence and she is said to be ill and deaf. It has also been submitted that the house of the informant is adjacent the road which goes to a big tank having a temple of Goddess Kali and a large number of persons pass through that road for the said tank and it is surprisingly enough that even on the alarms raised by the informant none is said to have come at the place of the occurrence and also before the Court to support the prosecution case and even P.W. 5 Narendra Kumar, the neighbour of the informant does not support the occurrence in his evidence. It has further been submitted that there has been an inordinate delay in lodging the written report by the informant before Silli Police Station regarding the occurrence in question and no explanation for that is forthcoming on the record and there is also no chit of paper to show that the informant has lodged the case before Silli Police Station regarding the said occurrence on 15.7.1996. P.W. 7, the I.O. in his evidence has denied the fact that the informant had come to the police station on 15.7.1996 to lodge a case regarding the occurrence and in this view of the matter the averment of the informant In her written report that she had gone to 'he police station and had lodged a case is totally false and even if the statement is found to be correct then that written report has not been brought on the record for the reason best known to the prosecution and as such the written report dated 19.7.1996 of the informant cannot form the basis of the prosecution case being the subsequent information and the same is hit under Section 161 of the Cr.P.C. Lastly it has been contended that the father of the appellant after retirement has constructed a house in the village and the father of the informant wanted his share in the said house and when it was refused this got up case has seen the light of the day. In support of his contention a reference has been made to the evidence of P.W. 6, the informant appearing in Paragraph 25 in which she has stated that she along with her father had come to Sri Dinesh Singh, Advocate and she had shown a typed petition to him in the Court in which her father had told the said advocate that the appellant has not obeyed the verdict of the Panchayat in respect of Subhadra Kumari and as such he is filing this case and the said evidence is sufficient in itself to throw the prosecution case in toto. It has also been submitted that in view of the aforesaid submission the impugned judgment is unsustainable. 8. Refuting the contention aforesaid, it has been submitted by the learned A.P.P. that P.W. 6 Lila Kumari has materially supported the prosecution case regarding her ravishment by the appellant inside her house against her will and she is the most competent witness of her ravishment and for that no corroboration is required. It has also been submitted that the testimony of the informant is trustworthy and it has been observed by the Apex Court that there is no need for any corroboration of the evidence of the victim of the ravishment. In support of his contention reliance has been placed upon the ratio of the case d Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat [ 1983(3) SCC 217 ] and State of Maharashtra vs. Chandraprakash Kewalchand Jain ( AIR 1990 SC 658 ). 9. It is pertinent to mention here at the very outset that the appellant Brajesh Rajwar, son of Ramesh Rajwar is the cousin brother of the informant and his father has retired from the railway service and thereafter he has constructed his house in village Lupung Tola Silli in the close vicinity of the house of the informant intervened by a Bari of the informant and the father of the informant claims his share in the said house which has been refused by the father of the appellant and there is enmity between the parties in respect thereof. There are a large number of houses in the close of vicinity of the house of the informant in which Arjun Rajwar, Sudhakar Rajwar and Boga Rajwar who are the brothers of the father of the informant reside with their family and the house of the Dinesh Rajwar is in front of the house of the informant. The village road passes by the front side of the house of the informant which goes to a big tank and the said road is very busy road and the residents of the said village pass through that road for going to that said tank where there is also a temple of Goddess Kali. The topography of the house of the informant in which the occurrence is said to have taken place at 10.30 hours in the day has its relevancy in this case in respect of which I will dilate later on at appropriate place. The house of the informant consists of two rooms of 16" x 12" and after giving a partition wall the said room has been converted into two rooms and there is only one door for entrance in the said room and by entering into the first room which is used as a kitchen there is a door for going in the other room made by the said partition wall. The other room is used as bed room in which at the time of the alleged occurrence the mother of the informant was present and she is said to be ill and also deaf. Paragraph 39 of the testimony of P.W. 6, the informant, the evidence of P.W. 1, the father of the informant and Paragraph 12 of P.W. 7, the I.O. is referred to in respect thereof. The said kitchen room is the place of occurrence as alleged by the informant. P.W. 7, the I.O. in Paragraphs 13 and 15 of his evidence has categorically deposed that he did not find any incriminating article at the place of the occurrence giving an inkling of the fact regarding the ravishment of the informant having taken place in the said room. P.W. 7, the I.O. has further deposed that the informant has not handed over her clothes to him which she was wearing at the time of the occurrence. P.W. 7, the I.O. has further deposed that the informant has not handed over her clothes to him which she was wearing at the time of the occurrence. The mother of the informant who was admittedly present in the adjacent room of the said kitchen room is thl3 most competent and natural witness of the occurrence in question and she does not figure as prosecution witness and she has also not taken oath in this case for the prosecution. Admittedly at the time of alleged occurrence the informant and her mother were present in the said house. It is equally relevant to mention here that the alleged episode of P.W. 2 Subhadra Kumari vis a vis the appellant lacks credence and has no relevancy in this case, for the reason that her case of becoming pregnant due to cohabitation with the appellant and her abortion at the instance of the parents of the appellant at the time of alleged occurrence in a nursing home at Ranchi appears to be totally false in view of Ext. 3, the medical report of P.W. 4 Dr. Minoo Mukherjee which is conspicuously silent regarding P.W. 2 Subhadra Kumari having any pregnancy which has been aborted a few days prior to the alleged occurrence, rather Ext. 3 recites regarding presence of spermatozoa in her vaginal swab and it has been opined therein that she has sexual cohabitation within zero hour to fifteen days. Therefore, Ext. 3 shows that Subhadra Kumari's episode is totally false and has been deliberately introduced in this case. There are other reasons also for coming of the said finding e.g. non-prosecution of the appellant on that account by instituting a case against him, no Punchayati in respect thereof in the village after the alleged abortion, living in the Gohal of the appellant for few days and coming back to her parents house on the refusal of her marriage with the appellant. It is equally relevant to mention here that Subhadra Kumari had a desire to get her marriage solemnized with the appellant as the economic condition of his family was affluent and the appellant was a student having good prospect and it was also the wish of her parents but the appellant had refused to solemnize his marriage with P.W. 2 Subhadra Kumari. In this connection the evidence of P.W. 6, the informant appearing in Paragraph 25 of her testimony has its relevancy in which she' has stated that on the advice of Sri Dinesh Singh, Advocate the fact of Subhadra's episode has been introduced in the written report and the appellant did not act on the verdict of the Punchayat and for that reason she is instituting this case against the appellant. It is equally pertinent to refer here that the evidence of P.W. 6, the informant appearing in Paragraph 36 of her evidence that when the appellant was in custody and confined in the jail she has gone to meet him though no reasons for that meeting has been expressly disclosed in her testimony. It appears queer enough that a victim of ravishment has still soft corner for her ravisher and it gives an impression of her innate desire to persuade him for being ready to get his marriage solemnized with P.W. 2 Subhadra Kumari. 10. In the background stated above, let us now advert to the evidence of P.W.6 the informant has deposed that at the time of the occurrence she was cooking in her house and the appellant came there and forcibly ravished her against her wish. She has further deposed that her mother was present in the house and she was ill lying on the cot and she was also hard of hearing. She has further deposed that her father and brother were outside the house and her sister was admitted at the nursing home at Ranchi for abortion where she was taken by the parents of the appellant. She has also deposed that the appellant had illicit relationship with her sister Subhadra Kumari but thereafter he refused to perform marriage with her. She has also deposed to have narrated the incident of her ravishment by the appellant to her father after one hour of the occurrence. In Paragraph 18 of his cross-examination she has deposed that at the time of the occurrence she was wearing Sa/war and when he had come in her kitchen she has raised alarms and she had attempted to come out of the said room to escape but the appellant felled her and there was scuffle between them and he forcibly removed her clothes and her Sa/war got torn. She has further deposed that in course of ravishment she was always resisting and protesting and she had also caught the hair of the appellant and has also raised alarms in the course of her ravishment and the appellant ravished her for 5 to 10 minutes. She has further deposed that she did not sustain any injury on her person in the course of the scuffle falling down on the ground and in course of resistance by her. In Paragraph 44 she has also deposed that it took about half an hour in the scuffle and the resistance put by her prior to her ravishment and in that course she was constantly raising alarms. She has also deposed that in that course P.W. 5 Narendra Kumar Singh who has his house near the tank had come there. The said P.W. 5 Narendra Kumar Singh does not at all support the prosecution case regarding the ravishment of informant as alleged. She has deposed to have shown torn Salwar to the I.O. but the P.W. 7, the I.O. in his evidence contradicts the testimony of the informant in respect thereof. The informant has further deposed that she has not shown her clothes to the medical witness at the time of her medical examination. P.Ws. 1, 2 and 3 are the hearsay witnesses of the alleged occurrence and to have come to know about the same from P. W. 6 the informant. P.W. 1 the father of the informant has deposed to have learnt about the same in the evening when he had returned to his house. P.Ws. 2 and 3 have deposed to have learnt about the same after 2 or 3 days of the occurrence on their return from the nursing home and the place of work respectively. Therefore, their evidence has no relevancy in this case. P.W. 4 the medical witness has examined P.W. 6 the informant on 20.7.1996 at 14.00 hours. The medical witness has deposed that she did not find any external injury on the person of the informant as well as any internal injury on her private parts and her hymen reveals old rupture admitting one finger easily and there was no mark of injury on her introit us and there was no stains on her private part and on her clothes. The medical witness has further deposed that no spermatozoa dead or alive was found in the vaginal swab of the informant on pathological examination. She has also deposed that the informant was aged about 17 to 19 years. In view of the findings aforesaid, the medical witness has opined that there is no positive evidence of the informant having been ravished in this case. The medical witness, therefore, does not corroborate the fact of the ravishment of the informant as alleged. In a case of ravishment of a grown up woman, the hymen is usually lacerated having one or more radiate tears, more so in posterior half, the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. Furthermore, where there is resistance offered by a grown up woman In course of her ravishment there must be existence of bruises, scratches of fingers nails on the external genitals, perineum, abdomen, chest, back, limbs, neck and face. Love bite marks are also seen on the cheeks, neck, inner thighs, etc., due to sucking pressure and teeth imprints: The absence of any external injury on the person of the informant as well as the absence of any internal injury on her private part casts a cloud of suspicion to the very credibility of the warp and woof of the prosecution case and the testimony of the informant does not at all stand corroborated by the medical witness and the evidence of medical evidence is not at all in conformity with the prosecution case of the ravishment of the informant as alleged. In this view of the matter the evidence of P.W. 6 the informant suffers from basic infirmities and• the "probabilities factor" renders the prosecution case unworthy of credence. It is true that if the evidence of the victim of ravishment is trustworthy corroborated by the medical evidence then in that case corroboration in the form of eye witness account of an independent witness is not required but here in this case I have stated above that the evidence of P.W. 6 the informant is untrustworthy and it has no ring of truth therein. In this view of the matter the ratio of the case d Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat [ 1983(3) SCC 217 ] and State of Maharashtra vs. Chandraprakash Kewalchand Jain ( AIR 1990 SC 658 ) [supra] is of no help to the prosecution. Furthermore, according to the prosecution case a large number of persons of the vicinity of the place of occurrence had come there on the alarms of the informant and as per the prosecution case on their arrival the appellant had fled away from there but none of the independent witnesses is forthcoming to support the prosecution case and even P.W. 5 has given a total go by to the prosecution case. Therefore, there is total absence of any legal evidence to substantiate the prosecution case regarding the ravishment of the informant. 11. The occurrence is said to have taken place on 15.7.1996 at 10.30 hours and the written report was lodged on 19.7.1996 and the case was instituted by drawing of a formal FIR on that very day at 19.30 hours. There is averment in the written report that a report was made to the Silli police station regarding the occurrence but no action has been taken by it. till 19.7.1996 and in this view of the matter, this written report has been lodged before Dy. S.P. Silli. P.W. 1 the father of the informant has deposed that he has lodged a written report before Silli police station on the day, the occurrence has taken place but the officials of the Silli police station refused to accept the said written report. P.W. 6 the informant has not deposed in her testimony regarding lodging a written report of the alleged occurrence on 19.7.1996 and on the contrary, she has deposed to have gone to the members of Mahila Samifj and reported them about the occurrence and they brought her before Dy. S.P. Silli, Ranchi where the case was instituted. P.W. 7 the 1.0. has categorically deposed that no report regarding the occurrence has been made at the Silli police station prior to 19.7.1996. I seen no reason to discard the evidence of P.W. 7 the I.O. in respect thereof. S.P. Silli, Ranchi where the case was instituted. P.W. 7 the 1.0. has categorically deposed that no report regarding the occurrence has been made at the Silli police station prior to 19.7.1996. I seen no reason to discard the evidence of P.W. 7 the I.O. in respect thereof. I have referred above the evidence of P.W. 6 the informant appearing in Paragraph 25 of her evidence which is to the effect that she has filed this case on legal advice because of the fact that the appellant had refused to solemnize his marriage with P.W. 2 Subhadra Kumari and on the said legal advice the written report was lodged before Dy. S.P. Silli by the informant in the company of her father and others. It is, therefore, evident that there has been inordinate delay in lodging the written report regarding the occurrence and there is no explanation forthcoming on the record to explain the said delay of three days in lodging the case against the appellant. In the case of Thulia Kali vs. The State of Tamil Nadu ( AIR 1973 SC 501 ) it has been observed by the Apex Court that the FIR in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the FIR quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging the FIR should be satisfactorily explained. In the case of Meharaj Singh VS. State of U.P. [ (1994) 5 SCC 188 ], it has been observed by the Apex Court which runs thus. It is, therefore, essential that the delay in lodging the FIR should be satisfactorily explained. In the case of Meharaj Singh VS. State of U.P. [ (1994) 5 SCC 188 ], it has been observed by the Apex Court which runs thus. "F.I.R. in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the F.I.R. is to obtain the earliest information regarding the• circumstance in which the crime was committed including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eye witnesses, if any, and delay in lodging the F.I.R. often results in embellishment which is a creature of an afterthought and on account of delay, the F.I.R. not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. It has further been submitted that if the F.I.R. is received late in the court it can give rise to an inference that the F.I.R. was not lodged on the time it has alleged to have been recorded and the facts and circumstances are indicative of the fact that the F.I.R. came to be recorded later on after due deliberations and consultations and it was ante timed unless, of course, the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the F.I.R. by the local Magistrate. The external check equally important is the sending of the copy of the F.I.R. along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the F.I.R and the gist of statements recorded during inquest proceedings get reflected in the report. Even though the inquest report, prepared under Section 174 Cr.P.C., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the F.I.R and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the F.I.R. came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged F.I.R." The approach of the learned court below in paragraph 16 of the impugned judgment regarding the delay in instituting the case by the informant is not well founded and the same is not equally based on the evidence of the record in the light of the ratio of the cases referred to above. There is inordinate delay in lodging the case by the informant in this case for which there is no satisfactory explanation forthcoming on the record and the said delay is, therefore, fatal to the case of the prosecution. The said inordinate delay in lodging the written report regarding the occurrence of ravishment of the informant renders the prosecution case equally suspicious. The learned court below did not consider the evidence on the record meticulously and in proper perspective and has erred in coming to the finding of the guilt of the appellant. The defence version in the facts and circumstances of this case appears to be natural and probable and his false implication in this case cannot be totally ruled out and viewed thus the impugned judgment is unsustainable. 12. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is hereby set aside. The appellant is not found guilty and he is, accordingly, acquitted. Let appellant be set free forthwith, if not wanted in any other case.