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2018 DIGILAW 1582 (PAT)

BARMESHWAR CHOUDHARY v. STATE OF BIHAR

2018-10-05

PRAKASH CHANDRA JAISWAL

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JUDGMENT : Prakash Chandra Jaiswal, J. Heard learned counsel for the appellant as well as learned APP for the State on this Criminal Appeal. 2. This criminal appeal has been preferred against the judgment and order of conviction dated 02.02.2013 and order of sentence dated 08.02.2013 passed by the 1st Additional Sessions Judge, Bhojpur at Ara in Sessions Trial No. 191 of 2010, arising out of Pawna P.S. Case No. 05 of 2010, whereby the learned trial Court convicted the accused Barmeshwar Choudhary under Sections 376/511 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 10 years and also slapped him with a fine of Rs. 10,000/- and in case of default of payment of fine to further undergo S.I. for 2 years under the aforesaid Section. 3. The factual matrix of the case is that Pawna P.S. Case No. 05 of 2010 was instituted under Sections 376, 511, 341, 323 and 504 of the Indian Penal Code against the accused Barmeshwar Choudhary on the basis of written report dated 24.02.2010 of Chandravati Devi, wife of Rajdeo Sao with the allegation in succinct that on 23.02.2010 at around 3:00 PM, she had gone to her khalian with her daughter, Lalita Kumari for sweeping straw dust, Barmeshwar Choudhary arrived there and took her daughter Lalita Kumari aged about 7 years in the adjacent hut alluring to provide her straw and tried to commit rape against her stripping of her pant. Responding the alarm made by her daughter, she rushed there and the accused started escaping towards the village. Then she, her daughter Lalita Kumari, Sunita and Dineshwar Sao rushed to his house giving him chase. Then he took out lathi from his house and assaulted her and her daughter Sunita indiscriminately, responding the alarm made by her the locals congregated there and saved her life. She divulged the occurrence to the villagers. 4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the accused Barmeshwar Choudhary under Sections 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 the 1st Additional Sessions Judge, Bhojpur Ara for trial. 6. 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 the 1st Additional Sessions Judge, Bhojpur Ara for trial. 6. Charge against accused Barmeshwar Choudhary was framed under Sections 376/511 of the Indian Penal Code. Charge was read over and explained to the accused by the Court to which he pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether seven prosecution witnesses, namely, Shila Nath Prasad as P.W.-1, Sushil Kumar Prasad as P.W.-2, Dineshwar Sao as P.W.-3, Chandravati Devi (informant) as P.W.-4, Ram Awadhesh Sah as P.W.-5, victim Lalita Kumari as P.W.-6 and I.O. Vimla Singh as P.W.-7. In documentary evidence the prosecution has filed and proved only formal F.I.R. in the case. 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. The accused has neither adduced any ocular nor documentary evidence in buttress of his case. 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 as per the prosecution case the victim was aged about 7 years but victim was not examined by doctor and no document has been brought on record in substantiation of the age of the victim. It is further submitted that barring the informant and the victim other witnesses are hearsay witnesses and there is vital contradiction between the prosecution case and the statement of informant and between the statement of the victim and the informant inter se regarding the manner of occurrence etc. It is further submitted that barring the informant and the victim other witnesses are hearsay witnesses and there is vital contradiction between the prosecution case and the statement of informant and between the statement of the victim and the informant inter se regarding the manner of occurrence etc. The aforesaid inconsistent ocular evidence of the informant and the victim also does not stand corroborated by any independent witnesses of the occurrence and the daughter of the informant, namely, Sunita Devi, hence an adverse inference may be drawn against the prosecution. 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 aforesaid judgment and order of conviction and sentence passed against the appellant is liable to be set aside and the appellant is entitled to be acquitted of the charge levelled against him. 13. On the other hand, learned APP advocating the correctness and validity of the impugned judgment and order of conviction and sentence, submitted that the victim and the informant have fully supported the prosecution case. Their statements are wholly reliable and unblemished and the learned trial Court correctly appreciating the facts and evidence on record has rightly passed the impugned judgment and order of conviction and sentence, which is liable to be upheld and this appeal is shorn of merit and is liable to be dismissed. 14. From perusal of the record, it appears that to substantiate its case the prosecution has examined 6 material witnesses in the case. Out of them P.W.-1 Shila Nath Prasad, P.W.-2 Sushil Kumar Prasad, P.W.-3 Dineshwar Sao and P.W.-5 Ram Awadhesh Sah does not happen to be eyewitnesses of the occurrence. As P.W.-1 has stated in para-4 of his examination-in-chief itself that at the time of occurrence he was not in his village rather he had listened about the occurrence. In para-6 of his examination-in-chief, he has further stated that the aforesaid occurrence was divulged to him by Chandravati Devi. Moreover, Chandravati Devi P.W.-4 has not corroborated the factum of divulgence of the aforesaid occurrence to P.W.-1. Hence, for want of corroboration the aforesaid statement of P.W.-1 is also not admissible in evidence even as a hearsay witness. In para-6 of his examination-in-chief, he has further stated that the aforesaid occurrence was divulged to him by Chandravati Devi. Moreover, Chandravati Devi P.W.-4 has not corroborated the factum of divulgence of the aforesaid occurrence to P.W.-1. Hence, for want of corroboration the aforesaid statement of P.W.-1 is also not admissible in evidence even as a hearsay witness. P.W.-2, Sushil Kumar Prasad has stated in his examination-in-chief that on the date of occurrence he was at his house and responding hulla he reached near the house of Lalita Kumari where Chandravati Devi divulged the occurrence to him. Moreover the said Chandravati Devi, (P.W.-4) has not corroborated the factum of divulgence of occurrence to P.W.-2. Hence, for want corroboration of the aforesaid statement of P.W.-2 is also not admissible in evidence even as a hearsay witness. 15. P.W.-3 Dineshwar Sao has stated in his examination-in-chief that at the time of occurrence he was regressing to his house from his workplace and when he arrived near the khalihan located towards north-east of Deviasthan he listened the alarm made by Chandravati Devi then he rushed to khalihan of Tuman Choudhary and found the straw smeared on the person of Lalita Kumari and appellant Barmeshwar Choudhary escaping from there towards his house. In para-3 of his examination-in-chief, he has stated that Chandravati Devi divulged him that Barmeshwar Choudhary has committed rape against Lalita Kumari. The aforesaid statement of P.W.-3 eloquently indicates that he had not witnessed the occurrence rather had arrived at the place of occurrence after culmination of occurrence and found the accused escaping from there it is the case of the prosecution and statement of informant in his examination-in-chief that the accused tried to commit rape against the victim Lalita Kumari and not the rape but in quite contradiction to the aforesaid case of the prosecution and the statement of the informant, P.W.-3 has divulged the factum of divulgence of committing rape against Lalita Kumari by the appellant to him by Chandravati Devi. Moreover, Chandravati Devi has not corroborated the factum of divulgence of the occurrence to him. Hence, for want of corroboration, the aforesaid statement of P.W.-3 is also not admissible in evidence even as a hearsay witness. Ram Awadhesh Sah (P.W.-5), who happens to be father of the informant, has stated that at the time of occurrence he had gone to his field located towards west of khalihan for strolling. Hence, for want of corroboration, the aforesaid statement of P.W.-3 is also not admissible in evidence even as a hearsay witness. Ram Awadhesh Sah (P.W.-5), who happens to be father of the informant, has stated that at the time of occurrence he had gone to his field located towards west of khalihan for strolling. Responding the alarm made by Lalita Kumari and her mother he rushed to the khalihan and on arriving there he learnt about the occurrence. When he arrived at the place of occurrence Barmeshwar Choudhary managed to escape. Thus, the aforesaid witness also does not appear to have witnessed the occurrence rather he had learnt about the occurrence at the place of occurrence. He has also not disclosed the name and identity of source of information. Moreover, from perusal of para-8 of his cross-examination, it appears that attention of the said witness has been drawn by the defence towards contradiction between his statement given before the Court and that given before the I.O. under Section 161 Cr.P.C. regarding taking of the victim by Barmeshwar Choudhary to the khalihan of Ramji Choudhary and trying to commit rape against her by stripping of her pant, arriving at the place of occurrence responding hulla made by Lalita Kumari and her mother and making good his escape by the accused on his arrival there. From perusal of para-10 of the cross-examination of the I.O. (P.W.-7), it appears that the I.O. has corroborated the aforesaid contradiction made by the said witness between his statement given before the Court and that given before him under Section 161 Cr.P.C. Thus, the said witness has taken altogether different stand regarding the aforesaid material aspect of the case before the Court and he does not appear to be worth credence and reliable witness. 16. From perusal of the written report of the informant and the statement of informant (P.W.-4) as given by him in para-4 of her examination-in-chief, it appears that as per the prosecution case and the aforesaid account of the informant she was brooming the straw dust in her khalihan at the time of occurrence and her daughter Sunita Kumari and Lalita Kumari were present with her there. Accused Barmeshwar Choudhary arrived there and took the victim from there alluring her to accord straw but in quite contradiction to the aforesaid prosecution case she has stated in para-9 of her cross-examination that the aforesaid khalihan in which she was brooming is of Ramji Choudhary and not her own and the aforesaid khalihan had already been cleaned. As per prosecution case, the accused had made attempt to commit rape against the victim by shoving her on the ground and stripping of her pant but in quite contradiction to the aforesaid prosecution case the informant has stated in para-2 of her examination-in-chief that accused committed rape against her. Informant has claimed herself to be eye-witness of the occurrence but in para-16 of her cross-examination she has stated that when she arrived at the place of occurrence responding hulla made by her daughter Lalita Kumari Barmeshwar Choudhary had made his good escape to the village by that time. The aforesaid statement of the informant eloquently indicates that she has not seen the occurrence and appellant present at the place of occurrence as when she had arrived at the place of occurrence the appellant had left that place by that time. In para-22 & 23 of her cross-examination the said witness has stated that she had divulged to the I.O. that Barmeshwar Choudhary had committed rape against the victim. She had not divulged to the I.O. that Barmeshwar Choudhary had made attempt to commit rape against the victim. The aforesaid statement of the informant goes to suggest that she has made major development in the case as she had not divulged the factum of attempt to commit rape against the victim by the appellant to I.O. rather rape against her which happens to be in quite contradiction to the prosecution case and thus the said witness does not appear to be worth credence and reliable. 17. P.W.-6 Lalita Kumari, who happens to be victim of the case, though has stated in her examination-in-chief that the accused Barmeshwar Choudhary took her to the Khalihan of Ramji Choudhary and pressing her mouth shoved her on the ground and unzipped her pant and tried to commit rape against her but in para-2 of the said examination-in-chief itself she has stated that Bermeshwar Choudhary did want to climb her on stomach. She made alarm responding the same her elder sister, mother, grand-father and uncle rushed there. She made alarm responding the same her elder sister, mother, grand-father and uncle rushed there. The aforesaid statement of the victim goes to suggest that Barmeshwar Choudhary had simply shoved her on the ground and unzipped her pant but he had not made any attempt to commit rape against her as he was about to climb on her person but in the mean time the victim made alarm and responding the same her mother etc. had rushed there. From perusal of para-15 of the cross-examination of the victim, it appears that her attention has been drawn by the defence towards contradiction between her statement given before the Court and that given before the I.O. under Section 161 Cr.P.C. regarding shoving her on the ground and pressing her mouth by Barmeshwar Choudhary in the hut. I.O. Vimla Singh (P.W.-7) in para-11 of his cross-examination has corroborated the aforesaid contradiction made between her statement given before the Court and that given before him under Section 161 Cr.P.C. regarding the aforesaid material aspect of the case. Thus, the victim appears to have taken altogether different stand before the Court regarding the aforesaid material aspect of the case and she does not appear to be worth credence and reliable and her testimony does not inspire my confidence to hold the conviction of the appellant relying upon the same. 18. As per the prosecution case and statement of the informant given in her examination-in-chief and in para 10 of her cross-examination the accused took the victim from the khalihan of the informant to the khalihan of Ramji Choudhary and tried to commit rape against her there but the informant has stated in para-9 of her cross-examination that she was sweeping the straw dust for the purpose of preparing the rise etc. in the khalihan of Ramji Choudhary. The aforesaid statement of the informant creates serious doubt about the prosecution case as if the informant was present in khalihan of Ramji Choudhary at the time of occurrence how the accused tried to commit rape against her daughter in the said khalihan. 19. In the facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case beyond all reasonable doubts by adducing consistent, trustworthy and reliable evidence. 19. In the facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case beyond all reasonable doubts by adducing consistent, trustworthy and reliable evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial court against the appellant is set aside and the appellant is acquitted from the charge levelled against him giving him benefit of doubt. As the appellant is on bail, he is discharged from the liability of his bail bonds. Accordingly, this appeal is allowed.