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Jharkhand High Court · body

2009 DIGILAW 253 (JHR)

Gopal Lohar v. State of Bihar

2009-02-17

JAYA ROY

body2009
Judgment This Criminal Appeal is directed against the judgment of conviction and sentence passed by the 2nd Additional Judicial Commissioner, Khunti (Ranchi) Sri Rabindra Nath Verma in Session Trial No. 526 of 1998 (G.R. No. 95 of 1997) whereby the appellant is convicted under Section 376 I.P.C. and sentenced to undergo the rigorous imprisonment for ten years. 2. The prosecution case in brief is that the informant Donda Munda filed a written complaint which is Exhibit-1, on 29.11.1997 alleging therein that on 28.11.1997 he and his sister Somari Kumari had gone to weekly Saiko Market together. When both were returning in the evening, Gopal Lohar came to them in the way at about 6 P.M. and offered them for taking his sister on his Bicycle and reach her to her house. Thereafter. Gopal Lohar started on his cycle taking Somari Kumari with him on the cycle and the informant proceeded for his house on foot. It is further stated that the informant reached his house but his sister did not reach to his house. She came after some time and informed him that Gopal Lohar took her in a lonely place in Susuburu Jungle at about 6.30 P.M. and raped her forcibly. The informant informed about the occurrence to the villagers and also informed the police. Then the Police registered Murhu P.S. Case No. 48 of 1997 dated 29.11.1997 under Section 376 I.P.C. against Gopal Lahar. 3. The police investigated into the case and submitted charge-sheet against the accused. Witnesses were examined and after hearing the both sides, the trial court convicted and sentenced the appellant in the manner stated above. 4. The appellant has pleaded not guilty to the charge leveled against him and claims himself to he innocent. 5. The prosecution has examined altogether 13 witnesses. P.W.1 Donda Munda is the informant of the case, P.W. 2 Somari Mundain is the victim of the case as well as the sale eye witness of the occurrence PW. Nos. 3, 4, 5, 6, 9, 10, 11 and 12 are hearsay witnesses from the informant and from the victim girl. P.W. 7 scribe of Exhibit-1 who has stated that he went to the police station alongwith the informant and wrote Exhibit-1 on the dictation of the informant. P.W. 8 Dr. Lalita Verma is the Medical officer who examined the victim girl and P.W. 13 is Investigation Officer of this case. 6. P.W. 7 scribe of Exhibit-1 who has stated that he went to the police station alongwith the informant and wrote Exhibit-1 on the dictation of the informant. P.W. 8 Dr. Lalita Verma is the Medical officer who examined the victim girl and P.W. 13 is Investigation Officer of this case. 6. Mrs. M. Patra learned counsel appearing for the appellant, submits that the learned court below has committed manifest error in coming to the finding of the guilt of the appellant and did not meticulously considered the evidence on the record. In my opinion the evidence of P. Ws. 1, 2, 8 and 13 needs careful scrutiny. I find P.W. 2 the victim girl has stated in her evidence that when she was returning alone from Saiko Bazar, the accused Gopal Lahar forcibly took her on his bicycle towards her village but the accused in the way near to Susuburu Jungle, forcibly laid her down and raped her. She has further stated that when she returned to her house, she told about the occurrence to her brother, uncle and, others and then on the next day she went to Murhu Police Station alongwith her brother Donda Munda and other witnesses and narrated about the occurrence there. During the cross-examination she has stated that she did not meet her brother in Saiko Bazar. She has further. stated accused Gopal Lahar forcibly took her on his cycle and threatened her on the point of dagger. Thus she has deposed in the court giving a new story which is neither mentioned in the F.I.R. nor in her statements recorded under Section 164 Cr.P.C. 7. From perusal of the statements of P.W. 1 Donda Munda the informant I find that he has specifically stated that he had gone to Saiko Bazar with his sister Somari Mundain and both were returning in the evening at about 7 P.M. and in the way accused Gopal Lahar met them and told him that he would give lift to his sister on his bicycle and would take her to her house which was agreed by the informant. P.W.1 further stated that when he reached his house, did not find his sister there. His sister returned about 7.30 P.M. and told him that the accused Gopal Lahar took her to Susuburu Forest near a 'Kutush Bush' and forcibly raped her. P.W.1 further stated that when he reached his house, did not find his sister there. His sister returned about 7.30 P.M. and told him that the accused Gopal Lahar took her to Susuburu Forest near a 'Kutush Bush' and forcibly raped her. But in his cross-examination he has stated that when he went to ease himself, Gopal Lahar forcibly took her sister at that time on his cycle and proceeded towards the village. 8. Thus from the analysis of the prosecution evidence I find there are many contradictions in the evidence of the victim girl. From the evidence of the P.W. 2 the victim girl, the manner of the occurrence as described is absolutely improbable as she being the 18 years old i.e. a fully grown up lady cannot be taken by the accused on his bicycle forcibly in presence of his brother. Particularly from taking the victim girl on the bicycle, it can be inferred in other way that there was consent of the victim girl. Further I find the P.W.1 has stated in his evidence very specifically that he permitted the appellant to take his sister on his bicycle. All these circumstances show the intimacy of the appellant with the victim girl. It is more affirmed by the fact that she herself stated that she did not raise any hue and cry when she was raped. Furthermore, the said occurrence took place in a market day and the place of Occurrence was only 20 yards from the busy road as such it is not possible to rape forcibly anybody in such a manner in such circumstances. 9. The other witnesses namely P.Ws. 3, 11, 12 are members of the family of the prosecutrix and their common statement is that they were informed about the occurrence by the informant Donda Munda (P. W. 1). The learned counsel further adds that there is no corroboration of the prosecution case from any independent source. 10. The learned counsel of the appellant submits that the prosecutrix was examined by the doctor (P.W. 8) on 29.11.1997 at about 10.30 A.M who has confirmed that no sign of rape or any external injury on the body of the prosecutrix was found. On considering the evidence of the doctor I find that she has given the following opinion:- a. The girl is aged about 18 years. On considering the evidence of the doctor I find that she has given the following opinion:- a. The girl is aged about 18 years. b. There is no injury external surface of her body. c. There is no evidence of sexual intercourse. The appellant has further pointed out that the F.I.R. lodged at about 6.30 P.M on 29.11.97 but utter surprise the doctor has examined the victim at 10.30 A.M. on that very date i.e. before lodging the aforesaid F.I.R. Thus, I find the allegation made by the prosecutrix does not find any support or corroboration from the evidence of the doctor. 11. The trial court has wholly relied on the evidence of the prosecutrix. But, in my opinion, the nature or quality of the evidence of the prosecutrix is not at all reliable as discussed earlier. Considering the glaring inconsistency between the evidence of the prosecutrix, and the evidence of the doctor and other witnesses, in my opinion, the prosecution has failed to prove its case against the appellant beyond reasonable doubt. In this situation, the appellant should get the benefit of doubt. 12. In the result, appeal is allowed. The appellant, Gopal Lohar is acquitted from the charges for the offence under Section 376 I.P.C. and the judgment of conviction and sentence passed by the trial court is, hereby, set aside. Since the appellant is on bail, he is discharged from the liabilities of his bail bonds.