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2009 DIGILAW 292 (JHR)

Prakash Panna v. State of Jharkhand

2009-02-24

JAYA ROY

body2009
Judgment.- This Criminal Appeal is directed against the judgment of conviction dated 28.9.2004 and sentence dated 29.9.2004 passed by the 1st Additional District and Session Judge Latehar in S.T. No. 63 of 2003 whereby the appellant is convicted under Section 376 I.P.C. and sentenced to undergo rigorous imprisonment of ten years and also to pay a fine of rupees 2000/- and in default to further undergo simple imprisonment of two months. 2. The prosecution case in brief is that on the basis of the fardbayan of the informant Niligrace Toppo a case has been registered against the appellant under Section 376 I.P.C. The informant Niligrace Toppo has stated in her fardbayan that she had gone to Jokhi Pokhar Village with few other girls to see the Annual Cultural Programme on 22.3.2003 where she stayed for overnight. Thereafter on 23.3.2003 while the informant was roaming around with her friends in the evening at Jokhi Pokhar, the accused Prakash Panna (the appellant) who happened to be informant's cousin in relation, met her and enquired about her welfare. Thereupon he offered the informant to drop her home on his Motorcycle. The informant in good faith accompanied him on his Motorcycle. The accused did not take her to her house but took her to Netarhat and kept the informant in a house near the Dam and asked her to wait for some time. It is further stated that the accused threatened her and asked her not to raise any alarm otherwise she would be killed and locked her in a room. Thereafter the accused committed rape on her in the night four times against her will and without consent. Next morning the accused took her on his Motorcycle and dropped her at the outskirts of her village. The informant managed to reach her house and she narrated the entire occurrence of previous night to her family members. On the basis of the aforesaid fardbayan a formal F.I.R. was drawn. 3. The police investigated into the case and after completion of investigation, submitted a charge-sheet against the appellant (accused) under Section 376 I.P.C. Witnesses were examined and after hearing both the parties, 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 claimed himself to be innocent. 4. The appellant has pleaded not guilty to the charge leveled against him and claimed himself to be innocent. His further defence that he has been falsely implicated in this case due to previous enmity. 5. The prosecution has examined altogether six witnesses. P.W. 1 the informant (victim girl), P.W. 2 Milyuns Lakra is Sarpanch of the Village, P.W. 3. Elizabeth Ekka mother of the victim, P.W. 4 Nirophilip Toppo, father of the victim girl, P.W. 5 Alok Kumar Rai, Manager of the Hotel, P.W. 6 is Doctor who examined the prosecutrix. 6. Mr. Pram ad Kumar, the learned counsel appearing for the appellant submits that the court below has not considered the evidence meticulously and committed error in coming to the finding of the guilt of the appellant. 7. Now coming to the merit of the case, appreciation of the evidence of prosecution witnesses needs careful scrutiny. P.Ws. 2, 3 and 4 are hearsay witness and they have come to know about the occurrence from the informant (P.W. 1). P.W. 1 the victim girl has stated in her evidence that about seven months ago she had gone to Jokhi Pokar village to attend Annual Cultural Programme and after the programme, she stayed with her Aunt in the adjoining village and next day she again attended and after watching the same, she returned to her Aunt's house. Thereupon on third day she again went to Jokhi Pokhar in the morning and as the festival had come to an end, she was planning to return home then she met the accused Prakash Panna who happened to be her distance brother in relation and he offered to drop her home. In good faith the informant sat on his Motorcycle but the accused did not take her home directly but took her to Netarhat. They reached there at about 7 P.M. and they stayed in a guest house. It is further stated that the accused locked her in the room and threatened her not to raise any alarm otherwise she would be killed. But I find from her evidence that she has stated in cross-examinatiol1 that her village was on the Southern side of Jokhi Pokhar village but the way towards Netarhat was on the different side and when she was taken by the accused towards Netarhat, she did not object neither she came down from the vehicle. But I find from her evidence that she has stated in cross-examinatiol1 that her village was on the Southern side of Jokhi Pokhar village but the way towards Netarhat was on the different side and when she was taken by the accused towards Netarhat, she did not object neither she came down from the vehicle. Furthermore when she reached to the guest house, one lady gatekeeper opened the gate even then she did not raise any alarm. Though she stated in her chief that the accused has threatened him but in her evidence in para-16 she has stated that accused was not having any CHAKU, CHURA, or PISTOL at his hand on the contrary he was completely drunk. This fact shows if the informant wanted to raise hulla to save herself she could have done it very easily or she can even come out from the clutches of the accused appellant. 8. P.W. 6-Doctor who examined the victim on 25.3.2003 has given her opinion that the victim lady is habituated to sexual intercourse and her age is above 18 years. P.W. 5 has further stated that she did not find any external injury on the body of the victim lady. On cross-examination the P.W. 5 has admitted that if the victim had been forcibly raped two day prior to the examination, some injury or inflammation could have been found or her body. Thus, the evidence of the Doctor did not support the prosecution case at all. Further it has disclosed the character of the victim. 9. After going through the evidence of the informant, I find there are many contradictions in her evidence regarding her dress, regarding the date and time of the alleged occurrence and further regarding the manner of the occurrence. Thus the evidence of the prosecutrix is not fully reliable and trustworthy and does not find any corroboration with the medical evidence. 10. After going through the evidence of the informant, I find there are many contradictions in her evidence regarding her dress, regarding the date and time of the alleged occurrence and further regarding the manner of the occurrence. Thus the evidence of the prosecutrix is not fully reliable and trustworthy and does not find any corroboration with the medical evidence. 10. P.W. 3 Elizabeth Ekka is the mother of the victim-Informant who has stated in her examination-in-chief that the victim went to witness Annual Function at Village-Jokhi Pokhar with her prior permission and when her daughter returned home then she narrated to her mother that at Jokhi Pokhar she met the accused who offered to drop her home but under the false pretext she was taken and brought at Netarhat where her daughter (informant) was subjected to rape by the accused and after this occurrence she was dropped by the accused at outskirts of her village. In para-3 of her cross-examination this witness has stated that her daughter was wearing Salwar Suit while proceeding towards Jokhi Pokhar but while proceeding towards the local police station she was wearing the Mini Skirt and Blouse which are contradictory with the statements given by the victim herself. She has further stated that her daughter's Salwar Suit was washed by her since it had lot of blood stains. Although, in para-5 of her cross examination she has disclosed that her husband had purchased one motorcycle from the accused but the relevant documents of motorcycle were not being delivered by the accused to him on account of which some altercation took place between her husband and the accused and the relation between them were strained. 11. P.W. 4-Niro Philip Toppo is father of the victim and he was informed by his daughter. It has come in evidence that he has some enmity with the appellant regarding his purchase of Motorcycle from the appellant. 12. P.W. 5-Alok Kumar Rai is the Manager of Hotel Vally View, Netarhat who has stated in his examination-in-chief that on 23.3.2003 one boy accompanied by a girl had stayed in one room at upper story of his Hotel and on the next morning they have left his Hotel. He has further asserted that he can identify both of them. But in the court after seeing the accused (appellant), he has denied the accused to be one of them. He has further asserted that he can identify both of them. But in the court after seeing the accused (appellant), he has denied the accused to be one of them. Thus it is very clear that the appellant and the victim did not go to the said Hotel on that very date though victim girl specifically stated they went to the guest house of Netarhat which is near the Dam with the appellant and stayed there for the night. It has come in the evidence that there is no guest house near the Dam. Only the Hotel Vally View is there. It casts a great doubt as to whether the victim girl had gone to Netarhat at all. 13. The learned counsel for the State has contented that in the present case the victim girl was at first taken to a lonely spot on the false pretext of being dropped at her house and there after putting her in the helpless situation and subsequently threatening the victim, the accused satisfied his lust. But he could not explain the material contradictions in the manner of the occurrence as stated by the victim lady. 1.0. has not been examined in this case by the prosecution. 14. The trial court has wholly relied on the evidence of the prosecutrix. But in my opinion the nature and quality of the evidence of the prosecutrix is not at all reliable and it does not inspire any confidence in her statement 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 all reasonable doubt. In this circumstance the appellant should get the benefit of doubt. 15. In the result the appeal is allowed and the impugned judgment of the court below is hereby set aside. As the appellant is not found guilty, he is accordingly acquitted. Since the appellant is on bail, he is discharged from the liabilities of his bail bond.