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2013 DIGILAW 247 (PAT)

Keshwar Bhagat v. State of Bihar

2013-02-22

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT (CAV) Hemant Kumar Srivastava, J.- The above stated sole appellant has been convicted under Sections 376 and 366 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years under Section 376 of the Indian Penal Code and to undergo rigorous imprisonment for three years for the offence punishable under Section 366 of the Indian Penal Code by the learned Sessions Judge. Gopalganj vide impugned judgment of conviction and sentence order dated 16.12.2000 passed in Sessions Trial No. 148 of 1998 and accordingly, the appellant flied the instant criminal appeal. 2. In brief, the prosecution case. is that PW 2, Gulabi Nesha flied complaint case bearing Complaint Case No. 913 of 1997 against the appellant and one Arjun Bhagat on 09.07.1997 before the Court of Chief Judicial Magistrate. Gopalganj stating therein that on 25.06.1997, she along with her mother (PW 1) was sitting at the door of her house. The appellant who happens to be resident of her in laws' house, Saheb Chapra came at her natal place and told that her husband (PW 3) was seriously ill and there was no any person to look after him and after getting the aforesaid information. PW 2 left her natal place along with the appellant and when she reached near a bridge of canal near siswani of one Ramadhar Singh, appellant caught hold her and committed rape on her at the point of dagger. She further stated that appellant also threatened to kill her and appellant brought her to the gumti of Arjun Bhagat and bolted the aforesaid gumti from inside and after that appellant and aforesaid Arjun Bhagat committed rape with her in the night. Further she stated that in the morning, the appellant took her to Madipur at the point of dagger and got boarded her in a bus. She was taken by the appellant to unknown place. She further stated that appellant kept her at different unknown places and raped her while she was pregnant at that time. She further stated that on 08.07.1997, the appellant forcibly tock her to Mirganj by bus and when the bus reached at Meerganj, she saw her husband in Meerganj market and started crying. Her husband came near the bus but appellant managed to escape from there. She narrated the entire story to her husband as well as witnesses. 3. She further stated that on 08.07.1997, the appellant forcibly tock her to Mirganj by bus and when the bus reached at Meerganj, she saw her husband in Meerganj market and started crying. Her husband came near the bus but appellant managed to escape from there. She narrated the entire story to her husband as well as witnesses. 3. The aforesaid complaint petition was sent to concerned police station for institution of the first information report and investigation and accordingly, Uchakagaon P.S. Case No. 94 of 1997 under Sections 363, 366 and 376 of the Indian Penal Code was registered against the appellant and one Arjun Bhagat on 19.07.1997. The matter was investigated by the police and after completion of investigation, police submitted charge-sheet. The cognizance of the offence was taken and the case was committed to the Court of Sessions, in usual way. 4. The appellant and charge-sheeted accused, Arjun Bhagat were put on trial and accordingly, they were jointly charged for the offence punishable under Section 376 of the Indian Penal Code whereas appellant was separately charged for the offence punishable under Section 366 of the Indian Penal Code. The charges were denied and appellant and other accused claimed to be tried. 5. In order to prove its case, prosecution examined, altogether, five witnesses and also got proved endorsement on complaint petition as Exhibit-1, another endorsement on the complaint petition as Exhibit-2, the signature of the advocate on the complaint petition as Exhibit-3 series and original complaint petition as Exhibit- 4. The defence also examined two witnesses and got proved the certified copy of complaint case No. 438 of 1997 as Exhibit-A and handicapped certificate of accused. Arjun Bhagat as Exhibit-B. The learned trial Court having analyzed the materials available on the record and having relied upon the evidence of PW 1, PW 2 and PW 3 convicted and sentenced the appellant in the manner as stated above whereas co-accused. Arjun Bhagat was acquitted of the charge framed against him under Section 376 of the Indian Penal Code. 6. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order arguing that PW 1, PW 2 and FW 3 have made contradictory statements which make the prosecution case untrustworthy and improbable but in spite of that learned trial Court passed the judgment of conviction against the appellant. 6. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order arguing that PW 1, PW 2 and FW 3 have made contradictory statements which make the prosecution case untrustworthy and improbable but in spite of that learned trial Court passed the judgment of conviction against the appellant. He further submitted that the learned trial Court himself disbelieved the story of prosecution in respect of co-accused. Arjun Bhagat but he relied on the story of prosecution for convicting and sentencing the appellant. He further submitted that there was enmity between PW 3 and father of the appellant and the aforesaid enmity prompted the PW 3 to lodge false case against the appellant and co-accused Arjun Bhagat but learned trial Court did not appreciate the aforesaid fact and ignore the possibility of false implication of the appellant in the instant case and. therefore the impugned judgment of conviction and sentence order in respect of the appellant is also liable to be set aside. 7. On the other hand. learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that victim (PW 2) has, specifically supported the story of kidnapping and rape and furthermore, the story of kidnapping is supported by PW 1 who happens to be mother of PW 2 and in whose presence the offence of kidnapping took place and similarly, the story of rape is corroborated by PW 3 who happens to be husband of PW 2 and, therefore, there was sufficient material before the trial Court to convict the appellant. It is further contended by him that it is settled principle that if the evidence of victim of rape inspires confidence, the corroboration of the aforesaid evidence is not essential and without getting any corroboration of evidence of victim of rape, the Court can pass the judgment of conviction. 8. Having heard the contentions of the parties, I went through the evidences available on the lower Court record. 9. 8. Having heard the contentions of the parties, I went through the evidences available on the lower Court record. 9. PW 1, Hazratan Khatoon is mother of PW 2 and she stated that while she along with PW 2 was sitting on her door, appellant carne there and took her daughter on pretext of illness of her daughter's husband and after sixteen days of the alleged occurrence, PW 3, the husband of her daughter came at her house and then she disclosed the aforesaid fact to PW 3 and after that PW 3 left her home. Although, this witness has not stated the story of rape and she has been declared hostile by the prosecution but she supported the prosecution case to this extent that on the alleged date of occurrence PW 2 had left her home in the company of appellant who took away her on pretext of illness of her" husband. 10. PW 2. Gulabi Nisha is victim of this case. She also supported this fact that on the alleged date of occurrence while she along with her mother (PW 1) was sitting at the door of her natal place the appellant came there and took her away on the pretext of illness of her husband. She further stated that when she along with the appellant reached towards western side of Madipur pool, the appellant caught hold her and committed rape on her near the siswani of one Ramadhar and when she raised alarm, the appellant put dagger on her. She also stated that she was taken to gumti of Arjun Bhagat where again appellant and aforesaid Arjun Bhagat committed rape on her bolting the gumti from inside. She again stated that in the wee hours of the next morning, the appellant brought her to the house of his relatives by bus where she had been kept for 12 days. She further stated that she was got boarded in a bus by the appellant but while she was being taken by the appellant, she saw her husband and raised alarm which attracted her husband but appellant managed to escape from there. On being cross-examined, she stated that her first marriage had taken place with one Mukhtar Mian and after that her second marriage was performed with PW 3. On being cross-examined, she stated that her first marriage had taken place with one Mukhtar Mian and after that her second marriage was performed with PW 3. She further admitted that her in laws' house in village Saheb Chapra is situated at same distance from the house of appellant. Keshwar Bhagat and between her in laws' house as well as house of the appellant, there are 10 to 15 houses of different persons. She further admitted that gumti of Arjun Bhagat is near the house of Keshwar Bhagat. She further stated that in the eastern side of aforesaid gumti. there is machine of Kalwar people whereas in western side of aforesaid gumti, there are some houses. She further stated that Madipur thana is situated at the distance of one km from her house and the Manipur bridge is situated at the distance of 3 to 4 laggi from Manipur thana and similarly, siswani of Ramadhar is situated at 5 to 7 laggi from Manipur bridge. At para 10 of her cross-examination, she stated that there is bus stand towards western side of canal bridge and people used to come there to catch bus. She further stated that there were 20 to 25 shops towards western side of canal bridge. At para 12 of her examination-in-chief, she denied this fact that father of appellant Keshwar Bhagat had lodged criminal case against her husband. At para 18 of her cross-examination, she stated that distance between Manipur bridge and her natal village Khan Bairiya is about to 4 km. She further stated that when she reached near Manipur bridge, the sun had already set. She further stated that when appellant overthrew her on the ground, she raised cry. At para 23 of her cross-examination, she admitted that when she reached at village saheb Chapra, she did not raise any alarm because the appellant was showing dagger to her. She further stated that she reached at the gumti of Arjun Bhagat at about 07:00 p.m. and. after that she was kept confined in the gumti of Arjun Bhagat. She further stated that in the next morning, she was taken to bus stand where she was got boarded in a bus. She admitted in the aforesaid paragraph that she did not raise any alarm while she was being taken by the appellant nor she met with any person on her way to bus stand. She further stated that in the next morning, she was taken to bus stand where she was got boarded in a bus. She admitted in the aforesaid paragraph that she did not raise any alarm while she was being taken by the appellant nor she met with any person on her way to bus stand. She further admitted that she did not say anything to passengers of the bus. She further stated that when she and appellant got down from the bus, the appellant took her to the house of his relative but she did not raise any alarm while she was being taken to the house of relatives of appellant though on her way, she met with several persons. She further admitted that she did not disclose to the relatives of appellant that she was brought by the appellant after putting her into fear. She admitted that she remained in the house of relatives of the appellant for 12 days. She also admitted that she used to come outside the house along with the relatives of appellant to give the answer of natural call but she never tried to flee from there. She further stated that again she was taken to Meerganj by bus by the appellant but she did not disclose anything to the passengers who were sitting in the bus. She further admitted that Meerganj bus stand is situated at the distance of 200 yards from Meerganj police station. At para 33 of her cross-examination, she admitted that when she came at her home along with her husband she lodged the case in police station and after institution of the aforesaid case police came at her home. She further stated that she was not medically examined and she had given her thumb impression on her statement recorded by the police. She denied this fact that she lodged this false case because the father of the appellant had filed criminal case against her husband. 11. PW 3 is husband of PW 2. This witness stated that on the alleged date of occurrence he was not at his house and after two days of the alleged occurrence, he came to his house and found his wife missing and after that she went to his sasural. Khan Bairiya which was at the distance of 2 kos from his village. This witness stated that on the alleged date of occurrence he was not at his house and after two days of the alleged occurrence, he came to his house and found his wife missing and after that she went to his sasural. Khan Bairiya which was at the distance of 2 kos from his village. He further stated that when he reached at his sasural, his parents in law disclosed that his wife was taken away by the appellant. He further stated that he searched the appellant but could not trace her out and after 10 to 12 days of the aforesaid occurrence, he saw his wife at Meerganj bus stand sitting in a bus and when he reached near the aforesaid bus, the appellant fled away from there. He further stated that his wife narrated the entire occurrence to him at Meerganj bus stand and after that he filed complaint case in the Court. He admitted that he did not visit the police station. On being cross-examined, this witness stated that Madipur thana is situated at the distance of one km. from his house. He further stated that he does not know as to whether any case had been filed against him by the father of the appellant prior to the alleged occurrence or not. He further stated that after two days of the alleged occurrence he went to his sasural but he returned to his home on the same day. He further stated that Madipur thana is situated at the distance of 15 laggi from Manipur bridge. This witness further stated at para 8 of his cross-examination that his wife did not divulge the incident before him at Meerganj bus stand rather his wife narrated the entire incident to him at his home. He further stated that when his wife started crying at bus stand, he disclosed the incident before two or three persons when they enquired about the weeping of his wife. He further stated that he did not go to Meerganj police station though some persons had advised him to go to Meerganj police station. He further admitted in his cross-examination that he as well as his wife disclosed about the alleged occurrence before several co-villagers including dafadar and one Krishna Babu daroga but the aforesaid Krishna Babu daroga did not register any case and directed him to lodge the case in the Court. He further admitted in his cross-examination that he as well as his wife disclosed about the alleged occurrence before several co-villagers including dafadar and one Krishna Babu daroga but the aforesaid Krishna Babu daroga did not register any case and directed him to lodge the case in the Court. He further stated that Ws wife was medically examined by the doctor on the basis of requisition of Krishna Babu daroga but he could not say as to whether after medical examination doctor handed over report to police or not. 12. PW 4. Krishan Prasad is A.S.I., of Uchakagaon Police Station. He stated that he got complaint petition from the Court of Chief Judicial Magistrate and he forwarded the aforesaid complaint case to Uchakagaon Police Station for institution of the first information report and after that the, case was instituted. He further stated that he investigated the case and visited the place of occurrence as well as recorded the statements of witnesses and after competition of investigation he submitted charge-sheet. He further stated that house of PW 2 is situated at the distance of 1/2 km from his outpost whereas his outpost is situated at the distance of 400 yards from bus stand and Madipur bridge is situated at the distance of 200/250 yards from his outpost and there were 30 to 40 shops on both sides of Madipur bridge where people always remain present. He further stated that the place of occurrence is situated at the distance of 600 yards from Maniptir market. He further stated that he did not go to Meerganj bus stand and the places where PW 2 had been kept confined nor he got examined PW 2 medically. He further stated that he did not record the statements of neighbours of PW 2. 13. PW 5 is a formal witness who proved the signatures of advocate on the complaint petition. 14. On perusal of the evidence of aforesaid prosecution witnesses, it is clear that according to prosecution case, on the alleged date of occurrence i.e. on 25.06.1997 appellant went at naihar, of PW 2 and took away her on pretext of illness of her husband. The aforesaid fact is supported by PW 1, PW 2, the victim, herself. Furthermore, the above stated evidence shows that PW 3 went to the house of PW 1 after three days of the alleged occurrence. The aforesaid fact is supported by PW 1, PW 2, the victim, herself. Furthermore, the above stated evidence shows that PW 3 went to the house of PW 1 after three days of the alleged occurrence. So it is clear that PW 3 came to know about the kidnapping of victim on 28.06.1997 but admittedly. neither PW 3 nor PW 1 lodged any case in respect of the alleged kidnapping of PW 2 just after the alleged occurrence rather PW 2 filed complaint case on 09.07.1997 i.e. after 14 days of the alleged occurrence. Furthermore, I find that according to evidence of PW 2 and PW 3, the PW 2 met with PW 3 on 08.07.1997 at Meerganj bus stand while she was being "taken by the appellant and white she was sitting in a bus but admittedly, on 08.07.1997. neither PW 2 nor PW 3 gave any information to police of Meerganj police station. Although. PW 3 stated in his examination-in-chief that when he met with PW 2 at Meerganj bus stand and enquired from her., PW 2 disclosed before him about the entire occurrence but again in cross-examination, he stated that PW 2 did not disclose about the alleged occurrence before him at Meerganj bus stand rather she divulged the entire story to him at his house. PW 3 has further stated at para 8 " of his cross-examination that when he along with PW 2 returned to their home, they disclosed before the villagers about the alleged occurrence and after two days of their arrival to their home, they went to Gopalganj Court to lodge the case but according to prosecution case itself, the PW 3 met with PW 2 on 08.07.1997 and on the same day they came to their home and thereafter, on 09.07.1997 the aforesaid case was filed. Furthermore, PW 2 stated that she was not medically examined by the doctor whereas PW 3 stated that PW 2 was medically examined by the doctor and 3 part from this. PW 2 stated that she had made statement before the police and on the aforesaid statement, she had put her thumb impression and also she lodged the case in police station but PW 3 stated that no case was lodged in the police station. 15. PW 2 stated that she had made statement before the police and on the aforesaid statement, she had put her thumb impression and also she lodged the case in police station but PW 3 stated that no case was lodged in the police station. 15. Exhibit-A, the certified copy of Complaint Case No. 438 of 1997 reveals that father of appellant filed the aforesaid complaint case on 03.04.1997 against PW 3 for the occurrence of 24.03.1997 much prior to filing of the present case and the aforesaid fact clearly suggests that there was enmity between PW 3 and father of the appellant much prior to filing of present case but it is surprising enough that not only PW 2 but PW 3 also tried to suppress the aforesaid fact of enmity. The stand of the defence is that prosecution got instituted the present case through PW 2 against the appellant and his brother in law. Arjun Bhagat on account of above stated enmity. In course of trial, the learned trial Court found that co-accused. Arjun Bhagat was handicapped and he was unable to get indulge himself in sexual activities, what is to say about the rape and on the basis of aforesaid material, the learned trial Court disbelieved the participation of co-accused. Arjun Bhagat in the alleged crime. 16. In the evidence of prosecution witnesses. it has come that there was market near Manipur bridge and people used to go to Madipur bridge and PW 2 stated that when appellant committed rape on her near Madipur bridge, she raised alarm but not a single person of Manipur market has been examined in this case by the prosecution nor PW 4 tried to record the statement of any person of Manipur market about the alleged occurrence. Furthermore, I find that PW 2 was taken by the appellant from Manipur bridge to Saheb Chapra, the in laws' village of PW 2 covering a long distance but PW 2 did not raise any alarm during the aforesaid journey. It is not out of place to mention here that PW 2 was a fully grown up lady and she had four children at the time of the alleged occurrence. Furthermore, I find that PW 2 stated that she had been kept in gumti of Arjun Bhagat for whole night. It is not out of place to mention here that PW 2 was a fully grown up lady and she had four children at the time of the alleged occurrence. Furthermore, I find that PW 2 stated that she had been kept in gumti of Arjun Bhagat for whole night. The aforesaid gumti is situated in the in laws' village of PW 2 and the aforesaid gumti was surrounded by several houses but it is surprising enough that PW 2 did not raise any alarm when she was brought in the village of her in laws and again, while she was being taken to another place from the aforesaid gumti, she did not raise any alarm nor stated anything to the passengers of the bus in which she was taken to the house of relative of the appellant. PW 2 has admitted that she had been kept in the house of relative of the appellant for 12 days and she used to go outside the house to attend the call of nature but she also did not take any step to escape from the clutches of the appellant and his relatives nor she raised any alarm in the aforesaid village. Therefore, the aforesaid conduct of the PW 2 creates doubt about the genuineness of the, prosecution case. 17. No doubt, the solitary statement of victim of rape is sufficient to convict the accused without getting any corroboration but before convicting the accused on the basis of solitary statement of victim of rape the statement of victim must inspires confidence. In the instant case, the above stated probabilities, particularly, keeping in mind the previous enmity between PW 3 and father of the appellant and false implication of co-accused. Arjun Bhagat, the statement of PW 2 does not inspire confidence and in my view, the appellant is entitled to get the benefit of doubt. 18. On the basis of aforesaid discussions, this criminal appeal is allowed and impugned judgment of conviction and sentence order dated 16.12.2000 are, hereby, set aside. The appellant is on bail. He is discharged from the liability of his bail bonds. Appeal allowed.