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2013 DIGILAW 1355 (PAT)

Jamshid Alam v. State of Bihar

2013-12-02

ANJANA PRAKASH

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JUDGMENT Anjana Prakash, J. 1. The appellants have been convicted under Section 376/34, IPC and sentenced to R.I. for ten years by a judgment dated 9.9.1999 and 14.9.1999 passed by the Sessions Judge, Katihar in Sessions Trial No. 492 of 1996. 2. The case of the Complainant/Informant is that on the night of 29.7.1996 the accused persons came inside her hutment and even while appellant No. 2 caught hold of her, the appellant No. 1 committed rape upon her. When she started screaming, her children woke up and began to weep at which the witnesses also came. On the next day when her husband came, she narrated the story, upon which she went to the Police Station but since no First Information Report was entertained she filed the present complaint which was sent under Section 156(3), Cr PC upon which the F.I.R. was instituted. 3. The defence claimed false implication and even though they did not examine any witness they proved two documents i.e. Exhibits A and B. 4. From perusal of Exhibit A. it appears that it is a judgment of Sessions Case No. 33 of 1994 in which the appellant No. 1 faced trial and was acquitted for lack of any evidence. In the said case the appellant No. 2 was a prosecution witness. Exhibit B is the certified copy of Complaint Case No. 746 of 1996 which had been instituted by appellant Jamshed Alam against the husband of the informant Sk. Sikandar and Khurshid for an offence under Sections 342, 323 and 379, IPC for an occurrence dated 21.7.1996, of which report was made on 26.7.1996 i.e. 2 days before the present alleged occurrence. In the said complaint petition I find that the appellant Jamshed Alam stated that the husband of the informant had assaulted him since he was of the view that it is on his instigation that his wife i.e. the informant had filed Complaint Case No. 567-C of 1996 under Section 498-A, IPC and other offences. It thus appears that the parties are not only well known to each other but also have deep relationship with each other. 5. During trial the prosecution examined seven witnesses in all. Out of whom, PW 3 is the prosecutrix, who supported the version given out in the First Information Report. whereas PW 6 Dr. It thus appears that the parties are not only well known to each other but also have deep relationship with each other. 5. During trial the prosecution examined seven witnesses in all. Out of whom, PW 3 is the prosecutrix, who supported the version given out in the First Information Report. whereas PW 6 Dr. Kanak Ranjan had examined the prosecutrix and found aged about 28 years but no sign of any physical violence upon her. Evidently it was• not expected since she was examined more than a week after the occurrence. PW 7 P.N. Bhattacharjee is the Investigating Officer, who inspected the place of occurrence, found it to be of two room hutment with a provisional roof top. It was small room surrounded by many huts. In cross- examination he admitted that the appellant No. 2 was a Dafadar of his village and both the appellants belong to a village which was one kilometer away from the place of occurrence. He also admitted that no witness of the neighbourhood was examined and that many persons of another community lived close by. 6. PW 1 Sk. Khurshid, brother-in-law of the prosecutrix, stated that on a noise having been raised by the prosecutrix he went to her house with a torch and found the appellants present there with chhura. The prosecutrix allegedly told him that the appellants had committed rape upon her. In cross-examination he stated that appellant Jamshed Alam had filed a case against him and his brother, which was continuing. A suggestion was given to him that the appellant No. 2 being the Dafadar had arrested him and put him behind the bars in a case instituted under Section 498-A, IPC. 7. PW 2 Asma Khatoon, the sister-in-law of the prosecutrix, also stated that on hulla she went to the place of occurrence and found the appellants there. The prosecutrix narrated the allegation of rape to her. She mentioned about the earlier case between her family and the appellant Jamshed Alam, in which he had stood acquitted vide Exhibit A. 8. PW 3 is the prosecutrix, who admitted that the appellant No. 2 was the Dafadar of her village and also admitted that the appellant Jamshed Alam had filed a case against her husband and brother-in-law. 9. PW 4 Sk. PW 3 is the prosecutrix, who admitted that the appellant No. 2 was the Dafadar of her village and also admitted that the appellant Jamshed Alam had filed a case against her husband and brother-in-law. 9. PW 4 Sk. Sikandar is the husband of the prosecutrix, who stated that he reached the place of occurrence on her shouts and then she was told about the occurrence at which they went to the Police Station but no case was instituted and hence the complaint was filed seven days later. He admitted that the appellant No. 1 had filed a case against him earlier and that he had two wives. He stated that within the same campus of his hutment many persons were residing. However none appears to have been examined. 10. PW 5 Khairun Nisha is the sister-in-law of the informant, about whom the informant had stated that she was at her sasural on the date of occurrence. 11. On going through the evidence of the prosecution witnesses and the defence documents, a reasonable doubt is created in the mind of the Court as to whether in the background litigation between the parties whether the prosecution case without corroboration by independent witnesses deserves to be accepted. No doubt there is consistent statement of all the witnesses with regard to rape but it would not be safe to rely upon the sole testimony of interested witnesses in the background litigation between them. 12. Hence, the appeal is allowed and the order of conviction and sentence passed against the appellants on 9.9.1999 and 14.9.1999 by the Sessions Judge, Katihar in Sessions Trial No. 492 of 1996 is set aside. The appellants are discharged from the liabilities of their respective bail bonds. Appeal allowed.