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2014 DIGILAW 1197 (PAT)

Sitaram Ram v. The State of Bihar

2014-12-05

GOPAL PRASAD

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JUDGMENT Gopal Prasad, J. Heard. 1. The appeal is directed against the judgment of conviction and order of sentence dated 24.05.2013 and 27.05.2013 passed by Shri Ashok Kumar Shrivastava, Additional District & Sessions Judge, FTC-I, Madhepura, in S.T. No. 248 of 2012 (arising out of Madhepura (Bharrai O.P.) P.S. Case No. 493 of 2012) whereby the appellant has been convicted for offence under Sections 376 of Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and further fine of Rs. 2000/- (Two thousand)) and in default of payment of fine further sentenced to undergo rigorous imprisonment for three months. 2. The prosecution case as alleged in the First Information Report by the Indu Kumari that she is aged about 15 years, the daughter of the appellant, namely, Sitaram Ram on 16.10.2012 at about 3 P.M. her father Sitaram asked her to go with him to Shyam Nagar and she will give him money after taking money from his Buaji and thereafter the appellant will proceed for Punjab and assure he took her to Madhepura. At Madhepura her father purchased Salwar kamij worth Rs. 1290/- and also gave her cold drink and her father told that they were going to Bharrahi by the side of railway track, but she objected then appellant disclosed that they will reach the Bharrahi quickly if they proceed by this way. Further case is that they reached at Godiyahi at about 7 P.M. then she was forced to untie her cloths by the appellant and the appellant untie his paijama and committed rape upon her. Thereafter, the appellant started pressing her neck then someone lit torch and on the light of torch, the appellant flee away leaving his paizama and cloths in the meantime Paltu Yadav and Yogendra Mukhiya of Village- Godiyahi and other villagers brought her in naked state and gave her cloths. The victim informed the Bharrahi police and it has been claimed that Sitaram after committing rape tried to kill her and flee away when villager came. 3. On the Fardbeyan of the informant F.I.R. lodged for offence under Section 376 and 307 of Indian Penal Code and police after investigation submitted charge sheet. During investigation the victim was examined by the Medical Officer and even her statement was recorded under Section 164 of Cr.P.C. on 17.10.2012. 3. On the Fardbeyan of the informant F.I.R. lodged for offence under Section 376 and 307 of Indian Penal Code and police after investigation submitted charge sheet. During investigation the victim was examined by the Medical Officer and even her statement was recorded under Section 164 of Cr.P.C. on 17.10.2012. After submission of charge sheet, cognizance was taken, case was committed to the Court of Sessions. However, during trial six witnesses were examined by the prosecution. P.W. 1 Paltu Yadav, P.W. 2 Yogendra Mukhiya @ Yogen, P.W. 3, Indu Kumari, informant, P.W. 4 Dr. Nisha Kumari, P.W. 5 Anuj Kumar Singh, S.H.O., Bharrahi O.P. and P.W. 6 Avinash Kumar, Judicial Magistrate, who recorded the statement of the victim. Exhibit-1 Formal F.I.R., Exhibit-2 is medical report, Exhibit-3 case diary and Exhibit 4 is statement of the victim recorded under Section 164 of Cr.P.C. 4. The trial court after taking into consideration the evidence, convicted the appellant on the ground that informant has signed Fardbeyan and in Fardbeyan there is specific allegation of rape. Further taking into consideration the statement of the victim under Section 164 of Cr.P.C. recorded by the Judicial Magistrate supported the prosecution case and hence convicted the appellant that I.O. has deposed that he recorded the statement of victim even when the informant has not supported the prosecution case. In her further statement she also supported the prosecution case. Further the statement of I.O. that on cry of the victim, Yogendra came with torch and cloths of the accused seized. 5. Learned counsel for the appellant however contended that there is no eye witness to the occurrence except the victim herself and victim herself has not supported the prosecution case in her evidence in court as alleged in the First Information Report. The statement recorded under Section 164 of Cr.P.C. is secondary evidence having only corroborative value and the victim has neither been declared hostile nor attention has been drawn with regard to her earlier statement and the conviction is based on corroborative evidence in absence of substantive evidence and hence cannot sustained. 6. Learned counsel for the State however contends that he has supported the order of conviction and sentence. 7. 6. Learned counsel for the State however contends that he has supported the order of conviction and sentence. 7. However, the prosecution case as alleged in the First Information Report that victim was going along her father and she went to the bus stand, after having purchase cloths took cold drink and father asked her to follow him by the side of railway line and in pretext they will reach Godiyahi immediately, it is alleged in the way of Godiyahi she was raped after taking out her cloths and Sitaram tried to kill by strangulation and on her cry one person came with torch. However, the victim is the informant and has been adduced as P.W. 3 has proved her signature on the Fardbeyan. However, in her evidence the victim stated that about four months back Sitaram asked to follow him to go Shyam Nagar. They came to Shyam Nagar to Madhepura. She was standing at the bus stand, then two unknown persons came and met Sitaram thereafter, Sitaram took her to railway track. She has further stated Sitaram did nothing and has stated that two unknown persons had done the occurrence. She has stated that she made cry then people came at that time she was naked. However, this witness has not supported the prosecution case in the Fardbeyan or F.I.R. but has not been declared hostile by the prosecution and neither attention was drawn with regard to her statement in the First Information Report or with regard to statement recorded under Section 164 of Cr.P.C. However, during her evidence in the court, she has not supported the prosecution case regarding rape by her father Sitaram, the appellant. She in her cross-examination has specifically stated that at Madhepura two unknown persons met and they stated her father that they will go to Bharrahi and her father also stated they will also go to Bharrahi. She has stated that both persons mixed with them and they bought cold drink, cock already opened and they gave cold drink to her and her father. Thereafter in the way she feels drowsiness. In the meantime two unknown person pointed out three-not-three and threatened to kill them and she was threatened that whatever they stated she has to say and they manage to write whatever they stated to the police and she out of fear signed on the paper. Thereafter in the way she feels drowsiness. In the meantime two unknown person pointed out three-not-three and threatened to kill them and she was threatened that whatever they stated she has to say and they manage to write whatever they stated to the police and she out of fear signed on the paper. However, this explanation was not considered by the court below. They proceed from the house at 3 P.M. and they reached at Godiyahi at 7 P.M. and rape was committed. Thereafter, First Information Report was lodged at 9.30 P.M. itself. Her explanation appears to be more proper when the entire occurrence about rape and recording F.I.R. in quick succession itself indicate some foul play. Moreover, evidence of witnesses, P.W. 1 and 2 who are persons said to have reached the P.O. at the time of occurrence have only come to say that they signed on the written document in police station and in cross-examination stated that police has got their signature by force. P.W. 2 has stated to the effect that nothing has been recovered in their presence. Hence the P.W. 1 and 2 have also not supported the prosecution case in material particular whereas prosecution case that they came at the time occurrence when victim was naked and paizama was seized but has not come to support the prosecution case. 8. However, having regard to the nature of allegation, the evidence of the doctor is not much importance as there is no denial of rape committed. However, it has been stated that rape was committed by two unknown persons and not by the appellant. P.W.5 is the Officer-in-Charge has stated that he got information that a girl was raped by her father at about 9.30 P.M. Further he has stated that villagers gave paizama alleged to be father of the victim but P.W. 1 and 2 have not supported the prosecution case about seizure and have proved their signature as of Yogendra and Paltu. However, Yogendra and Paltu have denied that any seizure was made in their presence. P.W. 6 is Judicial Magistrate who recorded the statement of the victim which is Exhibit-4, but the statement under Section 164 Cr.P.C. has only corroborative value and is not substantive evidence. 9. Having regard to the fact, the victim has not been supported the prosecution case and has given explanation of her earlier statement. P.W. 6 is Judicial Magistrate who recorded the statement of the victim which is Exhibit-4, but the statement under Section 164 Cr.P.C. has only corroborative value and is not substantive evidence. 9. Having regard to the fact, the victim has not been supported the prosecution case and has given explanation of her earlier statement. Moreover, F.I.R. and statement under Section 161 and 164 of Cr.P.C. has got corroborative value but no substantive value since the victim has not supported the prosecution case. There is no eye witness to the occurrence and hence secondary evidence or corroborative evidence not taken the substantive value to prove the prosecution case. 10. However, the trial court misdirected to hold the appellant is guilty under Section 376 of Indian Penal Code on the basis of corroborative evidence i.e. statement recorded under Sections 161 and 164 of Cr.P.C. Hence the trial court misdirected even in conviction the appellant for offence under Section 376 of Indian Penal Code in absence of legal, cogent and reliable evidence. 11. Having regard to the facts and circumstances of the case, the prosecution has not been able to establish the charges for offence under Section 376 of Indian Penal Code, hence order of conviction and sentence recorded by the trial court is set aside and appeal is allowed. 12. The appellant who is in custody, be set at liberty forthwith, if not required to be detained in any other case.