Criminal Appeal (SJ) No.308 of 2005 GIRISH MAHTO………………………………………………………………Appellant Versus STATE OF BIHAR………………………………………………………Respondent with CR. APP (SJ) No.304 of 2005 SHAILENDRA KUMAR @ SHAILENDRA MAHTO…………Appellant Versus STATE OF BIHAR………………………………………………………Respondent ----- Against the judgment of conviction and order of sentence dated 05.05.2005 and 12.05.2005 passed by 2nd Additional Sessions Judge, Fast Track Court No.II, Nalanda at Biharsharif in Sessions Trial No.135 of 1992. ----- For the appellants:- Sri Dinesh Prasad Verma, Advocate(Amicus Curiae) For the State:- Sri Ajay Mishra, A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The two appellants were charged of committing an offence under Section 366A by the Presiding Officer of Fast Track Court No.II, Nalanda at Biharsharif in Sessions Trial No.135 of 1992 and were found guilty of committing the offence by judgment dated 5.5.2005. The appellant Girish Mahto had separately been charged also under Section 376 IPC and was found guilty also of committing that offence. The two appellants were directed to suffer rigorous imprisonment for four years under Section 2 366A IPC and were also directed to pay a fine of Rs.2,000/- each. Appellant Girish Mahto was inflicted the sentence of rigorous imprisonment for five years for his conviction under Section 376 IPC. 2. The two appeals have been preferred by the two appellants to challenge their individual convictions. I have heard both the appeals together with the assistant of Sri Dinesh Prasad Verma who offered to assist this court in the two appeals and also Sri Ajay Mishra for the State. 3. The case of the prosecutrix P.W.6 was that when she came out of her house to attend to the call of nature, she was picked up by appellant Shailendra Kumar and was taken by a motorcycle to Biharsharif and was left with appellant Girish Mahto and one Arjun Mahto(since dead) who kept her there in a room for 15 days and committed rape upon her on all days. Appellant Girish Mahto and deceased accused Arjun Mahto, thereafter, shifted the prosecutrix to Purnea by a bus and again confined her there for 15 days to commit rape upon her 3 simultaneously together on multiple occasions a day. It is further stated that from Purnea the prosecutrix was shifted to Patna and again to Biharsharif. At each of the two places, i.e., Patna and Biharsharif, she was confined for equal periods of 15 days and was subjected to forcible sexual intercourse on multiple occasions a day. 4. It is stated that when accused deceased Arjun Mahto and appellant Girish Mahto were out of the room to take some liquor the prosecutrix got an opportunity to run away from there. But she could not muster sufficient courage to go to her father’s house out of fear of being beaten up and instead went to the house of Atma Ram Pandit and stayed over night there and came to her mother’s house and on the next day she came to the police station for lodging the report(Ext-2). 5. The case was investigated into by the investigating officer, P.W.8 and after that the accused persons were sent up for trial which ended in the impugned judgement. It was contended by Sri 4 Dinesh Prasad Verma the learned Amicus Curiae, that the very story narrated by the prosecutrix was not acceptable inasmuch there were many improbabilities more so regarding the story of confining her at three different places on four different occasions each of 15 day duration. It was contended that in the FIR she stated that she was taken to Purnea by bus. But when it was found inconvenient due to lack of conveyance, she was made to stay there for another 15 days and, thereafter, she was taken by appellant Girish Mahto and deceased accused Arjun Mahto by a motorcycle to Biharsharif and was brought back to Patna and again taken from there to Biharsharif. It was contended that the lady has admitted that she was married to one Boudhu Mahto and she did not have any relationship with that man only after a couple of days of her marriage to him, and it appears that she had married appellant Girish Mahto as she had filed a case vide Noorsarai P.S.case No.28 of 1992 against one Rajkapoor under Section 354 IPC. It was contended also that one 5 Dharmendra Kumar who is the signatory to the FIR has been admitted by P.W.1 to be her Mamera Bahnoi and it was suggested by defence that she was carrying on a relationship with that man and so as to getting rid of appellant Girish Mahto, She had filed a false case against Girish Mahto and others at his instance. Exts-A and B are the documents in support of the contention of the lady marrying Girish Mahto and lodging the case. 6. It is true that the parents of the lady who have been examined as P.Ws.4 and 5 have supported the allegation and they have stated that when the lady came back to their house, she narrated the incident and, thereafter, they took her to the police station for lodging a report. But when one considers the evidence of P.W.5 her mother, it has come in the evidence of the mother of P.W.6 by way of an explanation as to why the lady was not going directly to her parents’ house. The explanation is that P.W.6 was apprehending being beaten up by her parents and as such she was not going to him. It was 6 contended by the learned Amicus Curiae that this circumstance alone indicates the guilty conscience of P.W.6, else, why should a lady who had been criminally assaulted so brutally should fear her parents. If she had been right in her conduct, it would have been the ordinarily natural conduct of P.W.6 that she could have gone to her parents’ house and she could have narrated the true facts and her parents could have come out to support her by words and psychology also by themselves taking her to the police station immediately. But that was not in fact. The lady was not going to her parents’ house and neither going to hide in the house of another person who was neither her relative nor there was any history of mutual relationship on social place. In fact, the above noted Atma Ram Pandit had come to depose in favour of the defence as one of the defence witnesses by stating that it was not true that the lady was hiding in his house after having returned from her traumatic days. 7. The evidence of the doctor is very 7 candid. It has been stated by P.W.7 Dr. Pratima Narayan that if the lady had been so brutally assaulted in the day and in night as has been stated by her by the two accused persons and if she was resisting as was pointed out by her in her evidence that she was always trying to escape from her trauma by throwing her legs, by quickly shifting her body and assisting them, then there must have been some injuries not only on her private part but also on some of her external organs. The doctor did not find any injury. The doctor was stating that if the lady was brutally assaulted then there must have been some inflammation on the private part of the lady and at least she could have pointed out that fact to her but she was not narrating anything. Moreover, the doctor had opined that the lady was aged between 16 to 17 years though the lady while making her statement before a Magistrate under Section 164 Cr.P.C. stated herself to be 18 years of age. 8. The learned trial Judge has referred to a couple of decisions of the Supreme Court on 8 appreciation of evidence in a case of rape. It has been noted by him by making reference to AIR 1972 SC 2661 and AIR 1981 SC 559 besides AIR 1983 911 that the court had to shack itself off the judicial mind set of seeking the corroboration of the evidence of a prosecutrix in an offence of rape from other sources, if the lady was not married then in such cases, the court had rely upon the evidence of the prosecutrix as she stood in the category of an injured witnesses. The principles of law stands, like that, but one has always to keep in ones mind that no two cases are equal of facts. There might be a consistency in all such cases that one particular lady or the other might have alleged commission of rape upon her when it comes to appreciation of evidence. It could not be done blindly, probabilities have to be considered, the conduct of the lady has also to be noted. The defence has produced Ext-A which is the FIR lodged by Rekha Kumari(P.W.6)against another man alleging the act of outraging her modesty and in that FIR she has 9 described herself as the wife of appellant Girish Mahto. She and her parents were cross-examined on her marital status and she was not coming clean to point out that this appellant Girish Mahto had been married to her. When it comes to the date of occurrence of the two cases, the occurrence in the present case was dated 14.1.1992 whereas Ext-A relates to on 17.1.1992. If the lady could be changing her status in a period of one month by describing her as the wife of one Bodhi Mahto whereas one month prior to that she was alleging in Ext-2 by described her as the wife of Girish Mahto. There is no confusion in my mind as regards the status of this appellant Girish Mahto as the person who has been described as her husband by P.W.6 in Ext-A because the village of resident of Girish Mahto and the Girish Mahto the husband of Rekha Kumari, the victim/informant of this case is the same. This could be the reason that the defence was very harsh from the lady when it was suggesting to her that she was a cheap character who was selling 10 herself in the market of Biharsharif and was utilizing her status of being a lady to foist false cases. 9. In view of the above discussions what I find is that the learned trial Judge was in spite of referring to three decisions of the Supreme Court was still falling in error in appreciating evidence and was simply being influenced by the status of the prosecutrix and was not reading the probabilities properly else he ought not have convicted the appellants and further not have passed the sentence upon them. 10. In the result, the two appeals are allowed. The appellants are acquitted of the charge under Section 366A of the IPC. The appellant Shailendra Kumar @ Shailendra Mahto is on bail. He shall stand discharged from the liabilities of his respective bail bonds. 11. As regards appellant Girish Mahto, he is in custody. He is directed to be released forthwith, if not wanted in any other case. 11 12. Let a copy of first and last pages of the judgment be supplied to Shri Dinesh Prasad Verma, learned Amicus Curiae, so that he may get a fee of hearing from Patna High Court Legal Service Committee. Patna High Court, Dated, the 18th day of April, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)