Dallu Bind vs The State Of Bihar on 12 July, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.123 of 2014
Arising Out of PS.Case No. -19 Year- 2013 Thana -CHAND District- BHABHUA (KAIMUR)

1. Dallu Bind Son Of Hari Bind Resident Of Village- Darupur, P.S- Chand,
District- Kaimur At Bhabua.

…. …. Appellant/s
Versus

1. The State Of Bihar

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Rajnikant Pandey
For the Respondent/s : Mr. Abhay Kumar

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 12-07-2017

This appeal is directed against the judgment and order of

conviction dated 20.12.2013, passed by Shri Ashok Kumar, Adhoc

Additional Sessions Judge – I, Kaimur, Bhabua, in Sessions Trial

No. 268 of 2013, by which he has convicted the appellant under

Sections 376 and sentenced him to undergo R.I. for 7 years with a

fine of Rs. 5000/- and in default of payment of fine, R.I. for six

months. Appellant was further sentenced to undergo R.I. for 6

months for the offence punishable under Section 323 Indian Penal

Code, S.I. for 1 months for the offence punishable under Section

341 of Indian Penal Code and R.I. for 01 year for the offence

punishable under Section 504 of Indian Penal Code. All the above

sentences were directed to run concurrently.
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Prosecution case as per written report (fardbeyan ) of P.W.

3, is that on 01.04.2013 at about 7 P.M., the informant was

returning to her house and when she reached near the house of

appellant, appellant caught hold her hand and started forcibly

dragging her inside his house and on protest, appellant abused her

and beaten her, on which she started crying and then appellant

gagged her by gamcha and took her inside his house. Further case

of the prosecution is that she made all efforts to get away from the

clutches of the appellant, however, she did not succeed and was

forcibly raped by the appellant and about 3. A.M., the appellant set

her free and sent her out of his house. Thereafter, the informant met

her grandfather and narrated the whole occurrence and when the

matter came into knowledge of some villagers, they advised the

informant and her family members not to report the matter to

police. However, later on she filed her written statement before the

police, on the basis of which, Chand P.S. Case No. 19/13 was

registered under Section 323, 541, 504 and 376 of Indian Penal

Code and police after investigation submitted charge-sheet against

the appellant under the aforesaid sections of Indian Penal Code and,

thereafter, the cognizance was taken and the case was committed to

the Court of Sessions, which ultimately came to the file of Shri
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Ashok Kumar, Adhoc Additional Sessions Judge – I, Kaimur,

Bhabua, for trial and disposal of the case. In this case, charges have

been framed against the appellant under Section 323, 341, 504 and

307 of Indian Penal Code.

On behalf of the prosecution, altogether, five witnesses

have been examined and they are; P.W. 1-Ramcharan Bind, P.W. 2,

Gudiya Devi, P.W. 3- Urmilla Kumari (Informant and victim) P.W.

4- Doctor, Sanghmitra Singh and P.W. 5- Ganga Sagar Singh

(Investigating Officer).

Apart from the above following documents have been

taking into evidence and they are; Ext. 1- Written Report, Ext. 1/1-

Signature on written report, Ext. 2-Medical Report, Ext. 2/1 – Age

assessment report and Ext. 3- signature on formal F.I.R.

Defence of the accused person is of innocence and false

implication and complete denial of the occurrence, which will

appear from the trend of cross-examination as well as statement of

witnesses under Section 313 Cr.P.C.

After conclusion of trial learned Trial Court has convicted

the appellant under Sections 376, 323, 341 and 504 Indian Penal

Code and sentenced him as stated above.

Being aggrieved, the appellant preferred the present
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appeal.

It has been submitted on behalf of the appellant that in this

case except P.W. 3, there is no eye -witness of the occurrence and

so far evidence of P.W. 3 is concerned, there appears to be

inconsistencies and contradictions between her evidence in chief

and her earlier statement given before the police. Further the

evidence of P.W. 3 did not find corroboration from the Medical

report as Doctor has not found any sign of rape on her or any injury

over her person or on her private parts and further there is also no

READ  Ranjeet Kumar @ Babloo & Ors vs State Of Bihar & Anr on 28 July, 2017

independent witness of the occurrence. It has further been

submitted that in absence of any corroboration and that too when

the evidence of P.W. 3 appears to be not probable, as such,

conviction of appellant under Section 376 Indian Penal Code and

other Sections of Indian Penal Code, on the basis of sole testimony

of P.W. 3, is not sustainable in the eye of law.

On the other hand, learned counsel for the State has

submitted that prosecutrix has supported the earlier version in her

evidence and the evidence of P.W. 1 and P.W. 2, who are mother

and father respectively, supports the evidence of P.W. 3 as they

have seen P.W. 3, just after the occurrence. It has also been

submitted that conviction of appellant under Section 376 Indian
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Penal Code on the basis of sole testimony of P.W. 3, can be based

as held by Hon’ble Supreme Court in its several decisions. As such

the conviction of appellant under the above mentioned Sections of

Indian Penal Code is just and proper and does not require any

interference.

In the aforesaid background of the matter, this court is

going to scrutinize the evidences available on record.

P.W. 3, who is the informant and prosecutrix, has

supported the case of prosecution with regard to commission of

rape on her. In her evidence in chief, this witness has submitted that

when the appellant caught hold her, she cried and further the

appellant took her to a room and outraged her modesty and on

protest, appellant also assaulted her, thereafter, the appellant took

her to his house and kept her in a room first and again kept in

another room and raped her. Further evidence of this witness

discloses that about 3.30 A.M. on hearing some sound, mother of

the appellant woke up and enquired the same but the appellant told

her that his friend has come for sleeping with him and, thereafter,

the appellant ousted her from his house. Further evidence is that she

met her grand father and informed about the occurrence and her

family members. Further evidence is that she lodged a case on next
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day as her father was not interested as the reputation of the village

was involved.

P.W. 1 and P.W. 2 are mother and father of P.W. 3

respectively. Though from their evidence, it appears that they are

not the eye-witness of the occurrence, however, their evidence in

chief shows that in the next morning P.W. 3 came to them and told

them about commission of rape by the appellant. As such P.W. 3 is

the only eye witness of the occurrence.

Evidence of P.W. 4, who is Doctor has stated in his

evidence that no injury was found over any part of the body or

genetelia or any its neighbourhood area of the body and on

examination no pubic hair meted with blood or semen wet or dry,

was found no tear of clothes. This witness has further stated that

vaginal swab was taken and send for pathological examination,

result of which showed no spermatozoa either dead or alive, hymen

membrane found already ruptured and further on examination, no

sign of recent sexual intercourse was found. Further medical report

shows that on examination, age of the girl was found between 15 to

18 years. This witness has been cross examined by the prosecution

and on cross-examination, he has stated that he has not found any

bruise, aberration or laceration over the body of the victim.
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P.W. 5 is the Investigation Officer of the this case and this

witness has stated in his evidence in chief that he has inspected the

place of occurrence, which is a three rooms house of the appellant

facing east and his evidence further discloses that there are two

rooms adjacent to the room in which, it is alleged that the victim

was raped and in the last portion, there is no darwaza (door). He

has also stated that the distance of the house from the road is about

thirty meters.

This witness has also stated in his cross-examination that he

has not seized any clothes as it was not produced.

On close scrutiny of evidence of P.W. 3, who is the

prosecutrix as well as sole eye witness of the occurrence, it appears

that her evidence is full of improvement as in the court she has

READ  Urmila Devi & Anr vs State Of Bihar & Anr on 14 July, 2017

stated that she was first raped in a room and, thereafter, she was

taken by the appellant to his house, there she was again raped.

However, there is no such statement in her earlier version in written

report, in which she has stated that she was raped only once and in

her statement recorded under Section 164 Cr.P.C, she has stated

that she was first taken to a under construction house, there she was

first raped and, thereafter, she was taken by the appellant to his

house, where she was again raped. As such her evidence is self
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contradictory. Apart from that evidence of P.W. 3 does not find any

corroboration from the medical evidence as the medical evidence

negates the factum of rape. Further in the cross-examination, doctor

has admitted that there was no bruise, aberration or injury over the

body of the prosecutrix and further her age was assessed between

15 to 18 years and in cross-examination, doctor has admitted that

her age may be between 17 to 18 years. It is also a well settled

principle of law that on the basis of sole testimony of prosecutrix,

conviction can be made under Section 376 Indian Penal Code, if the

evidence of prosecutrix is found free from any embellishment,

contradictions. Hon’ble Supreme Court in the case of Raju v. State

of M.P. reported in AIR 2009 SC 858 in para -9, which reads thus:

“9. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a
prosecutrix should not be suspect and should be
believed, the more so as her statement has to be
evaluated at par with that of an injured witness and
if the evidence is reliable, no corroboration is
necessary. Undoubtedly, the aforesaid observations
must carry the greatest weight and we respectfully
agree with them, but at the same time they cannot
be universally and mechanically applied to the facts
of every case of sexual assault which comes before
the Court. It cannot be lost sight of that rape causes
the greatest distress and humiliation to the victim
but at the same time a false allegation of rape can
cause equal distress, humiliation and damage to the
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accused as well. The accused must also be
protected against the possibility of false
implication, particularly where a large number of
accused are involved. It must, further, be borne in
mind that the broad principle is that an injured
witness was present at the time when the incident
happened and that ordinarily such a witness would
not tell a lie as to the actual assailants, but there is
no presumption or any basis for assuming that the
statement of such a witness is always correct or
without any embellishment or exaggeration.
Reference has been made in Gurmit Singh’s case to
the amendments in 1983 to
Sections 375 and 376 of
the India Penal Code making the penal provisions
relating to rape more stringent, and also to
Section
114A of the Evidence Act with respect to a
presumption to be raised with regard to allegations
of consensual sex in a case of alleged rape. It is
however significant that
Sections 113A and 113B
too were inserted in the
Evidence Act by the same
amendment by which certain presumptions in cases
of abetment of suicide and dowry death have been
raised against the accused. These two Sections,
thus, raise a clear presumption in favour of the
prosecution but no similar presumption with respect
to rape is visualized as the presumption under
Section 114A is extremely restricted in its
applicability. This clearly shows that in so far as
allegations of rape are concerned, the evidence of a
prosecutrix must be examined as that of an injured
witness whose presence at the spot is probable but
it can never be presumed that her statement should,
without exception, be taken as the gospel truth.

Additionally her statement can, at best, be adjudged
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on the principle that ordinarily no injured witness
would tell a lie or implicate a person falsely. We
believe that it is under these principles that this
case, and others such as this one, need to be
examined.

Hon’ble Supreme Court in the case of Tameezuddin alias
Tammu v. State (NCT of Delhi) reported in (2009) 15 SCC 566 held
as under:-

“9. It is true that in a case of rape the evidence of
the prosecutrix must be given predominant
consideration, but to hold that this evidence has to
be accepted even if the story is improbable and
belies logic, would be doing violence to the very
principles which govern the appreciation of
evidence in a criminal matter. We are of the opinion
that story is indeed improbable.”

Further in the case of Narender Kumar v. State (NCT of

Delhi) reported in (2012) 7 SCC 171, Hon’ble Supreme Court in

para 20 and 21 held as follows:-

“20. It is a settled legal proposition that once the
statement of prosecutrix inspires confidence and is
accepted by the court as such, conviction can be
based only on the solitary evidence of the
prosecutrix and no corroboration would be
required unless there are compelling reasons which
necessitate the court for corroboration of her
statement. Corroboration of testimony of the
prosecutrix as a condition for judicial reliance is
not a requirement of law but a guidance of
prudence under the given facts and circumstances.

Minor contradictions or insignificant discrepancies
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should not be a ground for throwing out an
otherwise reliable prosecution case.

21. A prosecutrix complaining of having been a
victim of the offence of rape is not an accomplice
after the crime. Her testimony has to be appreciated
on the principle of probabilities just as the
testimony of any other witness; a high degree of
probability having been shown to exist in view of
the subject matter being a criminal charge.
However, if the court finds it difficult to accept the
version of the prosecutrix on its face value, it may
search for evidence, direct or substantial, which
may lend assurance to her testimony. (Vide:
Vimal
Suresh Kamble v. Chaluverapinake Apal S.P.
Anr., AIR 2003 SC 818; and
Vishnu v. State of
Maharashtra, AIR 2006 SC 508).”

The ratio of the aforesaid judgments clearly shows that if the

court finds it difficult to accept the version on the prosecutrix on the

face value, the corroboration is required in support of her

contention. In the present case, as discussed above, there are

contradictions between the evidence of P.W. 3 from her earlier

version as well as from her statement under Section 164 Cr.P.C.

and apart from that if the prosecution story is believed to be true,

occurrence took place at 7.00 P.M. in the month of April and

generally in the month of April, at 7.00 P.M. complete darkness

does not prevail and as per the prosecutrix, when appellant caught

hold her, she raised hulla and further she was taken to some other
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house and she was raped and, thereafter, she was taken by the

appellant to his house and there also, she was raped but nobody

from the village came forward to help her and to depose in the

present case. Further as per the evidence of prosecutrix in the court,

mother and sister of the appellant were also living and as per the

evidence of I.O. there was no darwaza (door) in the room, in such a

situation committing rape repeatedly, when other family members

are also present in the house, itself appears to be suspicious. Further

though P.W. 1 and P.W. 2 has stated that prosecutrix came and told

them about the occurrence but no step was taken by them for

lodging F.I.R. on the same day. No doubt explanation has been

given that F.I.R has not been lodged, as the reputation of the village

was involved. It also appears that prosecutrix was absent from her

house for whole night, however, there is no evidence that either of

the family members of the prosecutrix tried to search in the village.

Moreover, in spite of claim that she was repeatedly raped, the

evidence of doctor does not show any sign of rape or any injury

either external or internal was found on the person of the

prosecutrix.

Considering the facts and circumstances discussed above,

prosecution case is full of improbabilities and appears to be false
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and concocted. In view of the same, conviction and sentence of the

appellant does not appear to be sustainable.

Accordingly, this appeal is allowed, impugned judgment

and order of sentence dated 20.12.2013, passed by Shri Ashok

Kumar, Adhoc Additional Sessions Judge – I, Kaimur, Bhabua in

Sessions Trial No. 268 of 2013, is hereby set aside.

As the appellant is in custody, he is directed to be released

forthwith.

(Vinod Kumar Sinha, J)

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