Criminal Appeal (SJ) No. 849 of 2006 -------- Against the judgment and order of conviction and sentence dated 25.9.2006 and 27.9.2006 passed by Shri Sunil Kumar Shrivastava, Additional Sessions Judge-cum-Fast Track Court No. 2, Aurangabad in S.T. No. 305 of 2004 / 182 of 2004. -------- Birendra Singh alias Butur Singh alias Batar Singh, son of late Sheo Singh, resident of village – Rampur Budi Bandh, Police Station – Nabinagar, District – Aurangabad ……………. Appellant Versus The State of Bihar …………… Respondent -------- For the Appellant : Sarvshir Krishna Pd. Singh, Sr. Advocate Meena Singh, Rakesh Singh, Manish Kr. No.3, Mithilesh Kumar Singh, Advocates. For the State : Shri S.N. Prasad, APP --------- P R E S E N T Dharnidhar Jha, J. The solitary appellant was charged under section 376 IPC by the learned Presiding Officer, Fast Track Court No. 2, Aurangabad on being put on trial in Sessions Trial No. 305 of 2004 / 182 of 2004 and by judgment dated 25th September, 2006 he was found guilty of committing the said offence. After being heard on sentence on 27th September, 2006, the appellant was directed to suffer rigorous imprisonment for ten years and also to pay a fine of rupees five thousand, else to suffer rigorous imprisonment for one year. The appellant has appealed to this court against his conviction and sentence passed upon him. 2 2. P.W. 7 Rajrano Devi, aged about 40 years, alleged that while she was scrapping grass in a field of her village, this appellant came near her, queried about what she was doing and thereafter, firstly, attempted to subjugate her and, after overpowering her completely, committed sexual assault upon her. The act was committed after gagging the lady by putting his Gamchha in her mouth. She came weeping to her house to complain to all she could meet and, thereafter, went to the police station where she gave her fardbeyan (Ext.4), on the basis of which the FIR of the case (Ext.3) was drawn up and the case was investigated into by P.W. 9, Shatrudhan Singh. 3. S.I. Shatrudhan Singh (P.W. 9) would depose in the trial court that after taking over the charge of the investigation of the case, he arrested the present appellant, brought him to police station and searched his person to find nothing except the cloth the appellant was putting on. He thereafter went to the village of the prosecutrix to inspect the place of occurrence and after that he recorded the further statement of the victim and sent her for medical examination to Sadar Hospital, Aurangabad. He forwarded the appellant to custody and recorded the statement of various witnesses. P.W. 9 also obtained the medical report from the doctor and sent up the appellant for trial. 4. The appellant, during the course of trial, pleaded innocence and false implication by the lady being set up by one Ramnandan Pal, who had filed a false case against the appellant and his nephew, which was reported false by the police after investigation. 3 5. During the course of trial, ten witnesses were produced to prove the charges, out of whom, P.W. 1 Ram Naresh Pal, elder brother of the husband of the prosecutrix, P.W. 3 Govind Pal, son of the sister of the husband of the prosecutrix, P.W. 4 Rajendra Pal, younger brother of the husband of the prosecutrix, P.W. 5 Sanjay Pal, another son of the sister of the husband of the prosecutrix as also P.W. 6 Mano Devi, the wife of the elder brother of her husband were all hear say. Eye witness account was coming from P.W. 2 Lav Kumar Singh and the victim was supporting her case as P.W. 7. Dr. Veena Bhatia (P.W.8) was testifying to medically having examined P.W. 7 and to the out come of that medical examination, and was tendering her report as Ext. 2. P.W. 10 Ram Narayan Singh was a witness of formal character, who was deposing as a witness who was acquainted with the writings of a particular police officer on the fardbeyan or the FIR. 6. It was contended by Shri Krishna Prasad Singh, learned senior counsel for the appellant that the evidence of the victim appears suffering from many pitfalls; there were many suspicious circumstances arising out of the evidence of the lady which could simply create the evidence suspect and, as such, the prosecution story doubtful. It was further submitted that no external or internal injury was found on the person of P.W. 7 but, as per her evidence there were some serious injuries which could appear on her and non finding by P.W. 8 also makes the prosecution story suspect. There was no finding of any stain on her wearing apparels either by the police or by the doctor though her evidence in paragraph 73 indicated as if she had 4 discharged some watery substance, which had fallen on her apparel and those were apparently visible to the doctor and the police both. It was contended that if the court below would have considered the evidence of P.W. 2 and P.W. 6, it could never have rendered the judgment of conviction. 7. While making the above submission, learned senior counsel took me through the evidence of some witnesses but extensively referred to me the evidence of P.W. 7, the prosecutrix. The prosecutrix, in paragraph 34 of her evidence, stated that Ramnandan Pal had filed a case against the appellant and his nephew and that case was found false. As may appear from the cross- examination of P.W. 7 in paragraph 33 and onwards, defence was brining on certain facts as if the lady was rewarded by the said Ram Nandan Pal for foisting such false case against the appellant and it was firstly putting certain questions about the house of the lady being built and was, thereafter, bringing on to the record the fact that the house was built after she had lodged the present case. This appears admitted from the evidence of P.W. 7 in paragraph 42 that Ramnandan Pal was one of her Gotias and in spite of that she showed ignorance when she was asked whether she had seen the location of the house of said Ramnandan Pal though she stated that the said Ramnandan Pal was also the resident of the same village Rampur. From perusal of evidence of P.W. 7 (paragraph 33 up to 42), what appears to this court is that there could be a very reasonable probability appearing from her evidence that she could be a puppet in the hands of the said Ramnandan Pal and she might have 5 been utilized by him so as to harassing the present appellant who had earlier faced a similar attempt on his part when the appellant and his nephew were made an accused of a criminal charge which was ultimately reported false after investigation. 8. The above probability I have read on account of reading other evidence, which has come in cross examination of P.W. 7. P.W. 6 Mano Devi is none else than the wife of the brother of the husband of P.W. 7. If one considers the evidence of P.W. 6, she could be found stating that P.W. 6 and P.W. 7 were scrapping grass together and simultaneously and at one place. P.W. 6 states that the time taken by both of them was around one hour whereafter both of them started together for the village. But, P.W. 7 in cross examination (paragraph 46) was simply denying that she could even know any Mano Devi and was further denying that she ever scrapped grass with her, rather, P.W. 7 stated in paragraph 46 that she had gone to scrap grass all alone. 9. Cross examination of P.W. 7 in paragraph 51 and onwards is on the factum constituting the offence and in paragraph 64 she has stated that when she was felled on the ground by the appellant she was hit in her head and she had pain in it. Besides, she had injuries in her back as also on both of her elbows (P.W. 7 paragraph 65). In paragraph 67 she has stated that on account of the fact that the appellant was forcibly raping her she lost her consciousness. Curiously, while unconsciousness, she got up to move to her village and somewhere, still in unconsciousness, she could be weeping and telling the whole world what had befallen her. In paragraph 73 she states about having 6 discharged some watery substance which was falling on her clothes and those were apparent both on the front and back of her petticoat. This line of evidence I have culled out from cross examination simply to record one finding that these were the real state of things as regards the injuries being caused to her and nothing being discharged and falling on her petticoat. Those could never have been missed by the doctor P.W. 8, who is also expected to have put certain question on these substantial parts of the evidence. The doctor might have missed to notice some injuries but he or she could never have missed putting certain questions as to what had befallen to the victim as regards the injury being caused or something being discharged as was claimed by P.W. 7. There is no whisper any where in the report of P.W. 8 (Ext. 2) that she had found any stain or any foreign article on any part of the body of the prosecutrix. 10. The evidence of P.W. 8 who was one of the two doctors examining the lady, indicates that she was examined on 24.2.2004 at about 3.30 P.M., which is, after three and half hours of the incident and surprisingly, was not finding anything either on the person or on clothes of the victim so as to persuading the doctors to form an opinion that nothing as claimed by the prosecutrix had been done to her. These circumstances appearing from the evidence of both the prosecutrix and the doctor P.W. 8 raise serious question in the mind of the Court as to how the lady could be claiming being injured and how she could be claiming to have discharged some liquid substance. If this evidence was not found by the doctor, could not it be a case that the lady was 7 presenting herself while deposing in the court in such a way as not to be discredited and rejected as an untrustworthy witness and being further branded to be set up by some one to foist a false case. 11. The above inference which was lurking in my mind gets cemented by the evidence of P.Ws. 2 and 6. P.W. 2 was a farmer working in the nearby field at the time of the occurrence and was, indeed, irrigating his crop. He claims to have seen the occurrence not as has been described by P.W. 7 but what had really happened and what was really related by him during trial of the case. P.W. 2 stated that in fact the lady was scrapping grass in the field bearing standing crop of the appellant and because the crop was being damaged, the informant forbade the lady from scrapping grass and that probably infuriated her to lodge the present case. On the same line is the evidence of P.W. 6, who is wife of the elder brother of the husband of the lady who also states the same facts regarding the appellant’s snatching the grass and the lady being infuriated so as to lodging a false case. Besides, she stated that she had accompanied P.W. 7 and was with her for about an hour or so and had returned back with the lady. P.W. 6 probably was telling the truth. P.W. 7 probably knew that P.W. 6 Mano Devi, her Gotni, who was knowing the truth, may not support the untruth during trial and this appears the reason, to me, that she (P.W. 7) was simply disowning her by stating that she did know any Mano Devi. This court is convinced that the real story had been suppressed and after putting embellishments of all sorts which could make a melodramatic story of commission of rape by the appellant was 8 presented before the police which was initially inclined, as may appear from the evidence of P.W. 9, to report the matter untrue but, was pressured by the influence of the superior police officer, i.e., the Superintendent of Police, to lodge a report to send up the appellant. 12. After having considered the circumstances appearing from the evidence of witnesses, what this Court finds is that the prosecution case is suspect. The lady was not coming out cleanly to narrate the truth, probably on account of being set up by someone so as to settle scores with the appellant who could be inimically disposed towards that particular person. 13. For the above reasons, the appeal succeeds and the appellant is acquitted. He is in custody. He shall be released forthwith, if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, 14th July, 2011, NAFR/Anil/