Criminal Appeal (SJ) No.65 of 2007 WITH Criminal Appeal (SJ) No. 90 of 2007 ~~~~~~ Against the Judgment of conviction dated 24.11.2006 and order of sentence dated 27.11.2006 passed by Sri Vijay Bahadur Mall, learned Additional Sessions Judge- Fast Track Court No. III, Vaishali at Hajipur in Sessions Trial No. 209 of 1999. ~~~~~~ BABLOO RAI @ BABLU RAI, SON OF ANGILAL RAI, RESIDENT OF VILLAGE-CHAKRAMDAS, P.S. & DISTRICT-VAISHALI. .... .... Appellant ( In Criminal Appeal (SJ) No.65 of 2007). ~~~~~~ RAMESH SAH AGED ABOUT 35 YEARS, SON OF JAGDISH SAH, RESIDENT OF CHAKRAMDAS, P.S. & DISTRICT-VAISHALI. .... .... Appellant (In Criminal Appeal (SJ) No. 90 of 2007). . VERSUS The State Of Bihar .... .... RESPONDENTS (In both the appeals). ~~~~~~ For the Appellants : Sarvshri Chittaranjan Sinha, Anirban Kundu, Sanjay Kumar Singh, Krishna Narayan Jha, Advocates. For the State : Sri. Ajay Mishra, A.P.P. For the Informant : Sri. Abhay Kumar Singh, Advocate. ~~~~~~ P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha, J. The present appeals have been preferred by each of the two convicts of Sessions Trial No. 209 of 1999 against the judgment of conviction dated 24.11.2006 passed by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court-III, Vaishali at Hajipur in the above noted Sessions Trial by which the appellants were held guilty of committing offences under Section 376, 323 and 2 341 of the Indian Penal Code and each of them was directed to suffer rigorous imprisonment for 10 years as also to pay fine of Rs. 5,000/- for their conviction under Section 376 of the Indian Penal Code and were further directed to undergo simple imprisonment for six months each on each of the counts for being convicted under Section 323 and 341 of the Indian Penal Code. The Learned judge did not direct the appellants to suffer any further term of imprisonment in case they had not paid up the fine. 2. The First Information Report, Ext. 5 lodged by P.W.9 Anatho Devi, the prosecutrix of the case, is the foundation of the whole trial and it was alleged that on account of being very sensitive to hot conditions, the lady left her residence to get comfort at an open place which has been described as Kharaona Pokhar. She stated that as she proceeded towards the pond from her house and was taking a stroll, she was caught by the two appellants. It is stated that the two appellants after catching the lady, attempted to drag her. She protested resulting in being beaten by the appellants. Lastly, the lady was dragged to the embankment of the pond, in fact, to the stairs of the pond, where she was ravished by the two appellants by taking turns. She stated that she was captivated for almost the whole night and tortured by the appellants, so much so that she became unconscious and on regaining consciousness, found that the two appellants had escaped from there. She, thereafter, came to her house and narrated the incident to her family members and others. While narrating, she also stated that while she was with the appellants, they were attempting to drag her to a 3 particular place, when Izhar Miya (P.W.2) came there and also attempted to obstruct her from being taken away, but the two appellants abused him and threatened him also as a result he could run away from there. 3. Investigation was carried out and during that course the lady Anatho Devi (P.W. 9) was produced before the doctor. P.W.11 Dr. Vinita Kumar, after examining the lady, had submitted her report (Ext. 2). P.W.11 stated that the lady was multiparous on account of having given birth to four children and further that her sexual characters were well developed. There was no external or internal injuries found by P.W. 11 on any part of the body of the victim, except that a small laceration was recorded on her left cheek measuring 1”x1/2” which cannot be ascertained due to the dark complexion of the lady. Even P.W.11 was not certain as to when the injury noted had been caused and as such this Court is of the opinion that responsibility of causing that injury court not be cast upon the appellants. As regards further opinion of P.W. 11, she was very clear that it was very difficult for her to say as to whether rape was committed upon the lady or not because the report of the vaginal swab indicated absence of spermatozoa. Thus, what was stated by P.W.11 completely ruled out the allegation of the lady being ravished. 4. Still the evidence of investigating officer indicates that allegation was supported by other witnesses and specially some of them who had stated about having extracted an extra judicial confession Ext.3 series from the appellants. The police sent up the appellants for their trial which ended in the impugned judgment. 4 5. The defence of the appellants was very categorical. It was of false implication on account of the enmity and land dispute which was evident from Exts. A, B, and C the three registered deeds of sale and purchase. It indicated that the properties covered by the three deeds had earlier been purchased by the father of the appellant but subsequently the same properties were purchased by other persons and the husband of the prosecutrix. P.W.9, appears as an attesting witness in all the three deeds. The relevance of the three deeds is that one deed prior to lodging of the FIR had been executed and registered. The suggestion directly or indirectly was that in order to put criminal pressure, so that the father of Ramesh Sah could transfer the land in favour of the husband of the prosecutrix, the false charge had been coocked up against the two appellants. 6. As regards the witnesses who were 12 in number, P.Ws. 4, 7 and 8 were formal witnesses having proved the fardbeyan and writing of the FIR and the medical report. Out of the other witnesses P.W.2 Izhar Mian who had stated in the FIR that he was the person who had come to the rescue of the lady has not supported the story on any count which was told in his deposition stating that while he was in front of his house, the two appellants came there and flashed their torch lights and commanded P.W.2 to keep silent and thereafter they moved away with the lady. While the above things were happening three persons were flashing their torch light from the embankment of the pond which was protested by the two appellants. P.W.2 did not say that any one carried the lady or that he intervened in between the two appellants and 5 the lady was kept in safeguard from doing anything or that the appellants had threatened him in any manner except that they simply asked him to keep silence. 7. When one considers the evidence of P.W.9, it may be found that the place where P.W.2 was sleeping was not the place in dispute. It may be very hard to believe that in the vicinity of the place of occurrence, so much so that, in calm and silence where even a whisper of persons could go into the ears of P.W.2 and this is one important circumstance and that P.W.2 in spite of being so close to the place of occurrence, does not support any real part of the occurrence, by even pointing out that he was hearing the sound or voice coming from the embankment of the pond. 8. So far as the evidence of other witnesses is concerned, P.W.1 Sanyog Kumar, P.W. 2 Izhar Mian and P.W.5 Gopal Sahni are all witnesses who had stated that as soon as they knew about modesty of the lady being violated by the two appellants, the villagers of the two appellants picked them up from their respective houses and brought them to a particular temple where Punches had assembled to question the two appellants. During that questioning, appellants confessed to their guilt and by that time police had arrived and after obtaining the written confession from the appellants carried them to the Police Station. The court below has not acted upon the evidence of these witnesses and further rejected the credibility of the documents Ext.3 and 3/1 which are confessions of the two appellants. The confession of the appellants was losing its importance on account of being obtained through coercion. Learned court below also went on to note that no questions as regards the 6 circumstances of confessing before the general public appear put to either of the appellants and as such it could not be used against them. The extra judicial confession, oral and documentary, has been rejected by the court below and that ceases to be useful evidence for sustaining the conviction of the appellants. The evidence of P.W.6, son of the informant, the prosecutrix and her own evidence still remains to be seen. But, when one considers evidence of the two witnesses carefully, it would appear that some part of the story which was told by P.W.2 is quite contrary which has been told by P.W.9. P.W.9 did never say of having come out of his house. She also does not say that no one was going to search her house on account of the lady having returned to her abode in a full duration of about two hours also as told by P.W.6. P.W.6 stated that when he was searching for her mother he could not find her probably, because she had just reached her house. The lady told the court that the appellants had cruelly assaulted and committed rape upon her, as a result of which she lost her consciousness and subsequently she found that the appellants had made good their escape. These are serious nature of allegations when one considers the evidence of P.W.6 and P.W.9. 9. The contention of the learned counsel appearing for the prosecutrix was that the lady was coming out to tell about the acts of the appellants and she did not appear to be also telling lies. It is true that in a case of rape the support is not always necessary to come from the evidence of prosecutrix. The principle of prejudice in a rape case is quite different from that which is to be considered in other offences, but merely because a lady was deposing in the Court could not be safe by itself and is 7 sufficient to record a conviction. A lady could be really not putting her-respect and prestige at stake in the society or future life when the lady was 50 years of age and already had four children out of whom one P.W. 6, was 35 years of age, on the date when she was deposing in the court and she would be simply making a false statement. 10. These are some of the circumstances which appear to be noted by the learned trial judge specially when he had so elaborately discussed the evidence by going through them as to how the dispute in respect of the same properties had erupted on one particular date which was probably the motive behind lodging the F.I.R. The plea of defence of false implication by setting up a lady who had nothing in her life to losing including her credibility appears to be tilting in favour of the appellants and considering that, the two appeals are allowed. The order of conviction and sentences passed upon the two appellants is hereby set aside and the appellants are acquitted of the charge. 11. Both the appellants are in custody. They shall be set at liberty if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, Patna Dated, the 26th July, 2011. A.N.F.R./Devendra.