CRIMINAL APPEAL No.1115 OF 2008 (S.J.) RANJEET SINGH, Son of Sri Bato Singh, Resident of village Pahsara, P.S. Naokothi, P.O. Pahsara (Babhangama), District – Begusarai ------------------------------------Appellant Versus STATE OF BIHAR--------------------------------------------------Respondent With CR. APP (SJ) No.1170 OF 2008 KHALTHU SINGH, son of Sri Opi Singh @ Upendra Singh, Resident of village Pahsara, P.S. Naokothi, P.O. Pahsara (Babhangama), District Begusarai --------------------------------------------(Appellant Versus STATE OF BIHAR--------------------------------------------------Respondent Against the Judgment of Conviction dated 13th November, 2008 and Order of Sentence dated 14th November, 2008 passed by Sri Daya Shanker Tiwari, Additional Sessions Judge, F.T.C. V, Begusarai, in Sessions Trial No. 512 of 2007, arising out of Naokothi P.S. Case No. 81 of 2006. For the Appellant : M/s Sumant Singh, (In Cr. Appeal No. 1115 of 2008) Sandeep Kr. Gautam & Aaruni Singh, Advocates For the Appellant : M/s Prabhakar Jha, (In Cr. Appeal No. 1170 of 2008) Ravindra Nath Tiwari, Advocates For the State : Mr. S.N.Prasad, A.P.P. (in both appeals) P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. Both the appellants in these appeals have been convicted for the offence under Section 376 IPC and sentenced to undergo rigorous imprisonment for 10 years 2 and also to pay a fine of Rs. 5000/- each and in default to undergo further simple imprisonment for 6 months. The appellants have further been convicted for the offence under Section 323 IPC and sentenced to one year simple imprisonment and also under Section 448 IPC and sentenced to one year simple imprisonment. 2. The prosecution case is that in the night of 23.12.2006 both the appellants entered into the house of the victim lady and assaulted her parents – in – law and took her away and thereafter both of them committed rape on her one by one. The matter was reported to the police at 6 P.M. on 24.12.2006 upon which a formal first information report was instituted and investigation ensued. Thereafter the charge sheet was submitted, trial held and appellants were convicted in the manner stated above. 3. The prosecution had examined in all 14 witnesses, out of whom P.W. 1, P.W. 5 and P.W. 6 are formal in nature, whereas P.Ws. 7 to 12 are doctors who examined the victim lady P.W. 2, P.Ws. 13 and 14 are Police Officers, whereas P.W. 2 is the victim lady herself. P.W. 3 (Khakhari Devi) is the mother – in – law and P.W. 4 (Ram Bahadur Tanti) is the father – in – law and are part 3 eye-witnesses. A number of documents were also exhibited pertaining to the first information report, seizure list, the injury reports and the medical reports concerning the present case. 4. The learned lawyer for the appellant Ranjeet Singh has submitted that the prosecution has not been able to prove the prosecution case beyond all reasonable doubt with regard to him since the identity which was the basis of the present case has not been fully proved. He has further elaborated that the victim lady herself in paragraph 17 has stated that she did not go out of the house and, therefore, did not know the names of any one and further in paragraph 26 stated that she did not know Ranjeet Singh and came to know his name only because he was himself declaring that his name is Ranjeet. The learned lawyer for the appellant has brought to the notice of the Court the evidence of P.W. 3 (Khakhari Devi), the mother – in – law, of the victim from whose evidence it appears that the appellant Ranjeet Singh was not even named by her. Under the circumstances and also in view of the fact that there is no definite opinion about rape having been committed upon the victim the appellant deserved to be acquitted. 4 5. The learned lawyer for the appellant Khalthu Singh had submitted that initially P.W. 4, the father – in – law of the victim, had given a sanha before the Officer Incharge at 12.30 P.M., who had not mentioned anything about rape having been committed upon his daughter – in – law and it was only later on the case was instituted and the story of rape was concocted at the behest of P.W. 1 (Bhushan Prasad Singh). He has further adopted the argument advanced on behalf of appellant Ranjeet Singh that the medical report was not inconsonance with the prosecution case and the appellant, therefore, deserves to be acquitted of the charges. 6. The learned lawyer for the State has argued that if the victim lady had herself supported the case of rape which is entirely reliable, then there is no reason to reject the prosecution case simply on the ground of minor contradiction here and there. He has further submitted that no suggestion was given to any of the witnesses as to why the accused were falsely implicated under which circumstances the defence had no explanation about its false implication. There was no cogent reason as to why the prosecution case should not be believed in its entirety . Moreover, according to the learned A.P.P., the 5 medical evidence supported the case of the prosecution, since the teeth mark having been caused by appellant Khalthu Singh was said to have been found by the doctor and, therefore, the medical evidence was in fact in full consonance with the prosecution case. He further elaborated that the Medical Board did not deny the possibility of rape under which circumstances the prosecution had fully discharged its onus and there was no scope for acquittal of the appellants. 7. It is not necessary to go into the full details of the prosecution case and it is sufficient to say that the victim lady herself has fully corroborated the factum of rape and the teeth bite on her cheeks right from the inception of the present case. The factum of the occurrence, where the first part, is concerned is also fully corroborated by the evidence of P.W. 3 (Smt. Khakhari Devi) and P.W.4 (Ram Bahadur Tanti), wherein they have stated that they had been variously assaulted and thereafter the victim lady was taken away from the house who returned later and narrated the story of the previous night. It is no doubt true that in earlier report of the P.W. 4 (Ram Bahadur Tanti) there is no mention of any rape having been committed upon his daughter – in – law but 6 the explanation which has been furnished is trustworthy inasmuch as he has explained that it was because of fear and no support that initially he was reluctant to give a report about the rape. The Investigating Officer’s conduct also appears to be very suspicious in this case since P.W. 13 to whom the matter was reported initially by P.W. 4 did not bother to make full inquiry of the facts and the Investigating Officer P.W. 14 has stated that it did not even inquire from P.W. 4 as to how and under what circumstances his head was bandaged and where he had got himself treated. P.W. 14 has also stated that he did not see any injury report of P.W. 3 which is very unfortunate in the circumstances of the case. There is no doubt in my mind that the Police Officers in the present case have not investigated the case properly nor have they discharged their duties in a manner that would be befitting. This, however, does not affect the prosecution case since the same is fully corroborated in other particulars. 8. The Medical Board under the circumstances may not have given a definite opinion about rape since the victim lady was examined after about 36 hours of the occurrence but it has not ruled out its 7 possibility completely. Moreover, the injury report proved by P.W. 9 (Dr. Kamini Roy) definitely states about the teeth bite having been found on the person of the victim which corroborates the prosecution case and also suggest that it was not a case of simple assault. Considering the materials stated above I am fully convinced that the prosecution has been able to prove its case that rape was committed on the victim lady in the night of 23.12.2006 but the question of implication of the present appellants needs to be further discussed. 9. It is true that both the accused persons were named in the first information report but the signatories of the first information report i.e. P.W. 1 and P.W. 6 have denied that any written statement was made in their presence and, in fact, they were made to sign on plain paper. Moreover, the first information report not being a substantive piece of evidence, the real test is the evidence of P.Ws. 2, 3 and 4 given in Court. It is true that P.W. 2, the victim lady, has stated in paragraph 17 that she did not go out and therefore did not know the names of any one. Under the circumstances the best piece of evidence would be that of P.W. 3, the mother – in – law (Khakhari Devi), and P.W. 4, the father – in – law 8 (Ram Bahadur Tanti). But from the evidence of P.W 3 it is evident that the appellant Ranjeet Singh was not named by her which leaves us with the sole evidence of P.W. 4 (Ram Bahadur Tanti) with regard to him. P.W. 2, the victim herself, has given an explanation for having named Ranjeet Singh that it was the accused himself who was speaking his name which does not appear to be probable and, therefore, is not fit for reliance. Since P.W. 4 (Ram Bahadur Tanti) himself has not proved to be a very trustworthy witness in the sense that in the earlier report he does not state anything about the rape having been committed upon the daughter – in – law, I am not inclined to place full reliance upon his evidence to convict the appellant Ranjeet Singh and, therefore, in my opinion the appellant Ranjeet Singh deserves to be given the benefit of doubt and he be acquitted of the charges. 10. Where the appellant Khalthu Singh is concerned the victim’s evidence with regard to him has been corroborated both by P.W. 3 (Khakhari Devi) and P.W. 4 (Ram Bahadur Tanti) and he cannot escape from the liability of the present case. Moreover, the victim had alleged that Khalthu Singh had bitten her cheeks during course of the occurrence and which fact is 9 corroborated by P.W. 9 (Dr. Kamini Roy) and, therefore, this part of the story is also corroborated to some extent. In the circumstances the appeal of Khalthu Singh fails and Cr. Appeal No. 1170 of 2008 is accordingly dismissed and he is directed to serve out the rest of the sentences. 11. In the result Cr. Appeal No. 1115 of 2008 is allowed. The judgment and order of conviction and sentence is hereby set aside. Appellant Ranjeet Singh is in custody. He is accordingly directed to be released forthwith if not required in connection with any other case. Patna High Court, Patna Dated : The 5th October, 2009 Sanjay Pd./.N.A.F.R. (Anjana Prakash, J.)