Criminal Appeal (SJ) No. 445 of 2006 With Criminal Appeal (SJ) No. 377 of 2006 -------- Against the judgment and order of conviction and sentence dated 17.4.2006 passed by Shri Md. Jaishul Islam, Additional Sessions Judge FTC II, Samastipur in S.T. No. 444 of 1999 / 91 of 2005. ---------- Cr. Appeal (SJ) No. 445 of 2006 1. Naresh Paswan, son of Narayan Paswan, 2. Raj Kumar Paswan, son of Sri Sagar Paswan, 3. Devan Paswan, son of late Ganaur Paswan, all residents of Vishambharpur Aloth, Police Station – Musrigharari, District – Samastipur ……….. Appellants Cr. Appeal (SJ) No. 377 of 2006 1. Ram Swarup Paswan, son of late Jaglal Paswan, 2. Vimal Paswan, son of late panchu Paswan, both residents of Vishambharpur Aloth, Police Station – Mushrigharari, District – Samastipur …………… Appellants Versus The State of Bihar …………. Respondent (in both the appeals) -------- For the Appellants : Sarvshri Aditya Prakash Sahay, Manoj Kr. Sinha, Advocates For the State : Shri S.N. Prasad, APP -------- P R E S E N T THE HON’BLE SHRI DHARNIDHAR JHA --------- Dharnidhar Jha, J. The two appeals arise out of judgment dated 17.4.2006 passed by the learned Presiding Officer, Fast Track Court II, Samastipur in Sessions Trial No. 444 of 1999/ 91 of 2005 by which the five appellants in the two appeals were held guilty of committing offences under sections 376 and 456 IPC. Each of the appellants was directed to suffer RI for ten years and three years respectively on account of being convicted on the two 2 counts. The five appellants have preferred the two appeals for questioning the propriety of their conviction. 2. P.W. 3 Sunaina Devi is the victim who filed the written report on 9.5.1999 at 7.15 PM in Musarigharari Police station alleging that while she was all alone in her parents’ house, the five appellants came there and three of them, namely, Naresh Paswan, Raj Kumar Paswan and Devan Paswan entered inside her house and committed rape upon her one after the other while the two appellants, namely, Ram Swarup Paswan and Bimal Paswan kept standing outside the entrance of the house. It was stated that the appellants were armed with bhala and committed the act. When it came to the turn of appellants Ramswarup and Vimal Paswan, on account of the alarm raised by the prosecutrix, they could not succeed in their attempt and all the five appellants ran away from there. On the basis of Ext. 2, written report, the FIR of the case (Ext. 1) was drawn up and investigation was proceeded with. The I.O. has not been examined and as such, there is nothing on record as to how did it proceed but it is sufficiently indicated by the record that after close of the investigation, the five appellants were sent up for trial and, accordingly, they were convicted, as just narrated. 3. The prosecution examined as many as eight witnesses out of whom P.Ws 7 and 8 were formal having proved the FIR and the writing of the written report, which has been marked Ext. 2. P.Ws 1,2 and 5 were declared hostile as they did not support the prosecution case. Out of three hostile witnesses, P.W. 5 Dorik Paswan happened to be the father of the victim who was also not supporting the story of P.W. 3. P.W. 3, the prosecutrix, was supporting her story in its totality and during the course of her cross-examination, was admitting that she had appeared before the Chief Judicial Magistrate, Samastipur and filed an affidavit stating therein that the appellants were related as brothers to her and that they had not committed any offence. However, she came out with an explanation that she had been forced to make such statement and further to put thumb impression on the affidavit. On the very basis of her statement after her appearance in the court 3 as also through the affidavit, which was filed before the Chief Judicial Magistrate, it appears that the District and Sessions Judge, Samastipur was passing the order (Ext. A) mentioning these facts which facts are also recorded by C.J.M., Samastipur in his order dated 21.5.1999. 4. On perusal of the evidence of P.W. 3, what appears is that her house is not the solitary house which could be secluded so much so that there could not be any body around to pick up her moaning sound and her cries in SOS. She also admitted that the houses of these appellants were also closely situated. Most of the houses with those of these appellants were just by the side of the house of the prosecutrix. Besides, it appears a thickly populated area of the village where the house of the prosecutrix and those of the appellants were located. This is the reason that the court had some reservation in accepting the evidence of P.W. 3 that she will be keeping lying down to allow the appellants to do whatever they wanted to do with her. It could be possible only on account of the consenting conduct of the prosecutrix. It may appear from some of the parts of cross- examination in paragraph 40 that there was bad relationship between the parents of P.W. 3 and other persons belonging to her caste. She has stated that she and her parents had been ostracized by her villagers, and persons especially of her caste was never inviting the family of the prosecutrix to any community feasts or function. This appears one of the reasons that could be the motivating factor for the prosecutrix, in my opinion, to have come out with a story which does not appear inspiring confidence. It further appears that her parents were labourers of one Maqsood and one of the witnesses has admitted that the said Maqsood was not friendly with the appellants and, probably, the defence was also proposing to suggest that the said Maqsood could have set up the prosecutrix to slap a false charge upon the appellants. 5. The very manner of occurrence, which has been narrated by the prosecutrix in her evidence in paragraphs 26 and 30 of her evidence, simply, does not inspire confidence. She was quite a grown up lady, she had a son of about one 4 year or above that age and both the mother and the child were sleeping on the same cot. It has been stated by the prosecutrix in paragraph 29 that in order to committing the act, the appellants had picked up her child up and put him down on the ground and whenever the child cried they used to gag him. The court does not find any consistency and reliability in these statements. The manner in which the prosecutrix alleged being ravished by three persons, i.e., appellants Naresh Paswan, Raj Kumar Paswan and Devan Paswan also does not inspire confidence, specially, as if the lady had no bone in her body so as to resist the act nor had any blood to get enraged and in making cries to the whole world as to what was happening to her. There was nothing stated by the lady up till 30th paragraph of her evidence that she was being subjugated or being frightened to such an extent to submit to the desires of the present set of appellants. It was only after paragraph 30 of evidence that she was coming up with an explanation as to why she was not reacting adversely to resist the act of the appellants when she was telling that it was appellant Devan who was holding her two legs. These are some of the circumstances which indicate that the lady was not trustworthy. In addition to the above, what appears is that she has stated that she had bruises and laceration, on account of struggling to get away from the clutches of the appellants, on her buttocks, back and cheeks, which were caused specially by the nails of the appellants. But no medical report or oral evidence was forthcoming in support thereof. 6. The defence was bringing out certain features of the character of the lady by cross-examining her as to whether she showed those injuries to the persons who had come to know about the occurrence. She was stating that she did not inform any body after the appellants had left her house in the night and she could tell someone only when it was morning time. This may be apparent from paragraph 31 of her evidence. In the subsequent paragraph, she stated that she showed her injuries even on some parts of her body which could not be shown normally to some of the persons who were never her family members specially to 5 Nabijan Mian, who was a person belonging to a different community. These are certain features which afflict inherent improbabilities to the prosecution case and make the evidence of the prosecutrix not reliable to act upon. The lady appears very easy to be gained over. This was the reason that she was recalled for further cross examination and during that course she was admitting that she had appeared before the CJM and had filed the affidavit and had further stated that the appellants being her cousin brothers had not committed any offence. 7. If the above could be the conduct of the lady who could be so easily maneuvered to change her statements which were recorded on oath, then it could be always dangerous to accept her evidence to sustain the order of conviction. 8. In the result, what I find is that the trial judge was missing these important aspects of the matter and probably was not even caring to consider those parts of the evidence so clearly available to him in the evidence of the prosecutrix. The learned trial judge was probably proceeding with a closed mind and with a view which was pre-occupying his judicial conscience to record the conviction of the five appellants and further to proceed to afflict sentence upon them. The appeals are allowed. The appellants are acquitted of the charges. Appellants Naresh Paswan, Raj Kumar Paswan and Devan Paswan are in custody. They shall be released forthwith if not wanted in any other case. Appellants Ram Swarup Paswan and Vimal Paswan are on bail. They shall be discharged from the liabilities of their respective bail bonds. (Dharnidhar Jha, J.) Patna High Court, The 29th September, 2011, NAFR/Anil/