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2013 DIGILAW 1338 (PAT)

Ranjay Kumar @ Ranjay Thakur v. State of Bihar

2013-11-26

I.A.ANSARI, V.N.SINHA

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JUDGMENT : I.A. Ansari, J. This appeal is directed against the judgment, dated 13.11.2007, and order, dated 20.11.2007, passed by the learned Additional Sessions Judge, Fast Track Court No. IV, Muzaffarpur, in Sessions Trial No. 622/2006, whereby the appellant has been convicted under Section 376, IPC and, in consequence of his conviction, he has been sentenced to suffer imprisonment for life with fine of Rs. 10,000/- (ten thousand only) and, in default of payment of fine, undergo rigorous imprisonment for one year. 2. The case of the prosecution, as unfurled at the trial, may, in brief, be described as under : (i) The victim, X, daughter of PW 3, was sleeping, on a cot, at the verandah of her parental house, in the evening of 25.4.2006. Because of the fact that a marriage was being solemnized, at a house, in the neighbourhood, PW 3, mother of X, went to witness the marriage ceremony leaving her daughter, X, sleeping as mentioned hereinbefore. With her daughter, X, PW 3 also left her mother (PW 1), that is, grand mother of the said child, X. The accused came to the house of PW 3 and lied down, on the cot, by the side of X. This was resented by PW 1, grand-mother of X, and though she asked the accused not to lie down on the cot, the accused continued to keep lying on the said cot. PW 1, then, went inside the house to attend to her household works, and when she came out, she saw the accused taking away X. PW 1, then, informed PW 3 and other co-villagers about what the accused had done. (ii) On coming to know that the accused had taken away her 2-1/2 years daughter, X, PW 3 and her co-villagers started a search for the accused and also the said missing child. The said child could not be found on the night of the occurrence, i.e. on 25.4.2006; but on the following day, in the morning, she was found lying in the bushes at some distance from her house. The missing child, X, was, then, brought home and she was found to have sustained injuries on her person including injuries on her private parts. The missing child, X, was, then, brought home and she was found to have sustained injuries on her person including injuries on her private parts. The child, X, was, then carried to the doctor, who treated the child whereupon an information in this regard was given to the police which led to the registration of a case under Section 376, IPC, against the accused. On completion of investigation a charge-sheet was laid under Section 376, IPC, against the accused. 3. To the charge, framed under Section 376, IPC, at the trial, the accused pleaded not guilty. 4. In support of their case, prosecution examined altogether 8 (eight) witnesses. The accused was then examined under Section 313 (1) (b), Cr PC and in his examination aforementioned the accused denied that he had committed the offence, which was alleged to have been committed by him the case of the defence being that of total denial. No evidence was adduced by the defence. 5. Having, however, concluded that the accused had been proved guilty of the charge which had been framed against him learned trial Court convicted him accordingly and passed sentence against him as already mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as a convicted person has preferred this appeal. 6. We have heard Mr. Vikram Deo Singh, learned counsel, appearing on behalf of the accused-appellant and Mr. Ashwani Kumar Singh, learned Additional Public Prosecutor for the State. 7. While considering the present appeal, it needs to be pointed out at the very outset that the fact that the said child was found to have sustained injuries on her person has not been in dispute at the trial. In fact, the evidence of the doctor (PW 7) was that on 28.4.2006, he had examined the victim girl, X, and found external injuries on her body including marks of scratches by nail. The doctor (PW 7) has also deposed that he had found swelling, bruises and laceration on the vaginal part of the body, which was bleeding, and that the age of the victim girl was between 2 and 3 years. The medical examination report has been proved as Exhibit-1. 8. In the light of the medical evidence on record, there can be no doubt that the child, X, was subjected to sexual assault. 9. The medical examination report has been proved as Exhibit-1. 8. In the light of the medical evidence on record, there can be no doubt that the child, X, was subjected to sexual assault. 9. The question, however, is whether it was the accused-appellant, who had sexually assaulted the said child? 10. Our search for answer to the above question brings us to the evidence of PW 1, grand-mother of the said child, who is, admittedly, the sole witness to the alleged occurrence. According to her evidence, given in the examination-in-chief, she was, on 25.4.2006, at about 8 p.m., at her residence, the said child, X, was sleeping along with her mother (PW 3) on a cot and, leaving her daughter, X, sleeping, PW 3 went to see marriage ceremony of her neighbour and, in the meantime, the accused arrived there and lied down by the side of the victim on the cot. It is in the evidence of PW 1 that though she asked the accused not to lie at the place, where the accused was lying, the accused did not pay any heed. It is the further evidence of PW 1 that leaving the said child sleeping on the cot and the accused lying by her side, she (PW 1) went inside the house to attend to her works and when she came out, she saw the accused carrying away the child and though she tried to stop the• accused, the accused fled away with the child, whereupon she informed her daughter (PW 3) and, thereafter, a search for the child took place; but neither the child nor the accused could be found and, on the following day, in the morning, the child was found lying in the bushes at an agricultural field and it is the elder brother of the accused, who brought the child to her mother's house, and, then, the child, X, was carried to the doctor, where she was examined and treated, whereupon information was given to the police. 11. What is, now, worth noticing is that though initially, PW 1 stuck to her above evidence, which she had given in her examination-in-chief, she (PW 1), during the course of her further cross-examination, resiled from the evidence, which she had given in her examination-in-chief, inasmuch as she deposed that she had not seen the accused, at her house, in the evening of the occurrence. 12. 12. In fact, PW 1 has also conceded, in her cross-examination, that she cannot clearly see, when darkness sets in. 13. Coupled with the above, PW 1 has also conceded, in her cross-examination, by the defence that her family has land dispute with the family of the accused and that she had not talked to her daughter (PW 3) with regard to her grand-daughter in the evening of the day of the occurrence. PW 1 has further deposed, in her cross-examination, that the case against the accused was lodged at the stance of the headman of their village with whom the accused had land dispute. This apart, PW 3 has deposed, as has been rightly pointed out on behalf of the accused-appellant, that she (PW 3) had gone to the said marriage, where the accused was also present and the accused had remained present at the place of marriage until she (PW 3) returned home meaning thereby that at the time of the occurrence, accused could not have been present at the house of PW 3 inasmuch as he had remained at the place, where the marriage was being solemnized. 14. We need to point out that the evidence of a witness has to be considered as a whole. The cross-examination is a means to test the veracity or truthfulness of a witness. When a witness crumbles or fails to stand the test of cross-examination in the sense that the witness contradicts, in cross-examination; his/her evidence given in examination-in-chief, the evidence of such a witness cannot be implicitly believed in, or relied upon, and even if the Court does not treat the evidence of such a witness as wholly unreliable, the witness will fall in the category of those witness, who are neither wholly reliable nor wholly unreliable. 15. In the case at hand, though PW 1, as has been indicated above, did give evidence against the accused-appellant in her examination-in-chief, she completely resiled from her evidence given in the examination-in-chief and conceded that the accused had been implicated at the instance of the headman of their village with whom the accused had land dispute. This apart, PW 1 has also admitted, in her cross-examination, that the accused has land dispute with her family. 16. In the circumstances indicated above, no reliance could have been placed on the evidence of PW 1 far less implicit reliance. This apart, PW 1 has also admitted, in her cross-examination, that the accused has land dispute with her family. 16. In the circumstances indicated above, no reliance could have been placed on the evidence of PW 1 far less implicit reliance. The evidence of PW 3, mother of the said child, also could not, and did not, improve the case of the prosecution inasmuch as PW 3 was, admittedly, not present at the time, when the accused-appellant had come to the house of PW 3 and had taken away the said child as was initially alleged by PW 1. Furthermore, if we may reiterate, PW 3 has also deposed that she had seen the accused at the marriage ceremony and that as long as she (PW 3) was present at the marriage ceremony, the accused, too, had remained there. 17. In the face of the evidence, so given by PW 3, coupled with the discredited evidence of PW 1, the accused-appellant could not have been convicted, for, no reliance could have been placed on the testimony of PW 1, particularly, when she was the lone witness, who had alleged to have seen the accused-appellant carrying the said child, in the manner, as we have described above. 18. Because of what we have been discussed and pointed out above, we do not find that the learned trial Court had any such incriminating material available on record, which could have been made basis for conviction of the accused-appellant on the charge, which had been framed against him. 19. In the result, and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellant and the sentence passed against him, by the impugned judgment and order, under appeal, shall accordingly stand set aside. We hold the accused-appellant not guilty of the charge, which was framed against him, and we acquit him of the same. 20. Let the accused-appellant be released from custody, forthwith, unless he is required to be detained in connection with any other case. 21. Let the Lower Court Records be sent back to the learned Court below with a copy of this judgment and order. Appeal allowed.