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2017 DIGILAW 315 (JHR)

Muslema Khatun v. State of Jharkhand

2017-02-14

RONGON MUKHOPADHYAY

body2017
ORDER : 1. Heard Mr. Uday Choudhary , learned counsel for the petitioner and learned A.P.P. for the State. 2. This application is directed against the judgment dated 22.01.2001 passed by the Assistant Sessions Judge, Pakur in Sessions Case No. 30 of 1995 whereby and whereunder the opposite party no. 2 has been acquitted from the charges levelled against him for the offence punishable under Section 376 of I.P.C. 3. It has been stated by the learned counsel for the petitioner that the informant - P.W. 4 specifically supported the manner of occurrence and the commission of rape upon her by the respondent no. 2. It has been stated that although the Doctor and the Investigating Officer were not examined, but that itself would not prejudice the prosecution case in view of the consistent evidence given by the prosecutrix. Learned counsel further submits that evidence of P.W. 4 is consistent with her statement initially recorded in the FIR. Learned counsel therefore submits that the learned trial court has not properly appreciated the evidence of P.W. 4 while acquitting the respondent no. 2 for the offence under Section 376 of I.P.C. 4. Learned counsel appearing for the respondent no. 2 has supported the impugned order and stated that the evidence of P.W. 4 has not been supported by any independent witnesses and in fact P.W. 2 & 3 are interested witnesses. It has been stated that the informant has herself admitted about the institution of the case under Section 376 of I.P.C. against the respondent no. 2 and his cousin brother earlier to the present incident. It has been stated that the institution of the case and discrepancy in the statement of the witnesses do suggest that the case has been instituted out of malice. 5. It appears that the FIR was instituted on 21.11.1993 in which it was alleged that while the petitioner was sleeping, respondent no. 2 surreptitiously entered into the house and had committed rape upon her. It is also alleged that she caught hold of the respondent no. 2 and raised alarm, but subsequently the brother and father of the respondent no. 2 came and had forcibly taken him away while causing injury to the informant. In course of trial, 5 witnesses have been examined. P.W. 1 - Farid Mallik has not supported the prosecution case and therefore, declared hostile by the prosecution. 2 and raised alarm, but subsequently the brother and father of the respondent no. 2 came and had forcibly taken him away while causing injury to the informant. In course of trial, 5 witnesses have been examined. P.W. 1 - Farid Mallik has not supported the prosecution case and therefore, declared hostile by the prosecution. P.W. 2 - Kudrat Mallik and P.W. 3 - Mohba Khatun have stated about the alarm raised by the petitioner and that they had subsequently come to the house of the petitioner. P.W. 4 - Muslema Khatun is the informant herself. P.W. 5 - Yusuf Mallik is a seizure list witness. The trial court has made a threadbare examination of the evidences of P.Ws. 2, 3 & 4. It appears that P.W. 2 and 3 have given an exaggerated version of the manner of incident which is rightly disbelieved by the learned trial court. So far as the evidence of P.W. 5 is concerned, there appears to be major discrepancy in the statement recorded at the initial stage and her subsequent evidence during trial, whereas in the FIR, she has stated that the opposite party no. 2 was already in the process of committing rape, but in course of her evidence she has given an altogether different version with respect to the manner of occurrence and the attempt made by the respondent no. 2 in trying to commit rape upon her. It further appears that the P.W. 5 has admitted the previous enmity between her and respondent no. 2, inasmuch as, a case under Section 376 of I.P.C. was also instituted by the petitioner against the respondent no. 2 and his cousin brother prior to the incident. The enmity as has been brought forth has also been supported by P.W. 2 and 3. So far as P.W. 3 is concerned, she happens to be sister-in-law of the prosecutrix. Although several houses were in the vicinity where the incident had taken place, but absence of any independent witnesses with respect to the alarm raised by the petitioner and the subsequent appearance of the father and brother of the respondent no. 2 taking him away from the clutches of the informant does not get proved. P.W. 2 and 3 therefore can be said to be interested witnesses. 2 taking him away from the clutches of the informant does not get proved. P.W. 2 and 3 therefore can be said to be interested witnesses. Moreover the Doctor as well as the I.O. has not been examined which caused prejudice to the prosecution case in view of the paucity of evidence which has been brought by the prosecution. Furthermore a petticoat which was allegedly seized by the police was never produced before the court and the seizure list witness also with respect to said seizure was not examined. 6. The facts and circumstances also does indicate that the petitioner had instituted a case under Section 376 of I.P.C. against the opposite party no. 2 under malice as a result of the enmity which was existing between the parties. The prosecution having failed to prove its case beyond all reasonable doubts, the respondent no. 2 has rightly been acquitted by the learned trial court. There being no material to suggest otherwise, this application fails and is accordingly dismissed. Application dismissed.