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2004 DIGILAW 771 (JHR)

Abdul Rauf v. State of Bihar (Now Jharkhand)

2004-08-03

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J.-This appeal at the instance of the appellants named above has been directed against the impugned judgment and order dated 23.7.1999 and 26.7.1999 respectively passed in Sessions Trial No. 16 of 1998 by Shri Shital Prasad Thakur, 2nd Additional Sessions Judge, Dhanbad whereby and whereunder the appellants were found guilty for the offence under Section 354 of the Indian Penal Code and they were each convicted to undergo rigorous imprisonment for two years. However, they were not found guilty for the offence under Section 376 of the Indian Penal Code. It is relevant to mention here that four other co-accused persons, namely, Albabu Ansari, Maklu @ Shamim Ansari, Altu Ansari and Sher Mohammad were also found guilty for the offence under Section 354 of the Indian Penal Code and convicted and sentenced to undergo rigorous imprisonment for two years except co accused Albabu Ansari, who was awarded sentence to the period already undergone by him but they have not preferred appeal against the impugned judgment. 2. The prosecution case has arisen on the basis of the Fardbeyan (Ext. 2) of P.W.7 Lakhi Devi, the informant and said to be the, victim of ravishment in this case recorded by S.1. S.K. Poddar of Govindpur Police Station Camp Jangalpur Road, Shri Ram Briquet on 1.9.1997 at 19.00 hours inside the premises of Shri Ram Briquet aforesaid regarding the occurrence which is said to have taken place in the night between 31.8.1997 and 1.9.1997 at 1.15 hours in the staff quarter in occupation of P.W2 Ranjit Gope, the husband of the informant within the premises of the said Shri Ram Briquet and a case was instituted against the appellants and other co accused persons on 1.9.1997 at 19.45 hours by drawing of a formal first information report (Ext.3). The fardbeyan and the first information report were received on 4.9.1997 in the Court empowered to take cognizance. 3. The fardbeyan and the first information report were received on 4.9.1997 in the Court empowered to take cognizance. 3. The prosecution case, in brief, is that P.W 7, the informant, was sleeping with her husband P.W.2 Ranjit Gope after taking meal in the northern room of her residence situate inside the premises of Shri Ram Briquet and P.W5 Savitri Devi, her mother-in-law, along with her daughter Amita was sleeping in the southern room adjacent the room of the informant and her father-in-law P.W.1 Arjun Gope was sleeping on a Chouki in the verandah in front of her room and at about 1.15 hours in the night there was cry of P.W1 Arjun Gope as a result of assault perpetrated on him and her husband P.W2 Ranjit Gape opened the door of his room to see the occurrence and in the meantime four accused persons came in her room and enquired as to where the other members of the family are sleeping and out of fear P.W2 and P.W1 told them that P.W5 Savitri Devi and Munsi of the said Shri Ram Briquet are sleeping separately in the nearby rooms and thereafter four accused persons got the room of P.W5 opened and they brought P.W5 and Amita to the room of the informant and thereafter they confined P'W5, P.W2 and P.W.1 along with Amita aforesaid in the said room of the informant and closed the door of the said room from outside and the door of the room in which Munsi of Shri Ram Briquet was sleeping, was also closed from outside and two of them forcibly brought the informant catching hold her arms in the southern room in which P.W.5 was sleeping and they forcibly led her on the Chouki near the eastern wall of the said room and thereafter one of them came out of the room and the other accused persons closed the door from inside and he after removing her Sari and also his full-pant ravished her and in course of ravishment on her protest he has also broken the buttons of her blouse and molested her breast and also kissed her and in course of ravishment she has raised alarms but none . came to rescue her and after satisfying his lust he came out of the said room and asked co-accused Makulu to ravish her and co-accused Makalu after closing the door from inside ravished her and on her protest he intimidated her to be done to death. It is also alleged that there was a lantern burning in the said room and she has identified co-accused Maklu, resident of village-Matiyala, who used to visit Shri Ram Briquet and after satisfying his lust he called co-accused Altu Ansari and directed him to ravish her and thereafter he went out from the said room and co-accused Altu closed the room from inside and he also ravished her and on her alarms he also intimidated her to be done to death and told that all the accused have come for the purpose of ravishing her. It is alleged that after satisfying his lust he called co-accused Sher Mohammad and directed him to close the room from inside and to ravish her and thereafter Altu came out of the room and co-accued Sher Mohammad started ravishing her and in course of ravishment she became unconscious and swelling was caused to her private parts and she had pains in her face, breast and private parts. It is alleged that she has identified co-accused Altu, Maklu, Sher Mohammad and Albabu, who has first ravished her in the light of the lantern. It is also alleged that the aforesaid co-accused persons used to visit the said Shri Ram Briquet and due to that she has identified them. The prosecution case further is that she remained unconscious on the said Chouki and when she regained consciousness PW2, PW1 and PWS told her that she has regained consciousness after administering water and sweet drinks and they all stated that co-accused Albabu, Maklu, Altu and Sher Mohammad had ravished her and they further told that they also identified them in the light of the lantern and the flash of the torch and two other co-accused persons were also there, who had fled away with them and they are all residents of village-Matiyala. It is further alleged that P.W1 informed the proprietor of Shri Ram Briquet regarding the occurrence and due to that delay has been caused in lodging this case. 4. It is further alleged that P.W1 informed the proprietor of Shri Ram Briquet regarding the occurrence and due to that delay has been caused in lodging this case. 4. The appellants have pleaded not guilty to the charge levelled against them and they claim themselves to be innocent and to have committed no offence and they have been falsely implicated in this case at the instance of the owner of Shri Ram Briquet factory, as they were agitating for the appointment of the local person in the said factory. It has also been contended that they used to take their breakfast and meal in the shop f the informant and there was some differences regarding the payment in respect thereof and due to that the informant had falsely implicated them in this got up case and no occurrence as alleged has ever taken place. 5. The prosecution has, in all, examined seven witnesses to substantiate its case. P.W? Lakhi Devi is the informant of this case and said to have been ravished in the alleged occurrence but she has turned hostile and does not support the prosecution case in material particulars. PW2 Ranjit Gope is her husband P.W1 Arjun Gope and PW5 Savitri Devi, her father-in-law and mother-in-law respectively. PW3 Sanjeet Gope is the brother of her husband, but he has not been named in the Fardbeyan to be present in the said premises at the time of the alleged occurrence. PWA Dr. S.P Jha has examined the informant on 2.9.1997 at 12.30 hours and her report in respect thereof is Ext. 1. PW6 Sudhir Kumar Poddar is the Investigating Officer of this case and he has proved the Fardbeyan (Ext.2) and the formal first information report (Ext.3). No oral evidence has been brought on behalf of the defence. Ext. A is the sketch map of the alleged place of occurrence prepared by P.W6, the Investigating Officer. 6. In view of the evidence oral and documentary on the record, the learned court below did not find the appellants and the co-accused persons guilty for the offence under Section 376 of the Indian Penal Code but came to the finding of the guilt of the appellants along with co-accused persons for the offence under Section 354 of the Indian Penal Code and accordingly convicted and sentenced them as stated above. 7. 7. Assailing the impugned judgment as perverse and against the weight of the evidence on the record it has been submitted by the learned counsel for the appellants that P.W7, the informant has herself denied the factum of her ravishment by coaccused Albabu, Maklu, Altu and Sher Mohammad and she has categorically deposed that the accused persons have not ravished her and the evidence of the medical witness also does not support the factum of ravishment of the informant and the medical evidence on the record as deposed by P. W4 totally belies the case of ravishment of the informant as no external injury on the person of the informant as well as any internal injury on her private parts was found and no sperm, dead or alive, was found in her vaginal swab on pathological examination specially when as per the prosecution case, it is a gang rape and four co-accused are alleged to have been ravished her to their utmost satisfaction and only after gratifying their lust they had left the informant coupled with the fact of absence of any stains of semen either on the bed sheet and on the undergarment of the informant as stated by P'W6, the Investigating Officer, in his objective finding. It has further been contended that the very manner of the prosecution case as averred in the Fardbeyan of the informant is highly improbable and it suffers with embellishment as a result of consultation, deliberation and afterthought as per the dictates of the owner of Shri Ram Briquet and the false implication of the appellants in this got up case due to enmity cannot be totally ruled out. It has further been contended that the testimony of P'W1, P.W2, P.W3 and P.W5 as ocular witnesses of the occurrence lacks credence as they cannot have the occasion to witness the occurrence from the room in which they are said to have been confined in view of the topography of the place of occurrence as deposed by the Investigating Officer read with Ext. A and there is total absence of any evidence on the record regarding the existence of any injury on P.W1 Arjun Gape and P.W2 Ranjit Gape caused by the appellants and other coaccued persons. A and there is total absence of any evidence on the record regarding the existence of any injury on P.W1 Arjun Gape and P.W2 Ranjit Gape caused by the appellants and other coaccued persons. It has also been submitted that Dubey Jha said to be the Munsi of the said Shri Ram Briquet and Amita, the daughter of P.W1 have not been examined by the prosecution deliberately with'ulterior motive when as per the prosecution case both were confined in the rooms at the place of occurrence and PW.1 has falsely deposed that said Dubey Jha had fled away from there and furthermore, the averment made in the Fardbeyan totally negates the presence of P.W.3 Sanjeet Gope at the place of occurrnce. Further contention of the learned counsel for the appellants is that they were on visiting terms in the shop of the informant for taking their breakfast and meal sometimes on cash and sometimes on credit and due to the fact that the amount due was not paid and that is why they have been falsely implicated in this got up case. It has also been contended that there has been inordinate delay in lodging the case before the police by the informant and there is no explanation forthcoming on the record in respect thereof and furthermore, an information was given to the police at 17.00 hours on 1.9.1997 by P W.1 Arjun Gope which was reduced into writing and he has put his signature thereon and in this connection, the evidence of PW.1 appearing in para-6 has been referred and thereafter the Fardbeyan of the informant was recorded on that day at 19.00 hours and as such the Fardbeyan of PW.7, the informant, cannot form the basis of the prosecution case being the subsequent statement and the said Fardbeyan is against the provision of Section 162 of the Code of Criminal Procedure and the earliest version of the occurrence as lodged by P. W.1 has been deliberately suppressed in this •case by the prosecution and besides that the Fardbeyan (Ext.2) of PW.7, the informant, and the formal first information report (Ext.3) have been received in the Court on 4.9.1997 from which it can safely be inferred that the Fardbeyan of the informant is the result of afterthought, consultation and deliberation at the instance of the owner of the said Shri Ram Briquet and it suffers with embellishment and it is ante timed, it casts of the informant has deposed that appellant Bishu Ansari along with co-accused Albabu Ansari scaled the gate of the Shri Ram Briquet factory and came to him and they assaulted him and thereafter other three appellants and besides co-accused came there. He has further deposed that after assaulting him they enquired from him as to where his daughter-in-law i.e. the informant and therafter they got the room opened in which the daughter-in-law was sleeping. This evidence of P.W.1 is unworthy of credit in view of the fact that as per the prosecution case his son P.W.2 Ranjit had himself opened the door when the assault was being perpetrated on P.W.1 Arjun Gope. He has further deposed that all the appellants including the co-accused persons turned out P.W.2 Ranjit Gope from the said room and thereafter they confined his wife P.W.5 Savitri Devi, his sons P.W.2 Ranjit Gope and P.W.3 Sanjeet Gope and her daughter Amita in a room along with him and the accused persons took P.W.7 Lakhi Devi, the informant, in the nearby room. He has further deposed that appellant Bishu Ansari and co-accused Albabu Ansari had taken the informant inside the room and thereafter appellant Bishu Gope came out of the room and co-accused Albabu remained in the room and he closed the said door from inside. He has further deposed that thereafter one by one four coaccused persons but not the appellants have ravished P.W.7, the informant. P.W.2 has deposed that as a result of assault he has sustained injuries on his temporal and hydrocil as a result of that he fell unconscious and he regained consciousness at about 3.00 or 3.30 hours in the night of the occurrence. There is no medical evidence on the record to evidence the fact that P.W.1 and P.W.2 have sustained injuries on their person as a result of assault perpetrated on them. Furthermore, it appears queer enough as to how P.W.2 has been confined in the room when he was unconscious and as to how he has the occasion to see the occurrence in question. However, in para-2 of his cross-examination he has depos'ed that her mother (P.WS) informed him about the occurrence. P.W3 Sanjeet Gope has deposed to have seen the occurrence from the window of the room in which he was confined and he has deposed in tune with the evidence of P.W1 though as per the prosecution case he was not at all present there. P.WS Savitri Devi has deposed that all the four appellants along with four co-accused persons have ravished the informant, which is not the case of the prosecution C!S averred in the Fardbeyan. P'W7, the informant, who is the most important witness of the occurrence, has deposed that she does not remember as to what has happened with her about two years ago arid she has been declared hostile. In para-3 of her evidence, she has specifically deposed that she has not identified any of the accused persons. She has further deposed that she was ravished in the occurrence but the accused persons have not ravished her. Therefore, P'W7, the informant, in her evidence does not implicate the appellants as well as the four co-accused persons as participant in the occurrence. The medical evidence totally belies the factum of ravishment of the informant. P.W6 the Investigating Officer, has given the topography of the place of occurrence and he has also prepared the sketch map (Ext.A) in respect thereof. The medical evidence totally belies the factum of ravishment of the informant. P.W6 the Investigating Officer, has given the topography of the place of occurrence and he has also prepared the sketch map (Ext.A) in respect thereof. It appears from perusal of Ext. A that Shri Ram Briquet is adjacent south, the road which runs from Jangalpur to Abona More and it is bounded by boundary wall on all four sides and there are one big gate and one small gate for entrance inside the sa d premises and in the south western cor'1m there are five rooms and room no. 1 faces east and there is a verandah adjacent it and room no. 2 is the corner room having his exist in the east and thereafter there are room nos. 3, 4, and 5 which faces north. According to the prosecution case, room no. 3 is said to be the place of occurrence and P.W.1, P.W.2, P.W.3 and P.W.5 are said to have been confined in room no. 2. The Investigating Officer has very categorically deposed that there is no window in room no. 2. Therefore, the evidence of P.W.1, P.W.2, P.W.3 and P.W.5 having seen the occurrence from the window of room no. 2 is highly improbable in view of the topography of the place of occurrence as deposed by the Investigating Officer. The evidence of P. W. 7 clearly rules out the participation of these appellants along with other co-accused persons in the occurrence in question. Therefore, there is no iota of evidence on the record that these four appellants or the other fourco-accused persons have used force with intention to outrage the modesty of P.W.7, the informant. When offence under Section 376 of the Indian Penal Code levelled against them has been found disproved, the suggestion given to P.W.5 Savitri Devi in her cross-examination does not lead to an inference that the scuffle with the informant by the appellants and other coaccused persons was with intention to outrage her modesty. However, the said suggestion has been denied by P.W.5. In the case of Binapani Raja vs. Rabindranath Sarkar and Others (A.I.R. 1959 Calcutta 213), the Calcutta High Court has observed that suggestion in cross-examination which is denied by the witness is no evidence at all. However, the said suggestion has been denied by P.W.5. In the case of Binapani Raja vs. Rabindranath Sarkar and Others (A.I.R. 1959 Calcutta 213), the Calcutta High Court has observed that suggestion in cross-examination which is denied by the witness is no evidence at all. Furthermore, it is not the case of the prosecution that there was a scuffle between the appellants and the other co-accused persons on the one hand and P.W.7, the informant, on the other hand. Even P.W.7 in her evidence does not whisper that there was any scuffle between him and the appellants and other co-accused persons. Therefore, the learned court below has committed an error of judgment in relying upon the said suggestion in the evidence of P.W.5 for coming to the finding of the guilt of the appellants. It is equally relevant to mention here that when the prosecution case itself is found unbelievable for holding the appellants and other co-accused persons guilty of a major offence under Section 376 of the Indian Penal Code and the learned court below has rightly rejected the same and the same evidence on the record cannot be made the basis of holding the accused guilty of a minor offence under Section 354 of the Indian Penal Code simply because the honour and dignity of a woman is involved in the case though P.W.7, the informant, has given a total go by to the prosecution case in her evidence on oath. And last but not the least, there is another circumstance in the case which is not the effect that as per the prosecution case P.W.1, P.W.2, P.W.3 and P.W.5 were confined in the room along with Amita and their room was bolted from outside and thereafter the informant is said to have been taken in room no. 3 and in this view of the prosecution case, P.W.1, P.W.2,P.W.3 and P.W.5 have no occasion also to be ocular witnesses of the fact that co-accused Albabu Ansari and appellant Bishu Ansari had brought P.W.7, the informant, in the said room. 3 and in this view of the prosecution case, P.W.1, P.W.2,P.W.3 and P.W.5 have no occasion also to be ocular witnesses of the fact that co-accused Albabu Ansari and appellant Bishu Ansari had brought P.W.7, the informant, in the said room. Therefoe, there is no iota of legal evidence on the record for the learned court below to come to the conclusion of the Quilt of the appellants for the offence under Section 354 of the Indian Penal Code and the offence under Section 354 of the Indian Penal Code is not at all made out in the facts and circumstances of this case. 10. Admittedly, the alleged occurrence is said to have taken place in the night between 31.8.1997 and 1.9.1997. The fardbeyan of the informant was recorded on 1.9.1997 at 19.00 hours inside the premises of Shri Ram Briquet. There is evidence on the record that before recording of the Fardbeyan P.W1 had consulted the owner of said Shri Ram Briquet. No explanation is forthcoming in respect of the said inordinate delay in lodging the case. PW1 has deposed that prior to recording of the Fardbeyan of the informant he had gone to the Police Station at 17.00 hours on 1.9.1997 and he narrated the incident to the police, which was reduced into writing and finding the same to be correct he has put his signature thereon. This is the earliest statement regarding the occurrence reported to the police by PW1 and two hours thereafter the Fardbeyan of the informant has been reduced into writing. The said earliest statement regarding the occurrence has not been brought on the record for the reasons best known to the prosecution and therefore, the Fardbeyan being subsequent statement is in contravention of Section 162 of the Code of Criminal. Procedure and thus, it cannot form the basis of the prosecution case. And last but not the least, the Fardbeyan and the formal first information report have been received in the Court on 4.9.1997 empowered to take cognizance and this delay of three days is unexplained as per the evidence on the record specially when the distance of police station to the Court is 1'10t very far of and the Court is situated in the town of Dhanbad whereas the place of occurrence is at the out skirt of the town of Dhanbad. It is relevant to mention here that the first information report in a criminal case and particularly in a case of ravishment 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 and 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 and further 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 at 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. Section 157 of the Cr. P.C. casts a duty upon the Investigating Officer to forthwith send the report of the cognizable offence to the concerned Magistrate. Therefore, in the facts and circumstances of this case, the prosecution case suffers from legal infirmity in respect thereof. It is equally relevant to mention here that the appellants and other coaccused persons were on visiting terms with PW1 who used to run a shop for providing meal and breakfast and the appellants and co-accused persons have used to take their breakfast and meal in the said shop sometimes on cash and sometimes on credit. P.W5 in her evidence has admitted the existence of the said fact. P.W5 in her evidence has admitted the existence of the said fact. P.W1 in para-21 of his evidence has stated that the appellants and other co-accused persons had never asked the owner of the said Shri Ram Briquet to engage them in the said factory as they are the local residents of the area, but this evidence of PW1 equally lacks credence in view of the fact that prior to informing the police by him regarding the occurrence he had solicited the advice of the owner of Shri Ram Briquet. Therefore, in the facts and circumstances of this case, the defence version of the false implication of the appellants appears to be probable and natural. The learned court below has committed a manifest error in finding the appellants guilty for the offence under Section 354 of the Indian Penal Code in view of the evidence on the record referred to above. I, therefore, see substance in the contention of the learned counsel for the appellants. 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 is set aside. The appellants are not found guilty for the offence under Section 354 of the Indian Penal Code and they are accordingly acquitted and discharged from the liabilities of their bail bonds.