CRIMINAL APPEAL No.126 OF 1993 1. SANJAY KOERI, son of Madan Koeri 2. Sambhu Koeri, son of Late Ramji Koeri 3. Uday Koeri, son of Kameshwar Koeri, All residents of village Khametua, P.S. Tekari, District Gaya -------------------------------------Appellants Versus STATE OF BIHAR--------------------------------------------------Respondents CR. APP (SJ) No.146 oF 1993 ARBIND RAI, son of Barishan Rai, R/o Khanetu P.S. Tekari, District Gaya ---------------------------------------(Appellant) Versus STATE OF BIHAR--------------------------------------------------(Respondents) (Against the judgment of conviction and order of sentence dated 13.5.1993 passed by Sri Akhilesh Chandra, 11th Addl. Sessions Judge, Gaya, in Sessions Trail No. 190 of 1991 / 109 of 1992 arising out of Tekari P.S. Case No. 94 of 1990.) For the Appellants : Mr. Ashwani Kumar Singh, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA Abhijit Sinha, J: Both these appeals have been taken up together as they arise out of the same judgment of conviction and order of sentence and having been heard together are being disposed of by this common judgment. Cr. Appeal No. 126 of 1993 has been preferred by Sanjay Koeri, Sambhu Koeri and Udai Koeri, whereas Cr. Appeal No. 146 of 1993 has been preferred by Arvind Rai. By the aforesaid judgment of conviction all the 4 accused having been found guilty of committing gang rape upon the victim and also robbing of a box from the house of the 2 informant and the victim have been convicted under sections 376(G) and 394 IPC. However, although they have been acquitted of the charges under sections 325 and 325/34 IPC all of them have been convicted under section 323 IPC which is a lesser offence of section 325 IPC. Accordingly all the accused have been sentenced to undergo R.I. for 10 years each under sections 376(G) and 394 IPC and to pay a fine of Rs. 1000/- each and in default in payment of fine they have been directed to undergo further R.I. for six months. They have also been sentenced to undergo R.I. for one year for the offence under sections 323 IPC. All the sentences were directed to run concurrently. Tekari P.S. Case No. 94 of 1990 was registered on the basis of the fardbeyan (Ext. 6) given by one Yasoda Devi at around 7 A.M. on 30.6.1990 for an occurrence which took place on the night of 29/30 – 6 – 1990 at around midnight. According to the prosecution case the informant (PW 10) along with her daughter Gayatri Kumari (PW 11) were sleeping inside their house and no male member was present, co-villagers Sanjay Koeri, Udai Koeri and Shambhu Koeri along with another unknown person entered into the house variously armed with pasuli etc. and they were identified by the informant in the light of the lantern burning in the room. 3 It is said that whereas she was sleeping in the western room her daughter was in the eastern room and the accused persons entered into her room first and on not finding Gayatri there they proceeded towards her room which the informant tried to prevent by crying and pleading which appears to have its effect on them but by that time two of them had derobed themselves and had become fully naked and were trying to harass her daughter but as she protested they assaulted the informant and her daughter as a result of which they sustained injuries. On hearing her cries of alarm the accused fled and while departing they took away a box containing ornaments and cash leaving behind an old multi coloured underwear and a red coloured langota in the room of Gayatri which was later handed over by the informant to the police. It is alleged that the intruders were inside the house for about 15 minutes. It is also said that Bhola Thakur, Kheman Mistri and other co-villagers were witnesses who had arrived at hearing her cries of alarm and had also identified the accused while they were fleeing. She also assured to give details of the articles that were kept in the box that was stolen later on. On the basis of the said fardbeyan the Tekari P.S. case was registered under sections 456, 376/511, 323, 379/34 IPC against the three named accused and another and after 4 due investigation a charge sheet was submitted against all the four accused including Arvind Rai whose name cropped up in course of investigation as the unknown person who had accompanied the three FIR named accused. At the trial before the Sessions Court the prosecution in order to substantiate its case examined as many as 15 witnesses and got exhibited several documents of which production list is Ext. 1, seizure list is Ext. 2, charge sheet is Ext. 3, report of Forensic Science Laboratory of blood stains is Ext. 4, injury report is Ext. 5, fardbeyan is Ext. 6 and Ext 10 is the other report of the Forensic Science Laboratory. While the appellants of Cr. Appeal No. 126 of 1993 took the defence of false implication and of not having committed any offence. Accused Arbind Rai took the defence of alibi in the form of his unavailability in the village as he was away at Dehri-on-Sone. However, no evidence either oral or documentary were adduced by the defence in support of their respective pleas. On behalf of appellant Arvind Rai it was submitted that he was neither named in the FIR nor identified by the informant and Gayatri Devi in whose presence the fardbeyan was recorded nor did witness Bhola Thakur (PW 1) who was attesting witness of the fardbeyan claim to have 5 identified this appellant. However, Bhola Thakur appears to have identified Arvind in court but not by name and stated that he had seen him in the light of torch which was not produced in Court. PW 3 had also claimed to have identified all the accused in torch light and said that Arvind Rai was unarmed and the others were armed. P.W. 6 has followed suit and named the same accused as P.W. 3. P.W. 8 also claimed to have seen the very persons as had P.Ws. 3 and 6 in the light of the torch. P.W. 8 also claimed to have talked and discussed the incident with the informant and her daughter but no where has he stated about any role or overt act of this appellant. Even the informant in her deposition in court named the three persons she had named in the fardbeyan and referred to the fourth as unknown. P.W. 11 Gayatri admitted in her cross examination in paragraph 20 of her deposition that this appellant was one year her senior in the village school. On this premise it was submitted that had Arvind at all figured in the occurrence then Gayatri would definitely have named him as one of the intruders since Arvind was a year her senior in school and this only goes to show the false implication so far as Arvind is concerned. The false implication is further fortified by the fact that Gayatri in paragraph 36 of her deposition stated that she had 6 named the accused persons to her mother immediately after the occurrence and that her mother had lodged the fardbeyan in her presence but even then at the time of lodging of the fardbeyan she did not remind her mother to include the name of Arvind. It was further submitted on behalf of Arvind that after recording of the statement of the accused under section 313 Cr.P.C. 2.3.1993 was fixed for defence witnesses and on that day an adjournment was sought on the ground that the defence witnesses were not available as they had gone out side the village and instead of issuing notice to the defence witnesses 23.3.1993 was fixed and on that date there was a mass strike by the employees in court and eventually on 19.4.1993 closed the defence evidence without any basis even as a representation under section 317 Cr.P.C. had been filed on behalf of this appellant. So far as the three other appellants are concerned it has been submitted that the conviction under section 376(G) and 394 IPC were not tenable in law since at the threshold stage and at the recording of the fardbeyan no case of rape had been alleged by the informant and it was by way of development in course of investigation and the trial at the instance of the informant and her daughter that the story of 7 commission of rape surfaced. In this connection it was submitted that the statement of the victim girl under section 164 Cr.P.C. was recorded after 18 days of the occurrence and it was here that she developed for the first time the story of her being subjected to rape by the three appellants and another. According to the learned counsel for the appellants false implication of these appellants is further magnified by the fact that the Medical Board which examined the victim girl did not find any signs of sexual inter-course or the violence on her. It was further submitted that the victim and the informant had stated of their having been examined initially at the Tekari hospital but neither has any injury report or any other material been furnished either before the I.O. or before the Court in support of this fact. The impugned judgment has further been criticized on the submission that the learned court had failed to look into the inconsistent depositions of the prosecution witnesses. I have perused the impugned judgment of the learned trial court and it appears therefrom that the learned trial judge relied heavily on the report of the Forensic Science Laboratory. P.W. 12 in proving the report (Ext. 4) admitted in his cross examination that the said report was prepared on the dictation of the Assistant Director on the 8 basis of the report of the Chemical Analyst. He also admitted that the said Assistant Director was still in service but there is no explanation why the Assistant Director himself or the Analyst did not turn up to prove Ext. 4 and sent an employee of the Laboratory to prove the same. Similarly P.W. 13, another employee of the Laboratory, came to prove the report regarding the blood stains and semen stains on the seized clothings and said that they were of human being. It appears that the defence submission that these exhibits were not admissible since they had not disclosed the exact method which were applied for the test was not acceptable to the learned trial judge since according to him the main consideration was the result and not the method. The trial court appears to be remiss of the fact that the experts who conducted the tests resulting in these two exhibits were not examined and therefore the opinion of the conducting experts in respect of the tests was not admissible. Dr. Krishna Choudhary (P.W. 14), Medical Officer in Lady Elgin Hospital, Gaya, who had examined the victim and submitted an incomplete report (Ext. 6) as she had been stopped from proceeding further had found injury on the nose of the victim which was dark in colour of 1 cm area and laceration was found on the upper lip of the right side which 9 was within 24 hours . The breasts were in developing stage, the areola was pink with small nodular nipples but there was no tenderness. There was no matting (semen or blood). On examination of perineum no obvious injury was found except on the fertchette, where there was a small scratch of 1 m.m. size. There was no bleeding on touch and the hymen was intact. No laceration or swelling or bruise were found. On microscopic examination of H.V.S. no spermatozoa, either dead or alive, were found. However, she had found blood stains marks on the front of the salwar or the kurta of the victim which was handed over to the constable. Although there is a reference to the report of the Medical Board the same is not available on record and although the judgment speaks of the same no witness appears to have proved that report which has been referred as Ext. 5 in the judgment and Ext. 5 from the record appears to be the report of the Forensic Science Laboratory. The learned trial judge does not appear to have placed any reliance on the Medical Report in view of the fact that both the informant and the victim had supported the factum of rape. It appears that in the deposition in court both the informant and victim developed a new story of Udai and unidentified accused catching hold of the informant and 10 assaulting her whereas the two others entered into the room of the victim who soon began to cry and they returned naked after 10 minutes and then the persons holding the informant went into the room and returned naked after 8 – 10 minutes and after wearing their clothes started fleeing. The other witnesses who have supported the prosecution case are in some way related to the victim and the informant and naturally they have sought to support the prosecution case. The court has also placed reliance on the statement recorded under section 164 Cr.P.C. However, the trial judge has been remiss of the fact that although the report of the Forensic Science Laboratory stated that the blood stains of the clothing of the victim was of human blood no efforts were made to test blood samples of the accused in order to match their blood groups with the blood found on the clothings of the victim. Having given my anxious thoughts to the materials available on record and having regard to the glaring omissions and contradictions in the prosecution story and the prosecution witnesses and the discussions made above the evidence of the prosecution witnesses cannot be relied upon so as to invite conviction. Accordingly the judgment of conviction and order of sentence recorded by 11 the trial judge is hereby set aside and both the appeals are allowed. It appears that the three appellants of Cr. Appeal No. 126 of 1993 were released on bail vide order of this Court dated 11.10.1993 and the appellant of Cr. Appeal No. 146 was directed to be released on bail vide order of this court by 14.6.1993. All the accused are accordingly discharged from the liabilities of their respective bail bonds. Patna High Court, Patna. Dated : The 18th of August, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)