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2012 DIGILAW 1174 (PAT)

Munsi Prem Chand Singh v. Habri Devi @ Kanti Devi

2012-08-24

ASHWANI KUMAR SINGH

body2012
ASHWANI KUMAR SINGH, J.:–Heard the parties. In Cr.Appeal(SJ)No.249 of 1995 the appellants are Habri Devi @ Kanti Devi, Vijay Singh @ Vijay Kumar Singh, Indu Devi and Birendra Singh @ Viso. In Cr.Appeal(SJ)No.247 of 1995 the appellants are Munsi Prem Chand Singh and Gopal Singh. Both the appeals are directed against the judgment and order dated 29.11.1995 passed by the learned 5th Additional Sessions Judge, Samastipur, in Sessions Trial No.8 of 1995/13 of 1995. The trial court has convicted all the six appellants for the offence punishable under Section 366 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for three years each. So far as the appellants Munsi Prem Chand Singh and Gopal Singh are concerned, they have further been convicted for the offence punishable under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years each. However, the sentences have been ordered to run concurrently. It is to be noted here that the appellant Gopal Singh was also charged for the offence punishable under Section 379 of the Indian Penal Code but the trial court on appreciation of evidence acquitted him of the aforesaid charge. 2. The prosecution case, in brief, according to the informant Parmanand Choudhary (P.W.3) is that on 31.10.1993 his daughter Bandana Devi (P.W.10), aged about 16 years, who had been married about three years back in village-Bambaiya, had gone to see a film to Dalsingsarai along with the appellants Habri Devi, and her daughter Indu Devi but, did not return to the house till late in the evening. The informant states that he along with his wife, namely, Bina Devi(P.W.8), went to the house of the appellant Habri Devi and enquired about his daughter. The appellants Habri Devi @ Kanti Devi and Indu Devi told them that she has gone to her Nanihal but when she did not return for 2-3 days then the informant went to his Sasural to enquire about his daughter. However, when he reached there he came to know that the victim had not gone there. Thereafter, he went to the matrimonial house of his daughter and informed them about the incident. His son-in-law Kamalkant Jha was engaged in some job at Jalandhar and as such, he was not available there in his village. However, when he reached there he came to know that the victim had not gone there. Thereafter, he went to the matrimonial house of his daughter and informed them about the incident. His son-in-law Kamalkant Jha was engaged in some job at Jalandhar and as such, he was not available there in his village. The information was given to his elder brother Sobhakant Jha who also made his efforts to search the daughter of the informant at different places but the victim could not be traced. Ultimately, the informant reported the matter to the police on 09.11.1993, alleging therein, interalia, that he has reason to believe that the appellants Habri Devi @ Kanti Devi and Indu Devi have managed the abduction/kidnapping of his daughter. The informant has also mentioned in his report to the police that the witnesses Bina Devi, Siyaram Choudhary, Ramsagar Choudhary, Chandrakala Devi and Ramchandra Choudhary have also seen the victim going along with the appellants Habri Devi @ Kanti Devi and Indu Devi. 3. On the basis of the aforesaid statement of the informant, Dalsingsarai P.S.Case No.133 of 1993 dated 09.11.1993, was registered for the offence punishable under Sections 366 and 366A of the Indian Penal Code against the appellants Habri Devi @ Kanti Devi and Indu Devi and investigation was taken up. It is relevant to note it here that the fardbeyan of the informant was recorded by P.W.11 Yashwant Kumar Singh who himself took up the investigation of the case. 4. In course of investigation, the victim Bandana Devi was recovered. She was produced before a Judicial Magistrate and her statement under Section 164 of the Code of Criminal Procedure was recorded. The police, on conclusion of the investigation, submitted chargesheet in the case on 05.02.1994. The appellants were sent up for trial. The learned Magistrate before whom the police report was submitted took cognizance of the offence and after supply of the police papers in terms of Section 207 of the Code of Criminal Procedure, the learned Magistrate committed the case to the court of Sessions for trial. 5. The trial court framed charge under Sections 366 and 366A of the Indian Penal Code against all the six appellants. The appellants Gopal Singh and Munsi Prem Chand Singh were further charged separately for the offence punishable under Section 376 of the Indian Penal Code. 5. The trial court framed charge under Sections 366 and 366A of the Indian Penal Code against all the six appellants. The appellants Gopal Singh and Munsi Prem Chand Singh were further charged separately for the offence punishable under Section 376 of the Indian Penal Code. The appellant Gopal Singh was also charged for the offence under Section 379 of the Indian Penal Code. The appellants did not plead guilty to the charges and claimed to be tried and as such the trial commenced. 6. The prosecution, in order to prove its case, in all, examined 13 witnesses. Out of the witnesses examined on behalf of the prosecution P.W.4 Chandradeo Singh, P.W.12 Rambihari Singh and P.W.13 Kamal Choudhary are formal witnesses. They have proved the fardbeyan, the medical report and the protest petition which have been marked as Exts-2, 3 and 4 respectively. P.W.2 Lal Babu Choudhary and P.W.7 Devendra Choudhary have been declared hostile by the prosecution. P.W.5 Jay Narayan Choudhary, P.W.6 Ram Shankar Chaudhary and P.W.9 Raj Bali Chaudhary without being examined by the prosecution have been tendered for cross-examination. 7. P.W.1 Ashok Kumar, the nephew of the informant in his examination-in-chief, states that on the date of occurrence he had seen the victim going together with the appellants Habri Devi @ Kanti Devi and Indu Devi. He learnt about the incident of occurrence after 3-4 days. In cross-examination, he states that the victim was married five years ago. After the marriage, she was residing in her matrimonial house. 8. P.W.3 Parmanand Choudhary is the informant of the case. His daughter Bandana Devi went together with the appellants Habri Devi @ Kanti Devi and Indu Devi. He states that at that time he was working in his field. He came to know subsequently from his wife that his daughter had gone together with the aforesaid Habri Devi @ Kanti Devi and Indu Devi to see cinema. He has disclosed the age of his daughter to be between 15-16 years. He further states that his daughter came back after about two months and then, he came to know that the appellants had abducted her. He has proved his signature on the fardbeyan which has been marked as Ext-1. 9. P.W.8 Bina Devi is the wife of the informant and mother of the victim. He further states that his daughter came back after about two months and then, he came to know that the appellants had abducted her. He has proved his signature on the fardbeyan which has been marked as Ext-1. 9. P.W.8 Bina Devi is the wife of the informant and mother of the victim. She states in her deposition that on the relevant date and time of occurrence at about 11 a.m. the appellants Habri Devi @ Kanti Devi and Indu Devi came to her house. They persuaded her daughter to go together with them to see cinema. She states that since the appellant Indu Devi was a friend of her daughter, she allowed her to go with them. When she did not return till 7 p.m. she went to the house of the appellant Habri Devi @ Kanti Devi and enquired about her daughter, whereupon, both the appellants Habri Devi @ Kanti Devi and Indu Devi told that her daughter had gone to her Nanihal. On the next day, her husband went to his Sasural and enquired about the victim Bandana Devi. He was told that the victim Bandana Devi had not reached there. Thus, they suspected that the appellants Habri Devi @ Kanti Devi and Indu Devi were instrumental in abducting their daughter. She states that her daughter was recovered after two and half months and when she came back she came to know that the appellants Munsi Prem Chand Singh and Gopal Singh had committed rape upon her. 10. P.W.10 Bandana Devi is the victim. She is the most important witnesses in this case. She states that the appellants Habri Devi @ Kanti Devi and Indu Devi came to her house and requested her to accompany them to see cinema. She took permission from her mother and thereafter went together with them in order to see cinema. After the show was over and when they came out of the cinema hall, the appellants Vijay Singh @ Vijay Kumar Singh, Birendra Singh @ Viso and two others, namely, Siyaram Choudhary and Sachidanand Singh met them. They requested to accompany them to village-Samsa in order to see a theatre performance. Thereafter, all of them proceeded in a jeep to village-Masoorchak Samsa. When they reached there, they met the appellants Munsi Prem Chand Singh, Gopal Singh and others including one Mukesh Singh. The appellant Gopal Singh put a pistol upon her. They requested to accompany them to village-Samsa in order to see a theatre performance. Thereafter, all of them proceeded in a jeep to village-Masoorchak Samsa. When they reached there, they met the appellants Munsi Prem Chand Singh, Gopal Singh and others including one Mukesh Singh. The appellant Gopal Singh put a pistol upon her. Thereafter, Gopal Singh and Mukesh Singh relieved her of her ornaments and watch. The appellants Habri Devi @ Kanti Devi and Indu Devi handed over her to the custody of the appellants Gopal Singh, Munsi Prem Chand Singh and said Mukes Singh and went away. Thereafter, they took her to Bachwara by train. She travelled by train for the whole night. In the morning she got off the train, when it pulled into a station and then she was taken to a house where she was confined in a room. She further states that the appellants Munsi Prem Chand Singh and Gopal Singh and one Mukesh Singh also started living together with her in the same room. They committed rape upon her continuously for about ten days. Thereafter, the accused persons fought together and appellants Munshi Prem Chand Singh, Gopal Singh and Mukesh Singh went away leaving her in the room, thus, finding an opportune moment, she also escaped from the room and came to the railway station. She came to know that it was Chapra railway station. She got on a train and came to Dalsingsarai. She, thereafter, came to Dalsingsarai police station and narrated the entire story to the police. She states that the police did not record her statement. She states that thereafter she was taken to a medical board at Dalsingsarai where she was medically examined. She was then taken to Samastipur where her statement was recorded by a Judicial Magistrate. She states that the appellant Munsi Prem Chand Singh is the son-in-law of the appellant Habri Devi @ Kanti Devi and the appellant Gopal Singh is his friend. She denies that she out of her own free will married together with Mukesh Singh. She states that her signature was taken on 4-5 blank sheets of paper. She has been cross-examined at length. In cross-examination, she admits that before the Magistrate she had not stated that Mukesh Singh had put pistol over her and took her signature forcibly on blank sheets of paper. She states that her signature was taken on 4-5 blank sheets of paper. She has been cross-examined at length. In cross-examination, she admits that before the Magistrate she had not stated that Mukesh Singh had put pistol over her and took her signature forcibly on blank sheets of paper. She further admits that Bachwara is at a distance of four kilometers from Samsa. She boarded the train at Bachwara at about 8 p.m. She states that she does not know whether Bachwara is a junction or not. She admits that she remained at Bachwara railway junction for about half an hour but there was no other passenger even at the railway station. She further states that there was no passenger even in the compartment in which she was travelling. She states that when she got off the train, she did not find any passenger even at the Chapra railway station. However, she admits that before reaching Chapra, the train had pulled in at Hajipur and Sonepur railway stations. The train halted at those stations for some time and thereafter proceeded ahead. She further admits that she was taken to a distance of about half a kilometer from the Chapra railway station. She admits that first of all, it was the appellant Munsi Prem Chand Singh who left the house after ten days and after about one month and 20 days the appellant Gopal Singh also left the house in which she was confined. Thereafter, she was living together with one Mukesh Singh. Mukesh Singh used to commit rape upon her every day. She admits that when she came out of confinement, she did not disclose about the incident to any one. She straightway came to the Chapra railway station and caught a train. In the train, though there were several passengers, she did not disclose about the occurrence to any one. She then reached to Samastipur. There also she did not make any disclosure. Ultimately, she reached Dalsingsarai. She got off the train at Dalsingsarai and straightway went to the police station and narrated the police about the occurrence. She denies the defence suggestion that she was recovered by the police at National Highway in a hotel. She also denies the defence suggestion that she made no statement before the police. Ultimately, she reached Dalsingsarai. She got off the train at Dalsingsarai and straightway went to the police station and narrated the police about the occurrence. She denies the defence suggestion that she was recovered by the police at National Highway in a hotel. She also denies the defence suggestion that she made no statement before the police. She also denies the defence suggestion that she out of her own free will had eloped with one Mukesh Singh and had also swore an affidavit before the Notary Public, Hajipur affirming her marriage with Mukesh Singh on oath. She, however, admits in cross-examination that she had taken Rs.20/- from her mother for watching movie show. When her attention was drawn towards her previous statement made before the Magistrate, she admits that she had not disclosed before the Magistrate that the appellants Munsi Prem Chand Singh, Gopal Singh and aforesaid Mukesh Singh lived together with her in the same room in which she was confined and they committed rape upon her regularly. She also admits that she had not stated before the Magistrate that the appellants Munsi Prem Chand Singh, Gopal Singh and said Mukesh Singh fought among themselves and went away leaving the room open as a result of which she could manage to escape. 11. P.W.11 Yashwant Kumar Singh is the investigating officer of the case. While deposing in court, he admits that on 12.01.1994, the victim P.W.10 Bandana Devi was recovered at 8.30 a.m. from a tea stall situated at Pagramore on National Highway-28. He also admits that the victim made no statement before him. According to him, the victim was first taken to the Sub Divisional Hospital, Dalsingsarai for her medical examination on 31.01.1994. She was, thereafter, produced before the Magistrate for her statement to be recorded under Section 164 of the Code of Criminal Procedure. He states that subsequently he received the medical report and on conclusion of the investigation, submitted chargesheet in the case. The medical report has been proved by P.W.12, namely, Raj Bihari Singh. The doctor who examined her has not been examined in court. The doctor has assessed her to be aged between 17-19 years. According to the medical report on the basis of vaginal swab report, no sexual intercourse had been done recently. However, as per medical report the victim was used to sexual intercourse. 12. The doctor who examined her has not been examined in court. The doctor has assessed her to be aged between 17-19 years. According to the medical report on the basis of vaginal swab report, no sexual intercourse had been done recently. However, as per medical report the victim was used to sexual intercourse. 12. From the trend of cross-examination of the witnesses, it is apparent that the defence has taken a plea that the appellant Gopal Singh has been implicated at the instance of Mukesh Singh with whom he was on inimical terms on account of collection of toll at Samsa bus stand. From the trend of cross-examination, it also appears that the defence has taken a plea that the appellant Munsi Prem Chand Singh has been implicated on account of enmity and land dispute. It is submitted on behalf of the appellants that the witnesses to the FIR, namely, Siyaram Choudhary, Ramsagar Choudhary, Chandrakala Devi and Sriram Choudhary have not been examined by the prosecution in course of trial. They were all independent witnesses. There is no reasonable explanation as to whey they have not been examined by the prosecution in course of trial. 13. It is further submitted that the story propounded by the prosecution is not worthy of any credence. Admittedly as per the evidence, the victim went together with appellants Habri Devi @ Kanti Devi and Indu Devi to see cinema. She was neither abducted nor kidnapped. She went together with them out of her own free will. P.W.8 Bina Devi, the mother of the victim categorically admits in her deposition that she permitted the victim to go together with the appellants Habri Devi @ Kanti Devi and Indu Devi. The victim herself states that she took Rs.20/- from her mother for watching movie show. Thus, it is submitted that it is apparent from the evidence that no force was used when the victim went together with Habri Devi @ Kanti Devi and Indu Devi to see cinema. What happed thereafter is a mystery. The victim states that she was forcibly lifted in a jeep, taken to railway station Bachwara and from Bachwara she travelled upto Chapra by train. What happed thereafter is a mystery. The victim states that she was forcibly lifted in a jeep, taken to railway station Bachwara and from Bachwara she travelled upto Chapra by train. She got off the train at Chapra railway station and was taken to a house which is situated at a distance of half a kilometer by the appellants Gopal Singh, Munsi Prem Chand Singh and one Mukesh Singh. She was kept in confinement for about two and half months. Learned counsel for the appellants submits that the victim has not stated a word in her deposition that she was unconscious at any point of time and as such, it is highly unbelievable that a grown up lady aged between 17 to 19 years would have travelled by public conveyance from one place to another and would not have resisted or made shouting for her release. The submission is that the sequence of events suggests that the victim eloped out of her own free will. She was moving from one place to another without any protest. 14. After hearing the parties, I am of the view that the victim is not coming out with a truthful story. In her deposition, she states that when she managed to escape from the captivity of the accused persons. She out of her own came to the police station and narrated about the incident. The investigating officer, on the other hand clearly admits in his deposition that when he learnt that the victim has been seen in and around National Highway-28, he immediately proceeded to that direction in order to recover her. He located her at a tea stall situated at Pagaramore on National Highway-28. She was then taken to the police station. This clearly shows that that victim is more interested in concealing than revealing the truth. It is surprising that the victim made no statement before the police pursuant to her recovery. However, she was produced before the Magistrate, where, her statement was recorded under Section 164 of the Code of Criminal Procedure. The prosecution has not brought on record the statement of the victim recorded under Section 164 of the Code of Criminal Procedure. The Magistrate who recorded her statement under Section 164 of the Code of Criminal Procedure has also not been examined. The prosecution has not brought on record the statement of the victim recorded under Section 164 of the Code of Criminal Procedure. The Magistrate who recorded her statement under Section 164 of the Code of Criminal Procedure has also not been examined. However, when the victim was being cross-examined she admits that she had not stated major part of the story narrated by her in her deposition in court in her previous statement made before the Magistrate under Section 164 of the Code of Criminal Procedure. Under such circumstance, in my view, it would be unsafe to rely upon the ocular testimony of the victim in order to hold the appellants guilty for the offence under which they have been charged. 15. I further find force in the argument advanced on behalf of the appellants that the conduct of the victim makes her a highly unreliable witness. It is unbelievable that she was travelling from one place to another by public conveyance like train without her express consent. There is no evidence that she was unconscious while travelling. She waited for about half an hour at Bachwara railway Junction to catch train. She got on a train which stopped at Hajipur and Sonepur railway station before reaching Chapra Junction. She got off the train at Chapra Railway Station and walked some distance to reach the house where she was allegedly kept in confinement. She made neither any shouting nor resisted or protested in any manner. The story leads to only one conclusion that the victim was moving from one place to another out of her own free will. 16. I further find that though the alleged occurrence is said to have taken place on 31.10.1993 but the matter has belatedly been reported to the police on 09.11.1993. One can understand non-reporting of the FIR for 2-3 days as the story given by the prosecution witnesses is that when the informant went to the house of the appellants Habri Devi @ Kanti Devi and Indu Devi they disclosed that the victim had gone to her Nanihal but the informant states that after waiting for 2-3 days he went to his Sasural in order to enquire about the whereabouts of his daughter and he was told that she had not reached there. 17. 17. I further find that the wife of the informant P.W.8 Bina Devi states that in her deposition in court that on the very next day of the occurrence her husband went to his Sasural to enquire about the whereabouts of his daughter. Thus, in any circumstance, after 2-3 days, the informant and his wife were fully aware of the fact that their daughter was missing under mysterious circumstances. There is no reasonable explanation on behalf of the prosecution, as to why, the matter was not promptly reported to the police, thereafter. 18. I find from the evidence that the victim together with aforesaid Mukesh Singh swore an affidavit before the Notary Public, Hajipur, Vaishali in which it has been contended that they fell in love with each other, got married in a temple voluntarily and are living together as husband and wife. The victim has proved her signature on the said affidavit in course of trial which has been marked as Ext-A. It is true that in her deposition she states that her signature was taken forcibly on blank sheets of paper but the circumstances discussed above creates doubt about the truthfulness of the witness. 19. Considering the facts and circumstances of the case, in my view, the prosecution has not been able to prove its case beyond reasonable doubt. In the result, both the appeals succeed. The impugned judgment and order dated 29.11.1995 passed by the learned 5th Additional Sessions Judge, Samastipur in Sessions Trial No.8 of 1995/13 of 1995 are set aside. The appellants, who are on bail, are discharged from the liabilities of their bail bonds. 20. Let a fee of hearing be paid by Patna High Court Legal Services Committee to Mr. Jitendra Narain Sinha, learned Amicus Curiae, who has argued the appeal on behalf of the appellants Munsi Prem Chand Singh and Gopal Singh in Cr.Appeal (S.J) No.247 of 1995.