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2013 DIGILAW 88 (PAT)

Laxmi Kant Jha v. State of Bihar

2013-01-21

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT 1. Hemant Kumar Srivastava, J. Heard the learned counsel for the appellant as well as learned counsel appearing for the State. 2. This Criminal Appeal has been preferred by the sale appellant against the judgment of conviction and sentence order dated 13.3.2001 and 14.3.2001 respectively passed by Sri S.N. Prasad, IInd Assistant Sessions Judge, Darbhanga in Sessions Trial No. 158 of 2000 by which and whereunder, he convicted the appellant for the offences punishable under Sections 448 & 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years for the offence under Section 376 of the Indian Penal Code and to undergo rigorous imprisonment for six months for the offence under Section 448 of the Indian Penal Code, however, both the sentences were ordered to be run concurrently. 3. The prosecution case, in brief, is that P.W. 3 Laliya Devi gave written report to Officer-in-charge of Manigachhi Police Station, Darbhanga on 28.4.1999 to this effect that on 27.4.1999 at about 11.00 p.m. she was sitting at her home and was waiting for her husband. In the meantime, all of a sudden, the appellant came there and put his GAMCHHA into her mouth and committed rape upon her and after that, he fled away from there. She raised alarm which attracted her family members and neighbours. She further stated in her written report that there was land dispute and enmity between the appellant and her and some cases are pending in the court between the appellant and her. 4. On the basis of above said written report of P.W. 3, Manigachhi Police Station Case No. 87 of 1999 for the offences punishable under Sections 448, 376 of the Indian Penal Code was registered and accordingly, formal FIR was drawn against the appellant. The matter was investigated by the I.O. and after completion of investigation, the I.O. submitted charge-sheet against the appellant. The cognizance of the offence was taken and the case was committed to the court of Sessions. 5. The appellant was put on trial and he was charged for the offences punishable under Sections 448, 376 of the Indian Penal Code to which, he denied and claimed to be tried. 6. The cognizance of the offence was taken and the case was committed to the court of Sessions. 5. The appellant was put on trial and he was charged for the offences punishable under Sections 448, 376 of the Indian Penal Code to which, he denied and claimed to be tried. 6. In support of its case, prosecution examined, altogether, 12 witnesses and also got exhibited written report of P.W. 3 as Ext.-1, signature of the witnesses on seizure list as Ext.-2 series, formal FIR as Ext.-3, production-cum-seizure list as Ext.-4, signature of the doctor on injury report as Ext.-5. The statement of appellant was recorded under Section 313 of the Cr.P.C. in which, he reiterated his innocence. 7. Although no evidence was adduced by the appellant in support of his defence but it appears from the statement of the appellant recorded under Section 313 of the Cr.P.C. that the defence of the appellant was totally denial of the prosecution story. 8. Learned Trial Court, having relied upon the testimony of prosecution witnesses, particularly, the statements of prosecution witnesses recorded u/s 164 of the Cr.P.C., passed the impugned judgment of conviction and sentence order, in the manner as stated above. 9. Learned counsel appearing for the appellant submitted that almost all the material prosecution witnesses were declared hostile and even P.W. 3 (informant) of this case, did not name the appellant but learned court below, having relied upon the statement of witnesses recorded under Section 164 of the Cr.P.C., convicted the appellant which is not in accordance with law. It is further submitted that the learned court below, completely, overlooked this fact that there was land dispute between the parties and in the background of the aforesaid land dispute, the possibility of false implication of the appellant, cannot be ruled out. 10. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order. 11. On perusal of the record, I find that P.W. 1 Shanichari Devi has stated nothing in respect of the alleged occurrence rather she stated that she had not made statement before the police. This witness has been declared hostile by the prosecution. P.W. 2, Sushi! 11. On perusal of the record, I find that P.W. 1 Shanichari Devi has stated nothing in respect of the alleged occurrence rather she stated that she had not made statement before the police. This witness has been declared hostile by the prosecution. P.W. 2, Sushi! Kant Singh stated that having heard the noise, he went at the door of P.W. 3 and found that 10-15 persons had assembled near the house of P.W. 3 and he also found the clothes of P.W. 3 were torn. He further stated that P.W. 3 made statement but he could not understand her statement. At this juncture, this witness was declared hostile by the prosecution and his attention was drawn towards his previous statement. 12. P.W. 3 Laliya Devi is the informant of this case. She stated in her examination-in-chief that on the alleged dated of occurrence at about 11 .00 p.m. while she was sitting at her door, one person came there and committed rape upon her and on account of the aforesaid incident, she became unconscious. She further stated that after one hour of the aforesaid occurrence, her husband came and she narrated the entire incident to him. She further stated that on the next day, she alongwith her husband and P.W. 2 went to police station where she gave a written report and she had also handed over her petticoat to police. She denied this fact that she had given the name of the appellant in her written report. At this juncture, this witness was declared hostile and her attention was drawn towards her previous statement. She frankly admitted in her deposition that she had lodged this case against the appellant due to previous enmity. 13. P.W. 4 Anirudh Sah is the husband of P.W. 3. This witness stated that he alongwith P.Ws. 3 & 2 had gone to police station where a written report was given by his wife to police. This witness further stated that his wife had also handed over her petticoat to police. This witness proved signature on production-cum-seizure list. At paragraph-3 of his examination-in-chief, he has admitted that at the time of alleged occurrence, he was not at his home and when he returned to his home, his wife disclosed that some one committed rape upon her. This witness further stated that his wife had also handed over her petticoat to police. This witness proved signature on production-cum-seizure list. At paragraph-3 of his examination-in-chief, he has admitted that at the time of alleged occurrence, he was not at his home and when he returned to his home, his wife disclosed that some one committed rape upon her. At paragraph-4 of his examination-in-chief, this witness stated that in the next morning, when villagers assembled at his door, some one uttered that the appellant might have committed the alleged occurrence. This witness, too, was declared hostile by the prosecution. 14. P.W. 5, Brahmdeo Singh and P.W. 6 Hanuman Singh were also declared hostile and nothing is important in the deposition of aforesaid witnesses. P.W.7 Sunita Devi has also been declared hostile and prosecution drew the attention of this witness towards the statement recorded under Section 164 of the Cr.P.C. 15. P.W. 8 is a formal witness. Similarly, P.W. 9 is also a formal witness. P.W. 10 is a Judicial Magistrate who recorded the statement of witnesses under Section 164 of the Cr. P .C. whereas; P.W. 11 is doctor who had examined P.W.3 after the alleged occurrence. 16. After scrutinizing the entire evidences available on the record, I find that not a single prosecution witness stated about the involvement of the appellant in the alleged occurrence and what to say the other prosecution witnesses, P.W. 3 (informant) herself, denied this fact that the appellant had committed rape upon her. 17. It would appear from perusal of the impugned judgment that the learned trial court convicted the appellant on the basis of statements of some witnesses recorded under Section 164 of the Cr.P.C. In my view, the approach of learned trial court is completely erroneous because the statement recorded under Section 164 of the Cr.P.C. can never be used as substantial piece of evidence and the statement recorded under Section 164 of the Cr.P.C. can only be used for contradiction or corroboration of statement of witnesses and therefore, in my view, the impugned judgment of conviction and sentence order cannot sustain in the eye of law. 18. On the basis of aforesaid discussion, this Cr. Appeal is allowed and the impugned judgment of conviction and sentence order dated 13.3.2001 and 14.3.2001 respectively; are set aside and the appellant is acquitted of the charge framed against him. 19. 18. On the basis of aforesaid discussion, this Cr. Appeal is allowed and the impugned judgment of conviction and sentence order dated 13.3.2001 and 14.3.2001 respectively; are set aside and the appellant is acquitted of the charge framed against him. 19. The appellant is on bail. He is discharged from the liability of his bail bonds.