IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.97 of 1999
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1. Suresh Rajbhar, son of Kishori Rajbhar, resident of Kalmegha, P.S.-Azamnagar, District-Katihar.
2. Gajanand Sharma, son of Late Jullu Sharma, resident of Sihipur, P.S.- Azamnagar, District-Katihar.
.... .... Appellants
Versus
The State of Bihar .... .... Respondent =========================================================== Appearance:
For the Appellants : Mr. Najmul Hoda, Advocate For the State : Mr. Ajay Mishra, A.P.P. ========================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH CAV JUDGMENT
30-07-2012
The instant appeal is directed against the judgment dated 24.3.1999 and order dated 26.3.1999 passed in Sessions Case No. 212 of 1992 by the learned Sessions Judge, Katihar by which both the appellants have been convicted for the offence punishable under Section 376 IPC and sentenced to undergo R.I. for ten years and to pay fine of Rs. 2,000/- each.
The F.I.R. has been instituted on the basis of oral statement of Pramila Kumari which was recorded by the Officer-in- Charge of Azamnagar Police Station on 8.5.1992 at 9.00 a.m. at the police station with respect to an occurrence which is said to have 2 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 2 / 15
taken place about four months back. It is alleged in the F.I.R. that the accused persons frequently used to come to the house of the maternal grandfather of the informant to take 'toddy'. About four months back, when the informant had gone to take water from hand- pump, all of a sudden, both the appellants came there and appellant no. 1 Suresh Rajbhar is alleged to have put his hand on the mouth of the informant so that she may not make any shouting and, thereafter, both the appellants lifted her and took her towards the back of her house. The appellant no. 2, namely, Gajanand Sharma being armed with a sharp edged weapon, threatened the informant not to raise shouting otherwise she would be killed. She was thrashed on the ground and thereafter, both the appellants committed rape upon her one after another after lifting her 'saree' and 'saya'. Appellant no. 1 Suresh Rajbhar is said to have raped her first and thereafter, appellant no. 2 committed rape upon her. The informant has further alleged in her fardbeyan that appellant no. 2 Gajanand Sharma forcibly gave her Rs. 30/- which she kept under threat and went to her house. She further states that she did not disclose to anyone in her house regarding the occurrence. It is further alleged that only after few days, the appellants came again to her Nana's house. They took 'toddy' there and, thereafter, entered into her house. She was again raped by them one after another in the same manner inside her 3 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 3 / 15
house and after committing rape upon her, appellant no. 2 Gajanand Sharma once again gave her Rs. 30/-. When she refused to take money, she was threatened and compelled to keep the amount. She alleges that after about one month of the incident when her menstrual cycle stopped, she brought this fact to the notice of the appellants. The appellants, in order to get the pregnancy of the informant terminated went to doctor Asharful to take medicine. Doctor Asharful inquired from them about the entire facts and, thereafter, refused to give medicine to them. The informant alleges that doctor Asharful called her father and disclosed him about the entire incident. Her father immediately consulted the Mukhiya of the village, who advised him to institute case in the police station but her father told that he wants the matter to be settled in panchayati. Thereafter, a panchayati was convened, in which, the appellants confessed their guilt but, subsequently, they resiled from their confession and, as such, there has been some delay in instituting the police case. Lastly, it has been stated in the fardbeyan that as a result of rape committed by the appellants she is carrying a pregnancy of about four months.
On the basis of the aforesaid fardbeyan of the
informant, Azamnagar P.S. Case No. 56 of 1992 was instituted by the Officer-in-Charge of Azamnagar police station on 8.5.1992, at 9 4 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 4 / 15
a.m. under Section 376 of the Indian Penal Code and investigation was entrusted to A.S.I., Raj Kumar Prasad. The victim was, thereafter, referred to Sadar Hospital, Katihar for medical examination by the investigating agency. She was examined by the doctor and the medical report was handed over to the police. The Investigating Officer, after conclusion of the investigation submitted charge sheet and sent up both the appellants for facing trial. The learned Chief Judicial Magistrate took cognizance of the offence and committed the case to the court of sessions for trial. The trial court framed charge under Section 376 of the Indian Penal Code against the appellants to which they pleaded not guilty and, thus, the trial commenced.
The prosecution, in order to prove its case, has examined altogether 11 witnesses in court. On behalf of defence, no witness has been examined. The defence has taken a plea of false implication.
It is relevant to note it here that P.W.-9 Prabhunath Rai has been tendered by the prosecution for cross-examination, whereas P.W.-10 Md. Asharful Haque, the so-called doctor to whom the appellants are alleged to have met in order to take medicine for terminating the pregnancy of the informant, has been declared hostile. P.W.-7 Pramila Kumari is the informant. P.W.-3, Dr. Kanak 5 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 5 / 15
Ranjan is the doctor who examined the victim on police requisition and submitted report whereas P.W.-11 Raj Kumar Prasad is the investigating officer of the case. P.W.-6 Longi Devi is the mother of the informant and P.W.-4 Bhim Rajbhar is her father. P.W.-1 Suraj Rai, P.W.-2 Ram Sakal Rai and P.W.-5 Raghunath Singh are the witnesses on the point of panchayati held in the village prior to the institution of the case. P.W.-8 Sachidanand Singh is the Mukhiya of Kando Gram Panchayat.
P.W.-1, Suraj Rai, states in his deposition that in the panchayati, in question, the informant had stated that she was raped twice by the appellants as a result of which, she became pregnant. Her father made a proposal to the appellants in the panchayati either to marry his daughter or to pay compensation so that she may be married elsewhere but the appellants stated that the allegation being made against them was false. He further states that when the appellants refused the proposal of the father of the victim, a case was registered in the police station. In cross-examination, he admits that he is not a witness to the rape committed upon the victim. He also admits that nothing was reduced in writing in the panchayati held in the village. He further admits that the Mukhiya and Sarpanch did not participate in the Panchayati.
P.W.-2, Ram Sakal Rai, is another witness to the 6 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 6 / 15
panchayati. He states that since the victim was carrying a pregnancy of four months, a panchayati was convened, in which, the victim disclosed that she was raped twice by the appellants. According to him, the victim disclosed that on the first occasion, she was ravished inside her house. In cross-examination, he states that the panchayati was convened at the door of the house of Mukhiya, Sachidanand. The Mukhiya was present there. He further admits in cross- examination that the proceeding of panchayati was reduced in writing over which he had also put his thumb impression. He also admits that the victim was never raped in his presence. P.W.-5, Raghunath Singh, in his examination-in-Chief, repeats the allegation made by the informant in the F.I.R. He further states that prior to the institution of the F.I.R., a panchayati was convened in which the appellants had accepted their guilt. The Mukhiya told them that they will have to bear the cost of marriage of the victim, but, after two days of the panchayati, the appellants refused to pay the expense for marriage of the victim and, thereafter, the F.I.R. was instituted. In cross-examination, he states that one day, after the panchayati, the Mukhiya and some other persons went to demand money from the appellants. He denies the defence suggestion that he was instrumental in getting a false case instituting against the appellants.
7 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 7 / 15
P.W.-8, Sachidanand Singh, is the Mukhiya of the concerned panchayat. He states in his deposition that the father of the informant informed him that the appellants had raped his daughter about four months back, as a result of which, she was carrying a pregnancy of four months. A panchayati was convened, in which, both the appellants and the informant participated. The appellants agreed in the panchayati that the matter be resolved amicably by the panchayat. He further states that the appellants agreed to bear the medical expense in terminating the pregnancy of the informant but some persons present in the panchayati did not accept the proposal of the appellants. Thereafter, a case was registered in police station. The Mukhiya further states that in the panchayati, no other decision was taken. In cross-examination, he admits that he had never ever participated in any panchayati prior to the panchayati in question. He further admits that nothing was reduced in writing in the panchayati in question. He denies the suggestion that he implicated the appellants falsely as they failed to pay Rs. 500/- each as demanded by him.
P.W.-4, Bhim Rajbhar, is the father of the informant. In examination-in-Chief, he states that he was called by doctor Asharful, who disclosed him that his daughter was pregnant and the appellants had approached him for medicine to terminate her 8 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 8 / 15
pregnancy. He further states that on getting such information, he inquired from his daughter, who disclosed to him that the appellants had ravished her twice and on both the occasions, they had given her Rs. 30/- which she was forced to keep under threat. He further states that he had made inquiry in this regard from his daughter in presence of his wife. He, thereafter, went to the Mukhiya and narrated him about the entire incident. The Mukhiya made inquiry from his daughter and convened the panchayati, in which, the appellants agreed to bear with the expense to be incurred in the marriage of the informant. But, after two days, they resiled from their promise and, as such, the F.I.R. was instituted. He further states that at the time of occurrence, his daughter was aged about 14 years. In cross- examination, he admits that both the appellants are already married. He further admits that the proceedings of the panchayati were not recorded in writing. According to him, on the date of panchayati, the pregnancy of his daughter was of four months but, during this period, neither he nor his wife ever noticed any symptom of pregnancy. Even the informant did not disclose anything regarding the pregnancy to her parents. He further states that he had told the appellants that if they pay Rs. 1,000/- each as expense for the marriage of his daughter, he would not lodge case against them. He denies the suggestion that the appellants were falsely implicated in 9 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 9 / 15
the case.
P.W.-6, Longi Devi, is the mother of the informant. In her examination-in-chief, she supports the contents of the F.I.R. She states that in the panchayati the appellants had confessed their guilt but after one month from the date of panchayati, they retracted from their confession. They also retracted from their promise to pay Rs. 2,000/- as fine. In cross-examination, she states that she has five children and out of them, the informant is the eldest one. She further states that in her house, there is a hand-pump and the courtyard of her house and her father's house is one and the same. She further states that she could not notice that her daughter was carrying a pregnancy of four months. Her daughter never told her about the rape committed upon her. She further states that the panchayati was held at the door of her father and the proceedings of the panchayati were reduced in writing on which the appellants had put their thumb impression.
P.W.-7, Pramila Kumari, is the most important witness in this case. In her examination-in-chief, she has reiterated the allegations made in the F.I.R. She states that in the panchayati held in the village, both the appellants participated and confessed their guilt but no decision could be taken in the panchayati. Thereafter, her father told her to lodge case, pursuant to which, she gave her 10 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 10 / 15
fardbeyan to the police. In cross-examination, she states that on the date of occurrence, in the evening, the appellants bodily lifted her. At that time, her younger brother and sister were inside the house. When the appellants lifted her, they started crying, pursuant to which, her maternal grand-father and maternal grand-mother (Nana and Nani) came out and caught hold of them, thrashed, warned and asked them to leave the place and never come again in his house. She further admits that in the evening when her parents (P.W.-4 and P.W.-6) came back, her brothers and sisters disclosed them about the entire occurrence. Her parents took her to task and gave her few slaps also. She further states that when her parents took her to doctor, the doctor told them that the pregnancy was of about six and half months. She further admits that when the appellants committed rape upon her, the second time, her brothers and sisters were present inside the house. She further admits that she used to meet the appellants whenever they called her.
P.W.-3, Dr. Kanak Ranjan, who was posted as Medical Officer at Katihar Sadar Hospital, examined the victim on 11.5.1992 at 11.15 a.m. She has assessed her age to be between 16-17 years. She found no marks of injury on her person or on her external genetallia. The hymen was found old torn. As per pathological report, no spermatozoa was found. She states that clinically the 11 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 11 / 15
informant was carrying pregnancy of about 26 weeks. She has proved the medical report in her writing which has been marked as Ext.-1. In cross-examination, she states that the breast had become more prominent and vains over the breast were also prominent. P.W.-11, Raj Kumar Prasad, is the investigating officer of the case. He states that on 8.5.1992 at about 9.00 a.m. the informant together with her father, P.W.-4, Bhim Rajbhar came to the police station and gave her fardbeyan which was reduced in writing by him. He has proved the F.I.R. which is marked as Ext.-3. He took up the investigation, recorded statement of witnesses, inspected the place of occurrence, sent the victim for examination to the hospital and after completing the investigation submitted charge sheet in the case. In cross-examination, he admits that no witness had given him written panchnama. He also admits that he did not record statement of 'Nana' and 'Nani' of the victim. Based on such evidence as discussed above, the trial court held the appellants guilty for the offence punishable under Section 376 of the Indian Penal Code.
I have heard the parties and with their assistance perused the evidence on record. From the evidence discussed above, it is apparent that the witnesses on behalf of the prosecution are not consistent. They have contradicted each other in material particular. 12 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 12 / 15
P.W.-4, Bhim Rajbhar and P.W.-6, Longi Devi, state in their deposition that the victim never told them about the rape committed upon her. They could come to know about this fact from P.W.-10, Md. Ashraful Haque from whom the appellants tried to procure medicine for termination of the pregnancy of the informant. They state that it was only after Md. Asharful Haque disclosed them about the factum of rape, they made an inquiry from their daughter who narrated them about the incident. But, when I look to the deposition of the informant, I find that she states that when she was raped, her brothers and sisters were present there. They made shouting. On the shouting made by them, her 'nana and 'nani' also came. They caught hold of the appellants, thrashed, and warned them not to come back again. The informant does not stop here. She further states that when her parents came back in the evening, they were told about the occurrence by her brothers and sisters. If I accept the version of the informant, her parents are certainly lying while deposing in court. If the informant is telling the truth, then also the question arises as to why the F.I.R. was lodged after four months.
I further find that the informant while deposing in court has contradicted her own version given in the fardbeyan. In the fardbeyan, she states that her parents were told about the incident by doctor Ashraful. But, while deposing in court, she states that her 13 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 13 / 15
parents came to know about the occurrence on the date she was raped first by the appellants from her brothers and sisters. When, I look to the evidence of the witnesses
examined on behalf of the prosecution, the consistent case of the prosecution is that the victim, who was minor on the date of occurrence, was raped by the appellants about four months back. The F.I.R. was instituted on 8.5.1992 and the victim was examined by a lady doctor after three days on 11.5.1992. The clinical finding of the doctor upon examination of the informant is that she was carrying a pregnancy of about 26 months. If the medical report is to be believed, the witnesses examined on behalf of the prosecution including the informant can not be relied upon. If the informant was raped four months back, the pregnancy could not have been of over six months under any circumstance.
I further find that P.W.-6 has stated in her deposition that she has five children and the informant is the eldest one. In the absence of parents she used to look after them. The informant states in her deposition that her brothers and sisters were present on both the occasion when the appellants ravished her. She also states that they had raised alarm pursuant to which, her Nana and Nani had arrived at the spot. Under such circumstances, Nana and Nani of the informant were important witnesses to the case. The investigating 14 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 14 / 15
officer admits in cross-examination that he had not recorded the statement of Nana and Nani of the informant in course of investigation. The other witnesses to the occurrence of rape were the brothers and sisters of the informant. There is no explanation at all by the prosecution as to why the witnesses to the occurrence, as stated above, were not examined by the prosecution in course of trial.
I further find from the evidence on record that there is bundle of confusion in the deposition of the witnesses recorded in course of trial. The story of panchayati alleged to have been held before institution of the F.I.R. is a cock and bull story. Some of them state that the proceedings of the panchayati were reduced in writing whereas some others say that the proceedings were never recorded in writing. Further, some of the witnesses state that the panchayati was held at the door of the Mukhiya whereas the others say that the panchayati was held at the door of Nana of the informant. Further, some of the witnesses state that the Mukhiya had participated in the panchayati but some others say that the Mukhiya of the panchayat was not present when the panchayati took place. Some witnesses state that the appellants accepted their guilt in the panchayati whereas some others say that they did not confess their guilt. Some witnesses say that they promised to bear with the expense to be 15 Patna High Court CR. APP (SJ) No.97 of 1999 dt.30-07-2012 15 / 15
incurred in the marriage of the victim whereas some others say that nothing was resolved in the panchayati.
Thus, I find that the witnesses examined on behalf of the prosecution, apart from contradicting themselves, have contradicted each other in material particulars. The medical report falsifies the ocular testimony of the witnesses. The best witnesses, who are alleged to be present at the spot when the victim was ravished, have deliberately been withheld by the prosecution. There is no explanation, whatsoever, for their non-examination by the prosecution. The witnesses on the point of panchayati are totally inconsistent. The victim has materially improved/changed her version from the fardbeyan while deposing in court. Under such circumstances, it can safely be held that the prosecution has failed to prove its case beyond reasonable doubt.
From the discussions made and the reasons assigned, hereinabove, the appeal is allowed and the impugned judgment and order passed in Sessions Case No. 212 of 1992 by the learned Sessions Judge, Katihar, are set aside. The appellants who are already on bail are discharged from the liabilities of their bail bonds. Patna High Court
(Ashwani Kumar Singh, J)
The 30th July, 2012
Sanjeet/NAFR