CRIMINAL APPEAL No. 440 OF 1988 Against the Judgment dated 6th July, 1988 passed by the Sessions Judge, Katihar in Session Case No. 70 of 1987. 1. Sheikh Dukha, son of Isha. 2. Fazlur Rehman, son of Chainat, 3. Sattar, son of Naimuddin, All residents of village – Lagua, P.S. – Abadpur, District – Katihar. ---------------(Appellants) Versus THE STATE OF BIHAR -----------(Respondent) ****** For the Appellant : Mr. Neeraj Kumar @ Sanidh, Adv. For the State : Sushri Shashi Bala Verma, APP. ****** P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA ******* Dharnidhar Jha & Akhilesh Chandra, JJ. The three appellants were put on trial by framing charges against them under Sections 366 and 376 of the Indian Penal Code by the learned Sessions Judge, Katihar, in Sessions Case No. 70 of 1987. By judgment dated 6th July, 1988, the learned trial court found the three appellants guilty of committing both the offences and after hearing the appellants under Section 235 Cr.P.C. sentence on the same day directed each of the appellants to suffer rigorous imprisonment for life under Section 376 of the Indian Penal Code and rigorous 2 imprisonment for 10 years under section 366 of the Penal Code. The above judgment is being assailed by the three appellants before us through the present appeal. 2. The learned counsel whose name appeared in the list as counsel for the appellant did not appear and as such we have to fall back on Sri Neeraj Kumar @ Sanidh, who assisted us in the hearing of the present appeal. 3. The case of the prosecution is contained in the first information report lodged by Obeda Khatoon, (not examined) in which, she alleged that she was going to meet her mother to her mother’s house on 25.04.1986, when the three appellants who are the residents of same village Lagua, started following her. The three did not exhibit appropriate behaviour towards the prosecutrix and appeared having a greedy eye upon her and as and when they could find an opportunity, they could misbehave with her which fact had been reported by her to her husband P.W. 8 Khuss Mohammad, but, nothing came out of that because of the fear of the appellants. 4. The Prosecutrix further stated that she occupied a seat in the train at 9 a.m. on that day and the three appellants 3 also entered the same compartment of the train and sat by her sides. The lady turned away from them and travelled up to Royganj Railway Station where the three appellants forced her to alight from the train and to accompany the three appellants. The lady said that she complied out of fear for her life and remained at the station with the appellants for about 3/4 hours. She came to Kachna Railway Station at about 4 p.m. along with the appellants and the appellants took the lady to the house of one of the relatives of the appellants Sattar, which was situated at Khairbi and introduced the lady as one of his family members. The lady stated that the three appellants kept watch over her and never allowed her to talk to the inmates of the house where she had been kept and thereafter committed rape on her in the night. She further alleged that she remained at that village the next day and the day after, she was asked by the appellants to accompany them to village Lagua. It was dark in the way and the lady was again raped by the appellants causing discomfort to her and making it very difficult for her to move. Lastly, the lady was brought to her village and was abandoned at the house of one Jailal Ram. The appellant Fazlur Rahman threatened her not to narrate the facts to any 4 one else they would kill her husband Khuss Mohammad. The lady came to her own house and narrated the story to her family members but they did not lodge the report because the villagers wanted some settlement of the dispute which could not materialize on account of non-cooperation of the appellants and, lastly, she filed a report after three days of the incident. 5. P.W. 10 Reghunath Rai, having recorded the first information report (Exhibit-2) of the lady, investigated the case. He inspected the place of occurrence and did not find any incriminating evidence there. He thereafter recorded the statements of various witnesses and sent the prosecutrix Obeda Khatoon for medical examination. After completing the investigation, the appellants were sent up for trial. 6. The defence of the appellant was of simple denial about their alleged participation in the occurrence and they further pleaded that a false case had been foisted upon them. The appellant did not examine any witness in support of their defence. 7. Altogether 10 witnesses were examined by the prosecution in the case, out of which Dr. L. Sen, is the person who had medically checked up the lady and had prepared 5 report which was marked Exhibit-1 in the case. P.W.1 did not find any sign of forcible sexual intercourse upon the lady and reported the lady to be aged about 17 or 18 years. P.W.2, Khalilur Rahaman, has given evidence that the husband of Obeda Khatoon had raised a hulla that the lady had been taken away by the appellants and he came out in search of the lady with a torch light. 8. The evidence of P.W.2 appears a completely new story before us as there is no story put forth by the lady that she was taken away by the appellants and that her husband had raised a hue and cry on that account which could have put certain persons on alert. On the above reason, we do not find it prudent to place reliance on P.W.2 Khalilur Rahaman. 9. P.W.3, Jailal Ram is the person at whose house the lady claimed herself to be abandoned by the appellants after she had been raped on two occasions while being taken away from the Railway Station and on being brought back to her village. It was expected that the lady ought to have divulged some details of the offence to P.W.3, Jailal Ram, but what this witness had stated was that he took her to her husband as she came from her parents’ house. There was no 6 whisper in his evidence that he was told by the lady that any untowards incident had occurred with her. This is the reason that the witness was declare hostile and was cross examined to his earlier statements made by him before the police. 10. P.W.4 Mojibur Rahaman, is the cousin of the husband of the lady as appears from para 2 of his evidence. He has stated that he heard that some lady was crying and as such he came to the house of Khuss Mohammad and where he found Obeda Khatoon telling him and people assembled there as to how the appellants had forcibly taken her away from the train and how she was confined at a particular place and raped by the three appellants. 11. The attention of the witnesses appears drawn during his cross examination in paragraph no. 3 of his evidence and what we find is that the whole narration which has been made by P.W.4 in the court was altogether a story which was never told by him to the investigating officer. 12. P.W.5 Abdul Rasid, has given evidence on the same line as was given by P.W.4, Mojibur Rahaman, that the lady was brought before him by her husband, Khuss Mohammad, P.W.8 and the lady narrated the whole incident to 7 him, whereafter Abdul Rasid, P.W.5 went to the village of the appellants and complained to the village people about the acts done by the appellants but nothing happened out of that and as such the case was lodged. He has further stated that the appellants had again rushed away for which the case was lodged. 13. We find that the evidence of P.W.5 may not be relied upon for the reason that he has not stated that as to what could be the reason for the lady and for her husband to approach him for lodging the complaint about the conduct of the appellants. We do not find from the record that he was any authority in the village or panchayat because he himself has admitted that he did not inform the Mukhiya and Sarpanch of the village about the occurrence and further that he did not have any relationship with either Obeda Khatoon or the husband, Khuss Mohammad. This could be the background of relationship of the prosecutrix and her husband with P.W.5. We do not have any reason to find that he could be a person to be trusted and confided about such serious matters as had happened with the informant. 14. P.W.6 Murtuza Ali, has again given evidence on 8 the same line as has been done by P.W.4 and P.W.5 and has stated that the lady stated to him as to how she had been taken away from the train and confined at a particular place and raped by the appellants. We find from the cross examination of P.W.6 that the statement which were made by P.W.6 in the court had not been made by him before the police. P.W.7 was tendered for cross examination. P.W.8, Khuss Mohammad, the husband of the deceased supported the story by saying that the lady left his house on Friday to go to her parents house which was located in Bengal and she came back on Saturday to tell him the whole story as to how the three appellants had forcibly taken her out of the train and had taken her to a particular place and had committed rape on her. 15. P.W.8, has stated that he had married another lady but had not divorced the lady and further stated that the lady had disappeared. He had stated that it was the three appellants who had caused her disappearance after having kidnapped her for which he had lodged a case also, but we do not find any document on record to show that the appellants could have been the persons who had been indicated for kidnapping the lady. 9 16. P.W.9 Khatijan is the mother of P.W.8 Khuss Mohammad and she has also stated the story that the three appellants forcibly took her away from the train to take her into a village and to commit rape on her. In cross examination, P.W.9, has stated that Khuss Mohammad has filed a case for the abduction of the lady after lodging of the present case but she did not know who was the accused of that case. 17. The learned trial court has relied upon the evidence of the witnesses and the medical evidence to hold that the accused persons had committed the offences under Sections 366 and 376 of the Indian Penal Code. It was contended by the learned amicus curiae that the lady was not examined and the explanation which was offered by the prosecution for her non examination that the lady was again taken away by the appellants, appears not acceptable because there was a case lodged by P.W.8 but, no record of that case was produced in court so as to establishing that it were the three appellants who had committed the offence. It was contended that the medical evidence did not appear supporting the prosecution version. It was further contended that the circumstances which appeared from the first information report 10 indicated as if the lady could be a party to the whole affairs. It was contended that she was taken away from the Railway Station, which is supposed to be a crowded place and taken away by force but she was not raising any voice in protest nor she was soliciting any assistance from persons present there. Not only that, but even after being taken to a village and being confined in a house where many persons were residing, the lady does not appear complaining to any one as to what had been done to her. The case was not lodged promptly. It was after three days of the incident that the first information report was lodged and the explanation given for the delay in lodging the report appears not acceptable. It was contended that the learned trial judge appears erring heavily both on facts and on law. 18. Sushri Shashi Bala Verma, learned Additional Public Prosecutor, has resisted the submissions and submitted that it was after all a case lodged by a lady who alleged forcibly being taken away and being criminally assaulted. The witnesses stated that she was narrating to them after having returned to her house as to what had happened to her. 19. The non examination of the prosecutrix appears 11 to us the main stumbling block in proof of the charges framed against the appellants. Explanation offered was that the appellants for whatever reason had again taken her away and caused her disappearance. It is stated by P.W. 8 Khuss Mohammad, the husband of the victim that he had lodged a report for that incident of kidnapping as well, but no record of that case was produced The court below during cross examination of the witnesses does not appear getting any details of the case nor it is clearly stated by him as to which of the appellants were made accused in that case. The mother of Khuss Mohammad has been examined as P.W.9. She said that the case had been lodged in Katihar itself. But again she did not know as to who were the accused who had been alleged to have taken away the victim and to have caused her disappearance. Thus the reason for the non examination of the lady appears to us not acceptable. 20. The lady has not been examined but still the first information report is there. It cannot be substantive piece of evidence, but it could be considered to discern as to what was the initial version of the prosecution and who were the witnesses to it. On consideration of the first information report 12 what is found by us is that the lady claimed being forced to alight from the train with the appellants and thereafter was forced to go with them to another place by railways which has been described at Kachna Railway Station from where she was taken to village Khairbi. It could be safely assumed that at both the Railway Stations, there could have been may persons in addition to the employees of the railways. If the lady really forced to alight from the train she could have very much raise a hue and cry in the compartment itself and could have solicited the assistance of the fellow travelers. Not only that, after being forced to exist the compartment the lady could have again raised a hue and cry at the platform of the Railway Station, so as to attracting persons and telling them as to what was likely to happen to her. She does not appear doing anything. She appears as per their statement in the first information report accompanying the accused persons from one Railway Station to the other and from there to a village. She was quite unknown to a place where she was being confined in a house. She found many persons residing in that house, but she did not complain to any one. While returning back she was again not complaining to any person. These are the circumstances which 13 could raise a definite probability that things might not have happened as appear made out by the prosecution witnesses. The lady could in all probability be said to have travelled herself, may be with the appellants out of her free will. As such, the story of being forcibly taken away and thereafter being criminally assaulted does not find favour with us. The lady was aged about in between 17 to 18 years. She was definitely out side the age which had been recognized for giving consent. Even if, consent was not granted in such acts, she was within the age of consent. The circumstances of the case appear to us a sufficient indicator that it could neither be a case of taking away forcibly nor a case of ravishing a lady against her will. 21. The learned trial judge appears commenting upon the age of the lady. Some factor influences us in reaching a different conclusion. We find a complete absence of material evidence which could justify conviction of the appellants on both the counts. It was a case in which a verdict of charges not proved could have been recorded. 22. In the result, we allow the appeal. We acquit the appellants of the charges under which they were convicted by setting aside the sentences passed against each of them. The 14 three appellants are on bail, they shall stand discharged from the liabilities of their respective bonds. 23. Sri Neeraj Kumar @ Sanidh, did an appreciable job by assisting us at a very short notice. We recommend that a fee of hearing be paid by the High Court Legal Services Committee and for that purposes let a copy of the first page and the last page of the present judgment be made over to him. Patna High Court, The 22th April, 2010. Rajeev/ (N.A.F.R.) ( Dharnidhar Jha, J.) (Akhilesh Chandra, J.)