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2017 DIGILAW 1518 (PAT)

Shiv Kumar Jha @ Nepul Jha v. State of Bihar

2017-11-23

PRAKASH CHANDRA JAISWAL

body2017
PRAKASH CHANDRA JAISWAL, J.:–Heard learned counsel for the appellant and learned APP for the State. 2. This appeal has been preferred against the judgment and order of conviction dated 30.05.2002 and order of sentence dated 31.05.2002 passed by the 3rd Additional Sessions Judge, Samastipur in Sessions Trial no. 351 of 1998/ 338 of 1999 arising out of Khanpur P.S. Case No. 51 of 1997, whereby the learned trial court convicted the accused Shiv Kumar Jha @ Nepul Jha for the offence punishable under Section 376/511 of the Indian Penal Code and sentenced him to undergo R.I. for five years for the said offence. 3. The factual matrix of the case is that Khanpur P.S. Case No. 51 of 1997 was instituted under Section 376/511 of the Indian Penal Code against the accused Shiv Kumar Jha @ Nepul Jha on the basis of statement of Punam Devi W/o Chandra Kishore Lal R/o Village-Basantpur P.S. Khanpur District-Samastipur with the allegation in succinct that, on 05.07.1997 at about 02:00 PM, while she was regressing to her house after defecation and as soon as she arrived in bamboo clump of Ramanand Jha, abruptly Shiv Kumar Jha @ Nepul Jha pounced her and shoving her on the ground, lifted her attire and taking out his genital organ tried to commit rape against her forcibly. She made hulla, responding the same, her gotni Nirmala Devi, Kaushalya Devi and villagers rushed there and seeing the arrival of the witnesses, the said accused left the scene. She divulged the occurrence to her husband on regression to house and when her husband approached the accused to make complain, the accused assaulted him by means of leg and fists and extended threatening of dire consequences in case of filing case against him. 4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the appellant (Shiv Kumar Jha) under Section 376/511 of the Indian Penal Code. 5. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused and committed the case to the court of sessions and on transfer finally the case came in seisin of 3rd Additional Sessions Judge, Samastipur for trial. 6. Charge against the aforesaid accused was framed under Section 376/511 of the Indian Penal Code. 6. Charge against the aforesaid accused was framed under Section 376/511 of the Indian Penal Code. Charge was read over and explained to him to which he pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether six prosecution witnesses namely, Nirmala Devi as PW-1, Kaushalya Devi as PW-2, informant Punam Devi as PW-3, husband of the informant Chandra Kishore Lal as PW-4, S.I. Satish Chandra Prasad as PW-5 and S.I. Alok Kumar Singh as PW-6. Out of the aforesaid witnesses, PW-1 (Nirmala Devi) turned hostile. In documentary evidence, the prosecution has filed and proved some documents. 8. The statement of the accused was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming himself to be innocent and falsely implicated in the case. In buttress of his case, he has neither adduced any ocular nor documentary evidence. 9. After hearing the parties and perusing the record, the learned trial court passed the impugned judgment and order of conviction and sentence as detailed in the earlier paragraph. 10. Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction and sentence, the convict has preferred the present Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellant beyond all reasonable doubts or not. 12. It is submitted by the learned counsel for the appellant that there are three material witnesses of the case. Out of them PW-1 (Nirmala Devi) has turned hostile and PW-2 (Kaushalya Devi) is inimical to the appellant. There is vital contradiction in the testimony of the prosecutrix regarding witnessing of the occurrence by the witnesses and regarding assaulting of her husband by the appellant on his approach to him to make complaint of the occurrence. It is further submitted that admittedly there are number of houses in the vicinity of the place of occurrence and informant made alarm for half an hour during the occurrence, but barring the aforesaid witnesses, none rushed in her rescue. The informant has also divulged the occurrence to the Mukhiya, Sarpanch and number of villagers, but none among them has turned up before the court in corroboration of the case of the prosecution. The informant has also divulged the occurrence to the Mukhiya, Sarpanch and number of villagers, but none among them has turned up before the court in corroboration of the case of the prosecution. It is further submitted that occurrence is of 05.07.1997 at around 02:00 PM and information of the occurrence was given to her husband by the informant on the same day at around 05:30 PM on his regression to the house and her husband had approached the appellant to make complain of the occurrence on the following morning. But, the information to the P.S. was given after two days on 07.07.1997 and no plausible reason has been assigned for such delay in giving information to the P.S. which creates serious doubt about the prosecution case. It is further submitted that as per the prosecution case, the appellant kept the victim caught hold for half an hour, but no rape against the victim was committed by the appellant. The aforesaid aspect of the case also goes to rule out the prosecution case. As had any such occurrence taken place, the appellant would have certainly committed rape against the victim instead of making attempt for the same. It is further submitted that though there was scuffling etc. between the victim and the appellant at the place of occurrence for half an hour, but the I.O. has not found any mark of trampling and violence etc. at the place of occurrence which also goes to rule out the prosecution case. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case by adducing consistent, trustworthy and reliable ocular and documentary evidence. Hence, the appellant is entitled to get the benefit of doubt. 13. On the other hand, learned APP advocating the correctness and validity of the impugned judgment and order of conviction and sentence, submitted that prosecutrix and her one witness namely, PW-2 (Kaushalya Devi) have supported the prosecution case in toto and after correctly appreciating the facts and evidence on record, the learned lower court has rightly passed the impugned judgment and order of conviction and sentence, and the same is liable to be upheld and this appeal has no substance in it and is liable to be dismissed. 14. On perusal of record, it appears that there are only four material witnesses of the case who are PWs-1, 2, 3 and 4. 14. On perusal of record, it appears that there are only four material witnesses of the case who are PWs-1, 2, 3 and 4. Out of them PW-4 (Chandra Kishore Lal) happens to be hearsay witness. While PW-1 (Nirmala Devi) who is said to have arrived at the place of occurrence responding hulla made by the informant has turned hostile. Though, PW-2 (Kaushalya Devi) who is also said to have rushed to the place of occurrence responding hulla made by the informant and has made an abortive bid to support the prosecution case by stating in her examination-in-chief that at the time of occurrence, she was present in her courtyard, she listened hulla of a lady from bamboo clump, responding hulla, she rushed there and found Punam Devi lying on the ground. Shiv Kumar Jha was climbing on her, the attire of Punam Devi was lifted above her waist and Shiv Kumar Jha was trying to commit rape against her by taking out his genital organ. She was trying to cover her body and on her arrival there, Shiv Kumar Jha left the scene leaving Punam Devi. But, from perusal of the testimony of the aforesaid witness as given by her in her cross-examination, it appears that the said witness happens to be on inimical terms with the appellant. As in paragraph 6 of her cross-examination, she has stated that the appellant Shiv Kumar Jha happens to be her cousin-in-law. She was having a land dispute with him. She had filed case under Section 107 Cr.P.C. against him for assaulting her and she had also filed a criminal case against him for assaulting her and committing theft of her attire etc. Moreover, the said witness happens to be close to the informant and is having visiting term with her for last four years. As the informant has stated in paragraph 3 of her cross-examination that she knows Kaushalya Devi for last four years. She has visiting term with her. Thus the PW-2 (Kaushalya Devi) happens to be interested witness and is also on inimical terms with the appellant and her testimony is not worth reliable. 15. The informant PW-3 though has also made an abortive bid to support the prosecution case by narrating the occurrence as alleged in the FIR. She has visiting term with her. Thus the PW-2 (Kaushalya Devi) happens to be interested witness and is also on inimical terms with the appellant and her testimony is not worth reliable. 15. The informant PW-3 though has also made an abortive bid to support the prosecution case by narrating the occurrence as alleged in the FIR. But, from perusal of her testimony of the informant and that of PW-2, it appears that there are number of houses in the vicinity of the place of occurrence and around 100-200 peoples are residing there and as per the account of the informant, she made hulla for around half an hour during the occurrence, but it is very strange that responding hulla made by the informant for such a long span of time, only two witnesses who happens to be her gotni (PW-1) and PW-2 who happens to be on inimical terms with the appellant and is having visiting term with the informant and as per statement of informant given in paragraph 14 of her cross-examination whose house is located at 3-4 lagga corresponding to 32 feet from place of occurrence rushed there and none else of vicinity of place of occurrence listened the aforesaid hulla and rushed in her rescue. The aforesaid aspect of the case creates serious doubt about the prosecution case. PW-3 (Punam Devi) has also stated in paragraph 5 of her cross-examination that she had divulged occurrence to the Mukhiya, Sarpanch, Ramchandra Jha, Kedar Jha and around 25-30 villagers, but none of them came forward in corroboration of the aforesaid occurrence. As per the prosecution case, responding hulla made by the informant during occurrence, Nirmala Devi besides Kaushalya Devi rushed to the place of occurrence, but in quite contradiction to the aforesaid prosecution case, the informant has stated in paragraph 14 of her cross-examination that the house of her gotni (PW-1) is located close to the place of occurrence, but she does not live in village and she was not living in her house at the time of occurrence. Likewise, as per prosecution case as alleged by the informant in her fardbeyan, on approaching the appellant to make complain regarding the occurrence by her husband, the appellant assaulted him by means of leg and fist. Likewise, as per prosecution case as alleged by the informant in her fardbeyan, on approaching the appellant to make complain regarding the occurrence by her husband, the appellant assaulted him by means of leg and fist. But, in quite contradictions to the aforesaid prosecution case, the informant has stated in paragraph 7 of her cross-examination that when her husband approached the appellant to make complain, he shoved him on the ground and assaulted him by means of brickbat and bamboo and his wound was bleeding. 16. As per account of the informant given in paragraph 8 of her cross-examination the accused kept her pounced for half an hour. She tried to save her from him, but neither she herself nor the accused has sustained any injury in the occurrence. Even her attire was not torn. The aforesaid statement of the informant also creates serious doubt about the occurrence as had such occurrence taken place for half an hour certainly the either side would have sustained some sort of injury like bruise and abrasion and attire of the informant would have torn. 17. From perusal of testimony of the I.O. (PW-6), it appears that the I.O. has not found any mark of violence and trampling at the place of occurrence. The aforesaid aspect of the case also creates serious doubt about the occurrence. As had the aforesaid occurrence taken place for half an hour and there had been scuffling between the informant and accused during the occurrence certainly there would have been trampling mark and mark of violence at the place of occurrence, but no such mark was found by the I.O. at the place of occurrence. 18. As per prosecution case and statement of the informant, the occurrence took place on 05.07.1997 at around 02:00 PM and she divulged the occurrence to her husband on his regression to the house on the same day at 05:30 PM, but her husband approached the appellant to make complain of the occurrence on the following day i.e. on 06.07.1997 and lodged the FIR at the P.S. on 07.07.1997 at 09:00 AM, though, P.S. is located at 8 Km. from the place of occurrence. The prosecution has also not assigned any plausible reason to explain the aforesaid delay of around two days in lodging the F.I.R. The aforesaid aspect of the case also creates serious doubt about the prosecution case. 19. from the place of occurrence. The prosecution has also not assigned any plausible reason to explain the aforesaid delay of around two days in lodging the F.I.R. The aforesaid aspect of the case also creates serious doubt about the prosecution case. 19. It is the settled principle of law that for an offence like under Sections 376 and 376/511 of the IPC conviction can be made on the basis of sole testimony of the prosecutrix, but the aforesaid testimony of the prosecutrix must be unblemished and not shrouded by any doubt. But considering the facts and circumstances of the case, I find that the testimony of the informant is not unblemished as it is shrouded by several facts and contradictions creating serious doubt about the prosecution case. 20. In the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to bring home the charge levelled against the appellant beyond all reasonable doubts by adducing convincing, cogent, consistent and wroth credence ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by learned lower court is set aside and the appellant is acquitted of the charge levelled against him. As the appellant is on bail, he is discharged from the liability of the bail bonds. Accordingly, this Criminal Appeal is allowed.