IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.397 of 2006 Against the judgment and order of conviction dated 29.4.2006, passed by Sri Vipin Bihari Srivastava, Additional Sessions Judge, Fast Track Court No. 4, Purnea in Sessions Trial No. 480 of 2004 1. Tetar Sahani, Son of Ramdeo Sahani. 2. Ramdeo Risi @ Ramdeo Risideo, Son of Budhan Rishi. 3. Md. Goda, Son of Md. Akali. 4. Julus Rishi @ Julus Rishideo, Son of Funak Rishi. 5. Jitan Risi @ Jitan Risideo, Son of Malhori Risi. 6. Mahesh Risi @ Mahesh Risideo, Son of Lakhan Risi. All are residents of Village Ranibari (Damak), PS Sadar, District Purnea. .... .... Appellants Versus The State Of Bihar .... .... Respondent Appearance : For the Appellants : Mr. Sanjeeva Ranjan, Advocate Mr. S.P.Baranwal, Advocate Mr. Sushil Kumar, Advocate For the Respondent : Mr. Ashwini Kumar Sinha, A.P.P. CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN and HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN) S.A. Khan, J. These six appellants have been convicted under Section 376 (G) of the Indian Penal Code to undergo rigorous imprisonment for life. 2. The prosecution case is by way of a written report submitted to the Officer Incharge of Sadar Thana, Purnea. Mohrani Devi the informant, reveals that she was in her house when at about Patna High Court CR. APP (DB) No.397 of 2006 dt.15-09-2011 2 2 8:30 p.m. the accused persons came to her house and abducted her, taking her to the wheat field of Gulma Uraon, where they all raped. She also alleges, that after being raped she was taken to the field (Bahiyar), where she was assaulted by them and left on the village road. Prabhu Rishi is said to have taken her back to her house. 3. In this case, the Investigating Officer has not been examined who would be important for the purposes of substantiating the evidence of witnesses regarding both the place of occurrence and the manner of occurrence. Six witnesses have been examined in this case. P.Ws. 1, 3 and 4 have turned hostile. Thus, this case is based on the solitary evidence of Mohrani Devi and the Doctor who examined her after the occurrence. 4. The informant Mohrani Devi P.W. 2 has stated that she was lifted from her house and taken to the wheat field and raped thereafter. In her cross-examination she admits that she was married and that her husband is living in Punjab with whom she has no contact since the last two years. At paragraph 14 she has specifically stated that when she was lifted from her house, her mother Sukni Devi, sister, aunt (Mausi) along with her son Sone Lal Rishi and father were present in her house. None of these witnesses have been examined in this case. Regarding the topography of the house, she has stated that her house consists of a one room hut, situated in a thickly populated area. Paragraph no. 30 would be relevant inasmuch as she earlier stated that she had given a written statement, beforet the Investigating Officer, which she again denies by stating that she had made an oral Patna High Court CR. APP (DB) No.397 of 2006 dt.15-09-2011 3 3 statement before the Investigating Officer (This piece of evidence is with regard to the First Information Report). 5. Before analyzing the evidence of P.W. 2, this Court should also refer to the evidence of the Doctor P.W. 5 who has found one injury i.e. a small abrasion under the eye. No sign of spermatozoa was found after she was examined by the Doctor. The girl has been found to be about 17-18 years of age. The doctor has opined that there is no evidence of sexual assault at the time of examination but the possibility cannot be excluded. In other words, the doctor has not given definite opinion regarding the commission of the crime. The fact that no spermatozoa was found after vaginal swab was taken indicates little possibility of rape having been committed, in the given facts of this case, where it is said that six persons had raped the victim. The fact that victim is 17 to 18 years of age is not very relevant for the reason that she was a married lady, used to sexual intercourse. It has come in her evidence that she was married for 4 or 5 years and lived with her husband for two years. 6. On analyzing the evidence of P.W. 2, this Court finds that P.W. 2 has have not supported the case as made out in the First Information Report, inasmuch as, the sequence of evidence as described by her in the First Information Report have not been stated in her chief. She gives a go-bye to the story that she was taken to the field to be assaulted, before she was left on the road. In fact she has also given a go-bye to the version in the First Information Report, to the extent of not supporting the fact that Prabhu Rishi was the person Patna High Court CR. APP (DB) No.397 of 2006 dt.15-09-2011 4 4 who had brought her home when she was left on the road by the accused persons. Thus, the story of assault and the manner in which she reached home is not supported in her evidence. 7. The case of P.W. 2 that she was forcibly taken from her house to the field where the rape was committed becomes doubtful in view of her admission that at least five family members were present at the time when the appellants entered her house and forcibly took her away. These five members did not raise a hue and cry. The natural behaviour in such circumstance would be to seek help from the neighbours to find and save the victim who was forcibly taken from the house. It is not the case of the informant that the accused persons were armed with weapons which could have acted as a deterrent for them in chasing the accused persons or to taking help of the neighbours after the appellants had left the house. 8. This Court is aware of the fact that the evidence of prosecutrix is sufficient for the purposes of conviction in a case under Section 376(G) of the Indian Penal Code. However, while considering this aspect, this Court has to examine the evidence with care before coming to any finding. In this case, the evidence that has come on record, is not by way of irrelevant contradictions but goes to the very root of the case. The fact that the informant has denied that she has stated that she had not given a written report to the Investigating Officer is against the records, coupled with the fact that she has not supported the manner of the occurrence, and the obvious lacuna when she does not examine important witnesses who could have Patna High Court CR. APP (DB) No.397 of 2006 dt.15-09-2011 5 5 corroborated her version of the occurrence. In this case the statement of the mother, sister, cousin brother, father and aunt who were present at the house when the lady was abducted by the accused persons, have not been examined to support the case of abduction or for that matter the non-examination of the first witness, who saw her after she had been raped i.e. Prabhu Rishi further leads this Court to doubt the evidence of the victim P.W. 2. This Court may refer to the judgment in this case of Krishan Kumar Malik Vs. State of Haryana [(2011) 7 SCC 130] only to the extent that the Apex Court has held the accused that in case of rape, the solitary evidence of prosecutrix is sufficient for conviction, provided it inspires confidence and is “trustworthy, unblemished and should be of sterling quality”. After considering all aspects of the case, this Court comes to the conclusion that the appellants cannot be held guilty of the offence under Section 376(G) of the Indian Penal Code. 9. In the result, the appeal is allowed. The judgment and order of conviction dated 29.4.2006, passed by Sri Vipin Bihari Srivastava, Additional Sessions Judge, Fast Track Court No. 4, Purnea in Sessions Trial No. 480 of 2004 is set aside. The appellants who are in jail, ordered to be set free forthwith, if not required in any other case. Patna High Court, The 15th of September, 2011, N.A.F.R./Sanjay (Sheema Ali Khan, J.) Shyam Kishore Sharma, J. – I agree. (Shyam Kishore Sharma, J.)