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2004 DIGILAW 789 (JHR)

Kalu Rai v. State of Bihar (Now Jharkhand)

2004-08-05

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J.-This appeal has been directed at the instance of the appellant against the impugned judgment and order dated 26.8.1998 passed in Sessions Trial No. 85 of 1997 by Shri P.N. Yadav, Sessions Judge, Dhanbad, 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. 2. The prosecution case has arisen on the basis of the Fardbeyan (Ext. 1) of informant, Mala Bauri said to be the alleged victim of ravishment recorded by S.I. Jamuna Ram, In-charge of Panchet Outpost within Chirkunda Police Station, District-Dhanbad at the said outpost on 27.12.1996 at 19040 hours regarding the occurrence which is said to have taken place on that very day at 19.00 hours in the official residence allotted to her husband P.W.2 Banshi Bouri at Panchet M.H.T. bearing Quarter No. 15 in D.V.C. Colony, Police Station-Chirkunda, District-Dhanbad and a case was instituted by drawing of a formal first information report (Ext.2) against the appellant. The formal first information report and the Fardbeyan have been received on 28.12.1996 in the Court empowered to take cognizance. 3. The prosecution case, in brief, is that the informant was alone in her house at the time of the occurrence and her elder son Suresh Bauri and her two daughters P.W3 Saguri Bouri and P.W 5 Jayanti Bouri had gone to Panchet stadium for photography and her husband P.W2 Banshi Bouri had gone to the market and her younger son P. Wo4 Naresh Bouri was playing outside her house. It is alleged that the appellant, who is the resident of Panchet, entered in her house under intoxication and he forcibly caught her and when she attempted to raise alarms he stuffed her mouth and felled her on the ground and ravished her. It is further alleged that in course of ravishment, her sons, namely, P.W.4 Naresh Bouri and Suresh Bouri came there and they raised alarms on which Tej Bahadur, Raha and Radha Devi, residents of the first floor of the said house came there and they have all seen her wearing petticoat and blouse only and they all attempted to apprehend the appellant but he made good his escape. 4. 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 to feed fad her grudge and annoyance in view of the fact that he has made complaint against her regarding the sale of illicit liquor as well as her being a woman of easy virtues. 5. The prosecution has, in all, examined seven witnesses to substantiate its case. P.W 1 Mala Bouri is the informant of this case and P.W.2 Banshi Bouri is her husband. P.W.4. Naresh Bouri is her ten years old son and P.W.3 Saguri Bouri and P.W.5 Jayanti Bouri are her daughters. P.W.7, Dr. Manjula Rani Saha has examined the informant on 30.12.1996 at 10.45 hours and her report in respect thereof per her pen is Ext. 3 in this case. P.W.6 Jamuna Ram is the Investigating Officer of this case and he has proved the Fardbeyan and the formal first information report marked Ext. 1 and Ext. 2 respectively. No oral and documentary evidence has been brought on behalf of the accused. 6. Assailing the impugned judgment it has been submitted by the learned Amicus Curiae at the very outset that this appellant has served out the sentence of seven years awarded to him and unfortunately his appeal could not be taken for hearing but since a stigma has been cast on him due to his conviction he is pursuing this appeal. 6. Assailing the impugned judgment it has been submitted by the learned Amicus Curiae at the very outset that this appellant has served out the sentence of seven years awarded to him and unfortunately his appeal could not be taken for hearing but since a stigma has been cast on him due to his conviction he is pursuing this appeal. It has also been submitted that the learned court below did not at all meticulously consider the evidence on the record in proper perspective and has erred in coming to the finding of tile guilt of the appellant and all the witnesses who have taken oath in this case are the husband, son and the daughters of the informant and they are highly interested and partisan witnesses and three independent persons residing in the first floor of the said block of the house have come to the place of occurrence on alarms as alleged but they have been deliberately withheld in this case for the reasons best known to the prosecution and the medical evidence is not in conformity with the prosecution case of ravishment of the informant as the medical witness has not found any sperm, dead or alive, in the vaginal swab of the informant and there is no specific opinion of the medical witness in this case regarding the ravishment of the informant and furthermore, the Investigating Offi6er has found nothing incriminating at the place of occurrence in course of investigation. It has further been submitted that the torn clothes and broken bangles of the informant and her alleged semen stained petticoat have also neither been shown to the Investigating Officer nor seized by him and these articles have also not been brought before the Court which cast a cloud of suspicion to the very credibility of the prosecution case. It has further been submitted that as per the prosecution case, the accused was apprehended in the very night of the alleged occurrence but he has not been medically examined for the reasons best known to the prosecution. It has further been submitted that as per the prosecution case, the accused was apprehended in the very night of the alleged occurrence but he has not been medically examined for the reasons best known to the prosecution. It has further been contended that P.W.4 was a nine years old boy on the date of the occurrence and he is a child witness liable to be tutored and therefore, his testimony lacks credence and the learned court below has committed an error in relying upon• the testimony of P.W. 4 specially when the learned court below did not take any steps to test his understanding capacity prior to recording his evidence. In the alternative, it has been contended that the informant deals in illicit trade of liquor and she is a lady of questionable character and she was a sexually starved woman having no cohabitation with her husband for the last five years as her husband was suffering from tuberculosis and unable to satisfy her sexual desire and she •was in the habit of having illicit intercourse with other persons as per her consent and this appellant used to make protest in respect thereof and due to that he has been roped in this got up case and thus, the impugned judgment is unsustainable. 7. In contra, it has been submitted by the learned Additional Public Prosecutor that the medical witness has deposed to have found several external injuries on her knee joint, right elbow joint (dorsal surface), right thumb, left side of waist over face near left eye and also over sacrum but since the informant was menstruating and in such a situation, sperm, dead or alive, could not been found by the medical witness when she was examined on the third day of the occurrence and the existence of the external injuries supports the prosecution case of her ravishment after forcibly felling her on the ground by the appellant. It has further been submitted that the occurrence in question has taken place inside the house of the appellant and therefore, P.W.4, P.W.2, P.W.5 and P.W.3 though they are the son, husband and daughters of the' informant are competent and natural witnesses of the alleged occurrence and their testimony cannot be brushed aside on the ground of their relationship. It has further been submitted that the occurrence in question has taken place inside the house of the appellant and therefore, P.W.4, P.W.2, P.W.5 and P.W.3 though they are the son, husband and daughters of the' informant are competent and natural witnesses of the alleged occurrence and their testimony cannot be brushed aside on the ground of their relationship. It has been submitted that it was P.W. 4 Naresh Bouri 'who has raised alarms seeing the appellant on the body of his mother and as such his testimony is equally worthy of credit and it appears from his evidence that he had the sense of understanding and his evidence cannot be said to be unworthy of credit on the ground that he is a child witness. Lastly, it has been contended that there is no iota of evidence on the record to substantiate the fact that the appellant has made any complaint against the informant regarding her dealing in illicit liquor or she was woman of easy virtue and in view of the evidence on the record, there is no illegality in the finding of the learned court, below of the guilt of the appellants. 8. It is pertinent to mention at the very outset that the place of occurrence is the residence, consisting of two rooms, of the informant situate on the ground floor in a double storied block and there are four flats on each floor and the time of the alleged occurrence is 19.00 hours in the month of December and the house of the appellant is situated east at a distance of 200 yards from the residence of the informant. P.W.1 in para-6 and P.W.5 in para-8 have deposed that other three flats on the ground floor were vacant. The informant was examined by P.W.7 Manjula Rani Saha on 30.12.1996 at 10.45 hours. The medical witness has deposed to have found the following injuries on the person of the informant:- "Abrasions and scratches:- (i) Over right knee joint, (ii) Right elbow joint (dorsal surface), (iii) Right thumb base (dorsal surface), (iv) Over left side of the waist: and (v) Over face near left. (vi) Over sacrum. " The medical witness has further deposed that no sperm was found in her vaginal swab on pathological examination and the informant was menstruating on the day of the medical examination. (vi) Over sacrum. " The medical witness has further deposed that no sperm was found in her vaginal swab on pathological examination and the informant was menstruating on the day of the medical examination. The medical witness has further deposed since she was menstruating and as such it was not essential that the spermatozoa must be present there. Ext. 3, the injury report, supports her evidence. However, the medical witness did not say definitely whether the informant was raped or not. P.W.1 Mala Souri, the informant, has deposed that at the time of the occurrence she was alone in her house and her three children had gone to the market and her husband had also gone somewhere out of her house and her one son was playing outside the house. She has further deposed that the appellant entered in her house and she attempted to come out of the house but the appellant caught her and felled her on the ground and he removed her Sari and also tore it and the appellant assaulted her by fist on her face and caught her breast and also caused injury on her waist and thereafter he ravished her. Her evidence is further to the effect that she attempted to raise alarms but the appellant stuffed her mouth. She has also deposed that the appellant has also tore her blouse and the appellant had caught her locks of her hairs and also her breast in course of her ravishment. Her son, who was playing outside the house, came there and he raised alarms and the appellant had fled away. She has categorically stated that her husband and her three children came there and they were told about the occurrence and Tej Bahadur, Raha and Radha had come to the place of occurrence and they had seen the appellant fleeing away from there and they were also told about the incident. In her cross-examination, she has specifically deposed that in course of ravishment she was always resisting and she has also bit the hand of the appellant. She has also deposed that after gratifying his lust the appellant had released her and in course of the occurrence her bangles were also broken which has caused scratch on her wrist. However, this part of her evidence is not corroborated by the medical evidence as well as P.W.5, the Investigating Officer. She has also deposed that after gratifying his lust the appellant had released her and in course of the occurrence her bangles were also broken which has caused scratch on her wrist. However, this part of her evidence is not corroborated by the medical evidence as well as P.W.5, the Investigating Officer. The medical witness has categorically deposed that since the women was menstruating at the time of her examination and as such, the spermatozoa was not found on pathological examination. The Investigating Officer has deposed that he has not found any broken bangles at the place of occurrence, but the medical witness has found several external injuries i.e. abrasions and scratches on the person of• the informant. It. therefore, appears that there is ring of truth in the testimony of the informant regarding her ravishment in the manner as deposed by her. P.W.4 Naresh Bouri has deposed that at the time of the occurrence he was playing outside the house and he came inside the house on the alarms of her mother and saw the appellant assaulting her and the appellant felled her on the ground and after removing her Sari he has ravished her. He has also deposed that he attempted to rescue her mother but the appellant pushed him. His evidence is further to the effect that thereafter his father, brother and sisters alongwith neighbours came there and the appellant fled away from there. In his cross-examination, he has deposed that on his alarms the neighbours had assembled there. It is true that P. WA was nine years old son of the informant, but from his evidence it does not appear that he lacks understanding faculty. On careful scrutiny with due care and caution, I see no ground to discard the testimony of P.W.4. P.W.5 has deposed that she returned- to the house alongwith her father and sister and she found her mother fallen on the ground and the appellant lying on her body and the appellant fled away from pushing her and others. She has also deposed that she has found the blouse of her mother i.e. the informant torn and her Sari lying nearby. Similar is the evidence of P.W.3 and P.W.2 in respect thereof. The evidence of P.W.1. the informant, stands materially corroborated as per the testimony of P.W.4 referred to above. P.W.5, P.W.3 and P.W.2 also support the prosecution case in material particulars. Similar is the evidence of P.W.3 and P.W.2 in respect thereof. The evidence of P.W.1. the informant, stands materially corroborated as per the testimony of P.W.4 referred to above. P.W.5, P.W.3 and P.W.2 also support the prosecution case in material particulars. The existence of injuries on the person of the informant further lends support to the case of the ravishment of the informant by the appellant. The non-examination of Tej Bahadur, Raha, and Radha in this case for the prosecution does not at all cast any aspersion to the authenticity of the ravishment of the informant by the appellant. The non-production of the clothes of the informant cannot be said to be an infirmity of the prosecution case in view of the medical evidence regarding the existence of several injuries on the person of the informant including on her waist and sacrum. There is nothing on the record to show that the informant had any animus against the appellant to falsely implicating him in the alleged occurrence. Therefore, there is sufficient legal evidence on the record to substantiate the prosecution case. The learned court below has meticulously considered the evidence on the record in proper perspective and has rightly come to the finding of the guilt of the appellant. And last but not the least, I have no reasons to disbelieve the evidence of P.W.1, the informant read with the evidence of P.W.4 and the medical evidence. No further corroboration is required in the facts and circumstances of this case and disbelieving the evidence of the informant regarding her ravishment as deposed by her on any reason shall add insult to injury. The learned court below in para-19 of the impugned judgment has dealt with this aspect of the matter in detail and I see no reason to disagree with him. And last but not the least, it cannot be said to be a case of consented sexual intercourse in the facts and circumstances of this case. Therefore, I find no substance in the contention of the learned counsel for the appellant. Viewed thus, there is no illegality in the impugned judgment requiring an interference therein. 9. There is no merit in this appeal and it fails. The impugned judgment 'is hereby affirmed. The appeal is dismissed.