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2006 DIGILAW 1290 (JHR)

BERGA DORAIBURU v. STATE OF BIHAR (NOW JHARKHAND)

2006-11-07

D.G.R.PATNAIK

body2006
Judgment : ( 1 ) THIS appeal is directed against the judgment of conviction dated 3-12-1999 and corresponding sentence passed by the Sessions Judge, Singhbhum West at chaibasa, whereby the appellant Berga doraiburu was convicted for the offence under section 376 of the Indian Penal Code and sentenced to undergo imprisonment for 7 years. ( 2 ) BRIEF facts of the case, which was registered on the basis of the fardbeyan of the prosecutrix (PW3) on 11-1-1991, is that in the morning of 11-1-1991 at about 8. 00 am, the prosecutrix who claims to be aged 11 years had gone to case herself at the bank of river Chutuibir. The present appellant accosted her and after felling her on the ground, he committed rape on her forcibly. When she wanted to raise alarm, he allegedly pressed her throat and had also shut her mouth. The victim thereafter came to her house and narrated the entire incident to her parents and other members of the family. Her father Atmanand Honhaga took her to the police station where her fardbeyan was recorded and on the basis of which, the instant case was registered. ( 3 ) ACCUSED/appellant had pleaded not guilty to the charge, claiming that he has been falsely implicated in this case on account of previous enmity with the father of the prosecutrix. ( 4 ) AT the trial, prosecution has examined altogether 9 witnesses including the prosecutrix (PW3) and the doctor namely, Dr, C. S. Sarin (PW9) who had medically examined the prosecutrix, besides other members of the family of the prosecutrix including her own sisters. The investigating officer of the case has not been examined. ( 5 ) LEARNED trial Court, on considering the evidences on record, had placed reliance upon the testimony of the prosecutrix as also on the testimony of the other witnesses, namely, Kunti Honhaga (PW4) who is the mother of the prosecutrix, Mukta Honhaga (PW5) who is the elder sister of the prosecutrix and Atmanand Honhaga (PW6) who is the father of the prosecutrix, Juriya honhaga (PW7) who is another sister of the prosecutrix and Rasik Lal Honhaga (PW8) who is Mukhiya of the village and had recorded its finding of guilt for the offence under section 376 IPC against the accused/appellant. ( 6 ) APPELLANT has challenged the judgment of conviction and sentence, inter alia, on the ground that the learned trial Court has erred in appreciating the evidences on record in proper perspective and has also erred in placing implicit reliance upon the testimony of the prosecutrix without considering various contradictions in her testimony as compared to other evidences on record, particularly that of themedical evidence of the doctor. Learned counsel explains that though it is claimed by the prosecution that the prosecutrix was examined within 28 hours of the time of the occurrence by the doctor, but the medical report and the medical evidence of the doctor confirms that no sign of rape or any mark of violence either externally or internally on the body of the prosecutrix was found at the time of the examination. Referring to the evidence of the prosecutrix. learned counsel submits that the prosecutrix has categorically stated that she was felled down on the ground which was sandy surface and there was pebbles on the ground and she had sustained injury on her back on account of felling on the ground and also sustained swelling injury on her neck on account of pressing of her neck by the accused. The aforesaid allegation has not been confirmed or corroborated by the doctor. Adverting to other grounds, learned counsel submits that non-examination of the investigating officer has caused serious prejudice to the defence inasmuch as, the place of occurrence has not been described by any independent testimony except that of the prosecutrix and If the evidence of PW7 is considered, the alleged place of occurrence is a public place usually frequented by the villagers for the purpose of easing themselves. Learned counsel adds further that there is no corroboration in respect of the prosecutions case from any independent source and the witnesses examined in this case by the prosecution are basically members of the own family of the prosecutrix who are highly interested witnesses. Learned counsel further emphasizes on the ground that the learned trial Court has erred in recording its finding of guilt against the appellant on considering the evidence of PW8 that the appellant had made extra Judicial confession before PW8, although the trial court has not put the aforesaid circumstance to the accused/appellant while recording statement of the appellant under section 313 Cr. P. C. It is further submitted that though the prosecutions claim that she had reported the matter on the same day of the alleged occurrence and the accused/ appellant was arrested on the same day, but significantly, he was not sent for his medical examination. It is lastly submitted that the fact that there was previous enmity between the father of the prosecutrix and the present appellant, has also been admitted by the prosecutrix herself in her cross-examination. Learned counsel placed reliance on the judgment passed by this Court in the case of Kuber Chandra Das v. State of Bihar (now Jharkhand) reported in (2005 (2) JCR 88 : (2004 AIR-Jhar HCR 2944) and another judgment also passed by this Court in the case of Gabrilal Baskey @ Gabriel Baskey v. The State of Bihar (now Jharkhand) reported in (2004 (3) J LJ R 406 ). ( 7 ) LEARNED counsel for the State, on the other hand, has submitted argument in support of the impugned judgment of convietion. II is contended by him that the victim girl was a minor below the age of 14 years on the date of occurrence and the evidence of the prosecutrix is itself sufficient to record finding of guilt against the accused/appellant. Learned counsel adds further that absence of any mark of violence on the body of the prosecutrix by the doctor, in itself will not disprove the testimony of the prosecutrix which is consistent and finds support from her own parents and other members of her family, to whom she had reported the incident immediately on her return to the house. ( 8 ) IN order to appreciate the rival arguments advanced by the parties, reference to the evidences of the witnesses needs to be made. It appears that PW1 Arjun Honhaga and pw2 Juniya Hessa, both co-villagers of the prosecutrix, have not supported the prosecutions case and hence, they have been declared hostile. It appears further that both the. witnesses have affirmed that the incident had occurred within one year from the date of their examination in the Court, though they declare that they had no personal knowledge regarding the occurrence. PW3 is the prosecutrix herself. She has narrated the entire incident in the same manner, as stated by her in her fardbeyan and has claimed that in the morning of 11-1-1991 at about 8. PW3 is the prosecutrix herself. She has narrated the entire incident in the same manner, as stated by her in her fardbeyan and has claimed that in the morning of 11-1-1991 at about 8. 00 am when she had gone to the river side for easing herself, the accused/appellant Berga Doraiburu along with his associate Berga Kate caught hold of her, but Berga Kate ran away from there when she raised alarm The accused Berga however tried to throttle her neck and had silenced her, whereafter he fell her down on the ground and committed rape on her forcibly. She adds further that she came home and narrated the, entire incident to her mother and sister-in-law as well as her aunt. Her mother and aunt informed the Mukhia of the village (PW8) who came to her house and thereafter, search was made for the accused Berga and he was ultimately brought before Mukhia at about 3. 00 pm and later taken to the police station after arrival of her father from duty. Her statements were recorded by the police officer at the police station She has identified the accused in dock and has also affirmed that she was medically examined by the doctor at Sadar hospital, Chaibasa on the next day. In her cross-examination she has described the place of occurrence stating that the place of occurrence is located at a distance of about 300 yards from her house. She admits that her father used to take provisions on credit from the shop belonging to the brother of the accused and there was dispute between her father and the brother of the accused on account of non-payment of the dues of rs. 531/- which amount, her father had later paid. At paragraph 12 of her deposition, she claims that she had sustained swelling injury, on the neck on account of force applied on her by the accused and she had also sustained injury on her waist by the pebbles on the ground when she was felled down by the accused. She adds further that when she had gone to the police station, she was wearing the same clothes which she was wearing at the time of occurrence and the police officer had seized her clothes and although, he did not give any seizure receipt thereof. On reading of the evidence of the doctor (PW9 ). She adds further that when she had gone to the police station, she was wearing the same clothes which she was wearing at the time of occurrence and the police officer had seized her clothes and although, he did not give any seizure receipt thereof. On reading of the evidence of the doctor (PW9 ). it appears that the doctor has stated categorically that she had examined the prosecutrix at about 11. 20 am on 12-1 -1991. e. within about 28 hours from the alleged time of occurrence and had found presence of secondary sexual character by virtue of presence of Auxiliary and Pubic hair and breast well developed. The doctor has, however, not found any external injury on the body of the prosecutrix and neither has she found any foreign hair or any spermatozoa either dead or alive and has also not found any external injury in or around vaginal area. The doctor appears to have given firm opinion that there was no sign of rape whatsoever found by her. ( 9 ) REFERRING to the evidences of the other witnesses, namely, PW4, PW5, PW6 and pw7, I find that these witnesses are members of the family of the prosecutrix and their common statements is that they were informed about the occurrence by the prosecutrix. These witnesses have affirmed that in the morning of the alleged date of occurrence, the prosecutrix had gone for easing herself towards river bank and on her return at about 8. 00 am, she revealed while crying that the accused Berga had committed rape on her. PW4 who is the mother of the prosecutrix claims to have seen swelling on the portion of the neck of the prosecutrix. This witness has further claimed that the accused was caught in the village itself and was brought before Mukhia at 3. 00 pm on the same day and in her presence and also in the presence of Mukhia, the accused had confessed to have committed rape on the prosecutrix. ( 10 ) ON reappraisal of the evidence of the prosecutrix, I find that her evidence in respect of her allegation of rape does not find support or corroboration from the evidence of the doctor, although she was examined within 28 hours of the alleged time of occurrence. ( 10 ) ON reappraisal of the evidence of the prosecutrix, I find that her evidence in respect of her allegation of rape does not find support or corroboration from the evidence of the doctor, although she was examined within 28 hours of the alleged time of occurrence. It is significant to note that she claims to have sustained injury on her back and waist on account of pebbles on ground, but the doctor has not found any corresponding injury on her body. More significant is the fact that the doctor has not found any sign of rape whatsoever, nor presence of any mark of violence on the body of the prosecutrix. ( 11 ) IT is not the case of the prosecutrix that after the occurrence, she had washed herself and had changed her clothes which she was wearing at the time of occurrence. It is to be noted here that according to the prosecution and own statement of the prosecutrix, her age is about 14 years and her physical structure was such that she had arrived almost at the stage of adulthood. The doctors report does not indicate that the hymen of the prosecutrix was found ruptured and tampered. Considering the age of the prosecutrix and the prosecutrix claim of her being a virgin, the absence of corroboration to the testimony of the prosecutrix by the medical evidence creates considerable doubt on her assertion that she was subjected to forcible rape. ( 12 ) IT is also to be noted that though prosecutrix claims that her clothes which she was wearing at the time of the alleged occurrence, was seized by the police, but prosecution has not brought any evidence to indicate that the clothes were sent for forensic examination. It also appears that though the accused/appellant was apprehended on the same day of the occurrence and was arrested by the police, he was not sent up for his medical examination by the investigating officer. As to the reason why the accused was not forwarded for his medical examination by the investigating officer, prosecution has offered no explanation whatsoever. In cases where rape is alleged and accused is apprehended promptly, medical examination of the accused becomes necessary for the purpose of obtaining corroboration to the allegation of rape made against him. As to the reason why the accused was not forwarded for his medical examination by the investigating officer, prosecution has offered no explanation whatsoever. In cases where rape is alleged and accused is apprehended promptly, medical examination of the accused becomes necessary for the purpose of obtaining corroboration to the allegation of rape made against him. ( 13 ) FROM perusal of the impugned judgment, i find that the learned trial Court has relied upon the testimony of the witnesses including Mukhia (PW8) to the effect that the accused had made extra judicial confession in their presence. As rightly pointed out by the learned counsel for the appellant, this part of the evidence of the witness on which the learned trial Court has relied upon, was not put to the accused while recording his statement under section 313 Cr. P. C. and thus, the accused/appellant was deprived of reasonable opportunity to explain the circumstance appearing in the evidence against him, thereby causing serious prejudice to his defence. Furthermore, the evidence regarding extra judicial confession appears to be made by the persons who are all interested witnesses inasmuch as all of them are admittedly close relatives of the prosecutrix. There is no corroboration from any other independent witnesses to the purported extra judicial confession of the accused/appellant made in presence of mukhia of the village. ( 14 ) I also find substance on the ground advanced by the learned counsel for the appellant that non-examination of the investigating officer has also caused prejudice to the defence on account of the fact that the place of occurrence has not been adequately described and pinpointed and also no answer has been given by the prosecution as to the reason why accused was not forwarded for his medical examination. ( 15 ) IT appears from the impugned judgment that the learned trial Court has relied upon the testimony of the prosecutrix and the evidences of the other witnesses in respect of the alleged extra judicial confession of the accused without considering the glaring inconsistency in the evidences of the prosecutrix and other witnesses, which on proper consideration, would have obviously suggested that the prosecution has not been able to prove the charge of rape against the accused/appellant beyond reasonable doubt. ( 16 ) I find merit in this appeal. Accordingly, this appeal is allowed. ( 16 ) I find merit in this appeal. Accordingly, this appeal is allowed. The judgment of conviction and sentence, as passed by the trial Court. is hereby set aside. Appellant is acquitted of the charges for the offence under section 376 of the Indian Penal Code. Since the appellant is on bail, he is absolved from the liability of his bail bond. Appeal allowed. --- *** --- .