Criminal Appeal No. 199 of 2006 (Against the Judgment and order dated 24.02. 2006 passed by Sri Syed Jafar Hussain, Special Judge, SC/ ST (P.O.A.) Act, Purina in Special Trial No.10 of 2002.) ------------ 1. Dinesh Rai 2. Ram Kumar Sharma 3. Bablu Mahto 4. Ranjit Mandal @ Ranjit Sah ----------- Appellants Versus The State of Bihar ---------- Respondent For the appellants: Mr. Radhey Shyam Prasad, Mr. Praveen Kumar Agarwal, Mr. Rajesh Kumar, Advocates For the State : Mr. Satya Narayan Prasad, Advocate. P R E S E N T THE HON’BLE MR. JUSTICE SAMARENDRA PRATAP SINGH S.P.Singh, J. The instant appeal is filed by all the four appellants against the judgment and order dated 24.02.2006 passed by Shri Syed Jafar Hussain, Special Judge, SC/ ST (P.O.A.), at Purnia in Special Trial No. 10/2002 bearing G.R.No 18/2001. By the impugned judgment the learned trial court convicted all the appellants under sections 307 and 376 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for 10 years. The learned trial court further convicted and sentenced the appellants to under go Rigorous Imprisonment for 10 years under section 3(x) and (xi) of Scheduled Caste and Scheduled Tribe Act. The appellants were further sentenced to undergo Simple - 2 - Imprisonment for three years under section 323 of the Indian Penal Code. However, no separate sentence was passed for their conviction under section 379 of the Indian Penal Code. 2. The complainant, Lucky Devi, filed a complaint being complaint no. 1433(c)/2000 on 02.12.2000 before the Chief Judicial Magistrate, Kishanganj. The learned Chief Judicial Magistrate endorsed the case to the police for institution of a case under section 156(3) of Cr. P.C. Consequently,the police on 05.01.2001, registered Kishanganj P.S. Case No. 05/2001, under sections 376,307,379,326,323/34 of the Indian Penal Code and 3(x) (xi) of Scheduled Caste and Scheduled Tribe Act. 3. The prosecution case in short is that in the morning of 20.11.2000, the complainant was in her house along with her elder daughter Reena Devi and her husband Ajay Das, (P.W.2). After some time, her husband left for Catax chowk, and the informant also went to Dharamganj chowk for some work. It is alleged that taking advantage of the absence of informant and her husband at the house, the four appellants with the aid of one Raju Das committed rape on her daughter, and also tried to burn her while she was cooking food in the kitchen. On hearing the news that her daughter received burnt injuries, she rushed back home. Her daughter narrated the whole occurrence to her. Reena Devi revealed that accused raped her. They had gagged her mouth with a sari so that she may not shout. As Reena Devi, (P. W.4) threatened that she will report the matter to - 3 - her parents, all the five accused poured kerosene oil on her and set fire with aid of match stick. The neighbour on seeing smoke billowing came and saved her. The informant lifted her with the aid of other villagers and took her to the hospital. It is alleged that accused even spied on them in hospital. She claims that the accused in collusion with police got a wrong statement of Reena Devi recorded. After some time her husband namely, Ajay Kumar Das, (P.W.2) also reached hospital. On 01.12.2000 the complainant’s husband Ajay Das came to his house to collect blanket, bed sheet etc, for her daughter who was still in the hospital. To his surprise he found that in their absence some miscreants forcibly intruded in the house and committed theft .The locks of doors were broken. He found many things missing. He also found some of the belongings strewn in the adjacent premises of accused/appellant Dinesh Sharma .His hut in short was ransacked. When the informant’s husband made a protest to appellant Dinesh Rai and others who were still in the latter’s house they assaulted him with lathi and fists, called him names and also threatened him to leave the land and house otherwise he would be killed. The informant’s husband sustained injuries on face. It is further the prosecution case that some time back the accused persons had gone to her daughter’s sasural on their own and persuaded her to accompany them to naihar by putting a false plea that her parents wanted her home as they were not well. The accused/appellants brought her first to Motibag where they - 4 - committed rape on her for three days. Thereafter, they kept her at Rampur chowk, where also they committed rape on her continuously for two to three days. When informant came to learn that her daughter was confined at Rampur Chowk by the accused/appellants she went there and brought her back home. 4. The police after investigation, submitted charge sheet. The case was committed to the court of Special Judge, as cognizance was taken for offences under Scheduled Caste and Scheduled Tribe Act also. After committal of the case, charges were framed under sections 376,307,326,379,323 of the Indian Penal Code and 3(x), (xi) of the Scheduled Caste and Scheduled Tribe Act. 5. The accused persons pleaded innocence and claimed to be tried. 6. The prosecution examined 11 witnesses, out of these witnesses (P.W.2) Ajay Kumar Das and (P.W.7) Luky Devi are the father and mother of the victim Reena Devi. The victim Reena Devi has been examined as P.W.4. P.W.5 is the husband of the victim Reena Devi, P.W.11 is the investigating Officer. The Doctor who examined the victim has not been examined. 7. The defence has examined four witnesses, out of these witnesses (D.W.4) Awadhesh Kumar, brought Exhibit-4 on record, Ext.4 is the alleged fardbeyan of victim Reena Devi claimed to be recorded by S.I. S.K. Singh, on 19.11.2000 at 9.30 A.M. in the hospital itself, the said fardbeyan is also entered as station diary bearing no. 492 of 2000. 8. P.W.1 is Kishan Lal Ram, a labourer. He is a hearsay witness. He had gone to see Reena Devi in the hospital, where she was lying - 5 - unconscious. She had sustained burnt injury on her body. She regained consciousness after three days. On query she informed him that the appellants committed rape on her. He admitted that all members of Scheduled Castes held a meeting and decided that a case be lodged. However, he denied that he belongs to Scheduled Caste. 9. P.W.2 is Ajay Kumar Das. He is the father of the victim. He has stated that occurrence took place in the morning. Around that time both he and his wife were not in the house. While he was in the market, he learnt that his daughter received burn injuries and has been taken to hospital. Thereafter, he went to the Government Hospital where his daughter was lying unconscious. He stated vide para 15 of his deposition that his daughter regained consciousness on 10th day of the injury. She informed him in hospital that the appellants and one more, committed rape on her and also burnt her when she threatened to report the matter to her parents. He stated that on 1-12-2000 at about 3 P.M. he had gone to his house to bring bed sheet, shari and Sweater for his daughter. He found the locks of house broken and household articles in damaged conditions. He found many of the belongings missing. At one point he stated that all the accused persons were in his house but, subsequently, he says that they were in the house of appellant Dinesh Rai. Some of the household materials were found scattered in the premises of appellant no.1. The appellants tied him and started assaulting him. He stated that a day after the occurrence, his wife went to police station to lodge a case. When they learnt that case has not been - 6 - registered, she filed a complaint in the court. He has further stated that the house of Dinesh is hardly at a distance of five hands from his house. The houses of appellant Ram Kumar Sharma is ½ K.M. away and the appellants Ranjit and Bablu stay in the house of appellant Dinesh Rai. He stated that hospital is 3 K.M. away from his house and he reached hospital at 10 A.M. He saw 10-12 persons of his village in the hospital whose name he does not remember. He denied the suggestion in para 8 of his deposition that he has stated before the police that her daughter got burnt while she was cooking. Her daughter used to call appellant no.1 Dinesh Rai as Mama. The parents of the victim girl, Reena Devi, were present at the time of taking her statement. He has stated that prior to the aforesaid occurrence, no altercation had taken place with the accused persons. He stated that he has only 2 kathas of land which is a Government land, and that too is not settled with him as yet. He states that there are about 100-150 houses in the locality. He has denied the suggestion that he has filed this false case with a view to grab the land of appellant Dinesh Rai. 10 P.W.3 is Sonawati Devi. She is mother-in-law of the victim Reena Devi. She has stated that much prior to the date of occurrence, the appellants had come to her house. She has stated that they had come to take back her daughter-in-law Reena Devi as her parents were not well. Reena Devi recognized them and used to refer them as Mama. She gave tea and some snacks to the appellants. Thereafter she went out of the house. In the meantime, the appellants took her daughter- - 7 - in-law away. She admitted that prior to deposing in the court, she has not earlier made any statement. She also stated that she had not inquired for a month as to whether her daughter-in-law reached her Sasural or not. She learnt from the parents of her daughter-in-law that the appellants committed rape and tried to set her on fire by sprinkling oil. She denied the suggestion that she is making a tutored statement. 11. P.W.4 is Reena Devi, the victim woman. She stated that the occurrence took place on the fateful day early in the morning. At that time none of her parents were in the house. She alleged that all the accused including the four appellants committed rape on her. They had thrust sari in her mouth so that she may not raise hulla. When she threatened that she would narrate the incident to her parents, the accused persons sprinkled oil on her body and put match and tried to set her on fire. In the process she sustained injuries on her person. She made her statement to the I.O. after she returned home from hospital. She stated that prior to the occurrence she was at her matrimonial house in the village Ekar Jawa, Kathal Bari, P.S. Gwalpokhar, Dist. Uttar Dinazpur, West Bengal. She stated that much prior to the last occurrence, the accused persons came to her Sasural. At that time her mother-in-law, (P.W.3) was at her house. Her husband who plies rickshaw was not in the house. The accused persons informed her that her parents are calling her back home as her mother is not well. She said that she would accompany them only after she informs her husband about it, as and when he returns home after the work. In the mean time, her mother-in-law went out for - 8 - purchasing medicines. Taking advantage of her absence, the accused persons insisted that she should go with them and she finally relented. The accused took her first to Motibag, Karwala in the house of one Ramu. In cross-examination, however, she stated that she was sitting on the back of the cycle and no one had tied her. She stated that while traveling for hours from her sasural the accused persons raped her continuously for three to four days after administering intoxicating tablets. She stated that only one of the accused namely Raju did not commit rape. She denied of having made any statement to the police officer in hospital and putting her L.T.I. on it. She deposed that accused persons after a few days shifted her to Rampur chowk where they again committed rape. She further stated that there was only one room in the house of Ramu driver whose residence was only 1 km away from her matrimonial house. She further stated that the parents, wife and children of Ramu driver stayed in the same one room house. She stated that she did not use to go out for answering the call of nature. She deposed that accused persons after a few days shifted her to Rampur chowk where they again committed rape. She further stated that wife of Dinesh Rai had also come there. She alleged that the accused persons did not give her food for 4-5 days. She stated that wife of Dinesh and one Sanjay dropped her at her parent’s house from Rampur chowk. She stated that on coming to her parents’ house she fell unconscious as she had not eaten anything for last 8 to 10 days. She stated that she did not show the injury on her cheek and lips to the Doctor. She stated that she did not show blood stained ‘sari’ and ‘saya’ to the I.O. She feigned ignorance when a - 9 - question was put that appellant Ram Kumar Sharma had given blood to her in the hospital. She denied the suggestion that the police case has been filed to grab the land of appellant Dinesh Rai. She denied of having made any statement to the police officer in hospital and putting her L.T.I. on it. 12. P.W.5 is husband of the victim P.W.4. He stated that he was not present in the house when the accused appellants had come and taken his wife away. After 12 days of occurrence he learnt that the appellants had committed rape on his wife. 13. P.W.6 is one Vimal Sah and he has been declared hostile. 14. P.W.7 is Luky Devi, the informant of the case. She stated that she lives in Ludhiana for her earnings with her husband and younger daughter Priyanka. Co-villager Hira Lal informed that his daughter is serious. Thereafter she came home. On coming home, she did not find her daughter there. After three days she learnt that appellant Dinesh Rai had abducted and confined her daughter. Her daughter Reena was finally retrieved. She stated that at the time of occurrence on 20.11.2000, she had gone to the market. She heard hulla that her daughter has got burnt. Thereafter she came home and took her daughter to Kishanganj hospital. She further stated that 10 to 12 days later, the accused persons committed theft and destroyed her house. When her husband (P.W.2) protested, he was assaulted by them. Her daughter did not narrate the commission of earlier rape by accused persons to anyone, not even to her parents. This witness admitted in para 14 of her evidence that she had mortgaged the land in favour of appellants Dinesh Rai and Ram - 10 - Kumar Sharma who had given a loan of Rs. one thousand and three thousand respectively. She stated that the house of appellant is just five hands away from her house. 15. P.W.8 is Meena Devi and she has been declared hostile, as such this court does not propose to examine her evidence. 16. P.W.9 is Umesh Paswan who has also been declared hostile and did not support the prosecution case. 17. P.W.10 is Deoki Devi W/o of Umesh Paswan, who too has been declared hostile. 18. P.W.11 is Ram Jag Ram, the I.O. of the case. He has stated that he took the statement of victim girl and her parents in hospital. He has inspected all the three place of occurrences. He visited the house of informant where the alleged rape was committed. He found some burnt mark on the ground. He also found traces of the old house of the informant which has now been uprooted. He arrested appellant Dinesh Rai on 17.02.2001. He inspected another place of occurrence. He also visited the maternal house of the victim from where she was taken away by appellants on a false plea. He also visited the house of Ramu Chauhan in Motibag mohalla at Kishanganj where the victim girl was allegedly raped for continuous three days. The victim pin pointed the room in which she was kept and raped. The I.O. also inspected the hut at Rampur Chowk under Chikuliya P.S. in the state of West Bengal, where she was also confined and raped by the appellants. The room belongs to one Kailash Paswan who has deserted the same now. The I.O. stated that Kailash Paswan and his wife Deoki Devi could only come to learn very late that the girl was brought - 11 - there, for ulterior purposes. He received injury report of the victim from the hospital which is marked as Exhibit 2, dated 19.12.2000. He had found the victim in a burnt condition in the hospital. He however did not take statement of any doctor, nurse or compounder of the hospital. He admitted that P.W.1 Kisan Lal did not state before him that Reena Devi informed him that appellants committed rape on her. P.W.1 stated that Reena Devi informed him that in the morning of 19.11.2000 she sustained burn injury on account of cooking. The I.O. learnt that the father of the victim has sold his house on account of fear. However, the I.O did not take the statement of the purchasers. 19. The accusations were explained to the appellants in terms of section 313 of the Cr. P. C., which they denied. 20. The defence has examined four witnesses in support of their case .P.W.4 is Sanjay Kumar Singh who proved Exhibit-A, the statement of the victim girl recorded by S.I., S.K. Singh, on 19.11.2000 at 9.30 A.M., in hospital. The evidence of other witnesses is to the extent that the victim sustained injury while she was cooking in the kitchen room. They stated that appellant Ram Kumar Sharma gave blood to the victim. The appellants have been falsely implicated by informant to grab their land. 21. The main points to be considered in this case is whether the prosecution has been able to prove its case against the accused/appellants beyond all reasonable doubt. 22. Learned counsel for the appellants made the following submissions in support of their defence. He submits that Ext.A the fardbeyan of Reena Devi recorded at Hospital, on 19.11.2000 at 9.30 A.M., by Sub Inspector - 12 - S.K. Singh, ought to have been taken as a first F.I.R. As such the subsequent F.I.R. being Kishanganj P.S. Case No.5 of 2001 arising out of Complaint Case No.1433 © of 2000 is hit by sections 161 and 162 of the Cr.P.C. In support of his contention he relied upon a decision of T.T. Antony Vs State of Kerala & Ors, (2001)6 S.C.C.181 and the case of State of Andhra Pradesh Vs Punati Ramulu & Ors, A.I.R.1993 SC 2644. He further submits that prosecution story is highly improbable and against natural and normal conduct of a witness. In support of his contention he relied upon a case of Gambhir Vs State of Maharashtra, 1989 SCC (Cri) 649. He submits that there is glaring infirmity on the point of date and time of occurrence. In this respect he relied upon a decision in the case of Hallu & Ors Vs State of M.P., 1974 SC 1936. He submits that the delay of 12 days in lodging the complaint cuts at the root of the prosecution case. In this respect, he relied upon decisions in the case of Surjan Vs State of M.P., 2002 SC 476, equivalent to (2002)10 SCC 214; Pratap Mishra & Ors Vs State of Orissa, 1977 SC 307, Kuldip Kumar Mahto Vs State of Bihar, (1998) 6 S.C.C.240, and Suresh N.Bhusare & Ors Vs State of Maharashtra, (1999)1 S.C.C.220. 23. On the other hand Shri Satya Narayan Prasad, learned A.P.P. submits that the trial court has rightly convicted the accused persons under sections 376 and other allied sections of the Penal Code. He submits that there is sufficient explanation for delay in lodging the case. He further submits that Ext.A is not an authentic document and cannot be taken to be the first F.I.R. He submits that conviction can be based even on solitary evidence of victim itself. There is no need of even corroboration of evidence of the victim. In support of his contention he relied upon decisions reported - 13 - in State of M.P. Vs Babu Lal, 2008(3) P.L.J.R.(SC) 257; State of Kerala Vs K.M.Antony, 2007(1) P.L.J.R.(SC)188. 24. There can be no dispute to the propositions raised by learned A.P.P. that finding of guilt in case of rape can be based on an uncorroborated evidence of prosecutrix nor can her testimony be rejected on account of minor discrepancies in her evidence. It is well settled that if conviction is being based on solitary evidence of a victim, her testimony should be wholly reliable and must inspire confidence. The aforesaid view has been reiterated by the Apex Court in the case of Radhu Vs State of M.P., (2007) 12 SCC 57, as well as in the case of Surjan & Ors Vs State of M.P.,(2002)10 SCC 214. While considering the consequence of delay in lodging a complaint of rape, the Hon’ble Apex Court has observed that delay in lodging the same may not be necessarily fatal if there is due explanation for it. However the Apex Court cautioned that if the delay is not satisfactorily explained, then in such cases delay may weaken the prosecution case. The aforesaid view is reiterated in the case of Surjan & Ors Vs State of M.P.,(2002)10 SCC 214, as well as in the case of Ramdas & Ors Vs State of Maharashtra, 2007 SC 155. 25. In light of the aforesaid decisions, the points raised by learned counsel for the parties is to be examined. The informant P.W. 7 was living at Ludhiana (Punjab) with her husband and younger daughter. On hearing the news of the illness of her elder daughter Reena Devi,(P.W.4) she came to her village. She filed a complaint on 2.12.2000 in the court of C.J.M. Kishanganj, stating therein that the appellants committed rape on her daughter in the morning of 20.11.2000, when the victim Reena Devi was - 14 - alone in the house. She stated that while Reena Devi was cooking food the appellants came and over powered her and committed rape. After commission of rape, when the victim threatened that she would narrate the incident to her parents, the accused persons sprinkled oil and set her body to fire. The victim sustained injuries on her person; below the face and the chest. She alleged that accused persons had earlier in past committed rape on her daughter at Motibagh and then again at Rampur Chowk. 26. It is prosecution case that the appellants had gone to the Sasural of the victim in West Bengal and induced her to return with them in absence of her husband and mother-in-law. It is the case of the P.W.4, the victim as well as P.Ws 7 and 8 that the appellants brought her to Motibagh Mohalla in Kishanganj in one room house of Ramu Chauhan. They kept her there for three days and committed rape. The victim has admitted that other family members of Ramu also resided in the same one room house. The Investigating Officer on inspection also found the house of Ramu driver to be of one room only. Thereafter the appellants took her from Motibagh Mohalla in Kishanganj to a hut of one Kailash Chauhan at Rampur Chawk. The accused appellants kept her there for 2-3 days and committed rape. When villagers came to learn that Reena Devi has been kept