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2022 DIGILAW 967 (JHR)

Bahuballav Pal v. State of Jharkhand

2022-08-03

NAVNEET KUMAR

body2022
JUDGMENT : This appeal is preferred against the Judgment of Conviction and order of sentence dated 21.12.2004 passed by the learned 3rd Additional Sessions Judge, (Fast Track Court), Jamtara, in Sessions Case No.189 of 1995 / 57 of 2003, arising out of Kundahit (Bagdehari) P.S. Case No. 04 of 1995, corresponding to G.R. Case No. 40 of 1995 whereby and where under the sole appellant has been convicted for the offence punishable under Sections 448 & 376 of IPC and sentenced to undergo R.I. for seven years as well as fine of Rs.1,000/-(Rupees one thousand) for the offence punishable under Section 376 of IPC and in case of default of payment of fine, the appellant was further directed to undergo simple imprisonment for six months and no separate sentence was awarded for the offence punishable under Section 448 of IPC. 2. The prosecution case arose in the wake of fardbayan of the informant (hereinafter referred as ‘victim’), daughter of late Mahabir Pal of village Bhalko, P.S. Kundahit (Bagdehari), District Jamtara recorded by S.I. Manju Pandey, Officer In-Charge of Bagdehri P.S. on 21.01.1995 at 19/30 hours. Briefly stating the allegations as presented by the victim in her fardbayan as under. She had stated that her brother was working in Bengal and her mother had gone to Bengal on 15.1.1995 where her brother was residing and she was alone in her house. She alleged that on 15.01.1995 at about 10.30 PM in the night, the accused appellant came to her house and started holding her with an intention to commit rape upon which she protested and raising alarm (hullah) but he committed rape with her by putting her in fear on the point of knife. She further stated that on hearing hulla villagers came there and thereafter the accused appellant was caught from her house, where he was hiding inside her house, by the villagers including P.W.1 Gunadhar Pal, P.W.2 Mangal Pal and P.W.3 Dhiren Pal. In the meantime the brothers of accused appellant namely Ajit Pal and Prabhakar Pal had come there and after giving assurance of marriage with their brother (accused appellant), they have taken him to his home. Next day both brother and the accused-appellant fled away. She further stated that villagers had given information about this incident to her mother and brother, upon which they came on 21.01.1995 and then she narrated story to them. Next day both brother and the accused-appellant fled away. She further stated that villagers had given information about this incident to her mother and brother, upon which they came on 21.01.1995 and then she narrated story to them. Hence there was delay in instituting the case after six days. 3. On the basis of aforesaid fardbeyan of the victim, Kundahit P.S. Case No. 04 of 1995 was instituted under sections 376, 448 of IPC. After investigation, police submitted the charge-sheet against the above named accused u/s 376 and 448 of IPC. Cognizance had also been taken under the aforesaid sections and the case was committed to the Court of Sessions and the charges were framed by learned Sessions Judge on 14.09.2000, u/s 448 and 376 of IPC. The contents of the charges were read over and explained to the accused persons in Hindi to which he pleaded not guilty and claimed to be tried and after closure of the evidence of the prosecution, the accused was examined u/s 313 of Cr.P.C. on 13.12.2004, in which, he claimed to be innocent and plea of false implication due to animosity has been taken, and the learned trial court after conducting full-fledged trial, passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal. 4. Heard Mrs. Jasvinder Mazumdar and Mr. Rohan Mazumdar, learned defence counsel appearing on behalf of the sole appellant and Mr. Tarun Kumar, APP on behalf of the State. Arguments advanced on behalf of the appellant 5. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel submitted that the learned trial court has committed error in appreciating the evidences adduced on behalf of the prosecution in view of the fact that PW – 2 is the own brother of the victim and PW – 1 is the neighbour and both of them had categorically deposed that the appellant had married with victim and a child was also born to them and therefor it is case of matrimonial dispute and not a sexual assault of committing rape upon the victim as alleged in the FIR. The learned defence counsel has relied upon the documents related to matrimonial dispute between the parties and other related cases between both the parties, which have been adduced on behalf of the accused-appellant vide, Ext. The learned defence counsel has relied upon the documents related to matrimonial dispute between the parties and other related cases between both the parties, which have been adduced on behalf of the accused-appellant vide, Ext. A – Certified copy of judgment of T.R. Case No.02 of 1997 Ext. B – Compromise petition filed by victim girl in the T.R. Case No.1241 of 1997. Ext. A/a – Certified copy of judgment passed in T.R. Case No.144 of 1997 Ext. B/a – Joint Compromise petition in T.R. Case No.144 of 1997 Ext. C – Certified copy of PCR Case No.70 of 1998 and Ext. D – Statement of victim girl u/s 164 of Cr.P.C. It has further been pointed out that the learned trial court did not consider all these evidences in the right perspective. It has further been pointed out that the I.O. in this case has not been examined and therefore neither the formal FIR, nor the date, place and manner of occurrence have been proved and therefore it caused serious prejudice to the case of the defence, inasmuch as the defence taken on behalf of the accused appellant that it is not a case of rape at all as attributed against the appellant, rather it is a case of matrimonial dispute between the parties, which cropped up after the marriage between the appellant and the victim and learned defence counsel submitted that the learned trial court did not consider the evidences even adduced on behalf of the prosecution in the right perspective and passed the impugned judgment of conviction and order of sentence, which is bad in law and fit to be set-aside. Arguments advanced on behalf of the State 6. On the other hand, the learned APP appearing on behalf of the State opposed the contentions raised on behalf of the appellant and submitted that the defence of marriage taken by the appellant is a subsequent development and the alleged occurrence of rape was committed on earlier occasion and therefore the learned trial court has rightly passed the impugned judgment of conviction and order of sentence and this appeal is fit to be dismissed being devoid of merit. Appraisal & Findings 7. Having heard the learned counsels appearing on behalf of the parties, perused the records including the lower court record. 8. Case of the prosecution was that the victim was alone in her house. Appraisal & Findings 7. Having heard the learned counsels appearing on behalf of the parties, perused the records including the lower court record. 8. Case of the prosecution was that the victim was alone in her house. The accused-appellant went to her house at about 10.30 P.M. at night. He committed rape with the victim at the point of knife. She raised alarm. The villagers came. He was hiding in her house. He was caught from the victim’s house by the villagers. The brothers of the accused also came there. On the assurance of marriage, the brothers of the accused took him back to their house. Next day the accused and his brothers fled away. Thereafter the mother and brother of the victim came from Bengal. The case was instituted after six days. Subsequently both the victim and accused got married. A child was also born to them. A matrimonial dispute and other cases also proceeded between them. 9. In this background of the case, this Court proceeds to evaluate the evidences adduced between both the parties. 10. It is found that in order to substantiate the charges levelled against the sole appellant, the prosecution got examined six witness: PW – 1 Gunadhar Paul, PW – 2 Mangal Paul, PW -3 Dhiren Paul, PW – 4 victim and PW – 5 Dr. Mridula Bibhakar, PW -6 Tahir Hussain (advocate’s clerk). I.O. in this case has not been examined. Apart from oral evidences some documentary evidences have also been brought on record on behalf of prosecution: Ext.1 - signature of the victim on fardbeyan, Ext.1/1- signature of witness on fardbeyan, Ext.2 - Medical Examination report of victim. One defence witness Mathur Swarnkar (DW-1) has also been examined on behalf of the defence. Defence also produced some documentary evidences : Ext. A – Certified copy of judgment of PCR Case No. 201/96 corresponding to T.R. Case No.02 of 1997 under Sections 323,498-A of IPC. Ext. B – Certified copy of joint Compromise petition filed by victim girl in the T.R. Case No.1241 of 1997 related T.R. Case No.02 of 1997 under Sections 323,498-A of IPC. Ext. A/a – Certified copy of judgment passed in PCR Case No. 114/96 corresponding to T.R. Case No.144 of 1997 Ext. B/a – Certified copy of Joint Compromise petition in T.R. Case No.144 of 1997 Ext. Ext. A/a – Certified copy of judgment passed in PCR Case No. 114/96 corresponding to T.R. Case No.144 of 1997 Ext. B/a – Certified copy of Joint Compromise petition in T.R. Case No.144 of 1997 Ext. C – Certified copy of complaint petition vide PCR Case No.70 of 1998 and Ext. D – Statement of victim girl u/s 164 of Cr.P.C. 11. PW – 1 Gunadhar Paul, who was FIR named hearsay witness who reached to the place of occurrence on hearing hulla. He stated that he came to know that Babuballav had committed rape with victim. In the cross-examination, this witness categorically stated that Babuballav had married with victim although, at first he stated that victim was not married, but subsequently, he specifically stated that the appellant had solemnized marriage with victim and the victim used to live with Babuballav Paul and thereafter some disputes arose between them. Therefore this witness totally falsified the case of the prosecution by admitting that the appellant had solemnized marriage with the victim and the defence taken on behalf of the accused that the victim was his wife and it is a matrimonial dispute, rather than the offence of rape is wholly substantiated. 12. Further PW – 2 Mangal Paul was another FIR named hearsay witness who also reached to the place of occurrence on hearing hulla. He also demolished the case of the prosecution by stating categorically in the cross-examination that the victim solemnized marriage with the appellant eight years back and they had been living as husband and wife and thereafter the victim had instituted the case upon the appellant, meaning thereby, that it is case of matrimonial dispute as per the defence taken by the appellant whose defence version is fully corroborated with the version of this witness, who is said to have reached at the place of occurrence, when the alleged occurrence was said to have been committed. 13. PW – 3 Dhiren Paul was also FIR named witness and he came to know about the alleged occurrence from the victim. In the cross-examination, although, this witness had stated that the victim had not solemnized the marriage, but a girl child was born to the victim and the victim also put vermilion on her head. 13. PW – 3 Dhiren Paul was also FIR named witness and he came to know about the alleged occurrence from the victim. In the cross-examination, although, this witness had stated that the victim had not solemnized the marriage, but a girl child was born to the victim and the victim also put vermilion on her head. The deposition of this witness clearly substantiated the fact that the marriage ceremony was gone through between the victim and the appellant and a female child was born to them. P.W.3 stated that a compromise has been taken place in the case instituted by accused appellant and also in the case instituted by victim upon accused appellant. Which are authenticated that both victim and the appellant have married to each other from the documentary proofs also vide exhibits Ext. A, Ext. B, Ext. A/a Ext. B/a Ext. C and Ext. D. From the versions of this witness P.W. 3 it is manifest that, although he did not categorically state that the victim had married to the appellant, but from his version, that she put vermilion on her head explicitly suggesting that marriage ceremony gone through and she was also blessed with a girl child and all these facts substantiated the case of the appellant that the appellant had married with victim and therefore the charges of committing rape is also disproved by this witness also. 14. PW – 4 is the victim and she has supported the case of prosecution that the appellant had committed rape with her and she had proved the signature of witnesses on fardbeyan which are marked as Ext.-1/1 and also her signature which is marked as Ext.1. In the cross-examination, she denied that she had married with appellant, but her version of committing rape cannot be relied upon in view of the clear cut testimonies of her own brother PW – 2, the co-villagers PW – 1 and PW – 3 as discussed above that both the victim and appellant were husband and wife and the victim was blessed with a girl child from their wed lock as the victim herself stated in her deposition in para 3 although she denied the marriage with appellant but she used to put vermillion on her head also, and PW – 2 had pointedly stated that she had married with the appellant. The victim has relied upon these victims (P.W.1, P.W.2 and P.W.3) as she named them in her Fardbeyan as well as in her examination-in-chief as a reliable witnesses. The fact that both victim and the appellant got married to each other are well established from the documentary proofs also vide following exhibits brought on record by the appellant in his defence : Ext. A – Certified copy of judgment of PCR Case No. 201/96 corresponding to T.R. Case No.02 of 1997 under Sections 323,498-A of IPC. Ext. B – Certified copy of joint Compromise petition filed by victim girl in the T.R. Case No.1241 of 1997 related T.R. Case No.02 of 1997 under Sections 323,498-A of IPC. Ext. A/a – Certified copy of judgment passed in PCR Case No. 114/96 corresponding to T.R. Case No.144 of 1997 Ext. B/a – Certified copy of Joint Compromise petition in T.R. Case No.144 of 1997 Ext. C – Certified copy of complaint petition vide PCR Case No.70 of 1998 and Ext. D – Statement of victim girl u/s 164 of Cr.P.C. From the perusal of aforesaid documents it is well founded that they are related to their matrimonial disputes which are disposed of on the basis of compromise and settlement. Hence the accusations of committing sexual assault of rape by the appellant upon the victim are not proved at all. 15. PW – 5 Dr. Mridula Bibhakar is the Medical Officer of Public Health Centre, Dumka who is said to have examined the victim PW – 4. PW – 5 stated that after five days of occurrence, i.e. on 23.01.1995, she had examined the victim and found the following features on her person, which are as follows : “i. No mark of injury over the body externally ii. No mark of injury found on her private part. iii. Hymen shows old rapture. iv. Pathological report shows no spermatozoa found.” According to this witness (Dr. PW-5), X-Ray of both iliack crest-both wrist joint and both knee joint were done. This witness has further stated that for her age, according to sex character, number of teeth and X-Ray report age of victim is between 14 to 15 years. This doctor P.W.5 clearly opined that no definite opinion could be given whether the victim was raped or not. From perusal of the testimonies of this doctor and the medical examination report, which is Ext. This doctor P.W.5 clearly opined that no definite opinion could be given whether the victim was raped or not. From perusal of the testimonies of this doctor and the medical examination report, which is Ext. 2 proved by this doctor it is found that there had not been any sign of injury or sexual assault of rape. The doctor stated that the age of victim was between 14 to 15 years, but the defence counsel has relied upon Ext. D, which is said to be the statement of the victim, recorded under Section 164 of Cr.P.C., which has been brought on record as Ext. –D although it has not been duly proved by the prosecution due to non-examination of Judicial Magistrate who recorded her statement under Section 164 of Cr.P.C and also non-examination of I.O. which caused serious prejudice to the defence of the appellant. But the trial court has admitted it into evidence vide Ext.-D which is in fact a document of Trial Court record. From perusal of Ext. D, it appears that the court had estimated the age of victim at the time of recording her deposition dated 13.3.1995 ( date of occurrence is said to be 15.01.1995) under Section 164 of Cr.P.C. is 19 years. Further it is also an admitted case of the prosecution that victim had one female child aged seven years from the appellant (as on 29.07.2003 as per the deposition of victim P.W.4 recorded in the trial court), therefore her age, as assessed by the concerned court at the time of recording the statement of the victim under Section 164 of Cr.P.C. appears to be more accurate and cannot be ruled out. Learned trial court has discussed the Ext. D i.e. the statement of the victim under Section 164 of Cr.P.C. where the victim clearly stated that she had been living with appellant as husband and wife and the appellant had never committed rape with her but the learned trial court did not rely upon it by simply stating that it is a subsequent development, ignoring the fact that the subsequent development has totally mitigated and falsified the case of rape, alleged to have committed by the appellant upon the victim. 16. Further it is found that the I.O. in this case has not been examined and it has caused serious prejudice to the defence of the appellant. 16. Further it is found that the I.O. in this case has not been examined and it has caused serious prejudice to the defence of the appellant. Neither the alleged place of occurrence, date, and time have been duly proved by the I.O. nor the previous statement of witnesses could be tested by the defence in the cross-examination in such a serious offence due to non-examination of I.O. particularly when there are glaring evidences that it is case of matrimonial dispute, if any, rather than the case of rape as emanating from the evidences as discussed above. 17. Ironically it is found that PW – 6 Tahir Hussain is the advocate clerk, who has been examined on behalf of the prosecution and he has proved the formal FIR, which has been marked as Ext. 3. In the cross-examination, this witness PW – 6 categorically stated that neither the fardbayan was written before him nor he had worked with S.I. Manju Pandey, who had recorded her (victim) fardbayan. It is ridiculous on behalf of the prosecution not to bring any police officer, who had knowledge about the case of the prosecution or acquainted with the procedure of the investigation in such type of cases and recording of the statement of the victim under Section 164 of Cr.P.C. and therefore neither the place, nor the date, nor the manner of occurrence nor the Section 164 Cr.P.C. statement has been brought on record by the prosecution in the prescribed procedure and it is the defence, who brought Ext. D, i.e. the statement of the victim recorded under Section 164 of Cr.P.C. (which is in fact a document of trial court record) and definitely these factors lead to cause prejudice to the defence of the appellant in order to afford opportunity to the defence to ensure fair trial which is the important attribute of criminal jurisprudence. 18. On the other hand DW – 1 Mathur Swarnkar, who was also an advocate’s clerk examined on behalf of the defence, stated that he had acquainted with the signature and writings of the Judicial Magistrate Sri A. B. Arya who had recorded the statement of victim under section 164 of Cr. 18. On the other hand DW – 1 Mathur Swarnkar, who was also an advocate’s clerk examined on behalf of the defence, stated that he had acquainted with the signature and writings of the Judicial Magistrate Sri A. B. Arya who had recorded the statement of victim under section 164 of Cr. P.C., which had marked as Ext.-D. The defence also brought certified copies of the judgments of the criminal proceedings between the victim and the appellant for the offence punishable inter-alia under Section 498-A of IPC and therefore it is well founded that both the appellant and the victim had been living as husband and wife and a criminal proceeding under Section 498-A of IPC was instituted between them, which concluded in acquittal of appellant for want of evidence, on the basis of compromise, which has been brought on record vide Ext. A (certified copy of the judgment) & Ext. B (certified copy of the joint compromise petition under section 498-A& 323 of IPC.) Similarly one case was instituted by the appellant Babuballav Pal for the offence punishable under Section 323, 500, 452, 379 of IPC against the family members of the victim, which also got disposed of on the basis of the compromise and settlement arrived at between the parties and a certified copy of the joint compromise petition has also been filed, which has been marked as Ext. B/a. From perusal of these documents, i.e. Exts. A (certified copy of judgment in P.C.R. Case No.201 of 1996 / T.R. No. 02/1997), Ext. A/a (certified copy of judgment in PCR Case No. 114 of 1996 / T.R. No. 144/1997), Ext. B (certified copy of joint petition of compromise in T.R. No. 1241/1997), Ext. B/a (certified copy of joint petition of compromise in T.R. Case No.144/1997), which shows that both the appellant and victim were husband and wife and there had been a matrimonial dispute between them and which has been resolved by the joint compromise petitions Ext. B and Ext. B/a and the present case is instituted by her is not proved by the cogent evidences in view of these glaring evidences adduced on behalf of the defence as discussed in the foregoing paragraphs. 19. B and Ext. B/a and the present case is instituted by her is not proved by the cogent evidences in view of these glaring evidences adduced on behalf of the defence as discussed in the foregoing paragraphs. 19. The learned trial court has although discussed the evidences adduced on behalf of the appellant but did not evaluate the evidences led on behalf of the appellant on the equal footing with that of adduced on behalf of the prosecution and therefore the learned trial court below has arrived at a wrong finding without taking into consideration and evaluating the evidences in holistic manner and consequently committed gross error in passing the impugned judgment of conviction and order of sentence. It is a well settled principle of law that the evidences adduced on behalf of both the parties including the prosecution and defence stand at the same level and standard and the court concerned should give weightage to the evidence of defence on a par with the evidence of the prosecution. Defence witnesses are entitled to equal treatment with those of the prosecution. The trial court must get the better of instinctive disbelief in defence witnesses. More often than not they tell lies but so do the prosecution witnesses also. A balance has to be maintained to come to the truth. 20. To sum up it is well founded that both appellant and the victim had been living as husband and wife. It has been specifically admitted by the victim that she was blessed with a female child from the appellant. It is also admitted that the cases pending between the parties were resolved on the basis of compromise and settlement including matrimonial disputes. 21. In the backdrop of this case, it is found that the impugned judgment of conviction and order of sentence is not tenable in the eyes of law and fit to be set-aside. Hence the impugned Judgment of Conviction and order of sentence dated 21.12.2004 passed by the learned 3rd Additional Sessions Judge, (Fast Track Court), Jamtara, in Sessions Case No.189 of 1995 / 57 of 2003, arising out of Kundahit (Bagdehari) P.S. Case No. 04 of 1995, corresponding to G.R. Case No. 40 of 1995 against the appellant is hereby set-aside. 22. The appellant is acquitted from the charges levelled against him. 23. Accordingly, this appeal is allowed. 24. 22. The appellant is acquitted from the charges levelled against him. 23. Accordingly, this appeal is allowed. 24. Since the appellant is on bail he is discharged from the liabilities of bail bond. 25. Let the Lower Court Record be sent back forthwith to the concerned court below.