IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.316 OF 2008 Against the judgment of conviction and order of sentence dated 15.03.2008 passed by Additional Sessions Judge, Fast Track Court-I, Saharsa in Sessions Trial No.309 of 2005. 1. SURESH YADAV, Son of Ram Natah Yadav, 2. ASHOK YADAV, Son of Ram Nath Yadav & 3. VIJAY YADAV, Son of Bishwanath Yadav All are residents of village-Baijnathpur, P.S.Sour Bazar, District-Saharsa. .... .... Appellants Versus State Of Bihar.... .... Respondent For the Appellants: S/Sri Shekhar Kumar Singh, Pankaj Kumar Jha, Raju Surendra Mohan, Advocates. For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON‟BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. Justice Gopaldas Khosla, who rose to become the Chief Justice of Punjab High Court after being inducted as a Munsif, was noting in his book “Cases From The Judge‟s Note Book” that crimes were committed for three „Zs‟, that‟s, Zamin, Zoru(woman)and Zer(Money). His Lordship might have recorded the above reasons for commission of crime in olden times, but that expression has now got widened and amplified as may be found on perusal of the evidence and facts of the present case. 2. It was through a petition of complaint filed 2 after eight days of the occurrence, dated 10.06.2003, that the complainant Usha Devi(P.W.3), the third wife of her husband and mother of four children was alleging being gang raped by the three appellants. The lady was complaining that the appellants were always putting their greedy eyes on her in spite of the complainant belonging to a very respectable family. When it was evening time and the lady had lit the lamp in her house and her son was sitting at the Darwaja with the lantern to read and finding her husband away from her house who had gone to Chauk for purchasing required household articles, the three appellants are alleged to have trespassed inside to drag the lady inside a room and to have committed rape upon her after putting her on a Chauki by turn. The description of the act is detailed. It was stated that while the act was under way the son of the complainant, Arjun Yadav (PW-1) finding the three appellants inside put the door chain over its hook, thus, confirming the three appellants inside the same room in which they accomplishing their acts. By that time, the husband of the lady and some other persons also assembled there and they started pondering over the situation as to whether they should report the matter to the officer-in-charge of the outpost and get the three appellants arrested. 3. It was stated that while the husband of the lady(P.W.3)and others were pondering over the situation 3 so as to chalk out the course of action, the remaining accused persons, namely, Bishwanath Yadav, Ram Chandra Yadav, Manik Chand Yadav and Ram Nath Yadav came at the Darwaja of the complainant armed with lathi, bhala and garasa and pulled out the door chain upon and freed the three appellants from confinement. 4. The lady stated in her complaint petition that accused Ram Nath Yadav took away a bag containing clothes, ornaments documents and Rs.5,000/-. 5. It is admitted that witnesses had seen the occurrence especially at the time the appellants were freed and at the time they were looting the properties of the house of the lady. It also appears admitted by virtue of the statement to that effect made in the complaint petition that the officer-in-charge of Saurbazar outpost also came there and saw clothes which were also bearing the stains of semen and sent the complainant along with the Chaukidar and her husband to Saurbazar police station for lodging a case. The complainant stated that the officer-in-charge of Saurbazar police station recorded the statement of the lady on a paper and also obtained her signature besides seeing the incriminating clothes, but did not forward her to any lady doctor and asked her to go straight away to her house as she was to be produced before a doctor in Saharsa for examination and, accordingly, the lady came back to her house. 4 6. The lady stated that nothing happened as regards her examination by any doctor and she knocked at the doors of Superintendent of Police, Dy.Superintendent of Police also, but they did also not take cognizance of her complain forcing her to file the complaint petition on 18.06.2006 for the occurrence dated 10.06.2003, 7. It appears from the record of complaint case no.499C of 2003 that after having recorded the statement of the complainant on solemn affirmation, the learned Chief Judicial Magistrate, Saharsa was directing the seeking of a report from the officer-in-charge of Saurbazar police station as to whether in fact a first information report had been instituted as was claimed by the prosecutrix and as may appear from order dated 15.09.2003, the report was submitted by the said police station that no case had been registered. Obviously, the complaint petition was taken up for enquiry and during that course three witnesses were examined and the order of summoning dated 28.05.2004 was passed which resulted in the commitment of the case and ultimately the trial of the appellants along with four others, namely, Ram Nath Yadav, father of Suresh Yadav and Ashok Yadav, Manik Chand Yadav, Ram Chandra Yadav and Bishwanath Yadav who happened to be the father of appellant Vijay Yadav. 8. During the course of the trial four witnesses were examined which included the complainant P.W.3. Out 5 of the four witnesses, P.W.1 Arjun Kumar (her son)and P.W.2 Abhinandan Yadav, her husband were only named as witnesses. P.W.4 Siyaram Yadav was not named in the petition of complaint as a witness nor was he examined during the enquiry under Section 202 Cr.P.C. After perusing evidence, the learned trial Judge passed the impugned judgment. 9. Arjun Kumar was stating to the fact that the three appellants had come and went inside his house when he knocked at the door as a result of which the three appellants were confined inside the door after closing the doors by putting the latch over its hook. P.W.2 was also not an eye witness and he stated that when he found the three appellants confined inside the room along with others he pondered over the situation as to how to proceed in the matter. In the meantime, the acquitted accused persons came variously armed and forced their entry into the house of the complainant and further into that particular room by opening the door so as to freeing the three appellants. P.W.3 has stated to the facts of the case as to how the three appellants arrived, caught her, dragged her inside the room and then committed the offence by taking turn and how her son P.W.1 knocked at the door and thereafter the appellants were confined inside the room by shutting the doors by putting the door chain over its hook. P.W.4 Siyaram Yadav who was the 6 Bahnoi of Abhinandan Yadav(P.W.2)the husband of the complainant, stated that he had come to borrow the oxen of the complainant‟s husband and when he arrived he picked up some commotion and as such came into the Aangan to find that the acquitted persons were present there variously armed and they freed the three appellants who had been confined inside a room. Thus, P.W.4 appears a chance witness, besides being a related witness. 10. After referring to the evidence of witnesses, especially that of P.W.3, it was contended that the case out and out was false. Nothing had happened as was alleged and the only motive for filing the case was to put criminal pressure upon the appellant so that the appellants who were in possession of two and half bighas of land could relinquish their claim over it. It was further contended that the facts of the case and the narrations in that behalf is absurd and not believable. Contention was further that the lady appears not having any fundamentals or ideals in her life as appears from the statements made by her. Absurdities were also pointed out as regards the allegation of commission of offence. 11. The first absurdity which was pointed out to me and which appears from the facts of the case was that the very complaint petition reads that while the three appellants were inside the room, forcibly committing the act of rape upon the lady, her only son P.W.1 was sitting 7 at his Darwaja with a lantern engaged in his studies. It appears quite improbable and absurd as the boy who was quite adolescent, so much so that he was reading some books in the light of the lantern, could not be completely oblivious of the presence of three persons inside his mother‟s room and doing acts forcibly against her will. He must have been alarmed by the very presence of the three grown up persons with his mother and must have been very anxious as to what was happening inside her mother‟s room. If he was knocking at the doors at some part of the occurrence, as is stated by P.W.3, then he could have done it at any earlier point of time during which course the act was being done. That conduct of the witness P.W.1 appears completely unacceptable. 12. The other absurdity is that the very conduct of the lady which appears from her own evidence, also appears against the ordinary conduct of a dignified and respected lady. Three persons came into her house, picked her up forcibly and dragged her into the room in the manner for being raped as has been stated by her in evidence through her complaint petition. Three persons committed rape with all force and fury and the same could be tolerated by a lady is simply absurd to believe. There is no evidence of P.W.3 that she was resisting or shouting or that she was forced to keep silent. It simply does not suit the reasoning that a poor lady dragged by 8 three persons for committing rape will not shout out to the whole world while the offence was in progress. It is not that the house was secluded at a distant place far away from the village. It was a Chowk which was busy with business activities so much so that the very evidence of the lady in paragraph-15 could indicate that there were shops or other establishments, like, the clinic of a particular doctor as well. The police out post was also located at the same chowk and it was in such a proximity to the house of the lady that the outpost could be merely hundred steps away. A mere loud voice could have attracted the police attention specially if it was the shriek of a lady who was being subjected to such brutal act as was alleged by the lady and the police could have let loose upon the appellants and should have never allowed them to have escaped after being rescued. These are absurdities and these are the improbabilities in the versions which was put forth by the lady in her evidence. When one goes through the evidence of the lady in paragraphs-10, 11 and 12 one may find that the present appellants and the husband of the lady were the descendents of a common stock. Acquitted accused Ram Nath Yadav, Bishwanath Yadav and Manik Chand Yadav were brothers elder to P.Ws.2 and Baldeo Yadav was the father of the above named accused persons. It has come in paragraph-11 of P.W.3 that there were 3-4 criminal 9 litigations pending from before the filing of the present petition. P.W.3 stated in paragraph-12 of her evidence that the accused persons were unlawfully in possession of her two and half bighas of land and it appears not denied that the bone of contention was that particular land and that was the reason that multiple of litigations cropped up between the parties. As regards the status of the appellants, it has been admitted by the lady in paragraph-15 that they hail from a very respectable family. The grand father of the appellants, namely, Baldeo Prasad Yadav was the recipient of the President‟s Award and father of appellants, namely, Suresh Yadav and Ashok Yadav had retired as a teacher. They were wealthy and respected persons. These all have come in the evidence of P.W.3. The lady had herself admitted in paragraph-3 that she was the wife of the younger brother of the father of the appellants, meaning thereby that she was related to the present appellants as their aunt. Not only that she has admitted also that the relationship was so deep and continuing that on the occasion of a death the lady and her husband and her family members had to perform all religious and customary rituals as may be required to be performed by the own family members of the dead. This is the background in which this court is called upon to consider the accusation of commission of rape by the three appellants who could be almost at par 10 with the son of the complainant. I at least cannot rely upon the evidence on proposition of facts which were presented by the lady before the court below. The court below, unfortunately, was simply not identifying these circumstances appearing from the evidence and appears further losing control of his own duties of appreciation of evidence and, thus, appears falling deeply in error in passing the judgment of conviction so as to sentencing the three appellants. The judgment of conviction and the sentences passed were completely unwarranted and as such are not sustainable in law. The appeal is allowed. The judgment of conviction and sentence passed upon the appellants are hereby set aside. The most disturbing aspect of the present appeal was that in spite of the facts being so sordidly untrue and fabricated, the three appellants have remained in custody right from the day they were convicted. Let them be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 30th day of September, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)