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2013 DIGILAW 227 (PAT)

Kanhaiya Jha v. State of Bihar

2013-02-19

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT (CAV) Hemant Kumar Srivastava, J.- This criminal appeal has been preferred by the sole appellant against the judgment of conviction dated 07.06.2001 and sentence order dated 08.0.6.2001 passed by Sri Upendra Narayan Yadav. 3rd Additional Sessions Judge, Madhubani in Sessions Trial No. 147 of 1986 by which and where under he convicted the appellant for the offences punishable under Sections 376, 342 and 354 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years for the offence punishable under Section 376 of the Indian Penal Code and to pay a fine of rupees one thousand and in default of payment of fine he was sentenced to undergo simple imprisonment for three months. No separate sentences were awarded for the offences punishable under Sections 342 and 354 of the Indian Penal Code. 2. PW 4. Sushila Devi gave her fardbeyan to S.I., Sri B. N. Singh of R.S. Shivir, Jhanjharpur on 10.03.1984 at, 11:00 a.m. to this effect that in the mide night of 09.03.1984. she along with her bhabhi returned to her home after attending the marriage ceremony and her bhabhi went inside the house whereas she started washing her feet on a hand pipe and while she was washing her feet the appellant came there from her behind and caught her and also gagged her mouth. The appellant took her to a room and locked the door of room from inside. The appellant offered rupees twenty to her for sexual intercourse but she refused the aforesaid proposal and on her refusal the appellant threatened her to kill by spade and started removing her saree upon which she made protest but she was thrown by the appellant on the earth and after that appellant committed rape with her and whenever she tried to raise alarm, the appellant used to press her mouth. She, further stated that after the aforesaid incident, she raised alarm but appellant fled away from there after opening the door by jumping the wall. The alarm raised by the PW 4 attracted Doma Sah. Hari Sah (PW 2). Lalua Kurmi. Gaudia Sah (PW 1) and others. She narrated the entire incident to them. 3. The fardbeyan of PW 4 was forwarded to officer in charge or Madhepur Police Station for institution of the case under Sections 342. 354. The alarm raised by the PW 4 attracted Doma Sah. Hari Sah (PW 2). Lalua Kurmi. Gaudia Sah (PW 1) and others. She narrated the entire incident to them. 3. The fardbeyan of PW 4 was forwarded to officer in charge or Madhepur Police Station for institution of the case under Sections 342. 354. 376 of the Indian Penal Code on 10.03.1984 and accordingly, on the same day. Madhepur P.S. Case No. 33 of 1984 under Sections 342 and 376 of the Indian Penal Code was registered and formal first information report was drawn against the appellant for the above stated offences. The first information report was sent to concerned Court on 11.03.1984 but the same was put up before the concerned Court on 15.03.1984. The matter was investigated by the Investigating Officer and after completion of investigation. Investigating Officer submitted charge-sheet for the offences punishable under Sections 342,376 and 354 of the Indian Penal Code. The cognizance of the offences was taken and the case was committed to the Court of Sessions, in usual way as Section 376 of the Indian Penal Code was exclusively triable by the Court of Sessions. 4. The appellant was charged for the offences punishable under Sections 342, 376 and 354 of the Indian Penal Code to which he denied and claimed to be tried. 5. In course of trial, altogether five prosecution witnesses were examined on behalf of the prosecution. The prosecution also got exhibited the injury report of PW 4 as Exhibit-1. The statement of appellant was recorded under Section 313 of the Cr PC in which he denied the prosecution story. Two defence witnesses were examined on behalf of the appellant. Besides it, certified copy of proceeding under Section 144 of the Cr PC as Exhibit-A and sale deed executed by Thithar Sah on 27.04.2001 in favour of Sri Mohan Jha as Exhibit-B were also got exhibited on behalf of the defence. 6. The learned trial Court having relied upon the testimony of PW 4 and PW 5 passed the judgment of conviction and sentence' order in the manner as stated above. 7. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order arguing that learned trial Court has not properly appreciated the evidences available on the record. The learned trial Court having relied upon the testimony of PW 4 and PW 5 passed the judgment of conviction and sentence' order in the manner as stated above. 7. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order arguing that learned trial Court has not properly appreciated the evidences available on the record. Continuing her submission, learned counsel for the appellant submitted that there was inordinate delay in sending the first information report and other relevant documents to concerned Court and the aforesaid delay creates doubt about the genuineness of the prosecution story. She, further submitted that according to fardbeyan of PW 4, she returned to her home along with her bhabhi and after that the aforesaid occurrence took place but the bhabhi of the informant has not been examined. She, further, submitted that PW 4 has nowhere stated in her fardbeyan that after the occurrence when she raised alarm her mother also came there whereas when the mother of PW 4 was examined as PW 5. she stated that she came on the place of occurrence having heard the noise of PW 4. So, the aforesaid fact is nothing but only the embellishment and development of the prosecution story. She further stated that PW 4 was medically examined by PW 3 but no external injury was found on her body nor any injury was found on her private part and PW 4 absconded before ascertaining her age and furthermore. PW 3, specifically, opined that then was no medical evidence of rape. She further submitted that PW 4 has admitted before the Court that there was land dispute between her family and the family of the appellant and therefore, possibility of false implication of the appellant in the instant case cannot be ruled out. She further submitted that Investigating Officer of this case has not been examined and. She further submitted that PW 4 has admitted before the Court that there was land dispute between her family and the family of the appellant and therefore, possibility of false implication of the appellant in the instant case cannot be ruled out. She further submitted that Investigating Officer of this case has not been examined and. therefore, appellant could not get an opportunity to ask question from the Investigating Officer as to what happened about the Peticoat of PW 4 which had been handed over to police by PW 5, She further contended that no doubt solitary statement of prosecutrix is sufficient to pass judgment of conviction under Section 376 of the Indian Penal Code, if the aforesaid statement inspires confidence but in the present case, admittedly, there was land dispute between the parties and no independent witness came forward to support the prosecution story nor medical report supports the prosecution story and therefore, it is unsafe to convict the appellant for the offence under Section 376 of the Indian Penal Code. 8. Learned counsel for the appellant referred a decision reported in (2003) 8 SCC 202 . State of Karnataka v. Mapilla P.P. Soopi in which it has been held by Apex Court of this country that undue delay in lodging the complaint without acceptable evidence contributed to the doubt in the present case. She also relied upon a decision reported in (2011) 7 SCC 130 . Krishan Kumar Malik v. State of Haryana in which it has been held by the Apex Court of this country that solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy. unblemished and should be of sterling quality. Another decision cited on behalf of the appellant is AIR 1970 SC 1020. Ram Murti v. State of Haryana. 9. On the other hand learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that PW 4 and PW 5 have supported the prosecution story and. therefore, even if the medical evidence does not support the version of PW 4, the statement of PW 4 cannot be discarded and. therefore, the learned trial Court rightly convicted and sentenced the appellant in the manner as stated above. 10. therefore, even if the medical evidence does not support the version of PW 4, the statement of PW 4 cannot be discarded and. therefore, the learned trial Court rightly convicted and sentenced the appellant in the manner as stated above. 10. The impugned judgment of conviction reveals that the learned trial Court observed that the evidence of PW 4 and PW 5 fully corroborates the fardbeyan of PW 4 and furthermore, the learned trial Court observed that evidence of a victim of sexual assault stands on par with the evidence of an injured witness and accordingly, the learned trial Court came to the conclusion that evidence of PW 4 does not suffer from any basic infirmity and the probability factor does not render it unworthy of credence as a general rule, there is no reason to insist on corroboration. It appears from perusal of the impugned judgment that the learned trial Court having believed on the evidence of PW 4 passed the impugned judgment of conviction. 11. No doubt, it is well settled principle that judgment of conviction can be passed only on the basis of solitary statement of victim of rape, if the statement of victim inspires confidence but simultaneously, it is also well settled principle that if the judgment of conviction is based on solitary statement of victim of rape, her statement should be scrutinized with great care and cautious. 12. In the backdrop of the aforesaid dictum, now let us examine the evidences available on the record. 13. PW 1, Gauri Sah and PW 2, Hari Sah have been declared hostile and they have stated nothing about the alleged occurrence. The prosecution drew attention of the aforesaid prosecution witnesses forwards their statements recorded by police in course of investigation but they denied the above stated statements. Admittedly, PW 4 in her fardbeyan stated that when she raised alarm. PW 1, PW 2 and some others came there but PW 1 and PW 2 have not supported the aforesaid fact whereas first information report named witnesses. namely. Doma Sah and Kalua Kurmi have not been examined in this case by the prosecution. 14. PW 3 is doctor. She stated that on 11.03.1984 she examined PW 4. Sushila Devi. PW 1, PW 2 and some others came there but PW 1 and PW 2 have not supported the aforesaid fact whereas first information report named witnesses. namely. Doma Sah and Kalua Kurmi have not been examined in this case by the prosecution. 14. PW 3 is doctor. She stated that on 11.03.1984 she examined PW 4. Sushila Devi. d/o- Thithar Sah but no external injury was found by her on the body of Sushila Oevi at the time of examination nor any injury was found on her private part. This witness found that the hymen of Sushila Devi was ruptured and old. She took vaginal swab of PW 4, and sent to pathologist who submitted his report and according to report of pathologist no spermatozoa was found and the age of victim could not be detected as she absconded on the same day. On the basis of aforesaid examination, PW 3 opined that PW 4. Sushila Devi was habitual in sexual intercourse and there was no medical evidence of rape. PW 3 proved the medical examination report of PW 4 as Exhibit-1. 15. On perusal of Exhibit -1 as well as evidence of PW 3. it is established that on 11.03.1984 i.e. on the very next day of the alleged occurrence the PW 4 was medically examined but neither any external injury was found on her person nor any sign of rape was found on her body and therefore, it is clear that the medical report of PW 4 does not support the prosecution case. 16. PW 4. Sushila Devi is informant and the victim of this case. She supported her case in her examination-in-chief and stated that she along with her bhabhi returned to home after attending a marriage ceremony and her bhabhi went inside the house whereas she went near the hand pipe to wash her feet and in the meantime appellant came there and caught her and took her to a room where he committed rape with her after throwing her on the earth. She further stated that after the occurrence she raised alarm but appellant fled away from there and witnesses came there having heard her hue and cry. She further stated that on the next day of the alleged occurrence, she went to police station and gave her fardbeyan before the police. She further stated that after the occurrence she raised alarm but appellant fled away from there and witnesses came there having heard her hue and cry. She further stated that on the next day of the alleged occurrence, she went to police station and gave her fardbeyan before the police. On being cross-examined by the defence, she stated that her first marriage was solemnized at the age of 12 years but she was deserted by her first husband and after 12 years of her first marriage, the appellant committed rape with her. So, the aforesaid statement of victim shows that at the time of alleged occurrence she was a grown up lady. She further stated that police station. Shivir was at the distance of 10 to 12 Dages from her house whereas the hand pipe was situated at 2 Dages of her house and the house of the appellant was situated at 4 Dages of her house. She further stated that appellant caught her in a lane and took her in the room. She further stated that appellant put clothes in her mouth when he caught her in a lane and that was the reason she could not raise alarm when she was being taken by the appellant in the room but again she stated that as soon as the appellant caught her, she raised alarm but immediately the appellant put clothes in her mouth. At para 9 of her cross-examination, she admitted that at the time of alleged occurrence, the family members of the appellant were residing in his house but she stated at para 10 of her cross-examination that the appellant took her in a room which was outer side of the house of the appellant. She further stated that she was released by the appellant after one hour. At para 14 of her cross-examination, she admitted that, there was land dispute between the family of appellant and her family. 17. PW 5. Dulari Devi is mother of PW 4. She also supported the case of the prosecution and stated that she woke up 011 the hue and cry of PW 4 and came in the lane. She claimed that she saw the appellant t1eeing from there. She stated that witnesses. Doma Sah. Hart Sah, Lallu etc. also came there and PW 4 narrated her about the alleged occurrence. She also supported the case of the prosecution and stated that she woke up 011 the hue and cry of PW 4 and came in the lane. She claimed that she saw the appellant t1eeing from there. She stated that witnesses. Doma Sah. Hart Sah, Lallu etc. also came there and PW 4 narrated her about the alleged occurrence. She further stated that when PW 4 narrated to her about the alleged occurrence, there was no clothes on the body of PW 4. She further stated that PW 4 disclosed before her that she was suffering from pain on account of rape committed by the appellant. She also stated that on the next morning, she along with PW 4 went to police station where PW 4 gave her statement. She further stated that she handed over the Peticoat of PW 4 to police. She admitted at para 7 of her cross-examination that at the time of alleged occurrence, the second marriage of PW 4 had already been performed. The attention of this witness was drawn towards her statement recorded by the police and she stated that she had not made statement before the police to this effect that when she reached near the place of occurrence, her daughter was in the room of the appellant. She further stated that when PW 4 was narrating about the alleged occurrence several persons were present there. She denied this fact that she got instituted false case against the appellant through PW 4. 18. On perusal of evidence of PW 3, PW 4 and PW 5. I find that land dispute is admitted between the parties and except the mother of PW 4. none has come forward to support the statement of PW 4. Admittedly, PW 4 does not disclose the name of PW 5 in her fardbeyan whereas in her evidence recorded before the trial Court she stated that her mother PW 5 also came on the place of occurrence having heard the noise. So, it appears to me that the aforesaid statement of PW 4 is a development in the present case. Furthermore, I find chat the medical evidence also does not support the version of PW 4. So, it appears to me that the aforesaid statement of PW 4 is a development in the present case. Furthermore, I find chat the medical evidence also does not support the version of PW 4. It is specific case of PW 4 that she was forcibly taken to room where she was overthrown by the appellant on the earth and after that the appellant committed rape on her and furthermore, it is specific case of PW 4 that she made protest but admittedly, no external injury was found on her body nor any injury was found on her private part. It is a matter of common sense that if there had been any forcible sexual intercourse, the victim must have made some strong resistance and being a grown up lady and in the process some injuries would have been round on the vagina/private part of the body or some other parts indicative of any such, use of force. No doubt, injury on the body of victim of rape is not always a must to prove the charge of rape but in the present case, it is specific case of PW 4 that appellant used force while taking away and committing rape with her. So, non finding of any injury on the person of PW 4 creates doubt about the genuineness of the prosecution story particularly, keeping in mind the factum of land dispute. 19. According to prosecution case itself, the fardbeyan of PW 4 was recorded on 10.03.1984 at about 11:00 a.m. and her fardbeyan was sent to Madhepur Police Station on the same day where Madhepur P.S. Case No. 33 of 1984 was registered. The aforesaid fardbeyan was put up before the concerned Court on 15.03.1984 and no explanation of the aforesaid delay has been given by the prosecution in course of trial and non-examination of the Investigating Officer has caused serious prejudice to the appellant. Besides it, PW 5 has specifically, stated that Peticoat of PW 4 was handed over to police but the aforesaid Peticoat had not been produced by the prosecution before the trial Court nor any material was brought on record to show this fact that the aforesaid Peticoat was sent for chemical examination and. therefore. Besides it, PW 5 has specifically, stated that Peticoat of PW 4 was handed over to police but the aforesaid Peticoat had not been produced by the prosecution before the trial Court nor any material was brought on record to show this fact that the aforesaid Peticoat was sent for chemical examination and. therefore. I do agree with the submission of learned counsel for the appellant that the appellant could not get an opportunity to ask relevant questions from the Investigating Officer in respect of the aforesaid ambiguity and. therefore, on the basis of aforesaid discussions. I am of the opinion that it is unsafe to pass judgment of conviction only on the basis of evidence of PW 4 and PW 5 and, therefore, in my view, the appellant is entitled to get the benefit of doubt. 20. Thus, in view of the aforesaid discussions, this criminal appeal is allowed and impugned judgment of conviction dated 07.06.2001 and sentence order dated 08.06.2001 are, hereby, set aside. The appellant is on bail. He is discharged from the liability of his bail bonds. Appeal allowed.