Mulin Das @ Molin Das & Anr vs The State Of Bihar on 31 July, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.163 of 2014
Arising Out of PS.Case No. -7 Year- 2010 Thana -BARSOI District- KATIHAR

1. Mulin Das @ Molin Das, son of Late Dhanman Das

2. Baya @ Baya Chunnari, son of Late Baikunth Chunari, Both residents of
Village-Jalkumore, P.S.-Barsoin, District-Katihar.

…. …. Appellants
Versus
The State of Bihar

…. …. Respondent

Appearance :

For the Appellant/s : Mr. J.K.Giri, Advocate
For the Respondent/s : Mr. S.A. Ahmad, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 31-07-2017

This appeal is directed against the judgment dated

10.3.2014 and order dated 12.3.2014 passed by Sri Harindra Nath,

Adhoc Additional Sessions Judge, 1st. Katihar in Sessions Trial No.

131 of 2011, by which he has convicted both the appellants under

Sections 363, 366A and 376-G of the Indian Penal Code and

sentenced them to undergo rigorous imprisonment for five years and

fine of Rs.2000/- under Section 363 IPC and five years R.I. and fine

of Rs.2000/- under Section 366A and they were further awarded

sentence to undergo R.I. for ten years and fine of Rs.2000/- each

under Section 376-G of the Indian Penal Code and in default of

payment of fine they were further directed to undergo simple

imprisonment for two months and the sentences were directed to run
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concurrently. The judgment further shows that by the said judgment

other two accused Maya Devi and Sandhaya Devi have been acquitted

from the charges under Sections 363, 366A and 120B of the Indian

Penal Code.

2. The prosecution case, in short, is that P.W.4 Chhobi

Kumari filed a complaint case No. 3081 of 2009 in the court of Chief

Judicial Magistrate, Katihar on 27.11.2009, which was sent to the

police for institution of case under Section 156(3) Cr.P.C. and on the

basis of the same, Barsoi P.S.Case No. 7 of 2010 dated 5.10.2010 has

been instituted under Sections 120B, 323, 364, 366 and 376 of the

Indian Penal Code.

3.. As per complaint case the prosecution case is that on

the day of occurrence, i.e., 3.10.2009 at about 5 P.M. while

complainant was returning along with her mother, the appellants came

on a motorcycle in drunken condition and forcibly lifted her on the

motorcycle, pointing knife on her mother and fled away carrying her.

Further case is that the complainant tried to raise alarm but she was

gagged by handkerchief inside the mouth of the complainant and she

became unconscious. It is also her case that intoxicated cotton was put

on her mouth and thereafter she became unconscious and when she

regained her consciousness, she found herself in a room and unable to

move because she was feeling pain in whole body, due to rape

committed on her during whole night and blood was oozing from her
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private part. It is also the prosecution case that she came to know that

she was at Silliguri. This is also the case of the complainant that

thereafter appellants got her to Barsoi Railway Station and left her

there and fled away. Thereafter she returned to her house with the

help of a tempo driver and narrated the story to her father and mother.

It is also the prosecution case that the victim went to complain about

the same to the wife of appellant Molin Das, namely, Sandhya Devi

and Maya Devi but they abused her and assaulted by fists and slaps.

Aaccording to the complainant, she was under treatment of a private

Doctor, as such, the complaint was filed with delay. Further case is

that accused persons had committed the occurrence due to prior

enmity.

4. After investigation police has submitted charge-sheet

against the appellants and Maya Devi and Sandhya Devi under

Sections 363, 366A, 376 and 120B of the Indian Penal Code,

thereafter cognizance of the offence was taken and the case was

committed to the court of sessions, which ultimately came to the court

of Sri Harindra Nath, Adhoc Additional Sessions Judge, 1st, Katihar

for trial and disposal. Charges have been framed against the appellants

under Sections 363, 366A, 120B and 376 IPC.

5. During trial it appears that nine witnesses have been

examined on behalf of prosecution, they are P.W.1 Sawariya Chunari

(father of the victim), P.W.2 Kedar nath Mahant, P.W.3 Deepali
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Devi(mother of victim), P.W.4 Shobhi Kumari (the prosecutrix),

P.W.5 Naresh Chunari, P.W.6 Bhupendra Chunari, P.W.7 Dr. Jyotish

Saha, P.W.8 Panna Kumar Singh and P.W.9 Atulbir Singh (Judicial

Magistrate 1st Class, Katihar). Out of the aforesaid witnesses P.W.8 is

the Investigating Officer and P.W.9 is Judicial Magistrate, who has

recorded statement of the victim girl under Section 164 Cr.P.C. and

P.W.7 is Doctor, who has examined the victim girl.

6. Apart from the above oral evidence, the following

documents have been admitted into evidence on behalf of prosecution

they are Ext.1 Medical certificate of the victim, Ext.2 endorsement on

the complaint petition, Ext.3 is formal FIR, Exts. 4 and 5 are charge-

sheet and Ext.6 is statement under Section 164 Cr.P.C.

7. No oral or documentary evidence has been adduced

on behalf of defence.

8. As per statement of appellants under Section 313

Cr.P.C. as well as their cross examination defence of the appellants is

total denial of the occurrence and of false implication in the present

case.

9. Learned trial court after completion of trial convicted

the appellants under Sections 363, 366A and 376-G IPC and

sentenced them, as stated above and acquitted the other appellants

Maya Devi and Sandhya Devi from the charges framed against them

and also acquitted the appellants from the charge under Section 120B
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IPC.

10. From perusal of the judgment it appears that learned

trial court has relied upon the evidence of prosecutrix (P.W.4) with

regard to kidnapping and rape and it has found corroboration of the

evidence of P.W.4 by the evidence of P.Ws. 1 and 2 and on the basis

of that he convicted the appellants under Sections 363, 366A and 376-

G IPC.

11. Submission of learned counsel for the appellants is

that the very initiation of the prosecution case appears to be doubtful

because as per prosecution case, she was kidnapped on 3.10.2009 and

taken on motorcycle and her evidence shows that at that time P.W.3,

mother of the victim and P.W.1 were present but there is absolutely

nothing on record that they have approached the police with regard to

kidnapping of girl or made any search of the girl, rather evidence

available on record shows that even after her return after two days of

occurrence no steps were taken to approach the police or to file

complaint and complaint case was filed after more than 50 days after

her return to her house. It has also been submitted that there is no

independent witness to the occurrence of kidnapping and though

P.Ws. 2, 5 and 6 have themselves claimed to be independent

witnesses but P.W.6 has been declared hostile as he has not supported

the prosecution case and so far P.Ws. 2 5 are concerned, both

appear to be hearsay witnesses and P.W.2 has admitted in his
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evidence in cross examination that his statement was recorded after

more than one year of the occurrence of kidnapping of the prosecutrix

by the appellants and had occurrence been true, natural conduct of

P.Ws. 1 and 3 would have been to approach police and lodge a case

before the police or made a complaint petition before the court of

Chief Judicial Magistrate.

12. Further submission of learned counsel for the

appellants is that the prosecutrix has alleged that she was subjected to

rape at Silliguri but her evidence as well as earliest version of the

prosecution in the complaint petition shows that when she regained

her consciousness, she came to realize that she was raped by the

appellants and though she has stated about commission of rape in her

evidence but no independent witness was examined by prosecution to

show her presence at Siliguri, even medical report does not show that

any rape was committed on her. It has also been submitted that FIR

READ  A.E.Rani vs V.S.R. Sarma on 14 December, 1994

shows that she was examined by a private Doctor and she was taken

to her home from the Railway Station by a tempo driver but neither

the treating Doctor nor the tempo driver has been examined by the

prosecution nor there is anything to show the Investigating Officer has

recorded their statement and the above facts also show that the

prosecution story is a manufactured story which has been filed as the

prosecutrix and her family members were on inimical terms with the

appellants.

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13. It has also been argued that defence has suggested

that there was love affairs between Mulin Das (appellant No.1) and

the prosecutrix (complainant) and a suggestion has also been given to

that effect, though the same was denied by the prosecution witnesses

but that also creates a reasonable shadow of doubt about the

prosecution story. Submission is that the complainant in her evidence

disclosed that she was taken to Silligury and from Silliguri the

accused persons had taken her to Barsoi Railway Station but she

raised no alarm and not informed any person. It has also been argued

that the above circumstances clearly falsify the prosecution story and,

as such, conviction of the appellants under Section 363, 366A and

376-G IPC appears to be doubtful and is not sustainable in the eye of

law.

14. On the other hand, learned APP has submitted that

the delay in lodging the case has properly been explained by the

prosecutrix as well as P.Ws. 1 and 3, who are father and mother of the

prosecutrix, stating that when she came back she went to complain

about the same to the wives of appellant Nos.1 and 2 they abused and

assaulted her and further the prosecutrix has stated in her complaint

petition itself that she was under treatment of a private Doctor and

also stated in her evidence that she was under domestic treatment, as

such, she could not earlier lodge the case. Further submission of

appellants is that the evidence of prosecutrix or in the evidence of
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P.Ws. 1 and 3, who are father and mother, are consistent and there is

no contradiction in their evidence and their evidence found

corroborated by the evidence of P.W.2 and P.W.5 also, though they

are hearsay witnesses but they have stated about the kidnapping. So

far conviction under Section 376-G IPC is concerned, in cases of rape

the evidence of prosecutrix itself is sufficient for conviction unless it

has been found unreliable or unbelievable. It has also been submitted

that medical report also supports the prosecution case and as hymen

was found old ruptured. Further submission is that evidence of P.W.7,

who is Doctor, shows that the girl was minor at the time of occurrence

and the aforesaid evidence is supported by the evidence of P.Ws. 1

and 3 also, who are her father and mother, in support of the

prosecution case, as such, the conviction of the appellants under

Sections 363, 366A and 376-G IPC is just and proper, which does not

require any interference by this Court.

15. On the above background this Court is going to

examine the evidence available on record. P.W.4 is the prosecutrix in

this case and as per her evidence in chief while she was coming with

her mother at 5 P.M. in the evening, the appellants came on a

motorcycle pointing knife on her mother, have taken her away on

motorcycle. Her evidence further shows that she tried to raise alarm

but they have put cotton on her mouth and due to that she became

unconscious. Her evidence also shows that her father was also there at
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Chowk. The aforesaid evidence found corroboration from the

allegation made in the complaint petition. However, there are some

omissions in her evidence as in her complaint petition she has stated

that she tried to raise alarm but appellants closed her mouth by putting

handkerchief and in the court, she has not stated so. P.W.1 is the

father of the victim who has stated in his evidence that while he was

at Barsoi Raschowk Bazar he saw that her daughter was lifted in the

motorcycle by the appellants and her daughter was crying and they

have searched for her but she was not found. P.W.3, who is mother of

victim, in her evidence in chief has stated that pointing knife on her

neck the appellants have lifted the prosecutrix. P.W.2 is an

independent witness and he claims himself to be an eye-witness to the

occurrence of kidnapping but his cross examination shows that his

statement was recorded by the police after one year eight months.

P.W.5, who is also an independent witness, has stated in his evidence

that appellant Mulin Das had taken away the prosecutrix. However, in

his cross examination he has stated that he had not seen the

occurrence. P.W.6, who is also an independent witness, has not

supported the prosecution case and has been declared hostile.

16. From the discussions made above, it appears that

story of kidnapping is concerned, there are evidences of P.W.4, the

prosecutrix, which found support from the complaint petition as well

as the evidence of P.Ws. 1 and 3, who are father and mother of the
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prosecutrix and also found support from the evidence of P.W.2.

However, in view of evidence of P.W.2 that his statement was

recorded after 20 months of the occurrence, it creates a shadow of

doubt about the credibility of his evidence being an eye-witness.

Apart from that P.W.4 has also been cross examined and in her cross

examination in paragraph-4 she has stated she was knowing the

appellants for the last 6-7 years and further admitted in paragraph-4

that appellants do not have motorcycle and also stated that three

persons came on motorcycle and who was the third person she does

not know. This piece of evidence of P.W.4 makes her evidence

contrary to her evidence in chief or earlier version. Further she has

stated in paragraph-5 that before raising alarm she was made

unconscious. Similarly, P.W.3 has also stated in her cross examination

that she knows the appellants for last 15-20 years and in paragraph-5

she has stated that prosecutrix has raised alarm. P.W.1 has also stated

in his evidence that she was crying. The above evidence of P.Ws. 1

and 3 is contrary to the evidence of P.W.4 (prosecutrix) It also

appears from the evidence of P.W.1 that she cannot say the colour of

the motorcycle, as it was dark night but according to prosecution case,

occurrence is of 3.10.2009 and the time was 5 P.M. in the evening.

P.W.1 has also been cross examined and he has stated that he could

not say the number of motorcycle. On the other hand, P.W.4 had

stated that the appellants have no motorcycle. There is nothing
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available on record to show that the Investigating Officer has ever

tried to seize the said motorcycle. The above evidence clearly creates

doubt about the prosecution story of kidnapping by motorcycle.

Evidence of P.W.1 also discloses that on his “hullah”,

people came and thereafter he came to his house. His evidence in

paragraph-5 shows that two days after recovery of the girl he went to

police station. The above evidence shows that though prosecutrix was

kidnapped in front of P.W.1 and P.W.3 and P.W.2 claims that he had

seen the occurrence but no step has been taken by them to inform the

police or any active search was made to find out the girl and even,

they had not tried to approach any high official or lodge a complaint

case.

17. Further evidence in chief of P.W.4 is that she was

taken to Siliguri and kept her in a room and both the appellants have

committed rape upon her causing bleeding to her and appellants had

given some medicine to her. Her evidence finds support from

complaint petition, her statement under Section 164 Cr.P.C. and

evidence of P.Ws. 1 and 3, though they are hearsay witnesses. In

complaint petition she has stated that on the next day of the

READ  Subir Das @ Bapi Das And Sova Das-vs-State Of West Bengal on 18 April, 2006

occurrence, when she regained consciousness, she found herself in

Siliguri and she was not in a condition to move, as they continued to

commit rape upon her throughout night and she was bleeding

profusely. As such, P.W.4 has made development of prosecution story
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in her evidence in court. There is nothing available on record to show

that Investigating Officer ever made any effort to find out place of

occurrence of rape or he made any inquiry from the local people.

18. From the discussions made above, it appears that

date of occurrence is 3.10.2009 and according to prosecutrix, she

returned on 4/5.10.2009 but complaint petition was filed on

27.11.2009 before the court of Chief Judicial Magistrate after more

than 53 days of the occurrence. There is no evidence available on

record to show that they have either approached the police or lodged

any complaint in the court. Though P.W.1 has stated that he searched

his daughter but his cross examination in paragraph-5 shows that first

he said that he went to police station after two days of the occurrence.

Again he said that he went to police station two days prior to recovery

of the girl. The above evidence of P.W.1 does not inspire confidence

as he is making conflicting evidence regarding going to the police

station. Though she had taken plea in her evidence that she was under

domestic treatment but her complaint petition shows that she was

under treatment of private doctor and that causes delay. Nothing is in

her evidence or evidence of P.Ws. 1 and 3 as to what type of domestic

treatment was going on and for which ailment and even name of

private doctor has not been mentioned.

19. I.O. has been examined in this case as P.W.8 and his

evidence shows that place of occurrence is 50 yards from the village
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of prosecutrix. There is also no evidence on record that as to whether

I.O. has tried to seize the motorcycle used in the occurrence or he ever

visited Siliguri to find about the second place of occurrence where

rape has been committed.

20. Submission of learned counsel for the appellants is

that as the appellants are rustic poor villagers they are not aware of the

technicalities or legal complication. On the other hand, there are

consistent evidence on the point of kidnapping and there is nothing

available on record to doubt about the story of kidnapping, as such,

delay in lodging FIR is immaterial in this case. Similarly, so far

medical report is concerned, the same shows that she has been used to

sexual intercourse since some time and she was also aged 17 years

and the evidence of P.Ws. 1 and 3 also shows that she was minor and,

as such, the evidence supports the prosecution case of kidnapping of a

minor girl and committing rape upon her. Submission is also made by

the State counsel that in rape cases, minor contradiction and

inconsistencies are immaterial.

21. At this juncture, I would like to discuss few

decisions of Hon’ble Supreme Court. Hon’ble Apex Court in a

decision in the case of State of Punjab vs. Gurmit Singh : AIR 1996

SC 1393 has held in paragraph-7 of the judgment that the Courts

cannot overlook the fact that in sexual offences delay in the lodging of

the FIR can be due to variety of reasons particularly the reluctance of
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the prosecutrix or her family members to go to the police and

complain about the incident which concerns the reputation of the

prosecutrix and the honour of her family. It is only after giving it a

cool thought that a complaint of sexual offence is generally lodged

and in the said paragraph it has been observed that the testimony of

the victim in such cases is vital and unless there are compelling

reasons which necessitate looking for corroboration of her statement

is required and the judgment also shows that corroboration as a

condition for judicial reliance on the testimony of the prosecutrix is

not a requirement of law but a guidance of prudence under given

circumstances. It is also stated that it must not be overlooked that a

woman or a girl subjected to sexual assault is not an accomplice to the

crime but is a victim of another person’s lust and it is improper and

undesirable to test her evidence with a certain amount of suspicion,

treating her as if she were in accomplice.

Further Hon’ble Supreme Court in another decision in the

case of Vijay @ Chinee vs. State of Madhya Pradesh : 2010 (4)

PLJR SC 1 in paragraph-15 of the judgment has held that the law that

emerges on the issue is to the effect that statement of prosecutrix, if

found to be worthy of credence and reliable, requires no

corroboration. The court may convict the accused on the sole

testimony of the prosecutrix.

Hon’ble Supreme Court in the case of Narender Kumar
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vs. State (NCT of Delhi) : (2012) 7 SCC 171 has discussed in

paragraph-20 of the judgment that “it is a settled legal proposition

that once the statement of the 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.”

On considering the above, in paragraph 29 30 it has

been held as follows :

“29. However, even in a case of rape, the onus is
always on the prosecution to prove, affirmatively
each ingredient of the offence it seeks to establish
and such onus never shifts. It is no part of the
duty of the defence to explain as to how and why
in a rape case the victim and other witnesses have
falsely implicated the accused. The prosecution
case has to stand on its own legs and cannot take
support from the weakness of the case of defence.
However great the suspicion against the accused
and however strong the moral belief and
conviction of the court, unless the offence of the
accused is established beyond reasonable doubt
on the basis of legal evidence and material on the
record, he cannot be convicted for an offence.
There is an initial presumption of innocence of
the accused and the prosecution has to bring
home the offence against the accused by reliable
evidence. The accused is entitled to the benefit of
every reasonable doubt.

30. The prosecution has to prove its case beyond
reasonable doubt and cannot take support from
the weakness of the case of defence. There must
be proper legal evidence and material on record
to record the conviction of the accused. The
conviction can be based on sole testimony of the
prosecutrix provided it lends assurance of her
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testimony. However, in case the court has reason
not to accept the version of the prosecutrix on its
face value, it may look for corroboration. In case
the evidence is read in its totality and the story
projected by the prosecutrix is found to be
improbable, the prosecutrix’s case becomes liable
to be rejected.”

In another decision in the case of Mohd. Ali alias Guddu

vs. State of Uttar Pradesh : (2015) 7 SCC 272 the Hon’ble Supreme

Court after considering the delay in lodging FIR has held in

paragraphs 21, 27 and 29 of the judgment which reads as follows :

“21. It is apt to mention here that in rape cases
the delay in filing the FIR by the prosecutrix or
by the parents in all circumstance is not of
significance. The authorities of this Court have
granted adequate protection/allowance in that
aspect regard being had to the trauma suffered,
the agony and anguish that creates the
turbulence in the mind of the victim, to muster
the courage to expose oneself in a conservative
social milieu. Sometimes the fear of social stigma
and on occasions the availability of medical
treatment to gain normalcy and above all the
psychological inner strength to undertake such a
legal battle. But, a pregnant one, applying all
these allowances, in this context, it is apt to refer
to the pronouncement in
Rajesh Patel vs. State of
Jharkhand wherein in the facts and
circumstances of the said case, delay of 11 days
in lodging the FIR with the jurisdictional police
was treated as fatal as the explanation offered
was regarded as totally untenable. This Court
did not accept the reasoning ascribed by the
High Court in accepting the explanation as the
same was fundamentally erroneous.

27. Be it clearly stated here that delay in
lodging FIR in cases under
Section 376 IPC
would depend upon facts of each case and this
Court has given immense allowance to such
delay, regard being had to the trauma suffered
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by the prosecutrix and various other factors, but
a significant one, in the present case, it has to be
appreciated from a different perspective. The
prosecutrix was missing from home. In such a
situation, it was a normal expectation that either
the mother or the brother would have lodged a
missing report at the police station. The same
was not done. This action of PW 2 really throws
a great challenge to common sense. No
explanation has been offered for such delay. The
learned trial Judge has adverted to this facet on
an unacceptable backdrop by referring to the
principle that prosecutrix suffered from trauma
and the constraint of the social stigma. The
prosecutrix at that time was nowhere on the
scene. It is the mother who was required to
inform the police about missing of her grown-up
daughter. In the absence of any explanation, it
gives rise to a sense of doubt.

29. Be it noted, there can be no iota of doubt that
on the basis of the sole testimony of the
prosecutrix, if it is unimpeachable and beyond
reproach, a conviction can be based. In the case
at hand, the learned trial Judge as well as the
High Court have persuaded themselves away
with this principle without appreciating the
acceptability and reliability of the testimony of
the witness. In fact, it would not be
inappropriate to say that whatever the analysis
in the impugned judgment, it would only
indicate an impropriety of approach. The
prosecutrix has deposed that she was taken from
one place to the other and remained at various
houses for almost two months. The only
explanation given by her is that she was
threatened by the accused persons. It is not in
her testimony that she was confined to one place.
In fact, it has been borne out from the material
on record that she had traveled from place to
place and she was ravished a number of times.

Under these circumstances, the medical evidence
gains significance, for the examining doctor has
categorically deposed that there are no injuries
on the private parts. The delay in FIR, the non-
examination of the witnesses, the testimony of
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the prosecutrix, the associated circumstances
and the medical evidence, leave a mark of doubt
to treat the testimony of the prosecutrix as so
natural and truthful to inspire confidence. It can
be stated with certitude that the evidence of the
prosecutrix is not of such quality which can be
placed reliance upon.”

22. Considering the settled principle of law laid down by

the Hon’ble Supreme Court in the above judgments and catena of

decisions it appears that no doubt it is true that infirmities in the

investigation will not make prosecution case unbelievable as

investigation is not under the control of the prosecutrix or her family

members. It further appears that for conviction under Section 376

IPC, no corroboration as a rule is required of the evidence of

prosecutrix as prosecutrix shall not be compared to a accomplice

rather her evidence is on higher degree than the injured witnesses and

general reliance shall be placed on the evidence of prosecutrix unless

there are not free from embellishment or in totality of the prosecution

case, her evidence does not inspire confidence and does not appear to

be believable.

23. As discussed above, in this case there is delay in

lodging FIR of almost 53 days and the delay has not been properly

explained rather cause of delay was as she was under domestic

treatment is contrary to complaint petition when she has stated that

she was under treatment of a private doctor and the name of the doctor

has not ever been disclosed. According to prosecution case the
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occurrence took place at 5 P.M. in the evening and they have

disclosed that other persons were also present there and P.Ws 1 to 4

and 5 6 shown as eye-witnesses have been examined but P.W.6 has

been declared hostile stating that he has not seen the occurrence and

P.W.2 though claims himself as an eye-witness but has stated that his

statement was recorded after one year 8 months of the occurrence by

police. That creates a serious doubt about his credibility. P.W.5 is

only hearsay witness. So far P.Ws. 1 and 3 are concerned, they are

father and mother of the prosecutrix and they were aware about

kidnapping rather claim to be eye-witnesses but in spite of that they

have not raised alarm nor they have filed complaint to the court or

have gone to the police. There is also nothing to show that they

approached the Panchayat or any Panchayati was held and kept

waiting for prosecutrix and even when she returned the case was

lodged after 53 days of her return. Above facts coupled with the fact

that the prosecutrix has stated in her cross examination that three

persons came on motorcycle, which is contrary to her evidence in

chief and P.W.1 though claims to be eye-witness, could not disclose

the number of motorcycle and P.W.3, mother of victim,and even

could not state about colour of motorcycle. Further evidence of P.Ws.

1 and 3 disclosed that she was raising alarm, whereas the evidence of

P.W.4 does not show that. The above contradiction, which are minor

and in normal circumstances, can not be of much importance. But
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where all the circumstances, i.e., there is inordinate delay of 53 days,

not being properly explained, coupled with the conduct of P.W.3 for

not approaching police or any other authority or Panchayat are

considered together, they certainly create a serious doubt about the

prosecution case.

24. On the other hand, suggestion has been given to

P.W.4 that there was love affairs between appellant Mulin Das and the

victim and as he has not married her, as such the false case has been

filed implicating the appellants in this case. Further evidence of P.W.3

shows that there was enmity between the appellants and family

members of the informant from before.

25. Hon’ble Supreme Court in the case of Raju and

others vs. State of Madhya Pradesh : (2008) 15 SCC 133 it has

been held in paragraph-11 of the judgment as follows :

“11.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 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.”

Patna High Court CR. APP (SJ) No.163 of 2014 dt.31-07-2017

21/21

All the above circumstances, as stated above, create

reasonable shadow of doubt about the prosecution case and thus

appellants are entitled for benefit of doubt.

26. Considering the entire discussions made above, this

appeal is allowed. Impugned judgment and order are set aside. As the

appellants are in custody, they are directed to be released forthwith, if

not required in any other case.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE
Uploading Date 31.7.2017
Transmission 01.8.2017
Date

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