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2014 DIGILAW 326 (PAT)

Chaturbhuj Sah v. State of Bihar

2014-03-07

DHARNIDHAR JHA

body2014
JUDGMENT : Dharnidhar Jha, J.-This appeal arises out of judgment of conviction dated 19.3.2002 passed by learned Vth Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 603 of 1996 by which the solitary appellant Chaturbhuj Sah was held guilty of committing offence under Section 376 of the Indian Penal Code. The appellant was heard on sentence on 20.3.2002 and was directed to suffer rigorous imprisonment for seven years. The appellant questions the correctness and propriety of judgment of conviction and appropriateness of the order of sentence in the present appeal. 2. A petition of complaint, filed before Sub-Divisional Judicial Magistrate, West Muzaffarpur, is the basis upon which the case was initiated. In fact a copy of the complaint petition was transmitted under Section 156(3), Cr PC to the concerned police station and the FIR was drawn up and the case was investigated into. 3. The facts of the case as narrated in petition of complaint lodged three days after the incident dated 1.5.1996 recited that on account of hot and sultry weather, the prosecutrix (PW 5), after having put to sleep her children on earth, had herself slept on a chauki kept in the verandah of the house. The husband of the prosecutrix was a denting-mechanic who was working in some garage and was not present in that night in his house. It was stated that while she was sleeping, she felt that some one had mounted on her and attempted to gag her as also to remove her cloths. The prosecutrix was awoke and she resisted the act. But in the meantime, the man succeeded in committing rape upon her. While the act was being committed, the lady succeeded in removing the hand of the accused from her mouth and raised an alarm which attracted persons. 4. After registration of the case, the investigation ended up in submission of the charge-sheet as appears from the evidence of PW 8 S.I. Piranjeet Singh and ASI Nageshwar Dubey as a result of which, the solitary appellant was put to trial and was ultimately convicted and sentenced as noted above. 5. The defence of the appellant was of innocence and false implication. The trend of cross-examination also indicated as if the lady would have been of easy virtue and for any particular reason could have implicated the present appellant. 6. 5. The defence of the appellant was of innocence and false implication. The trend of cross-examination also indicated as if the lady would have been of easy virtue and for any particular reason could have implicated the present appellant. 6. A total number of twelve witnesses were examined in support of the charges out of whom PW 10 Pramod Kumar proved the contents of the petition of complaint while PW 1 Srinarayan Choudhary also proved the same contents by giving other evidence, like, the same having been typed at the instructions of the counsel and the complainant. PW 12 Md. Ayub had identified the signatures of the advocate who had identified the thumb impression of the complainant-prosecutrix. PWs 8 and 9, I have already noted, were the police officers who had investigated the case. PW 7 Dr. Mumtaz Ahmad had medically examined the lady on 22.5.1996, i.e., after 21 days of the occurrence and had issued the medical report. Ext-1. As regards the other witnesses, like, PWs 1 to 6 no one had really seen the occurrence as no one could have, but the prosecutrix PW 5 Radha Devi. They gave evidence on either having learnt about the commission of the offence from the prosecutrix and her family members or had seen the accused running away from the scene of occurrence. 7. On consideration of the evidence, the judgment of conviction was rendered. 8. Sri Brajesh Kumar, learned counsel appearing on behalf of the appellant has submitted that the evidence of witnesses indicated, as if, the appellant had been either caught or had been seen running away from the scene of occurrence and the further evidence suggested, as if, the appellant had wriggled himself out of the clutches of the witnesses but no attempt was made by them to pursue the appellant up to his house. Submission also was that the family members of the prosecutrix, like, PW 3 Kumariya Devi, her mother-in-law, PW 2 Umesh Sah, the dewar of the prosecutrix were stating that in spite of all the family members of the prosecutrix sleeping inside their respective rooms and houses, the lady was occupying a chauki on the verandah of the house and the disturbing feature of the evidence was that her husband was not available in his house during that night, rather he has admitted that he was absent from his house during that night and could know about the occurrence only when he came from his garage in the next morning. Attention of the Court in the above connection has been drawn to the evidence of PW 4 Ganesh Sah, the husband of the prosecutrix. Submission further in this regard was that the lady does not appear within the strict virtues and that is magnified by the evidence of PW 7 Dr. Mumtaz Ahmad who during the medical examination of the lady had found some trace of pus-cells and had returned an opinion that the lady was suffering from some disease. It was also suggested by the learned counsel to the Court that this could be the reason that the husband was keeping away from the lady as she was a wandering-soul, who was not satisfied by her husband and was soliciting physical connection from different persons and that way had contacted the disease she was suffering from. 9. Sri S.N. Prasad, the learned Additional P.P. was resisting the submission by pointing out to the Court that the law is well settled that the solitary evidence of the prosecutrix has to be valued and could be sufficient for basing the conviction of a rapist. Submission was that there could not be an eye-witness to such an occurrence and that persons who are in shoes either of the victim or the perpetrator of the offence, could be the witness. But circumstances appearing from the evidence of witnesses examined in the case, like, PWs 1, 2, 3, 4 and 6 amply indicated that it was this appellant who had committed the offence. 10. But circumstances appearing from the evidence of witnesses examined in the case, like, PWs 1, 2, 3, 4 and 6 amply indicated that it was this appellant who had committed the offence. 10. There may not be any quarrel with the proposition canvassed upon by Sri Prasad the learned Additional P.P. that the solitary evidence of the prosecutrix may be sufficient for recording conviction of an accused alleged to have committed an offence under Section 376 of the IPC, but the appreciation of evidence could not be made blind foldedly. In my considered view, the evidence of the prosecutrix has also to be appreciated on the same yardstick of appreciation of evidence and if there is any reasonable inference appearing from the evidence or the circumstances attending upon the commission of the offence from the evidence, then the benefit of the inferred circumstances, really has to go to the accused. Likewise, it has also to be kept in mind that an offence of rape in present day time is such an offence which is also used as a weapon of reappraisal or of wrecking vengeance. It may be very difficult for an accused to explain as to why he has been falsely implicated in such a case. Keeping these parameters in my mind, I have considered the evidence of witnesses. PW 1 Akshay Lal Sah had arrived at the scene of occurrence after hearing hulla and he stated that he had not seen the accused running away from there. As per his evidence he learnt from Laxman Sah (PW 6) after enquiry from him that Chaturbhuj Sah, the appellant, had committed rape upon the victim. This evidence comes in paragraph 1 of PW 1. In paragraph-4 of his evidence PW 4 has stated that he had not seen the accused running from the scene of occurrence. When it came to seeking corroboration to the fact that he (PW 1) had learnt about the commission of rape upon the victim by this appellant Chaturbhuj Sah from Laxman Sah, what I found after examining the evidence of PW 6 Laxman Sah was that he had never stated that anyone has enquired from him about the reason for the ha and hoopla and that he had stated to him that it was this appellant who had committed rape upon PW 5. Thus, not only the evidence of PW 1 goes uncorroborated by PW 6 but it appears totally inadmissible on account of being a mere hearsay evidence. So far as PW 2 Umesh Sah is concerned, he is the very younger brother of Ganesh Sah (PW 4), the husband of the prosecutrix and as per his own evidence, he was sleeping inside his room along with his wife and two children and he stated that when his bhabhi, i.e., prosecutrix (PW 5) raised an alarm, he came out from his house and learnt from the prosecutrix that it was this appellant who had committed rape upon her. PW 2 stated that he had seen the appellant running away also, but during cross-examination it appears that it could be a very belated arrival of PW2 at the scene of the occurrence and it could not be very wise to act upon his evidence as his very conduct which was pointed out by the learned counsel appearing for the appellant appears unacceptable when viewed in the context to the allegations of a man having committed rape upon one of the very closest family members of the witnesses. PW 7 has stated that he had seen the appellant but he did not make any attempt either to chase him or to catch him or even to follow him. This evidence again gets contradicted or becomes unacceptable when PW 2 stated in paragraph-8 that he had some scuffle with the appellant for about two minutes and the accused made good his escape, which is a new story and the story narrated by PW 2 does not get support from any of the witnesses. Even Kumariya Devi (PW 3), the mother of PW 2 and the mother-in-law of the prosecutrix also does not state that anyone had any scuffle with the accused, specially PW 2 Umesh Sah had such a scuffle. PW 3 Kumariya Devi also came out of the house where she was sleeping after hearing alarm of her daughter-in-law and saw the appellant running away from there and was told by the prosecutrix that it was this appellant who had committed rape upon her. PW 3 Kumariya Devi also came out of the house where she was sleeping after hearing alarm of her daughter-in-law and saw the appellant running away from there and was told by the prosecutrix that it was this appellant who had committed rape upon her. The conduct of PW 3 is unnatural as she had stated that after she had seen the accused running away and she had learnt about the commission of the offence by him from her daughter-in-law PW 5, she did not narrate the fact to any of the villagers who were 10 to 15 in numbers, who had assembled there and she could narrate the story to the villagers only in the next morning. PW 4 is Ganesh Sah who was the husband of the prosecutrix and who was not present in his house and had learnt about the incident in the next morning after he had come back from his work place. The witness tells a story different from others. As regards some of the attending circumstances, PW 4 stated in para-2 that after he had learnt about the commission of the offence from his wife, he convened a panchayati of village-people and informed them about the incident who asked them to me a case in Court. This explanation is not there in the complaint petition and the Court may suppose that the complainant ought to have been accompanied by her husband while going to the Court for filing the report. The fact of holding a panchayati by calling the villagers is important as not so be missed out either by the prosecutrix in her evidence or to be mentioned in the complaint petition. Moreover, what puts me on alarm is that none of the villagers who could have participated in the panchayati was cited as a witness or examined as such in Court. Besides, PW 1 Akshay Lal Sah or even PW 2 Umesh Sah were not stating this fact that any panchayati had been convened and after being advised to lodge a case, the complaint petition was filed. It was probably introduced at the later stage of the trial during examination of PW 4 only to satisfy the enquiry of the judicial mind as to why the complainant was avoiding to inform the police or was not prompt in filing the complaint petition. 11. PW 5 Radha Devi has supported her case. It was probably introduced at the later stage of the trial during examination of PW 4 only to satisfy the enquiry of the judicial mind as to why the complainant was avoiding to inform the police or was not prompt in filing the complaint petition. 11. PW 5 Radha Devi has supported her case. PW 6 Laxman Sah yet another witness coming to depose on the point that he had identified the accused while he was running away, do not appear making any serious impact on my mind for many reasons. One particular reason is that PW 6 was stating that he flashed the torch light and saw the accused emanating from the verandah of the house of PW 5 the prosecutrix, but in cross-examination he has stated that when he first saw the appellant, he was almost in his house, present there just East of it, which fact goes completely in contradiction with his claim that he had seen the accused running away from the verandah of the prosecutrix. Moreover, the torch light is itself indicative of the fact that the light was never sufficient to facilitate identification of the accused. The fact was that the torch light was not produced and there was no introduction of any source of light by any other person appears fatal to the prosecution. It was probably a dark night making it impossible to identify the accused. This is the evidence which came from different witnesses. 12. Submission was made on the probability of the case and those submission have their own value. Indeed, if 15 to 10 persons had converged upon the occurrence and had seen the accused running from the place and, as I have just noticed after considering the evidence of PW 2, if the accused had scuffled with some witness, like. PW 2, then there could be two inferences. The first being the witness indeed attempted to arrest the accused, but did not succeed in it. Some witnesses stated, that the accused had wriggled himself out of the clutches of the witnesses to make good his escape, but then if the witnesses were so inclined to arrest the accused, there was no satisfactory reason appealing from the records as to why they would give up their attempt and should not pursue the accused to his house and arrest him and produce him before the police. Next inference could be that in fact it was not a real catch or chase or even seeing and identifying the accused as was claimed by the witnesses. They were probably speaking out of their imagination for any particular reason known best to them, further submission was on the other circumstance appearing from the evidence of the case. The lady was mother of three little children. It is very difficult to fix the time of marriage but the narration of the story indicates that after being lulled to sleep, their mother, curiously enough had gone out to sleep in a place described as a jhopari by the witnesses which was separate from her main house. Such little children did not have the company of their mother, appears extremely curious as the mother of the little children of eight years or five years could abandon her children to go out to sleep as appears from some part of the evidence in a different structure which have been described as a jhopari as noted just now, dues not appear for good reasons. The other circumstances equally important was that the lady was' not having the company of her husband PW 4 Ganesh Sah has stated that he was not present in the house that night. Why should Ganesh Sah keep away from the lady or from his house. He was a mechanic working in a motor-garage and was a denting mechanical which job could not require PW 4 to stay away from his home oven light. As soon as it is evening time, persons of such calling do return to their house so as to pick up the instrument in the next morning to carry over. There does appear some circumstance indicated by the medical evidence that it was not a happily married couple. Dr. Mumtaj Ahmad, PW 7 during the examination of PW 5 had found traces of a few pus-cells and in cross-examination has admitted that the presence of those cells were suggestive of the lady suffering from some diseases. The lady appears a person having strayed away from the virtues of married life and probably had contacted the disease on that account. 13. The lady appears a person having strayed away from the virtues of married life and probably had contacted the disease on that account. 13. Suggestion was that there was some dispute for sale and purchase of a particular piece of land and PW 5, the lady in her cross-examination in paragraph-6 had given details of the dispute regarding plot No.472 which she wanted to purchase but failed due to the accused having succeeded in purchasing the land. Human mind and human heart are too inscrutable to be appropriately understood. A little thing or a similar incident, even some exchange of hot words, could be retained by some persons to be repaid in times future, in terms which be quite harassing for some one. This appears the case with the case in hand. The lady was avoiding the police. She was not giving any explanation in her petition of complaint. The explanation had come very belatedly through her husband (PW 4) and again those explanations went uncorroborated on account of non-examination of persons who had as per claim of the prosecution participated in the panchayati, who ultimately advised her to file a complaint. The Court does not see any reason as to why when the entire village or the whole mohalla was agog with the information of the lady having been violated by the appellant, no one was ready to move the police by lodging a report. Even after the complaint petition had been filed, the lady was not going to any doctor prior to 22nd May of 1996 when she was finally appearing before PW 7 Dr. Mumtaj Ahmad for her medical examination who was also not certain as no one could be, that the offence of rape had really been committed upon her. The lady probably was settling some scores, probably on account of having not succeeded in purchasing plot No. 427 and, as such, was being supported only by persons of her caste. 14. These are some of the reason, I have appreciated and identified from the evidence and on these reasons, I find that it was not a case in which the accused should have been convicted. 15. In the result, the appeal succeeds. The judgment of conviction and the order of sentence are hereby set aside. The appellant Chaturbhuj Sah is acquitted. He is on bail. 15. In the result, the appeal succeeds. The judgment of conviction and the order of sentence are hereby set aside. The appellant Chaturbhuj Sah is acquitted. He is on bail. He shall stand discharged from the liabilities of his bail bonds. Appeal allowed.