IN THE HIGH COURT OF JUDICATURE AT PATNA SLA No.59 of 2010 GAYATRI DEVI Versus STATE OF BIHAR & ORS ----------- 5. 26.10.2010 The application was heard at the stage of admission. This is an application for grant leave to file appeal against the judgment dated 15.4.2010 of the Additional Sessions Judge- cum-Fast Track Court No.2, Sheohar at Sitamarhi passed in Sessions Trial No. 471 of 2008 whereby the O.P. No.2 Basdeo Ram has been acquitted of the charge under Section 376 and O.P. No.3 Lakshmi Devi, the wife of O.P. No.2 has been acquitted of the charge under Section 376 read with Section 109 of the Indian Penal Code. The petitioner/complainant filed a complaint on 8.7.2005 with the allegation that in the night on 6.7.2005 at 10: 00 P.M. the O.Ps. entered into her house and O.P. No.3 caught hold of her and that on her instigation the O.P. No.2 committed rape on her. Further allegation was that on her cry, witnesses arrived and then the O.Ps. were seen fleeing away by the witnesses. The complainant alleged that after the occurrence she went to police station but her case was not taken there. Therefore, she came before the C.J.M. and filed a complaint. After filing of the complaint, the leaned C.J.M. sent it to the police station for institution of F.I.R. and accordingly Shyampur Bhatha P.S. Case No. 45 of 2005 was instituted. The police investigated the case and on conclusion of the investigation the case was reported as falsely instituted. Besides submitting a final form to 2 this effect the police also recommended for prosecution of the complainant under Section 182 and 211 of the Indian Penal Code for lodging a false case. It was during investigation that the complainant had filed a protest petition. After submission of the final form by police the protest petition was dealt with as complaint petition and on examination of the complainant on S.A. and examination of some witnesses, a prima facie case was indicated, therefore, cognizance of offence was taken and the O.P. Nos. 2 and 3 were put on trial. After conclusion of the trial, the learned trial court went into the various aspects of the case and deeply considered the matter. On consideration of the facts and circumstances and the evidence, the learned trial court came to find that the offence was not proved and therefore, the O.P. Nos. 2 and 3 were acquitted. In its judgment, the learned trial court considered that P.W.1 Shrada Devi along with her husband was convicted in Sessions Trial No. 387/99 instituted by O.P. No.3 Lakshmi Devi. It was also mentioned that P.W. 6 Sahdeo Ram was also convicted in Sessions Trial No. 418 of 2005 and 387 of 1999 instituted by O.P. No.2 Lakshmi Devi and that P.W. 5 Gayatri Devi had also been convicted in Sessions Trial No. 387 of 1999 instituted by O.P. No.3 Lakshmi Devi. It was also mentioned that P.W. 3 Guddu Ram is the son of Sahdeo Ram and Gayatri Devi who stood convicted in the aforesaid Sessions trial filed by Lakshmi Devi. In the light of these facts, the learned trial court rightly 3 mentioned that due to witnesses having been convicted in the case instituted by O.P. 3 and they were deeply inimical to the complainant and they had every motive or intention to grind grudge against the O.Ps. Therefore, the learned trial court rightly mentioned that in such situation when the prosecution side has deep enmity against the accused the case has to be examined carefully and evidence has to be considered with great care and caution. The learned trial court also considered that since the accused/O.Ps. were a winning party in the battle where the prosecution party had been convicted and they were in jail, the thrust to take revenge was stronger with the prosecution party. The learned trial court considered that the complainant stated to have filed complaint in Court on the plea that her case was not taken at the P.S. but her son, P.W.3 had stated in bold language that the occurrence was not reported to police and the complaint was filed in Court. The learned trial court also considered that Sheohar lies in the way to the Court where office and residence of D.S.P. and S.P. situate but the complainant did not contact the higher police officials for complaining about the occurrence and about not taking of her case at the P.S. Therefore, it was considered that the occurrence was not reported to the police, the offence was being heinous and the complaint was filed in Court. The learned trial court considered the evidence of witnesses and found that houses of Rajmangal, Rajdeo, Sunil, Rajjak Miyan and Tapar Mukhiya were in the same locality and these persons 4 were not inimical to either side and they were quite independent persons but none of them are said to have come to the P.O. on the cry of the informant which is said to have been raised at the time of occurrence. The learned trial court considered that only inimical and interested persons are said to have come to the I.O. and they have been examined as witnesses to support the case of prosecution. The learned trial court also considered that Chowkidar Yadubansh Singh was a close door neighbour of the complainant but the occurrence was also not reported to him nor it was reported to Ward Member Sita Devi whose house situates at a close distance from the house of the complainant. It was also considered by the trial court that the complainant stated to have taken some medicine from one Dr. Devendra but he was also not examined nor was any prescription brought on record. The learned trial court also considered that an inmate child Chandania aged about six years of the complainant side was produced in Court as prosecution witness but prosecution did not examine her stating that prosecution intended to give up her examination due to her tender age and no reason was explained by the prosecution excepting that she was tender age. The child of six years could have also spoken the truth and it is best known to prosecution why her evidence was not adduced before the court. The complainant says about commission of the offence and it is stated that witnesses had seen the O.Ps. while they were fleeing away from the place of occurrence. The complainant stated that she 5 identified the O.Ps. in the light of Dibiya and the witnesses said that they had identified them in torch light which they were carrying with them. But the learned trial court has considered that these means of identification were not disclosed in the complaint and that these were purposely introduced as after thought during evidence in order to substantiate the case of prosecution. The learned trial court also considered that during the evidence of witnesses, it appears that the complainant’s house had three rooms and the P.W.4 was unable to say as to in which room the complainant was sleeping rather he stated that he had never visited the house of the complainant. Therefore, the learned trial court considered that the witnesses had never witnessed the occurrence. The learned trial court also considered this aspect of the matter that the complainant alleged that the O.P. Nos. 2 and 3 who are husband and wife entered her room and the O.P. No.3 Lakshmi Devi closed her mouth and on her instigation and orders, the O.P. No.2, husband of the O.P.No.3 committed rape on the complainant. During trial the learned trial court has considered this aspect of the matter that we are living in the society where it is never expected that wife will ask or instigate her husband to have intercourse with another lady in her presence. As to the offence of rape, the complainant stated that as a result of rape semen stains had occurred on her Petticoat. The learned trial court has considered that the complainant did not get 6 her examined by any doctor for finding out corroborative evidence about commission of the offence. It was also considered that Petticoat was not produced by the complainant before police nor she sent it for chemical examination and that the same was not produced even before the trial court. The learned trial court went into every important aspect of the matter and considered that P.W.6 Sahdeo Ram who was in jail on the date of occurrence, had stated in his evidence that on 6.7.2005 at 8/9 A.M. the complainant had visited him in jail and informed him about the occurrence and then he (P.W.6) advised her (complainant) to file a complaint in court. The learned trial court has considered that the date and the time of occurrence are alleged as 6.7.2005 at 10:00 P.M. and witnesses have also testified the date and time. Therefore, the learned trial court considered that how it could be possible that the occurrence which is said to have taken place in the night at 10:00 P.M. could be reported in advance at 8/9 A.M. by the complainant to her husband in jail and the advice to file a complaint be obtained. The learned trial court has rightly believed that the story of rape had already been cooked up in the very morning and it was merely acted upon by filing a complaint showing time and occurrence in the night at 10:00 P.M. Considering all these infirmities as above, the learned trial court did not feel satisfied that the case was proved beyond doubt and acquitted the O.Ps. I do not find any perversity or illegality in the judgment passed by the trial court and there is no scope for any 7 interference in the trial court’s judgment. Therefore, the prayer to grant leave to appeal is refused. This S.L.A. is dismissed at the stage of admission. (C. M. Prasad, J.) Ravi/-