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2018 DIGILAW 1412 (JHR)

Ghiso Das v. State Of Jharkhand

2018-07-03

KAILASH PRASAD DEO

body2018
JUDGMENT Kailash Prasad Deo, J. - Heard, Mr. Manoj Kumar Sah learned counsel appearing for the appellant and Mr. Sudhir Kumar Roy, learned Addl. Public Prosecutor for the State. 2. The instant Criminal appeal has been preferred against the judgment of conviction and order of sentence, both dated 06.12.2003, passed by the learned Sessions Judge, Godda (arising out of Mahagama P. S. Case No.26 of 2001 in S.T. No.98 of 2001 dated 17.02.2001 corresponding to G.R. No. 164 of 2001) whereby the sole appellant, Ghiso Das has been convicted for the offence punishable under Sections 448 and 376 read with Section 511 of the Indian Penal Code. The appellant has been awarded simple imprisonment for six months for the offence committed under section 448 of the Indian Penal Code and rigorous imprisonment for four years for the offence committed under Section 376 read with Section 511 of the Indian Penal Code and both the sentences are directed to run concurrently. 3. The prosecution case is based upon the fardbeyan of Sulekha Devi (P.W. -1) who went to Mahgama Police Station on Saturday morning at 7:45 a.m., along with her husband, Mangal Das and father-in-law, Gannu Das, recorded her ''fardbeyan'' in presence of Officer-In-charge, Mahagama police station, whereby the informant alleged, that in the night of 16/17.02.2001 after taking meal, she was sleeping along with her husband. At around of 12 o''clock in the night, she felt that somebody has climbed over her and tried to catch her breast. Feeling so, the informant got up and she identified the accused in the light of the lamp as his co-villager, Ghiso Das, who has climbed over her. As soon as, the informant got up, Ghiso Das inserted cloth in her mouth and pressed her mouth with one hand and was trying to remove sari and petticoat for committing rape upon her. When the informant tried to save herself, her husband got up and raised hulla as ''thief'' ''thief'' and thereafter both husband and wife together scuffled with the accused and caught-hold of the accused. On the brawl raised by them, the neighbours and other co-villagers also assembled. They became aggressive and they assaulted Ghiso Das (appellant) with fists and slaps. When the informant tried to save herself, her husband got up and raised hulla as ''thief'' ''thief'' and thereafter both husband and wife together scuffled with the accused and caught-hold of the accused. On the brawl raised by them, the neighbours and other co-villagers also assembled. They became aggressive and they assaulted Ghiso Das (appellant) with fists and slaps. The informant has further stated, that her husband informed the Chowkidar to save the apprehended accused from further and excess assault, but because of the night, they could not come to the Police Station and in the morning, informant along with the Chowkidar, her husband, father-in-law (Gannu Das), co-villager, Nepali Das, Sargho Das (uncle-in-law) came with the accused at the Police Station and handed over the accused to the Police Station. The informant stated that if her husband was not there, accused, Ghiso Das would have committed rape upon her. The occurrence is known to the several villagers, who will disclose the same on enquiry. The apprehended accused had entered into her house from open window. On the basis of the aforesaid ''fardbeyan'' of the Sulekha Devi, informant, the Police instituted First Information Report being Mahagama P.S. Case No. 26 of 2001 dated 17.02.2001 corresponding to G.R. No.164 of 2001 under Sections 448/376 /511 of the Indian Penal Code. 4. After investigation, the Police submitted charge-sheet vide No.44 of 2001 dated 14.05.2001 under Sections 448 /376/ 511 of the Indian Penal Code. The cognizance of the offence has been taken vide order dated 18.05.2001 and the case has been committed to the Court of Sessions vide order dated 23.07.2001. The charge has been framed against the appellant on 15.09.2001 under Sections 448 and 376/511 of the Indian Penal Code, to which the appellant pleaded his innocence and thus, he was put under trial. 5. The prosecution, in order to prove its case, has examined altogether 9 witnesses and also exhibited one document which has been proved and marked as Exhibit-1, i.e. is the entire First Information Report. 6. 5. The prosecution, in order to prove its case, has examined altogether 9 witnesses and also exhibited one document which has been proved and marked as Exhibit-1, i.e. is the entire First Information Report. 6. Sulekha Devi, informant and victim of the case has been examined as P.W.1, Sargho Ravidas has been examined as P.W.2, Mangal Das (husband of the informant) has been examined as P.W.3, Nepali Das has been examined as P.W.4, Bhaggu Das has been examined as P.W.5, Jitendra Ravidas has been as P.W.6, Arun Kumar Singh, Officer-in-Charge and investigating officer of the case, has been examined as P.W.7, Panchkauri Das has been examined as P.W.8, who has been declared hostile by the prosecution, Vishwajit Kumar Singh, the second Investigating officer, who has only submitted charge-sheet against the appellant/accused has been examined as P.W.9. 7. That after closure of the prosecution evidence, appellant has been examined under Section 313 Cr.P.C. on 26.08.2003. Defence has not adduced any witness or any document. Thus, after hearing the learned counsel for the parties, the learned trial court has passed the impugned judgment of conviction and order of sentence, which has been assailed before this Hon''ble Court in the present Criminal Appeal. 8. Mr. Manoj Kumar Sah, learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law, as the same has been passed contrary to the materials available on record. The learned Trial court has not scrutinized the evidence properly and there are contradictions in the deposition of the prosecution witnesses. The finding of the learned trial court is completely perverse. Learned counsel for the appellant has drawn the attention of this Court towards the First Information Report, which was recorded at the Police Station, on basis of the statement of the informant (P.W.1- Sulekha Devi). Learned counsel appearing for the appellant has drawn attention of this Court towards the cross-examination of P.W.3 (Mangal Das), who has admitted, that Chowkidar went to the Police Station along with P.W.3 (Mangal Das) and his father and other witnesses. At the Police Station firstly the Chowkidar has disclosed about the occurrence. The Chowkidar has given his statement before the Sub-Inspector of Police, which was written and read-over by the Sub Inspector of Police to this witness, Chowkidar and other witnesses, on which he put his thumb-impression. At the Police Station firstly the Chowkidar has disclosed about the occurrence. The Chowkidar has given his statement before the Sub-Inspector of Police, which was written and read-over by the Sub Inspector of Police to this witness, Chowkidar and other witnesses, on which he put his thumb-impression. Learned counsel for the appellant has further submitted, that from perusal of evidence of P.W.3 (Mangal Das), it is apparent that the informant (Sulekha Devi- P.W.1) has not accompanied the Chowkidar, who went along with Mangal Das (P.W.3) and his father Ghiso Das and other witnesses and the Chowkidar firstly disclosed before the Police Station with respect to a cognizable offence. Learned counsel for the appellant has further submitted that if a cognizable offence is disclosed before a Police officer i.e. the First Information Report and Mangal Das (P.W.3, husband of the informant cum victim) has not been declared hostile by the prosecution, as such, the First Information Report, which is on the basis of ''fardbeyan'' of Sulekha Devi is not the initial Information given to the Police and the same is hit under Section 162 Cr.P.C. Learned counsel for the appellant has drawn the attention of this Court towards the evidence of P.W.1 (Sulekha Devi) during cross-examination, wherein she has stated that the Sub Inspector of Police came after one hour and she disclosed about the occurrence and the Sub Inspector of Police has taken her statement , statements of her husband, statement of mother-in-law and father-in-law and thereafter the statements of other witnesses. If this fact is compared with the evidence of P.W.3 (Mangal Das), who is husband of the P.W.1 (informant) and the First Information Report, then certainly the present First Information Report is not the initial information given to the Police and cannot be termed to be a First Information Report. Learned counsel for the appellant has further submitted, that from perusal of evidence of P.W.1 (Sulekha Devi) during cross-examination, she has stated that she was sleeping with her husband facing each other, meaning thereby, they have taken left or right side. If a lady has taken left side or right side then it is very difficult for a male to climb over a lady unless and until the lady is sleeping flat. If a lady has taken left side or right side then it is very difficult for a male to climb over a lady unless and until the lady is sleeping flat. Learned counsel for the appellant has drawn attention of this Court towards the cross-examination of evidence of P.W.1, where the lady has said that the room has the door, but she has not locked the door from inside. She has further stated that, when the appellant/accused (Ghiso Das) climbed over the cot though she did not realize, but when her clothes were removed, then she felt, but did not raise voice because cloth was inserted in her mouth. Learned counsel for the appellant has drawn attention of this Court towards the evidence of Informant (P.W.1), wherein she has stated, that the cloth was inserted in her mouth for one hour and she could not raise hulla, rather she was helpless and struggling, as the cloth was inserted in her mouth which was subsequently untied by her by her father-in-law and mother-in-law and the co-villagers, as stated by informant (P.W.1) during her cross-examination. Learned counsel for the appellant has submitted that if these two statements of the informant (P.W.1) is compared then if cloth is inserted in the mouth, it can be taken out and if mouth is tied from behind, it can be untied. If the cloth is inserted in the mouth, it cannot be untied by the witnesses, as stated by P.W.1, during cross-examination. Learned counsel for the appellant has drawn the attention of this Court towards the statement made during cross-examination, where the informant (P.W.1) has admitted, during suggestion made by the defence that as because of flood, her house has fallen down and she is not residing there and the house does not belong to accused, Ghiso Das. Learned counsel for the appellant on the basis of the evidence of P.W.1 (Sulekha Devi, Informant) has submitted, that it is a pure case, where the appellant has been implicated with ulterior motive, as it would be apparent from the evidence of other witnesses that a Title Suit was pending and the house belongs to the appellant/accused (Ghiso Das), where these prosecution party is residing, as their house fallen down during the flood. Learned counsel for the appellant has further submitted, that P.W.2 (Sargho Ravidas) is not an independent witness rather he is uncle of the husband of the informant, Mangal Das (P.W.3), who has admitted in his cross-examination that when P.W.2 (Sargho Ravidas), uncle came, at that time there was no cloth in the mouth of his wife (P.W.1). This suggests that P.W.2 (Sargho Ravidas) is not an independent witness, rather he is highly interested witness who has been examined on behalf of the prosecution. Learned counsel for the appellant while relying on the aforesaid statements of the witnesses, has submitted that no case under Section 448 I.P.C. is made out against the appellant. Mangal Das (P.W.3), husband of the victim has stated before the Court, that in the said house in another room, accused/appellant (Ghiso Das) is residing. Learned counsel for the appellant has submitted that when this witness (P.W.3) has realized, that now he has admitted, before the Court, that both are residing in the same house in different rooms then P.W.3 Mangal Das started developing his case by stating that both the houses are separate. His house (house of the informant) comprises of one room and one ''verandah'' whereas the house of appellant comprises of three rooms and one ''verandah'', and his (appellant) house is situated on the west of the house of the informant, where the appellant is residing with his family comprises of wife and three children. This witness (P.W.3- Mangal Das) in the cross-examination has submitted that the Sub-Inspector came for inquiry after a month, as such, under such contradictions from P.W.1 (Sulekha Devi) and P.W.3 (Mangal Das), the evidence of P.W.3 is contradictory, cannot be relied upon for convicting the appellant as these two witnesses, Sulekha Devi (P.W.1) and her husband (P.W.3- Mangal Das) have claimed themselves to be eye-witness to the occurrence, but their evidence are contrary and their credentials are doubtful, which cannot be made basis for conviction. 9. Nepali Das has been examined as P.W.4, but has stated that he is one of the defendants with Doman Das and Bhaggu Das (P.W.5) in a Title Suit filed by Ghiso Das (appellant). Learned counsel for the appellant has further submitted that since P.W.4 (Nepali Das) has enmity with the appellant, who is a hearsay witness and his evidence has no legal sanctity. 10. Bhaggu Das has been examined as P.W.5. Learned counsel for the appellant has further submitted that since P.W.4 (Nepali Das) has enmity with the appellant, who is a hearsay witness and his evidence has no legal sanctity. 10. Bhaggu Das has been examined as P.W.5. This witness has denied during crossexamination, that he has no knowledge, that in the Title Suit filed against Doman Das, he is one of the defendants with Nepali Das (P.W.4) and has further stated that in the east of the house of the accused/appellant, the house of Budhu is situated, which is contradictory to the evidence of P.W.3 (Mangal Das), husband of the informant. Learned counsel for the appellant has further submitted, that from perusal of the evidence of P.W.5 (Bhaggu Das), PW.3 (Mangal Das), does not seem to be witness of having worth credential, rather he is an interested witness and if the evidence of P.W.3 (Mangal Das) and P.W.5 (Bhaggu Das) is compared with regard to the place of occurrence then the evidence of P.W.3 is also doubtful. 11. Jitendra Ravidas has been examined as P.W.6. This witness has stated that on hulla, he went to the house of the appellant, Ghiso Das and he saw Ghiso Das was tied by them, but Sulekha Devi (P.W.1) has not disclosed anything. This witness during examination-in-chief has categorically stated that on hulla he went to the house of Ghiso Ravidas meaning thereby the place where Ghiso Ravidas was present i.e. the house of Ghiso Ravidas. Learned counsel for the appellant has submitted, that if the evidence of P.W.6 is looked into, no case under Section 448 I.P.C. is made out against the appellant. 12. Arun Kumar Singh (Investigating officer of the case) has been examined as P.W.7. This witness has stated that Sulekha Devi (P.W.1) came to the Police Station for giving her statement and on his (P.W.7) direction, Sub Inspector of Police, Dhruv Kumar Rai has written statement of Sulekha Devi (P.W.1) in his (P.W.7) presence, which was read-over to Sulekha Devi (P.W.1), on which Sulekha Devi (P.W.1) put her thumbimpression along with witnesses, Mangal Das and Gannu Das, who have also put their thumb-impressions and on the basis of that First Information Report was lodged in the hand-writing of Dhruv Kumar Rai, which bears signature of Arun Kumar Singh (P.W.7) and the entire First Information Report has been proved and marked as Exhibit-1. This witness (P.W.7) Arun Kumar Singh, Investigating officer of the case, has further stated that he has taken investigation himself and went to the place of occurrence which is situated in ''Harijan Tola'' near the Government pond and subsequently he has handed-over charge to the another Investigating officer, Vishwajit Kumar Singh on 10.04.2001, who has submitted the charge-sheet. This witness (P.W.7) has further stated, that the place of occurrence is comprising of only one room, having one window. The door was opened and the window was an open window. This witness (P.W.7) has further stated, that he has recorded restatement of the informant and the statements of witnesses, Mangal Das (P.W.3), Gannu Das (father in-law) of the informant, Nepali Das (P.W.4) and Sargho Ravidas (P.W.2), at the Police Station on the same day itself, but no separate time was recorded in their statements, but the statements were taken between 7.00 a.m. to 9.00 a.m. and on the same day at 12.15 p.m. he visited the place of occurrence for taking statements of other witnesses. Learned counsel for the appellant has submitted that as per the evidence of P.W.1 (Sulekha Devi), the Police officer came after one hour, whereas as per the evidence of P.W.3 (Mangal Das, husband of the informant), the Police officer came after one month and as per the statement of the Investigating officer (P.W.7), the statement of the witnesses were recorded at the Police Station itself, who has subsequently visited the place of occurrence on the same day at 12.15 p.m. There are vital contradictions in the deposition of P.W.1 (Sulekha Devi), P.W.3 (Mangal Das) and P.W.7 (Arun Kumar Singh, Investigating officer of the case), so far inspection of the place of occurrence and investigation of the case is concerned. This witness (P.W.7) has not stated that, who are the independent witnesses and have supported the prosecution case, rather Mangal Das (P.W.3) is the husband of the informant, Gannu Das is the father-in-law of the informant, Sargho Ravidas (P.W.3) is the uncle-in-law of the informant and Nepali Das (P.W.4) is the person, who has admitted that there is enmity with the appellant, as such, this witness (P.W.7) was rightly given suggestion, that investigation is not, in accordance with law and rules, as there are discrepancies in the evidence of the Investigating officer, which entitle the appellant for benefit of doubt, as has been implicated by the informant. 13. Panchkauri Das (P.W.8- Independent witness of the case) has been declared hostile by the prosecution. Learned counsel for the appellant has further submitted, that in a village comprising of about 70 houses, only one independent witness was produced by the prosecution and has also been declared hostile by the prosecution, which gives light about false implication of the appellant, at the hands of Sulekha Devi (informant), who has falsely implicated the appellant for some ulterior motive. 14. Vishwajit Kumar Singh is the second investigating officer, who has submitted that he has only submitted charge-sheet and has not recorded any statement of any of the witnesses during investigation. Learned counsel for the appellant has submitted, that from the evidence brought on record, no case is made out under Section 448 I.P.C. as the house is the same as of the appellant. Learned counsel for the appellant in support of his submission has also put reliance in the case Tarkeshwar Sahu Vs. State of Bihar (Now Jharkhand) , (2006) 8 SCC 560 . Learned counsel for the appellant has put reliance in Paras 11 and 12 of the aforesaid judgment, where it has been said that for constituting an offence under Section 376/511 I.P.C., the point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused, which would show that he is just going to have sexual connection with her. Learned counsel for the appellant has further submitted that on the background of the settle legal proposition, the appellant cannot be convicted under Sections 376/511 I.P.C., as there is complete absence of any attempt on the part of the appellant as held by Hon''ble the Supreme Court in the aforesaid judgment. Learned counsel for the appellant has also drawn attention of this Court towards the statement of the appellant under Section 313 Cr.P.C., where the appellant has submitted that Sulekha Devi (P.W.1) and Mangal Das (P.W.3) are residing in his house and they have forcibly caught him and brought to the Police Station, in connivance with Chowkidar. Learned counsel for the appellant has further submitted that the appellant is innocent and he has falsely been implicated in this case, as he has asked Mangal Das (P.W.3) to vacate his house. Learned counsel for the appellant has further submitted that the appellant is innocent and he has falsely been implicated in this case, as he has asked Mangal Das (P.W.3) to vacate his house. Learned counsel for the appellant has submitted that on the above premises, has submitted that under such background, the appellant be acquitted of the charge. 15. Learned counsel for the State, Mr. Sudhir Kumar Roy, Addl. Public Prosecutor has vehemently argued the case and has submitted that impugned judgment of conviction and order of sentence are sustainable as the learned trial court has passed the same on the materials available on record. 16. Heard, Mr. Manoj Kumar Sah, learned counsel appearing for the appellant, Mr. Sudhir Kumar Roy, learned Addl. Public Prosecutor appearing for the State and from perusal of the First Information Report, deposition of all the 9 witnesses and the exhibit and from the perusal of evidence of P.W.3 (informant, Sulekha Devi), it is doubtful which was initially given information to the Officer-in-Charge, disclosing about commission of a cognizable offence to be the First Information Report. The statement of the Informant recorded and marked as Exhibit -1 has wrongly been considered to be the First Information Report. The evidence of P.W.3 never speaks about going of Sulekha Devi (P.W.1- Informant) to the Police Station, as such, present First Information Report (Exhibit-1) is hit by Section 162 Cr.P.C. In the present case, the Chowkidar has not been examined nor the father-in-law (Gannu Das) has bee examined. The sole independent witness (Panchkauri Das- P.W.8) has been declared hostile by the prosecution and if the evidence of P.W.3 (Mangal Das), who is husband of the informant is relied upon, then certainly the First Information Report, which has been marked as Exhibit-1 is not the initial report made before the Officer-in-Charge with respect to a cognizable offence. Thus, the First Information Report is under cloud. The husband of the informant (P.W.3) has categorically stated that on the statement of the Chowkidar the Police recorded and instituted the case on which they have put their thumb-impressions. The Chowkidar has not been examined and that caused serious prejudice to the appellant, who could not get an opportunity to cross-examine the chowkidar to dispel the truth and prove his innocence. The Chowkidar has not been examined and that caused serious prejudice to the appellant, who could not get an opportunity to cross-examine the chowkidar to dispel the truth and prove his innocence. This Court has further perused the evidence of P.W.2 (Sargho Ravidas) who has never disclosed that he is the uncle of the husband of the informant, but P.W.3 has admitted that Sargho Ravidas (P.W.2) is his own uncle. P.W.4 and P.W.5 are the persons, who are inimical to the appellant as they are defendants in the Title Suit filed by the appellant. If the evidence of P.W.1 (Informant- Sulekha Devi) is compared with the First Information Report, then there are vital contradictions. She says that for one hour, the appellant climbed over her and inserted cloth in her mouth, she was struggling and when her husband got up after one hour, both caught-hold of him. Such statement of the informant is not acceptable and convincing to this Court. Furthermore, P.W.1 (Informant -Sulekha Devi) has said that both husband and wife are facing each other while sleeping. If the wife and husband are facing each other, meaning thereby, both have taken sides, but if the wife (P.W.1) is stating that she was sleeping by side and in that position, accused/ appellant has climbed over her, as alleged by the informant (P.W.1). Such statement of informant is not acceptable and convincing to this Court. Under such background, this Court is of the opinion that the statement of the informant is not worth and acceptable to this Court as true when compared with the evidence of P.W.3 (Mangal Das), as such, this Court is giving benefit of doubt to the appellant. 17. Such statement of informant is not acceptable and convincing to this Court. Under such background, this Court is of the opinion that the statement of the informant is not worth and acceptable to this Court as true when compared with the evidence of P.W.3 (Mangal Das), as such, this Court is giving benefit of doubt to the appellant. 17. Furthermore, the prosecution has not proved, the fact that the house belongs to them, to make out a case under Section 448 I.P.C., rather as per the evidence of P.W.3 (Mangal Das), both rooms are within the same house and nobody has seen the appellant inside the room of the house except as per the statement of P.W.1 and P.W.3, whose evidence is contradictory to each other and further, Jitendra Ravidas (P.W.6) has categorically, stated that when he went to the place of occurrence, he found that appellant/accused was tied in the house of the appellant, as such, there is no evidence with respect to Section 448 I.P.C. As discussed, above, this Court is of the opinion that the conviction of the appellant under Section 448, 376/ 511 I.P.C. is not sustainable in the eyes of law, in view of the contradictory evidence of P.W.1 (Sulekha Devi) and P.W.3 (Mangal Das). 18. On the material available on record and the judgment cited by the learned counsel for the appellant, this Court sets aside the Judgment of conviction and order of sentence, both dated 06.12.2003, passed by the learned Sessions Judge, Godda, in S.T. No.98 of 2001 (arising out of Mahagama P.S. Case No.26 of 2001, dated 17.02.2001 corresponding to G.R. No.164 of 2001). 19. Accordingly, the instant Criminal appeal stands allowed. 20. The appellant, who is already on bail, is discharged from the liability of his bail bonds. 21. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.