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2013 DIGILAW 1042 (PAT)

Baiju Mahto v. State of Bihar

2013-08-23

AKHILESH CHANDRA

body2013
JUDGMENT 1. Heard the learned counsels appearing on behalf of the parties. 2. The solitary appellant, namely, Baiju Mahto, has preferred this appeal against his conviction for the offence punishable under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years as awarded on 08th April, 1999 by learned Additional Sessions Judge, Hilsa (Nalanda) in Sessions Trial No. 228 of 1989 arising out of Hilsa (Harijan) P.S. Case No. 147 of 1987 (G.R. No. 207 of 1987). 3. At the outset, it is relevant to mention that in this case apart from the statements of three prosecution witnesses, there is no documentary evidence on behalf of either of the side and even the defence has not examined any witness. However, the prosecution case as reveal from the formal First Information Report recorded at 13.00 hours on 07.09.1987 (Monday) containing Fardbeyan of the prosecutrix Sita Devi (P.W.-3) is that she in injured state along with her husband and mother-in-law (both not examined) a day before at about 9.00 a.m. after taking her meal she had gone to Phulhara Khandha for cutting grasses and while she was performing her job in the filed of Rameshwar @ Rameshwar Mahto at about 11.00 a.m. the appellant came there with a Lathi and started putting some questions about her identity, subsequently, abusing. Thereafter, on protest being raised immediately he (appellant) changed his attitude, attempted to be closure with her, she on smelling some foul play immediately stood up and found some persons doing their jobs in nearby field at short distance. The appellant started making attempt to outrage her modesty and ultimately succeeded in committing rape with her and during the course while resisting, she also gave teeth-bite on his hands and raised alarm. Thereon, Ramchandra Paswan (P.W.-1) and Nageshwar Yadav (not examined) along with others arrived and on seeing their arrival the appellant after giving two blows of Lathi to her fled away. Further, she stated that the appellant has been in habit of committing such wrongs with others. 4. The police after investigation submitted charge-sheet, case has committed and the appellant was put on trial for the offence punishable under Sections 323 and 376 of the Indian Penal Code. In order to substantiate the charges, as stated, only three prosecution witnesses have been examined without any documentary evidence. 4. The police after investigation submitted charge-sheet, case has committed and the appellant was put on trial for the offence punishable under Sections 323 and 376 of the Indian Penal Code. In order to substantiate the charges, as stated, only three prosecution witnesses have been examined without any documentary evidence. The trial court on consideration of the materials acquitted the appellant for the offence punishable under Section 323 of the Indian Penal Code, but convicted and sentenced him for the offence punishable under Section 376 of the Indian Penal Code, which gives rise to instant appeal. 5. As stated above, the case was instituted a day after the occurrence on Monday indicating the occurrence had taken place on Sunday. P.W.-1, Ramchandra Paswan has come to say that the occurrence taken place on Sunday and he arrived at the site on alarm being raised and found her in some awkward condition, who stated about the wrong committed with her by the appellant. In cross-examination, he has stated about the victim lying at the corner of Aahara. He further states about appellant assaulting the victim, and lastly, states that after due deliberation case was instituted. 6. P.W.-2, Nageshwar Yadav, likewise P.W.-1, has stated almost similar thing with only difference that he could found the victim lying on a Paine belonging to Rameshwar Mahto. He further admits in cross-examination in paragraph-6 that before him P.W.-1 had arrived their and in same paragraph further states that on the day of occurrence itself case was instituted. 7. If it is so, the First Information Report must have been instituted on 06.09.1987 (Sunday), but the same indicate its institution on 07.09.1987 (Monday) and the victim (P.W.-3) while stating the prosecution case, contrary to earlier two witnesses, has come to say that the occurrence taken place on Monday (07.09.1987) that means on the date when case was instituted, which is the statement as regard to institution of the case is of P.W.-2, but not of P.W.-1. In cross-examination, the victim (P.W.-3) in paragraph nos.- 5 & 6 also states about her going to police station from the place of occurrence itself for her medical examination etc. and institution of the case on the day of occurrence itself. 8. In cross-examination, the victim (P.W.-3) in paragraph nos.- 5 & 6 also states about her going to police station from the place of occurrence itself for her medical examination etc. and institution of the case on the day of occurrence itself. 8. On careful examination of the statements of all these three witnesses, who are not consistent even about the day of occurrence and institution of the case as to whether it was done on the day of occurrence itself or a day thereafter. 9. Apart from above inconsistency this is consistent case of the prosecution that the victim had gone there at the place of occurrence to cut grass, which can only be done either by Khurpi or Hasuwa and both these instruments are sharp edged, but none of the witnesses including the victim have said about any serious protest, specially, the victim in spite of having a substantial instrument with her never used or even tried to use the same in order to save her prestige, if at all, it was in danger. At the relevant time, the victim appears aged about 30 years, which is not a case that she was incapable to seriously resist. The testimony of the victim does not inspire confidence upon the prosecution case. 10. Apart from the above, there is no explanation for non-examination of the Investigating Officer and the Doctor/non-production of injury report and further there appears no explanation for making delay in placing the First Information Report before the court below, which does not indicate that the case was instituted on 07.09.1987 and it was transmitted for court on 08.09.1987, but placed only on 11.09.1987 i.e. the date of first order-sheet of the court of Sub-Divisional Judicial Magistrate. Such unexplained delay also creates doubt against the prosecution version. 11. Having regard to the facts and circumstances discussed above, the judgment of conviction and order of sentence passed against the appellant as recorded by the trial court is not at all sustainable here rather the appellant deserves benefit of doubt. Accordingly, the judgment of conviction and order of sentence dated 08th April, 1999 passed in Sessions Trial No. 228 of 1989, is set-aside and the appeal is hereby allowed. The solitary appellant, namely, Baiju Mahto, is set free from the liability of bail-bond furnished on his behalf. Appeal allowed.