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2010 DIGILAW 488 (JHR)

Elbish Guriya v. State of Jharkhand

2010-04-19

AMARESHWAR SAHAY

body2010
Order By Court.-This appeal has been filed from jail by the convict-appellant Elbish Guriya against the judgment dated 24.11.2003 passed by the Additional Judicial Commissioner-II, Khunti in Sessions Trial No. 236 of 2001, whereby and where under the learned trial court convicted the appellant for committing the offence under Sections 376 and 448 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and six months respectively. However, both the sentences were ordered to run concurrently. 2. In short, the prosecution case is that the victim lady Magdali Guriya, aged about 40/50 years, said to have been raped by her own brother-in-law (Dewar) i.e. the appellant on 29.7.2000, while she was in her house at about 5.00 p.m. According to her, the appellant entered into her house and thereafter forcibly committed rape on her. At that time, her daughter Rahila Guriya (now dead) was also present and she saw the occurrence. She raised hulla, at this her husband Francis Guriya (P.W. 3) came running, and caught the appellant but he managed to escape away. According to the prosecution, the occurrence was reported to village Munda Banjamin Chaimpiya (not examined) and then a Panchayati was convened, but the appellant did not attend the Panchayat. Thereafter the informant reported the matter to the police on 9.8.2000 i.e. after 11 days of the occurrence and then a first information report was registered. The victim lady was medically examined by the doctor (P.W. 2). 3. The police after completion of the investigation submitted charge-sheet and the appellant was put on trial. During the trial, altogether five witnesses were examined. P.W. 1 is the victim lady. P.W. 2 is the Dr. Umeshwar Kumari, who medically examined the victim lady. P.W. 3 is her husband. P.W. 4 and P.W. 5 are the witnesses, who came to know about the occurrence from the informant victim lady. The Investigating Officer has not been examined in this case. The trial court on the basis of the evidence and materials on record, convicted and sentenced the appellant as already noticed hereinabove. 4. Learned counsel for the appellant submitted that though the prosecution miserably failed to establish the charges against the appellant beyond all reasonable doubts but even though the trial court wrongly and illegally convicted the appellant for the aforesaid charges. 5. 4. Learned counsel for the appellant submitted that though the prosecution miserably failed to establish the charges against the appellant beyond all reasonable doubts but even though the trial court wrongly and illegally convicted the appellant for the aforesaid charges. 5. On the other hand; learned A.P.P. supported the conviction and sentence passed by the trial court by submitting that the prosecution established the charges against the appellant, therefore, he was rightly convicted and sentenced by the trial court. 6. In order to test the submission advanced by the respective parties, I have carefully gone through the evidence of the prosecution witnesses. P.W. 1 is the victim lady who has stated her age to be 40 years where as the doctor who medically examined her found her to be aged about 50 years. As per the medical report, the hairs of the head of the victim lady were getting grey. She had no teeth either in the upper or in the lower jaw. Therefore, it appears that the victim lady was quite an old lady. She in her evidence has stated that while she was sitting with her daughter in her house at about 5.00 p.m. in the evening, the appellant came there and committed rape on her in presence of her daughter. The said daughter, however, died before she could be examined in the case. She reported the matter to the Panchayat, but the appellant did not attend the said Panchayat, ultimately she reported the matter to the police. The story put forward by the victim lady does not appear to be believable and her evidence also does not appear to be trustworthy because of the fact that she chose to lodge the first information report for the alleged occurrence after about 11 days. She tried to explain the delay by stating that she reported the matter to the Panchayat but when the appellant did not attend the .Panchayat and no decision was taken there, then she reported the matter to the police. No Panchayat people even the village Munda to whom she reported has been examined in this case. Therefore, the story of reporting the matter to the Panchayat becomes doubtful. No Panchayat people even the village Munda to whom she reported has been examined in this case. Therefore, the story of reporting the matter to the Panchayat becomes doubtful. Secondly, that the appellant is none else than her own brother-in-law i.e the younger brother of her husband• and it does not appear to be believable that he would commit rape upon his old aged sister-in-law (Bhabhi) that also in the evening at about 5.p.m. in the presence of his niece aged about 10 years. This story further becomes unreliable in view of the fact that the prosecutrix has admitted in her evidence that there was some dispute with the appellant with regard to partition of the family properties. Her evidence further is unreliable because the medical evidence does not support her version. No sign of any injury of any kind was found on her person. The evidence of P.W. 4 and P.W. 5 also cannot be relied on since the victim lady did not state in her evidence that she narrated the story of rape to them whereas P.W. 4 and P.W. 5 in their evidence have stated that they were informed about the occurrence by the victim lady. Therefore, it appears that the prosecution has tried to exaggerate and develop the story from• one stage to other. 7. For the reasons stated above, I find that the trial court has gravely erred in convicting the appellant for the offence under Sections 376 and 448 of the Indian Penal Code on such unbelievable and unreliable evidence. 8. In the result, this appeal is allowed. The judgment of conviction and sentence passed by the trial court is hereby set aside. The appellant, named above, is acquitted from the charges levelled against him. It is reported that the appellant has already served out the sentence. Be that as it may, if the appellant is still in custody, he is directed to be released forth with, if not wanted in any other case.