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2006 DIGILAW 419 (JHR)

Jai Prakash Das v. State of Bihar (in both)

2006-04-20

D.P.SINGH

body2006
JUDGMENT : D.P. Singh, J.-Both the Cr. Appeals, arising out of common judgment dated 30.6.2000 passed in Sessions Case No. 385/98 by the learned 2nd Additional Sessions Judge, Godda, are being disposed of by this common judgment. 2. The appellant Ram Prasad Harijan @ Bhutakan Harijan has been found guilty under Sections 376/511 IPC while appellant Jai Prakash Das has been held guilty for the offence under Section 212 IPC and they have been separately sentenced to serve RI for five years and three years respectively. 3. Brief facts, leading to their conviction, are that in the night of 4/5th July, 1996 the informant Rekha Devi, wife of Supari Rabidas of village Bandanbar, P.S. Pathargama, District Godda, was sleeping inside her house on the verandah alongwith her younger sister Sulo Kumari. All of a sudden she felt someone riding over her body and found that accused Ram Prasad Harijan was trying to push his organ inside her private part. She raised alarm on which her husband came and caught hold of the appellant. It is further stated that neighbours also arrived there, who got Ram Prasad Harijan tide with Gamchhi. Ram Prasad Harijan was confined till morning, when her husband proceeded to inform the matter to police station. In the meantime appellant Jai Prakash Das came and got Ram Prasad Harijan free by untiding his hands. The incident was seen by the neighbours. 4. This matter was reported to the Officer-In-charge, Pathargama P.S. in the noon on 5th July, 1996. Her statement was recorded and Pathargama P.S. Case No. 57/96 was instituted under Sections 376/ 511/212/34 I PC against both the appellants. The police investigated the case and finally submitted charge-sheet against the appellants under Sections 376/212/34 IPC. The case was committed for sessions trial and the appellants were separately charged for the offences mentioned above under Sections 376 and 212 IPC separately. They pleaded not guilty and claimed false implications because a complaint case has been filed against Supari Rabidas, husband of the informant, for the occurrence of the same day. The learned trial court after examining the witnesses and hearing the parties, finally held the appellants guilty as mentioned above and sentenced them to serve RI for five years and three years respectively. 5. The learned trial court after examining the witnesses and hearing the parties, finally held the appellants guilty as mentioned above and sentenced them to serve RI for five years and three years respectively. 5. Both the appeals have been preferred on the ground that the trial court has erred in holding the appellants guilty because there is insufficient evidence and unreliable evidence. The memo of appeal, filed on behalf of appellant Ram Prasad Harijan, assailed the impugned judgment on the ground that the learned lower court has relied upon the evidences of the informant Rekha Devi and her husband, while other independent witnesses have not supported the prosecution case. PWs 1, 2 and 3 have been declared hostile and PWs 7 and 8 have not supported the prosecution case. The learned trial court has wrongly convicted the appellants by relying upon the evidence' of PW 4, Rekha Devi and PW 6, her husband. It is further mentioned that the I.O. and the doctor have not been examined and, therefore, the appellant Ram Prasad Harijan deserves to be acquitted. Similar ground has been taken in the memo of appeal on behalf of appellant Jai Prakash Das. It is asserted that only allegation against him was that he got the appellant Ram Prasad Harijan free by untiding the Gamchha from his hands. 6. Learned counsel for the appellants, submitted that the prosecution story appears to be absurd. My attention was also drawn to the fact that when appellant Ram Prasad Harijan is said to have been caught hold and kept confined for the whole night, it is not possible that he was confined and was not assaulted by the neighbours. In this context the evidences of PWs 1 to 3, who were said to be neighbours and having been declared hostile by the prosecution, give adverse inference. It is also submitted that the complaint case, filed for the occurrence dated 4.7.96 by the appellant Ram Prasad Harijan, in which allegation was made that Supari Rabidas has carried away the ox belonging to him, has not been taken into consideration. 7. The learned APP opposed the arguments made on behalf of the appellants on the ground that witnesses have supported the prosecution case. 8. I have gone through the evidences available on record. It is true that all three witnesses, PWs. 7. The learned APP opposed the arguments made on behalf of the appellants on the ground that witnesses have supported the prosecution case. 8. I have gone through the evidences available on record. It is true that all three witnesses, PWs. 1 to 3, said to be neighbours of the informant, have not supported the prosecution case and were declared hostile. It is also apparent from the evidences of PW 4, Rekha Devi that she has not gone to police station rather the police has come to her house in the noon of 5th July, 1996. She has even asserted that her sleep was broken when the appellant got upon her body and tried to commit rape. She asserted, vide para 10, that she caught hold the appellant and raised alarm but neither the village Choukidar nor the Mukhia and Sarpanch were informed about the occurrence. She admitted that she was not sent for medical examination. PW 5, Sulo Kumari said that on the alarm raised by the sister she woke up and find that Rekha caught hold the appellant Ram Prasad Harijan. According to these two witnesses, neighbours, PWs. 1 to 3, came on the alarm and kept confined the appellant Ram Prasad Harijan, however, he got free by the appellant Jai Prakash Das on the same day at about 7 AM. She further admitted that she was not examined by I.O. PW 6, husband of the informant, asserted that PWs. 1 to 3 came on their alarm and kept confined the appellant Ram Prasad Harijan. He has admitted in cross-examination that appellant Ram Prasad Harijan has filed a complaint case against him for theft of ox. Other witnesses, PWs. 7 and 8, are related with the prosecution. They have asserted that they saw appellant Ram Prasad Harijan was caught hold by the prosecution witnesses. 9. On careful consideration of the evidences available on record, I find that the prosecution story, as narrated before the lower court, appears to be improbable on the following grounds. (1) If such an incident takes place in a village and the appellant is caught hold by the neighbours, normally he should be given a thrash, which is missing in the present case. (1) If such an incident takes place in a village and the appellant is caught hold by the neighbours, normally he should be given a thrash, which is missing in the present case. (2) If the appellant Ram Prasad Harijan was caught hold while committing the offence, the Villagers, Choukidar and Mukhia could have normally been informed about the incidence and the appellant could have been produced before them. This is also missing in the present case. (3) If the appellant Ram Prasad Harijan was actually confined in the house of the informant, the occasion to get him free by appellant Jai Prakash Das would not have come because if he came and rescued the appellant Ram Prasad Harijan at about 7 AM, all the neighbours might have objected to it and lastly that just before the alleged occurrence admittedly a complaint case is said to have been lodged for an offence involving the husband of the informant. 10. The trial court, in its impugned judgment, has believed the version of the prosecutrix, vide paras 9 to 12. However, I find that the reliance placed upon by the learned trial court, on the statement of informant, is misplaced. PW 4 has merely said that her sleep was broken after sexual intercourse and at the same time she said that she got up just when a male organ touched her private part. These two versions contradict each other. The reliance placed by the learned lower court, by the evidence of PWs. 5 and 6, also stands misplaced because they saw that appellant Ram Prasad Harijan was caught hold and kept confined in the house, which is missing with the statement that in the morning Jai Prakash Das got him free. 11. In view of the abovementioned facts, I find that the prosecution, in absence of I.O. and doctor as well as corroborating evidences, has failed miserably to bring home the charges against the appellants for the alleged offences. Accordingly I find that the present appeals have got merit and deserve to be allowed. 12. Accordingly, both the appeals are allowed and the impugned judgment dated 30.6.2000 and conviction of the appellants is set aside. The appellants are on bail, so they are discharged from the liability of their bail bonds.