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2009 DIGILAW 372 (JHR)

Budhan Baitha v. State of Jharkhand

2009-03-17

PRADEEP KUMAR

body2009
JUDGMENT : By Court.-This criminal appeal is directed against the judgment and order of conviction and sentence dated 27.1.2001 and 30.1.2001 passed by Sri Mazhar Imam, learned 7th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 440 of 1996, by which judgment the learned Additional Sessions Judge found the appellant guilty under Section 376 of the Indian Penal Code and also under Section 380 of the Indian Penal Code and convicted him thereunder and sentenced the appellant to undergo rigorous imprisonment for ten years for the offence under Section 376 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for three years, for the offence under Section 380 of the Indian Penal Code, however, both the sentences have been directed to run concurrently. 2. The prosecution case was initiated on the basis of fardbeyan given by the informant, Sumitra Devi, who was examined in Court as P.W. 7 on 31.7.1995 at 10.50 A.M. stating therein that on 21.7.1995 at about 3 P.M., when she was working in her field, the accused, Budhan Baitha came and asked her to vacate her house, whereupon she stated that her husband is in jail and he should talk to her husband when he comes back. There was a verbal fight for sometime and thereafter the villagers gathered there and the accused went away. 3. She has further stated that in the night after taking her meal, she was sleeping with her youngest child Arvind inside her house in the dhaba, when at about 11 P.M. in the night she woke-up hearing the sound of breaking of nariya tiles and she came out of the house by opening the door whereupon the accused, Budhan Baitha caught hold of her and after throwing her on the cot he committed rape upon her. 4. She has further alleged that after committing rape upon her the accused, Budhan Baitha snatched the earring from her ear and 'Chhuchhi ' from her nose and ran away 5. In the morning, she stated about the alleged occurrence to the persons of the locality and out of fear of the accused. Budhan Baitha she did not go to police station to lodge an F.I.R. in the next day. 6. In the morning, she stated about the alleged occurrence to the persons of the locality and out of fear of the accused. Budhan Baitha she did not go to police station to lodge an F.I.R. in the next day. 6. On the basis of the said fardbeyan of the informant, Sumitra Devi, recorded on 31.7.1995, police registered the case under Section 376/380 of the Indian Penal Code and after investigation, the police submitted charge-sheet against the accused for the offence under Section 376/ 380 of the Indian Penal Code. 7. The case being exclusively trialed by the Court of Sessions, the learned Chief Judicial Magistrate, Palamau at Daltonganj, after taking cognizance committed the same to Court of Sessions and finally the same was trialed by the 7th, Additional Sessions Judge. Palamau at Daltonganj. 8. It appears that in course of trial, the prosecution has examined altogether nine witnesses in support of the case, P.W.1 is Dwarika Singh who was declared hostile. P.W. 2 is Rajgir Mistri who has been tendered. P.W.3 is Munni Mahto who was also declared hostile. P.W. 4 is Dr. Smt. Shail Sinha who has proved the injury report as Ext.1. P.W. 5 is Ram Jatan Mistri who is the co-villager. P.W.6 is Shanti Devi who is the neighbour-cum-gotia of the informant, Sumitra Devi. P.W. 7 is Sumitra Devi who is the informant. P.W. 8 is Shambhu Nath Verma who is the I.O. of the case and P.W. 9 is Udeshwar Singh who is the Chowkidar of the village. 9. After hearing both the prosecution and defence, the learned Sessions Judge, Palamau at Daltonganj relying on the statement of the victim lady, Sumitra Devi convicted the appellant on the aforesaid Sections and sentenced him as stated above. 10. It is submitted by learned counsel for the appellant that no doubt in case of rape the accused can be convicted even on the sale evidence of prosecutrix, but the evidence must be reliable. He has submitted that after going through the evidence of the prosecutrix as given in the Court it will appear that on few points she is speaking lie and such a statement of prosecutrix cannot be reliable for conviction, when there IS no corroboration. And as such, the appellant is entitled to be acquitted from the charges leveled against him. 11. And as such, the appellant is entitled to be acquitted from the charges leveled against him. 11. On the other hand, learned counsel for the State has submitted that the statement given by 'he informant, Sumitra Devi (P. W. 7) is reliable 'and the contradictions are very minor in nature and the appellant has rightly open convicted by the trial court. 12. After hearing both the parties and after going through the evidence, I find that as per the allegation of rape and snatching of ear-ring and nose-ring of the victim lady, Sumitra Devi (P.W. 7) is concerned, none of the prosecution witnesses In cross-examination has supported the same. As stated above, P.W. 1, Dwarika Singh and P.W.3, Munni Mahto have stated nothing about the occurrence and they declared hostile and P.W. 2, Rajgir Mistri was tendered for cross-examination. In that view of the matter, the prosecution is left with only five witnesses. P.W. 4, Dr. Smt. Shail Sinha found the victim lady aged about 22 to 25 years and stated that she found no injury in the person of victim lady and she also opined that she found no sign of recent rape or sexual intercourse in the private part of the victim lady. 13. P.W. 5, Ram Jatan Mistri stated that some fight took place between the informant, Sumitra Devi and the accused, Budhan Baitha with regard to payment of nariya tiles, which were supplied by the accused, but no rape was committed upon her. P.W. 6, Shanti Devi also stated that there was some fight between the informant, Sumitra Devi and the accused, Budhan Baitha with regard to payment of nariya tiles and in the night she heard no hulla and no rape was committed upon her. P.W. 8, Shambhu Nath Verma is the I.O. who stated that except the informant none of the witnesses examined by him has supported the case of the rape. P.W. 9, Udeshwar Singh IS the Chowkidar of the village, has also stated that Sumitra Devi never stated of any rape committed upon her and after one day of occurrence, he alongwith the informant went to the police station for lodging the case with regard to fight and assault committed upon her by the accused with regard to payment of nariya tiles. Thus, none of the prosecution witnesses have supported the case of Sumitra Devi, P.W. 7 with regard to rape upon her. 14. Now, in that situation, the only witness who supports the case of rape is P.W. 7 herself. P.W. 7 has stated in Court that in the night of the occurrence when she was sleeping in her house with her minor son, then at about 11 P.M., she woke-up after hearing the sound of breaking of nariya tiles and when she came out then suddenly the accused, Budhan Baitha carne near her and at the point of pistol he threw her on the cot and committed rape upon her. She stated that she made no hulla as he had closed her mouth and after the occurrence he gave her threats that if she will make hulla of the Occurrence, then she will be killed. Thereafter, he snatched her ear-ring and nose-ring. In the night she made no complaint to anybody. In Para 3, she stated about the occurrence and went to police station after one day, but the I.O. refused to register the case. Then, she went to S.P. at Daltonganj. Thereafter, the I.O. came after one week and recorded her statement. In her cross-examination, she had stated at Para 10 of the deposition that there IS only one cot in her house and she was sleeping with her son, Arvind who was aged about 5 years and by Para 11 of the deposition, she had stated that when the accused threw her on the cot, then her son started weeping and he (son) continuously kept on weeping till the rape was going on, but nobody came from the neighborhood. At Para 12 in her deposition, in the morning, she stated about the occurrence to Bigu Sao and Dwarika Singh and she also stated the occurrence of rape to the village choukidar, Udeshwar Singh and at Para 14 of the deposition, she stated that due to snatching of earring and nose-ring she had got mjuries on her nose and ear. 15. Now, the statement of the prosecutrix has to be analyzed cautiously. It appears from Para 12 of her statement that she stated about the occurrence to Dwarika Singh and Bigu Sao. 15. Now, the statement of the prosecutrix has to be analyzed cautiously. It appears from Para 12 of her statement that she stated about the occurrence to Dwarika Singh and Bigu Sao. Bigu Sao was not examined by the prosecution and Dwarika Singh, who was examined as P.W. 1, stated that no occurrence of rape took place and he knows nothing about the occurrence. He stated that only some verbal hot talk took place between the Sumitra Devi and Budhan Baitha. P.W. 9, Udeshwar Singh, the Chowkidar of the village has also stated in Para 7 that no occurrence of rape took place with Sumitra Devi and she never stated anything about the rape committed upon her. P.W. 7, Sumitra Devi stated about Para 11 that she woke-up on hearing the sound of breaking of nariya / tiles but the I.O., who is examined as P.W. 8, stated in Para 13 that at the place of occurrence he found no broken nariya tiles. The prosecutrix, P.W. 7 has stated in Para 14 that she received injury on her nose and ear due to snatching of earring and nose-ring, but Dr. Smt. Shail Sinha, P.W.4 found no injury on her person and I.I. stated very cleary in his statement at Para 14 that he found no injury on the nose and ear of Sumitra Devi at the time of recording her statement. 16. Thus, the statement of the prosecutrix is full of doubt and her statement is not wholly reliable and in that view of the matter, in my opinion, the accused, appellant, Budhan Baitha is entitled to get benefit of doubt which is given to him. 17. Accordingly, the appellant is granted the benefit of doubt and acquitted from the charges leveled against him and the judgment and order of conviction and sentence passed by Sri Mazhar Imam, learned 7th Additional Session Judge, Palamau at Daltonganj is set aside and the appeal is allowed. 18. The appellant is on bail, so, he is directed to be released from the bondage of his bail bond.