CRIMINAL APPEAL No.45 OF 1998 Against the judgment dated 20.12.1997 passed by 4th Addl.Sessions Judge, in Sessions Trial No. 181 of 1987/55 of 1996. SIYARAM BHAGAT & ORS ----------------------------- (Appellant) Versus STATE OF BIHAR ----------------------------- (Respondents) With CR. APP (SJ) No.53 Of 1998 SHYAMANAND SINGH & ANR ------------------------ (Appellant) Versus STATE OF BIHAR ------------------------ (Respondents) For the Appellants : - Sri Ashutosh Kumar, Adv. For the Respondent : - Sri Satyanarayan Prasad, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH S. P. Singh, J. Both Criminal Appeal No. 45 of 1998 and 53 of 1998 have been preferred against the judgment dated 20.12.1997 passed by 4th Additional Sessions Judge, Purnia in Sessions Trial No. 181 of 1987/ 55 of 1996, whereby he convicted all the appellants under Section 376 and 342/34 of the Indian Penal Code and sentenced all the accused persons to undergo R.I. for Seven years under Section 376 of the IPC and to pay a fine of Rs.5, 000/- and in default to undergo further R.I. for one year. The appellants were also sentenced to imprisonment of R.I. for Six months for the offence under Section 342/34 of the IPC. However, both the sentences were directed to run concurrently. 2. By the aforesaid judgment another accused Indra Devi, who was charged for the offence under Section 120B and 342/34 of the IPC was acquitted and found not guilty. 3. The informant one Lila Devi wife of Akil Chandra Sharma , resident of village – Jaggi, P.S. – Simraha, District - Purnia made a fard-beyan on 8.3.1985 at 6.00 P.M. at her door to Officer-in-charge, Simraha P.S. giving rise - 2 - to Simraha (Forbesganj) P.S. Case No. 39 of 1985. The informant stated that on 3.3.1985 one Indri Devi wife of Siyaram Bhagat (appellant no. 1 of Criminal Appeal No. 45/98), who resides just adjacent to her house came after sunset and requested her to come to her house for the festival. The informant went along with Indri Devi to her house and ate ‘Pua’ in her house. Her husband Akil Chandra Sharma (P.W.3) and her husband’s brother Kalachandra Sharma (P.W.5) were not present in the village, and had gone out to cut wood. After taking food as she came out of her house, appellant no. 1 Siyaram Bhagat (Criminal Appeal No. 45/98) caught her, closed her mouth and took her to his mill house, situated nearby. Siyaram Bhagat at the point of pistol threatened that he would kill her if she cries. The appellant Siyaram Bhagat committed rape on her, followed by other appellants namely, Vidyanand Mandal, Prayag Mandal, who are appellant no. 2 and 3 of Criminal Appeal No. 45 of 1998 and appellant Shyamanand Singh and Girdhari Singh, who are appellant no. 1 and 2 of Criminal Appeal No. 53 of 1998. The informant (P.W.6) was confined in the mill for two hours. Thereafter she came limping and weeping to her house and narrated the incident to her mother-in-law Kushmi Devi (P.W.1), and her sister- in-law Bimla Devi (P.W.2). The following day her husband and her Dewar returned and she narrated the incident to them also. After hearing the incident, her husband slapped and reprimanded her as to why she went to the house of Indri Devi. As the accused persons learnt that she had narrated the incident to her husband and others, they came to her house and forcibly took L.T.I. of her brother-in-law Kalanand Sharma (P.W.5). However, her brother-in-law, anyhow managed to escape. The informant could not lodge a case as the accused persons were guarding her house. She has further stated that a land dispute is going on - 3 - between her husband on one hand and appellant Siyaram Bhagat on the other since long. The accused persons have been troubling the prosecution side, so that they leave the village and consequently usurp the latter’s property. 4. On the basis of aforesaid fardbeyan (Ext.2) dated 8.3.2005 a formal FIR being Simraha P.S. Case No. 39 of 1985 was instituted, which has been marked as Ext.3. After investigation, police submitted charge-sheet under Sections 376, 120B & 342/34 IPC. After cognizance, the case was committed to the Court of Sessions for trial. Charges under Sections 376, 120B & 342/34 IPC were framed against all the appellants, barring Indri Devi who was charged under Section 120B & 342/34 IPC, who was finally acquitted. The accused persons pleaded not guilty and claimed to be tried. The prosecution in support of its case examined 7 witnesses, whereas, defence examined 3 witnesses and exhibited some documents. 5. P.W. 1 Kushmi Devi is the mother-in-law of informant. She stated that Indri Devi wife of appellant no.1 had come to her house and taken her daughter- in-law Lila Devi to her house. She stated that Lila Devi told her that as she came out of the appellant Siyaram Bhagat’s house, the latter took her to his mill house and committed rape followed by other appellants. 6. P.W.2 Bindula Devi is the gotni of the informant and daughter-in-law of P.W.1. She stated that P.W. 6 narrated the incident of rape to her and other family members. However, she stated in her deposition that the appellants are respectable persons of village having good character. No one doubts their fair character. She stated in para 17 that the house of the appellant is just by the side of her house. In para 18, P.W. 2 has stated to have heard the sound of cry of informant. She states in cross-examination that she did tell anything to - 4 - chaukidar, who had come to her house on the following day. 7. P.W. 3 Fakirchand Sharma is the husband of the informant P.W.6. He stated a criminal case was filed against him by the appellant Siyaram Bhagat in which he was punished. He stated that I.O. (P.W.7) did not take the clothes of victim as the same were washed. He further stated that Siyaram Bhagat has grown up daughters and sons. He too admitted that he had not heard anything damaging about the character of appellant. He denied the suggestion that people of locality were angry with him on account of lodging of the false case against the appellants. He submits that a proceeding under Section 107 Cr.P.C. is going on between the parties. 8. P.W.4 Champa Devi is another gotni of informant. She was not present on the day of occurrence. However, she had asked the chaukidar to inform the police about the incident. 9. P.W. 5 Kalanand Sharma is the brother-in-law (Dewar) of the informant. He was not present at the time of occurrence. He stated that there were around 50 houses near his house and criminal cases have been earlier fought between the parties. 10. P.W. 6 is the informant of the case. She supported the prosecution case in her evidence. She stated that she and Indri Devi came out together from the latter’s house after eating ‘Pua’. In the meantime, Siyaram Bhagat at the point of pistol caught her and dragged her to his mill. He shut her mouth and committed rape, followed by other appellants. The informant tried to save herself, but could not succeed. She was threatened not to disclose the commission of rape to any one else. She stated that the accused persons were guarding her house, and as such, she and her family members could not inform - 5 - the police. She stated that the I.O. came, but was not willing to take her clothes as the same were washed. She stated in para 16 of her evidence that she sustained injury on back, knee and elbow from which blood had also oozed. She further stated that she showed injuries to the I.O. She further stated that the doctor found injury in her private parts. She stated in para 39 of her deposition that when she returned home after being raped, she did not narrate the incident to any member of the house including both male and female. 11. P.W. 7 Umesh Kant Jha is the Sub-Inspector of Police, who investigated the case. He stated that he inspected the place of occurrence and recorded the statement of the witnesses. He stated that station diary no. 99 dated 7.3.85 was entered on the complaint of appellant Shyamanand Singh (Appellant No. 1 of Criminal Appeal No. 53/98). He came to the house of the informant on 8.3.85 for enquiry of the facts of the said station diary entry. The appellant Shyamanand Singh had complained that, husband of the informant used to beat her and create nuisance in the area. The I.O. stated that the report of Medical Officer is mentioned in para 18 of the case diary, which shows that he did not come to any definite opinion about rape and she did not find any injury either internal or external on the body of the informant or on her private parts. The I.O. stated that he did not seize the clothes as the same were washed and cleaned. He stated that neither chaukidar nor any one had informed him about the incident of rape. The I.O. stated that he did not find any one surrounding the house of the informant when he came to her in the evening of 8.3.85. 12. The defence examined three witnesses. I need not advert to their evidence as the learned counsel for the appellants has not placed the same in aid of their defence. - 6 - 13. The learned trial court on the basis of aforesaid evidence found the appellants guilty under Section 376 & 342/34 of the IPC. He found the evidence of PW 6 reliable and convicted the accused persons on basis of the same. 14. Learned counsel for the appellants assailed the impugned judgment of conviction and the consequent punishment on various grounds. He stated that there has been delay of five days in lodging the FIR, though police station was only 13 km. away. The doctor has not been examined in this case, and medical report has not been exhibited. The P.O., the mill is just next to the house of both appellant no.1 and the informant. There are large number of houses around the P.O. He submits that the prosecution did not inform the incident to any member of his tola and even the chaukidar, who is said to have come on following day has not been examined. He also submits that the prosecution side has falsely implicated the appellants as the informant’s husband was punished earlier in a case lodged by Siyaram Bhagat (Appellant no. 1 of Criminal Appeal No. 45/98). He stated that the conviction is sought to be based against five persons on the evidence of P.W. 6, whose evidence is not free from doubts. In support of his contention learned counsel for the appellants relied upon case of Ram Das and others Vs. State of Maharastra reported in 2007 Supreme Court 155, B.K.Malik Vs. Sri Apal S.P. and another reported in 2003 Supreme Court 818 and Suryan and others Vs. State of M.P. reported in 2002 Supreme Court 476. 15. Sri Satya Narayan Prasad learned Additional Public Prosecutor, on the other hand, submits that the learned trial court has rightly convicted the appellants under Sections 376 & 342/34 IPC. He submits that prosecution has explained the delay in lodging the FIR. He submits that as the incident is not correct. There is no reason for implicating at least the other four appellants other - 7 - than Siyaram Bhagat. He submits that for maintaining the case under Section 376 IPC medical report is not necessary. 16. After hearing the learned counsel for the appellants as well as the learned Additional Public Prosecutor, this court takes up the issues raised by the parties. The first point raised by the learned counsel for the appellants is that there has been a delay of five days in lodging the FIR. The occurrence took place on Sunday i.e. 3.3.1985 and the fardbeyan has been made in the evening of 8.3.1985, when the I.O. comes to the house of the informant P.W. 6 on complaint made by one Shyamanand Singh, one of the appellants in this case. A case cannot be brushed aside mainly because there is delay in making a fardbeyan, but it is equally imperative that such delay must be explained by cogent circumstances and reasons. The informant and her family members have tried to explain the delay in the following manner. They stated that as accused persons were guarding their house they did not go to the police station on account of fear of being assaulted. This explanation given by the prosecution is not very convincing. It is evident from materials on record that informant’s house is amidst large number of houses of other villagers. There were at least two male members in the house of the informant namely, her husband P.W. 3 and her brother-in-law P.W. 5. It is too difficult to believe that no member of the family was in a position to move out of their house to even inform fellow villagers about the incident. Further more, it is the prosecution case that village chaukidar had come to their house on the following day. Nothing prevented the family members of the informant in going to the police station along with the choukidar. The chaukidar, who could have been a very important witness have been withheld from being examined as a witness in the case. As such this court finds - 8 - that prosecution has failed to explain the delay in lodging the FIR. 17. This takes to the next issue, whether the prosecution has proved the occurrence as alleged by the informant in her fardbeyan beyond all reasonable doubts. The informant has stated that she had gone to the house of appellant no.1 at the invitation of Indri Devi. She states that after eating ‘Pua’ she along with Indri Devi came out of the house together. It is very improbable that Siyaram Bhagat, the husband of Indri Devi would catch her and drag her to the mill situated by next door for purpose of committing rape, when latter had come to his house at the invitation of his wife. It has come in the evidence of prosecution witnesses that the place of occurrence, the mill of appellant no.1 Siyaram Bhagat is very close to his house, in fact, the entrance of the house of Siyaram Bhagat opens into the mill itself. It would be very improbable that six persons would succeed in committing rape without any one coming to know about it. The mill was made of thatched wood and it was not a concrete building. It was a festival time and as such the allegation of rape being committed in the nearby house seems very doubtful. P.W.3, the husband of the informant has admitted in his evidence that appellant no.1 has grown up daughters and sons in his house. In this background, it is also very doubtful, whether a parent of grown up children would commit rape just in the adjacent premises. Almost all the prosecution witnesses namely, P.W.2, the mother-in-law of the victim, P.W.3, the husband of the victim have stated that appellants are respectable persons of the locality and they have not heard anything fishy about their character. 18. Further more, there is no medical report on the record, nor has the doctor concerned been examined. On the contrary, the I.O. in his evidence has deposed that the doctor, who examined the victim, did not find any injury either - 9 - on private parts or other portion of the body of the victim. Further more, neither the informant nor her family members had cared to keep the clothes worn by the informant at the time of occurrence safely. On the contrary, the informant had washed the clothes that she was wearing on the day of occurrence. In a case of gang rape, conviction can be passed even on solitary evidence of the victim itself, if the same is reliable or unimpeachable in nature. However, this court finds that the evidence of P.W. 6 is full of discrepancies on material points. She stated in her evidence that she sustained injuries on her back, elbow and knee in course of commission of rape. She stated that blood had oozed of the wounds sustained on various parts of her body. The I.O. in his evidence stated that he did not find any injury on the person of the informant. He even stated that the doctor, who has examined the victim has also not found any injury either on her private parts or other portion of her body. The evidence of I.O. makes the version of P.W. 6 unreliable. Further more, the informant stated that after the occurrence she narrated the incident to her mother-in-law and sister-in-law. But as per the version of her mother-in-law, (P.W.2) no other female member was present in the house. The informant had even not cared to keep her clothes worn at the time of occurrence safely as the same could have been material evidence in support of commission of rape. Further more, the informant in para 39 of her evidence stated that she did not narrate the incident to rape to any male or female members of her family. The aforesaid admission of the informant recorded vide paragraph 39 of her deposition, cuts at the root of the prosecution case. It has also come in evidence that informant’s husband was punished in a case lodged by the appellant side, and as such the prosecution could have motive for avenging the same. - 10 - 19. After consideration of materials on record, this court finds that evidence of P.W.6, the informant is not free from doubts and is not of an unimpeachable nature. The non-examination of the doctor and delay of five days in lodging the case, without any plausible reasons cut at root of the prosecution case. 20. In view of the aforesaid findings, this court holds that the prosecution has not been able to prove the charge against the appellants beyond all reasonable doubts and as such acquits the appellants of charge under Section 376 of the Indian Penal Code. 21. In the result, both the appeals are allowed. The judgment and order of the learned Sessions Judge, dated 20.12.1997, passed in Sessions Trial No. 181 of 1987/ 55 of 1996, is set aside and the appellants are discharged from the liabilities of their respective bail bonds. Patna High Court, Dated 19.08.2008 DKS/-NAFR (Samarendra Pratap Singh, J)