Cr. Appeal (SJ) No. 647 of 2006 -------- Against the judgment and order of conviction and sentence dated 27th July, 2006 passed by Shri Arun Kumar Shrivastawa, Sessions Judge, Rohtas, Sasaram. -------- Gajendra Choudhary, son of Sri Indradeo Choudhary, resident of village – Babhanaul, Police Station – Dawath, P.O. – Babhanaul, District – Rohtas (Bihar) …………… Appellant Versus The State of Bihar ………… Respondent ---------- For the Appellant : Shri Tuhin Shankar, Advocate For the State : Shri S.N. Prasad, A.P.P. -------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ------------- Dharnidhar Jha, J. The solitary appellant Gajendra Choudhary was charged and tried by the Sessions Judge, Rohtas under section 376 IPC and by judgment dated 27th July, 2006 passed in Sessions Trial No. 317 of 2006, the appellant was found guilty of the above noted offence. The appellant was sentenced on the same day, i.e., 27.7.2006. The learned trial judge directed the appellant to undergo rigorous imprisonment for seven years for committing the offence under section 376 IPC. 2. The prosecution story is contained in Ext. 2, which is the written report claimed to be written in the handwriting of the prosecutrix P.W. 2, in which she stated that on 22.12.2005, she was 2 going to pluck brinjal from her field when this appellant was found standing at the entry of his house. No sooner the appellant had seen the prosecutrix, he came near her and after catching hold of her by her hand, started dragging her towards his house. The prosecutrix started raising cries, on which the appellant dealt two slaps on her cheeks, as a result of which P.W. 2 was frightened. The appellant took her inside the house. There was none there and after putting her inside a room, closed the doors and also put the latch over it. He also closed the main entry doors of the house and himself entered inside the room in which he had put P.W. 2. The prosecutrix again shouted but the appellant is said to have threatened her and is further stated to have taken her into his embrace. Thereafter, the appellant is said to have undressed the prosecutrix to commit rape upon her. After having committed the act, the appellant is alleged to have gone out of the room and again came inside the room after half an hour to again commit rape upon the lady and went outside the room by closing the doors once again. The prosecutrix stated that she shouted many times but no one came there as there was no window fixed in the walls and at about 4 P.M. she could pick up the voice of the appellant and she again shouted whereafter the wife of this appellant came and unlatched the doors to open them, when the prosecutrix came out. But, she was threatened not to divulge the facts and was also beaten up by being given two slaps on her face. 3 3. P.W. 2 states that she came out of the house and narrated the whole incident to her mother and grand mother (both not examined) as her father was not available due to having gone out with one of his relatives. The prosecutrix gave information to other persons also and when her father came back in the evening, she narrated the incident to him whereafter her father, namely, Wakil Choudhary along with her Mausa Ram Pravesh Choudhary came to Dawath police station with her to file a written report (Ext.2). The prosecutrix stated that because her father was not at his house on 22.12.2005, she was filing the report a day after. 4. As may appear from the evidence of PW 3 S.I. Brahmdeo Singh, who was posted at the relevant time at Dawath Police station, he received Ext. 2, the written report and drew up the FIR and himself took up the investigation of the case during which course, he seized the under pant and frock of the prosecutrix by preparing seizure memo (Ext. 5). The frock and underwear of the prosecutrix was produced in court during hearing of the case and these were marked as Exts.I and II. He thereafter, recorded the further statement of the prosecutrix, inspected the place of occurrence including the room in which P.W. 2 claimed being raped. P.W. 3 has stated that the room was the southern room out of four rooms of the house in which there was an earthen grainery as also a few photographs of some deities. There was one window also which was fixed on the western wall of the house and there were another four 4 rooms and staircase on the first floor. The Investigating Officer forwarded the lady for her medical examination and himself recorded the statement of different witnesses and after finding materials sufficient, sent up the appellant for trial, which ended in the impugned judgment. 5. The defence of the appellant was of false implication. It was suggested to P.W. 2 that a false case had been instituted and no occurrence ever took place as was alleged. By examining three defence witnesses, it appears suggested by the defence that in fact there had not been any occurrence as there were lot of persons assembled just by the side of the house and that the offence, the manner in which it was committed, must not have gone unnoticed. 6. In support of the charges, the prosecution examined three witnesses. 7. P.W. 1 Dr. Jaisri Chandra had examined P.W. 2, the prosecutrix on 24.12.2005. She stated that she did not find any external injury, abnormal stain or foreign particles on the face, neck, chest, breast, abdomen, back, buttock, arms or legs. Hymen was found intact. It was difficult to enter finger in her vagina and vaginal swab was taken for microscopical examination by the pathologist of Sadar Hospital, Sasaram. Prosecutrix was referred to Civil Surgeon, Sasaram for determination of her age and it appears from the report of the medical board (Ext. 1/1) that the prosecutrix was aged between 16-17 years. P.W. 1 further stated that on the basis of the medical 5 finding and the report of the pathologist on the examination of vaginal swab, it was very difficult to say that she was raped or not as there was no external injury on her face, neck, chest, breast, abdomen, back, buttock, arms or legs of the prosecutrix nor was any stain found anywhere upon her person. 8. I have already discussed the evidence of P.W. 3, the I.O. of the case. P.W. 2 is the prosecutrix and she reiterated the same story which was stated by her in the written report. She stated that after being dragged inside the room she was assaulted and was closeted inside it. The main entrance of the house was also closed and thereafter, the lady was sexually assaulted. The appellant closed the room and also closed the doors and windows of the house and again re-entered the house after half an hour to repeat the act. The lady kept shouting on every occasion, but no one responded and, lastly, at about 4 P.M. she could pick up the voice of the wife of the appellant who along with him brought out the prosecutrix from the room to free her and left her with a warning of facing dire consequences if she divulged the story to her father. P.W. 2 stated that she came back out of the house and stated the story to her mother and grand mother and when her father came on the next day, he was also informed about the incident whereafter the written report was filed at the police station. The lady stated that she was sent to Sasaram for medical examination and she was questioned by the police also. In the cross examination by the defence, the lady was put some innocuous questions regarding 6 the class in which she was studying, the distance she had to travel to attend the classes and further that the written report was not in her own handwriting. She appears being cross examined on certain facts so as to indirectly challenging the claim of the prosecutrix that it could be the appellant who could have committed the rape upon her. She was also put a few questions about the houses situated in the neighbourhood of the place of occurrence and during that course she admitted that there was a Dalan of Ramakant Choudhary just across the lane opposite the place of occurrence where many persons used to assemble. The lady was refuting the suggestion that the room in which she complained of being raped was also fitted with a window and during that course she stated that on account of there being no window, the room was completely packed and she was further stating that the door which was fitted in that particular room was from west. This evidence appears quite contrary to the evidence of I.O. who did find not only the window fitted into the wall of the room, but also found the door of that particular room fitted on the eastern side of the room. Her attention was drawn to her own statement in writing in which she had stated that she also informed many persons of the village after she was free and in that connection her refusal was recorded as may appear from paragraph 15 of the cross examination. The lady stated that she was wearing the same clothes when she reached the police station and further that she had not taken any bath nor had changed her clothes after the occurrence. The victim was not 7 only residing in the same village but appears inhabiting the same neighbourhood. Then, how could she make such blatant statements as regards the doors of the room and her claim of there being no window fitted in any of its walls. Couldn’t it be due to the fact that he was never taken into that room? . 9. From the perusal of the lower court records, what appears is that all prosecution witnesses who were three in number, were examined and discharged on the single day, i.e., 25.7.2006. The two important witnesses, like, the mother and grand mother of the prosecutrix were not examined in addition to the father of the prosecutrix and her Mausa who were accompanying her to the police station. The learned trial judge while recording the conviction of the appellant recorded in paragraph 11 at page 8 of the judgment that “In a case of rape it is well settled principle of law that when a victim of rape case clearly stated that rape was committed by an accused then in such case question of corroboration by other witnesses does not arise at all ………” 10. From perusal of the above paragraph, the learned trial judge appears gone on to hold that the victim herself stated before the court that rape was committed on the victim severely. The learned judge accepting the evidence of the doctor who examined the victim and was recording that she did not find any external injury or stain anywhere on her face, neck, chest, breast, abdomen, back, buttock, arms or legs and also that no external injury was found on the private parts of the victim and further that her hymen was intact. But, after 8 perusal of Ext. 1, i.e., the medical report and the evidence of P.W. 1, non finding of any injuries or foreign particles was only on account of the fact that the occurrence had taken place on 22.12.2005 and the lady was exmined on 24.12.2005. On the first blush, the finding recorded by the learned trial judge appears quite attractive and sound but when one examines the findings in the light of evidence of the prosecutrix in paragraphs 16 and 17, the whole findings appear quite infirm and not to be accepted. Prosecutrix P.W. 2 stated in paragraph 16 that she went to the police station wearing the same clothes, she had put on at the time of the occurrence and further that she did not take with her any other cloth. In paragraph 17 she has stated that she did not take her bath before going to the police station. Thus, if the lady had not changed her clothes and if the lady had not taken her bath, then the findings recorded by the trail judge that signs of any injury or foreign particles or any stain would have been washed out on account of delayed examination of the prosecutrix appears completely infirm and not acceptable. Not only that, the learned trial judge was also ignoring the most important finding of the doctor that the hymen of the lady was firm and intact so much so that it was difficult to introduce a finger in her vagina. The evidence of the prosecutrix in her examination in chief is that she was forcibly dragged inside the room, closeted inside it and thereafter was ravished forcibly. The prosecutrix was alone inside the room. The appellant came again so as to repeating the same 9 act. If the degree of brutality or the force by which the lady was raped, which has been recorded and recognized by the learned trial judge also when he was recording that rape was committed severely on a lady, then the finding by the doctor on intact hymen and the difficulty in inserting a finger simply negates the prosecution story as told by the prosecutrix that she was so brutally ravished by such a grown up man, like, the appellant who was aged 44 years or so on the date of occurrence. 11. It was contended by the learned Public Prosecutor that for constituting an offence of rape it is not necessary that there should be any ejaculation or full penetration or any damage to the private parts of the victim. Mere penetration could be sufficient for constitution of the offence of rape. I would have been happy to uphold the submission of learned counsel for the state had facts justifying such submission had been stated during trial. Facts do not indicate that it was a case of mere penetration. The story which has been told by P.W. 2 right from the stage of writing out Ext. 2 up to her deposition in court was of brutal sexual intercourse by being closeted inside the room rather, wrongly being confined for that particular purpose. The manner in which the incident has been described by P.W. 2 itself gives a clear picture as to what could be the propensity of the act and intensity of the damage. As the damage was not recorded either by P.W. 2 or the board of doctors, the whole prosecution pales in doubt. That appears more reasonable to be 10 recorded on account of the non examination of some of the most important persons, like, the mother of the victim, her grand mother and her father. At best, her mother and grand mother were the competent persons before the court below to depose as to what the story was narrated to them by P.W. 2. There is no explanation for them not having been produced. It was contended by the learned counsel for the state that unless a prejudice was caused to the appellant on account of non production of some material witnesses, the court cannot draw adverse inference. Prejudice is not always to be caused in criminal trial on account of non production of witnesses. Non production of witnesses could not always be the hallmark or a circumstance for doubting the prosecution story. When the very basic prosecution story appears suffering from such inherent improbability as I have just discussed, then the court turns its mind towards other aspect of the prosecution that why some important persons, like, such close relatives of the prosecutrix who were mother and grand mother were not coming forward to support her story. It could never be a question of prejudice to the accused rather it could be a question of non proof of the facts on account of non support of the prosecutrix by some material witnesses who were the first persons who had received the details about the incident. Could not it be that some good sense had prevailed upon the two ladies that they were not simply inclined to tell a rank false story to implicate an innocent person in commission of such a serious offence. 11 12. An accused is entitled to set up his defence in many modes. He could have multiple defences and may be he does not set up any defence. It is not necessary for him to point out as to why he has been falsely implicated. The accused may simply maintain that he has been falsely implicated. Prosecutrix could be a competent witness because courts have always accepted her status at par with an injured witness. But, it could also not be overlooked that by changing times, the society has transformed on account of appearance of many complex characters. Complex characters in some grown up persons could very easily be motivated or engineered to set up false pleas or stories. Could not it be a case as stated by one of the defence witnesses that there was a rivalry between the appellant and the father of the prosecutrix who were running two PDS shops and on that account, there could be a chance of foisting a false case. The prosecutrix was telling the court right from the inception of Ext. 2 that the room was windowless. On perusing her evidence and comparing the same with the evidence of I.O. who had inspected the place of occurrence and recorded the findings on inspection of the place, what I find is that probably the lady was never acquainted with the place where she was ravished. She was stating that the room was facing west whereas the I.O. was finding that the room was facing east. She was stating before the court that the room was without any window whereas the I.O. found window fixed in the western wall of the house. These could be the circumstances 12 indicating that she had come out with a well thought out story for the prosecution, for reasons best known to them, so as to denigrating a respected person in the eyes of the society. 13. After having considered the evidence of the prosecutrix with the evidence of the doctor, I find that the case suffers from inherent improbability and appears completely absurd and possibility could be that for any particular reason which could be best known to the prosecutrix or her family members the appellant was dragged to the court of law by being slapped with a serious charge of ravishing a seventeen year old girl. 14. In the result, I find merit in the appeal and I allow the same by setting aside the judgment of conviction and order of sentence. The appellant is acquitted. The appellant is in custody. He shall be released forthwith if not wanted in any other case. 15. Before I part with the record, I must express my anguish on the manner as to how the trial was carried out by the learned Sessions Judge, Rohtas. I have noted somewhere in the judgment that three witnesses were produced and they were examined on one day, i.e., 25.7.2006. No further witness was allowed to be produced or was produced in the court below and the statement of the appellant under section 313 Cr.P.C. was recorded on 25.7.2006 itself. Three defence witnesses were examined on 27.7.2006 and the judgment was also delivered on the same day i.e. 27.7.2006. Quick delivery of justice might be appreciated but is it also a fact that some times delivering 13 justice quickly subverts the cause of justice. If delay defeats justice, then quick delivery of justice also defeats justice and the case in hand appears a sample as to how justice has been defeated on account of haste of the judge which cannot be appreciated. (Dharnidhar Jha,J.) Patna High Court, 12th July, 2011, NAFR/Anil