Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 574 (PAT)

Kailash Ravidash v. State of Bihar

2013-05-01

ASHWANI KUMAR SINGH

body2013
ORAL JUDGMENT The present appeal is directed against the judgment and order dated 11th February, 2013 passed in Sessions Trial No. 183 of 2012 by the learned Adhoc Additional District & Sessions Judge-I, Nalanda at Biharsharif, whereby he has convicted the appellant under Section 376 of the Indian Penal Code and sentenced him to undergo RI for seven years and to pay a fine of Rs. 10,000/- and in default to undergo rigorous imprisonment for a further period of one year. 2. The short facts of the case is that one Nageshwari Devi (P.W. 4) gave her fardbeyan on 27th January, 2012, at about 3 p.m. alleging therein inter alia that on the same day, at about 10 a.m., she had gone to Asthawan Market for purchasing some articles and during that period, her daughter R aged about 15 years, was alone in the house. When she came to Mahamadpur Market then, one co-villager told her that her daughter R has been raped whereafter, she reached to her house and found that a huge crowd had assembled near her house. On inquiry, she came to know from her daughter that while she had gone to market, at about 12.30 p.m., the appellant, a co-villager, came on the 3rd floor of the house and thrashed her on the ground. He tied her hands, closed her mouth and thereafter, ravished her. It has further been stated in the fardbeyan that while appellant was committing rape upon the daughter of the informant, her aunts, namely, Renu Devi and Munni Devi came and rescued her. In the meantime, the appellant pushed them and fled away. 3. On the basis of the aforesaid fardbeyan, Asthawan P.S. Case No. 12 of 2012, dated 27th January, 2012, was registered under Section 376 of the Indian Penal Code against the appellant and investigation was taken up. Upon conclusion of investigation, the police submitted charge sheet in the case. The learned Chief Judicial Magistrate, Nalanda at Biharsharif took cognizance of the offence and committed the case to the court of sessions for trial. The trial court framed charge under Section 376 of the Indian Penal Code, to which, the appellant pleaded not guilty and claimed to be tried. 4. In course of trial, altogether seven witnesses were examined in order to prove the charge. The defence has not examined any witness. The trial court framed charge under Section 376 of the Indian Penal Code, to which, the appellant pleaded not guilty and claimed to be tried. 4. In course of trial, altogether seven witnesses were examined in order to prove the charge. The defence has not examined any witness. However, in the statement recorded under Section 313 of the Code of Criminal Procedure, the appellant has pleaded his innocence. 5. The victim, R, has been examined as P.W. 2 in the case. She stated that on the alleged date of occurrence, she was humiliated. However, the miscreant had covered his face and she could not identify him. She stated that her statement was recorded by police. However, immediately thereafter she retracted and told that her statement was never recorded by the police. She has been declared hostile by the prosecution. The prosecution has cross-examined her. In cross-examination, she has clearly stated that she had never told the police that she was raped. 6. One of the aunts of the victim, namely, Renu Devi, who is alleged to have come at the place of occurrence when the appellant was committing rape upon the victim and who is said to have rescued her from the appellant, has been examined as P.W. 1 in the case. 7. Another aunt, namely, Munni Devi has not been examined by the prosecution. Renu Devi stated that she does not know as to who committed rape upon the victim. She has categorically stated in her statement that the police had never recorded her statement. She has also been declared hostile by the prosecution. 8. The father of the victim, namely, Damodar Ravidas, has been examined as P.W. 3 in the case. He has stated that on the date of occurrence, he had went together with his wife to the market and when they were in the market they came to know that something wrong had happened with their daughter. He also stated that he does not know as to who humiliated his daughter. 9. He further stated that his statement was never recorded by the police. He has also been declared hostile by the prosecution. In cross-examination conducted by the prosecution, he denies to have made any statement before the police regarding the alleged rape committed upon his daughter. The informant, Rajeshwari Devi has been examined as P.W. 4 in the case. 9. He further stated that his statement was never recorded by the police. He has also been declared hostile by the prosecution. In cross-examination conducted by the prosecution, he denies to have made any statement before the police regarding the alleged rape committed upon his daughter. The informant, Rajeshwari Devi has been examined as P.W. 4 in the case. She has stated that when she was in the market, she came to know that something wrong has happened with her daughter. However, she did not know who committed the offence. She further stated that she made inquiry from her daughter but she could not disclose name of the miscreant. Thereafter, an information was sent to the police station pursuant to which, her statement was recorded by the police. However, she claims that the Police Officer who recorded her statement did not narrate the fardbeyan given by her. She too has been declared hostile by the prosecution. She has been cross-examined by the prosecution. In cross-examination, she denied to have made any disclosure to the police regarding the person involved in committing rape upon her daughter. 10. The victim was medically examined by doctor Smt. Kumkum Kumari, who has been examined as P.W. 5 in the case. She has proved the medical report issued under her signature which has been marked as Ext. 1. She has stated that on 27th January, 2012, she was posted at Sadar Hospital, Biharsharif as a Civil Assistant Surgeon. She examined the victim on that day at 7.50 p.m. According to her, the hymen of the victim was old ruptured and her vagina admitted two fingers easily. As per medical report, no spermatozoa dead or alive were found in the microscopic examination of vaginal swab of the victim. According to P.W. 5, the victim was habituated to sexual intercourse. She has also proved the opinion of the medical board which has been marked as Ext. 2. 11. P.W. 6, Ram Kumar Prasad, has stated that on 27th January, 2012, he was posted at Sadar Hospital, Biharsharif as a Civil Assistant Surgeon. According to him, on the basis of x-ray report, the medical board opined the age of the victim to be between 15-16 years. He has proved his signature on Ext. 2, which has been marked as Ext. 3. 12. According to him, on the basis of x-ray report, the medical board opined the age of the victim to be between 15-16 years. He has proved his signature on Ext. 2, which has been marked as Ext. 3. 12. The investigating officer of the case, namely, Shailendra Kumar has been examined as P.W. 7 in the case. He has proved the fardbeyan, which has been marked as Ext. 4, the formal FIR which has been marked as Ext. 5, the report received from the Forensic Science Laboratory, which has been marked as Ext. 6 and the forwarding note of the Forensic Science Laboratory report, which has been marked as Ext. 7. He had recorded the fardbeyan and after institution of the FIR the SHO of the police Station had appointed him as the investigating officer of the case. He investigated the case and recorded statements of witnesses. On conclusion of investigation, he submitted charge sheet in the case. He has also produced the ‘Salwar’ of the victim, which has been marked as material Ext-A by the trial court. In cross-examination, he admitted that when he visited the place of occurrence, he found everything in order. He stated that the ‘Salwar’ (marked as material Ext-A) was handed over to him by the lady doctor in the Sadar Hospital on 27th January, 2012, at about 7.50 p.m. However, he admitted that the time of receipt of the material Ext-A has not been recorded in the case diary. He has also admitted that the case no., etc. has not been written over the ‘salwar’ in question for the purposes of identification. He further admitted that the said material exhibit was sent to the Forensic Science Laboratory on 19th March, 2012. He admitted that the appellant was apprehended on the date of occurrence itself. 13. From perusal of the report of Forensic Science Laboratory, it would transpire that the salwar marked as material Ext-A was sent to the office of the Director, Forensic Science Laboratory, Bihar, Patna by the investigating officer of the case and the same was received in the office on 19th March, 2012. The result of the examination of the salwar shows that semen had been detected over it. The Serological report shows that the semen found over the salwar was human semen of Group-B. 14. The result of the examination of the salwar shows that semen had been detected over it. The Serological report shows that the semen found over the salwar was human semen of Group-B. 14. On the basis of the aforesaid evidence, the trial court has recorded the finding of guilt as against the appellant and convicted and sentenced him in the manner indicated above. 15. I have heard learned counsel for the appellant and learned counsel for the State and perused the evidence on record. 16. I find that the material witnesses who are P.Ws. 1 to 4 have not corroborated the prosecution case in any manner. The victim herself states that she was humiliated on the date of occurrence but the person who humiliated her had covered his face and she could not identify him. The aunt of the victim who is said to have reached at the place of occurrence at the time when the victim was being ravished, has also not supported the prosecution case. The another aunt named in the FIR as one of the person who rescued the victim has not been examined on behalf of the prosecution. In the FIR, it has been alleged that several persons had assembled at the place of occurrence when the informant reached her house after coming to know about the indescent incident. However, the prosecution has failed to examine any independent witness in course of trial. The two doctors who have been examined as P.W. 5 & 6 are of no help to the prosecution. According to P.W. 5, no injury was found on the person of the victim. Her hymen was found old ruptured. She opined that she was habituated to sexual intercourse. The second doctor is on the point of age of the victim. 17. Thus, the only incriminating evidence in the present case is the report of the Forensic Science Laboratory which shows that the salwar which was seized by the police and sent to the Forensic Science Laboratory for examination contained human semen. In my view, such an evidence would not be sufficient to hold the appellant guilty. The alleged occurrence took place on 27th January, 2012. The lady doctor had handed over the salwar in question to the investigating officer on the same day. However, admittedly the salwar was not sealed. In my view, such an evidence would not be sufficient to hold the appellant guilty. The alleged occurrence took place on 27th January, 2012. The lady doctor had handed over the salwar in question to the investigating officer on the same day. However, admittedly the salwar was not sealed. The same was sent to the Forensic Science Laboratory after delay of about one month and twenty two days. In between, what happened with the salwar is not known to anyone. I find that no blood sample or sample of swab etc. was ever collected from the appellant. Since, such samples were never collected from the appellant, they were never matched with the sample found on the material Ext-A. 18. From the evidence of the investigating officer, it is apparent that the appellant was apprehended on the same day. He was never ever medically examined. In case of rape, it is always desirable that not only the victim of the rape but the accused should also be medically examined as quickly as possible otherwise, valuable evidence bearing on the guilt of the accused may be lost. 19. Taking into consideration the entire facts and circumstances of the case, I am of the considered opinion that the prosecution has miserably failed to bring home the charge levelled against the appellant. 20. In that view of the matter, the impugned judgment of conviction and order of sentence dated 11th February, 2013 passed in Sessions Trial No. 183 of 2012 by the learned Adhoc Additional District & Sessions Judge-I, Nalanda at Biharsharif, are set aside. The appellant, who is on bail, is discharged from the liabilities of bail bonds.