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2016 DIGILAW 774 (JHR)

Jai Lal Pandey v. State of Jharkhand

2016-05-04

ANANT BIJAY SINGH

body2016
ORDER : The sole appellant stands convicted under Section 376 IPC and has been ordered to undergo rigorous imprisonment for seven years and fine of Rs.10,000/and in default of payment of fine, to further undergo simple imprisonment for three months vide the judgment of conviction dated 20.04.2002 and the order of sentence dated 30.04.2002 passed by learned 1st Additional Sessions Judge, Seraikella in S. T. No. 264/2000. 2. The case of the prosecution, as recorded in the fardbeyan of the prosecutrix dated 05.07.2000 by the OfficerinCharge of Ichagarah P. S, is that 14 days prior to giving of the fardbeyan, on 22.06.2000 at 3.30 P.M, the prosecutrix was going to her father's home at Village Adardih alone and when she reached near a banian tree, she saw the appellant coming from opposite direction. When he reached near the prosecutrix, he suddenly caught hold of the prosecutrix and forcibly took her towards the bushes whereupon the prosecutrix resisted and raised alarm, but she was assaulted and her neck was pressed and rape was committed on the prosecutrix and thereafter, Jai Lal Pandey threatened her to kill. Thereafter, the prosecutrix returned to her village and disclosed every thing to her husband. Thereafter, her husband went to the house of one Kripa Sindhu Mahato where Jai Lal Pandey used to live. A panchayeti was asked to expel Jai Lal Pandey from the village, but he refused to leave the village. Then the F.I.R was lodged. 3. On the basis of the allegations made in the F.I.R, Ichagarh P. S. Case No. 38/2000 under Section 376 IPC was instituted. The Police started investigation and submitted chargesheet. Thereafter, the charges were framed against the appellant on 03.01.2001 under Section 376 IPC. 4. During course of the trial, the prosecution has examined altogether seven witnesses including the Investigating Officer and the prosecutrix (PW5). The learned Trial Court on the basis of the materials and evidence on record, both oral as well as documentary, held the appellant guilty under Section 376 IPC and convicted him accordingly. 5. The learned counsel for the appellant while assailing the impugned judgment, during the course of argument, submitted that the age of the PW5 (prosecutrix) has been assessed by learned Trial Court as 40 years whereas, PW7 Dr. Radhika Kumari Sinha has examined the prosecutrix on 06.07.2000 and has assessed her age on the basis of XRay as 17 years. 5. The learned counsel for the appellant while assailing the impugned judgment, during the course of argument, submitted that the age of the PW5 (prosecutrix) has been assessed by learned Trial Court as 40 years whereas, PW7 Dr. Radhika Kumari Sinha has examined the prosecutrix on 06.07.2000 and has assessed her age on the basis of XRay as 17 years. There is very wide gap in the age assessed by the Doctor and the Court, which falsifies the case of the prosecution. It has been further submitted that although the Doctor examined the prosecutrix on 06.07.2000 and found marks of violence, in paragraph 4 of her cross examination, she has stated that she did not find any injury on the private part, as per the injury report (Ext.3). It has been submitted that no much reliance can be placed in view of the evidence of the Doctor. It has been further submitted that the occurrence is said to have taken place on 22.06.2000, but the fardbeyan was recorded on 5.07.2000. There is delay of 13 days in recording the fardbeyan for which no explanation has been given either by the informant or by the other witnesses, which causes serious doubt over the prosecution case. Learned counsel for the appellant while referring to the evidence of PW6 (I.O.) submitted that in paragraph 2 of his deposition, the I.O has stated that as per the information of the prosecutrix, he inspected the place of occurrence. The place of occurrence is situated near a canal in between the village Bistatand and Sodo on an unmetal road where there is a banian tree in the northern side and one mud house is there, but nothing incriminating has been recovered by the I.O from the place of occurrence. He proved the fardbeyan as Ext.1. In his cross examination, he has stated that the police station is situated 15 K.M North from the village Bistatand, but the FIR was lodged on 15.07.2000. According to PW6, since Panchayeti was going on, there was delay in lodging the FIR, but during the course of investigation, he did not find any evidence of Panchayeti between the parties. In cross examination, PW6 has further stated that during investigation, he did not investigate about the facts that the husband of the prosecutrix has second wife and there was enmity between the parties due to party politics. In cross examination, PW6 has further stated that during investigation, he did not investigate about the facts that the husband of the prosecutrix has second wife and there was enmity between the parties due to party politics. It was submitted that the I.O has not made investigation on the vital points such as the enmity between the parties, delay in lodging the FIR and giving fardbeyan, panchayeti between the parties. So, the prosecution has failed to prove its case beyond all reasonable doubt. 6. Learned counsel for the appellant relied on a decision of the Hon’ble Supreme Court in Dayal Singh & Ors. Vs. State of Uttaranchal reported in (2012) 8 SCC 263 wherein it has been held as under: “Acts of omission and commission on part of investigating officer and medical officer. Dereliction of duty or carelessness is an abuse of discretion under a definite law and misconduct is a violation of indefinite law. Misconduct is a forbidden act whereas dereliction of duty is the forbidden quality of an act and is necessarily indefinite. One is a transgression of some established and definitive rule of action, with least element of discretion, while the other is primarily an abuse of discretion. The ambit of these expressions had to be construed with reference to the subject-matter and the context where the term occurs, regard being given to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires maintenance of strict discipline. An investigation office is completely responsible and answerable for the manner and methodology adopted in completing his investigation. The consequences of these defaults should normally be attributable to negligence. Police officers and doctors, by their profession, are required to maintain duty decorum of high standards. The standards of investigation and the prestige of the profession are dependent upon the action of such specialized persons. The investigating officer, as well as the doctor who are dealing with the investigation of a criminal case, are obliged to act in accordance with the police manual and the known canons of medical practice, respectively. They are both obliged to be diligent, truthful and fair in their approach and investigation. The Police Manual and even the provisions of CrPC require the investigation to be conducted in a particular manner and method which, stands clearly violated in the present case. They are both obliged to be diligent, truthful and fair in their approach and investigation. The Police Manual and even the provisions of CrPC require the investigation to be conducted in a particular manner and method which, stands clearly violated in the present case. PW 3 the medical officer concerned not only breached the requirement of adherence to professional standards but also became instrumental in preparing a document which, ex facie, was incorrect and stood falsified by the unimpeachable evidence of the eyewitnesses placed by the prosecution on record. This results in shifting of avoidable burden and exercise of higher degree of caution and care on the courts. If primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcement agency but also in the administration of justice. Expert opinion vis-a-vis eyewitness version. The skill and experience of an expert is the ethos of his opinion, which itself should be reasoned and convincing. Not to say that no other view would be possible, but if the view of the expert has to find due weightage in the mind of the court, it has to be well authored and convincing. The purpose of expert testimony is to provide the trier of fact with useful, relevant information and to assist the court in arriving at a final conclusion. Such report is not binding upon the court. An expert report, duly proved, has its evidentiary value but such appreciation has to be within the limitations prescribed and with careful examination by the court. The court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not.” 7. It has been submitted that in view of the law laid down by the Hon'ble Supreme Court, the judgment of conviction of the learned Trial Court cannot sustain. The appellant was arrested and remanded in this case on 15.07.2000 and by order dated 11.07.2003 of this Court, he was released on bail during pendency of this appeal. It was further submitted that PW7 (Doctor) has corroborated the case of the prosecution and there is no illegality in the impugned judgment. 8. The appellant was arrested and remanded in this case on 15.07.2000 and by order dated 11.07.2003 of this Court, he was released on bail during pendency of this appeal. It was further submitted that PW7 (Doctor) has corroborated the case of the prosecution and there is no illegality in the impugned judgment. 8. Having heard learned counsel for the appellant and learned A.P.P. appearing on behalf of the State and in view of the evidence of the prosecutrix in which she has herself stated her age as 40 years, whereas the Doctor has assessed her age as 17 years, I find that this contradiction has not been properly dealt with in the Trial Court judgment. The evidence of PW.7 (Doctor) is also not reliable, as in her injury report (Ext.3), she has not given any data for coming to the conclusion that the rape was committed on the prosecutrix. She has simply stated that since hymen is ruptured, it indicates the sign of rape, but in her cross examination, she has categorically stated that she did not find any injury inside or outside the private part of the prosecutrix. Although the PW6 (I.O.) in his crossexamination has stated that the occurrence took place on 22.06.2000, but the fardbeyan was recorded on 15.07.2000 after about more than 23 days. There is no plausible explanation for the delay in filing the F.I.R. The prosecution has failed to give plausible explanation for delay in lodging the FIR and also to bring on record the convincing materials to establish that the rape was committed on the prosecutrix. In my considered opinion, the prosecution has not been able to prove its case beyond any reasonable doubts. 9. In the result, this appeal is allowed. The judgment of conviction dated 29.04.2002 and the order of sentence dated 30.04.2002 passed by learned 1st Additional Sessions Judge, Seraikella in S. T. No. 264/2000 is, hereby, set aside. Since the appellant is on bail, he is discharged from the liability of his bailbond furnished in this case.