IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.468 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- BANKA
Laxami Thakur @ Laxman Thakur, son of Sri Bichho Thakur, resident of village
Gaura (Manjhi Dih), P.S. Chandan (Anandpur), District Banka
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent
Appearance :
For the Appellant/s : Mr. Subhash Kumar Jha, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 15-03-2018
Sole appellant has been convicted under Section 376 of the
Indian Penal Code and sentenced to undergo rigorous imprisonment
for eight years vide judgment and order dated 23.8.2003 passed by Sri
Bijoy Prasad Poddar, the then IInd. Additional Sessions Judge, Banka
in Sessions Case No. 555 of 2001. However, other accused Bichho
Thakur has been acquitted from the charge levelled against him under
Section 120B IPC.
2. Prosecution case which has been initiated on the basis of
fardbeyan of informant Lalita Kumari (PW 2), in short, is that she had
gone to her field situated in Hariyasi Bahiyar for making passage to
bring water into the field and at that time accused Laxmi Thakur came
there and enquired from her as to whether she was bringing water into
her field and thereafter accused Laxmi Thakur lifted her into his lap
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forcibly and brought her into the Rahar field of Shado Mahton, where
she was subjected to rape by the appellant by pushing napkin in her
mouth. It is also the prosecution case that when mother of informant
began to take her to Anandpur O.P., accused Bichho Thakur
threatened her with dire consequences and stopped her from going to
Anandpur O.P.
3. On the basis of aforesaid fardbeyan, Chandan P.S.Case
No. 49 of 2000 was registered. Police after investigation submitted
charge sheet and cognizance for the offence has been taken and after
commitment the case traveled to the file of the learned trial judge for
trial and disposal.
4. During trial appellant was charged under Section 376 IPC
and another accused Bichho Thakur was charged under Section 120B
IPC.
5. In order to substantiate its case the prosecution has
examined altogether six witnesses, they are PW 1 Shakuni Devi, who
is mother of victim girl, PW 2 Lalita Devi, who is victim and
informant in this case, PW 3 Mahesh Yadav, who is a hearsay
witness, PW 4 Ramdeo Thakur and PW 5 Bonga Thakur @ Sahdeo
Thakur, who have been declared hostile by the prosecution, PW 6 Deo
Kishore Prasad is I.O of this case.
6. On behalf of defence also three witnesses have been
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examined, they are DW 1 Kartik Yadav, DW 2 Shankar Das and DW
3 Jitendra Mandal and the evidence of DWs 1 and 2 shows that they
were present at the place of occurrence and no such occurrence had
taken place and they had not seen victim Lalita Kumari and accused
appellant Laxmi Thakur at the time and place of occurrence and DW 3
is Pleader’s clerk, who has proved the medical report of Lalita Kumari
which has been marked as Ext.A. Defence of the accused person is of
innocence and of false implication.
7. Learned trial court after conclusion of trial has convicted
the appellant under Section 376 IPC and sentenced him as stated
above and acquitted the other accused Bichho Thakur.
8. Contention of learned counsel for the appellant is that
evidence of PW 2, the victim girl, is unbelievable and suffers from
infirmities and there is no eye-witness to the occurrence, except PW 2
and Doctor has not been examined in this case to support the
prosecution case. It has also been submitted that father of victim has
not been examined in this case and that also creates doubt about the
prosecution case. PW 1 is mother of victim girl and PW 2 is hearsay
witness and other witnesses have been declared hostile and even the
I.O. also appears to be an interested witness as he could not say as to
whose information he has come in village to record the fardbeyan
though he has found foot prints at the place of occurrence and he has
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admitted that clothes of the victim have not been seized nor it was
sent for chemical examination, as such, prosecution case suffers from
infirmities but the learned trial court has not considered the aforesaid
infirmities and convicted the appellant under Section 376 IPC, which
is not sustainable in the eye of law.
9. On the other hand, learned counsel for the State has
defended the judgment on the ground that there are sufficient evidence
available on record to show that it is the appellant who has committed
rape upon the victim girl and, as such, the conviction of the appellant
is just and proper and does not require any interference by this Court.
10. On considering the evidence available on record in the
background of submission of both sides it appears that PW 2 is the
informant in this case and her evidence discloses that about two years
prior at about 9 A.M. she had gone to Hariyasi Bahiyar to make
passage for water to her field and in the meantime accused appellant
Laxmi Thakur came there and asked what she was doing and her
evidence further discloses that she was lifted and thrashed in the
Rahar field of Bhado Mahton forcibly and after pressing napkin in her
mouth he committed rape upon her. Her evidence in paragraph-3
shows that she narrated as to how she was raped by the appellant in
details, though in the FIR no such details have been mentioned. Her
evidence also discloses that when she and her mother was going to
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Anandpur Out Post to lodge fardbeyan, accused Bichho Thakur, father
of appellant Laxmi Thakur stopped them from going to Anandpur Out
Post and threatened them for dire consequences. In her cross
examination she has admitted that Laxmi Thakur and Bichho Thakur
were son and father. Her evidence further discloses that she was going
to report about the occurrence to Bichho Thakur but he has denied
that he has no relationship with Laxmi Thakur. She has also admitted
that her father was alive.
11. PW 1 is mother of victim girl and in her evidence she has
stated that her daughter had gone to the field for making passage for
bringing water in Hariyasi Bahiyar and she came back and told her
that accused Laxmi Thakur had committed rape upon her. She tried to
come to Anandpur O.P. to lodge case against accused Laxmi Thakur
then accused Bichho Thakur threatened her with dire consequence if
case is lodged against his son Laxmi Thakur and on the next day Bara
Babu came and recorded the fardbeyan. Her evidence in cross
examination also discloses that her daughter told about the occurrence
in her house and she disclosed about the same to 2-4 persons after
arrival of the darogaji. Her evidence also shows that first her
statement was recorded and thereafter the statement of victim girl was
recorded, whereas fardbeyan shows that victim Lalita Kumari has
made her first statement.
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12. PW 3 is Mahesh Das and hearsay witness and he has
stated in his evidence that he saw Lalita Kumari and her mother
crying and Lalita Kumari told him that she was raped by Laxmi
Thakur. However, there is nothing like that in the evidence of PW 2,
who is the victim girl that she disclosed the same to PW 3. As such,
evidence of this witness does not appear to be believable.
13. PWs 4 and 5 have been declared hostile and there is
nothing relevant in their evidence for just decision of the case.
14. PW 6 is the I.O. and in his evidence he has stated that he
came to know about the occurrence and recorded the statement of
victim girl at village. He has found foot prints at the place of
occurrence but he has not mentioned about the same in the diary. His
evidence also shows that he has not seized sari of the victim.
15. Prosecution has not examined the Doctor who is said to
have examined the victim girl for the reasons best known to the
prosecution and no such explanation has been given for that but
defence has brought on record the injury report as Ext.
A, which has been proved by a formal witness. The defence witnesses
have been examined to show that no such occurrence has taken place
and at the time of occurrence DWs. 1 and 2 were present and they had
not seen Lalita Kumari and Laxmi Thakur at the place of occurrence.
16. On perusal of entire evidence it appears that except PW 2
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there is no eye-witness to the occurrence and even Doctor, who has
treated the victim girl, has not been examined and medical report has
not legally been brought on record to show that she was suffering
from any injury and in such a situation the finding of the learned trial
court creates doubt about the prosecution case. It further appears that
in this case fardbeyan was recorded by PW 6 and in his evidence he
has not mentioned as to whose information he reached to the village
to record the fardbeyan and for such act of I.O. It further appears that
PW 6 is the investigating officer in this case and he has taken over the
investigation also. Hon’ble Supreme Court has deprecated such
practice as being informant of this case, he would try to justify his
action in the court. It further appears that in spite of occurrence took
place on 30.8.2000 nobody was informed about the same. It further
appears that though prosecution evidence shows that victim girl was
lifted by appellant Laxmi Thakur, thrashed her on the ground and
committed rape upon her and details of commission of rape has been
given by PW2 but no question has been asked from the appellant to
the evidence available against the appellant on which learned trial has
tried to rely upon, rather a general question has been asked to the
accused that on 30.8.2000 in village Goura Hariyali Bahiyar he has
forcibly committed rape upon Lalita Kumari which does not appear to
be proper compliance of Section 313 Cr.P.C. Hon’ble Apex Court in
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the case of Sukhjit Singh v. State of Punjab : (2014) 10 SCC 270
after relying upon earlier judgments of the Hon’ble Supreme Court,
including Ajay Singh vs. State of Maharashtra : (2007) 12 SCC
341 has laid down the principle in paragraph-14 of the judgment for
recording statement of the accused under Section 313 Cr.P.C., which
is as follows :
“14. The word “generally” in Sub-section (1)(b)
does not limit the nature of the questioning to one or
more questions of a general nature relating to the
case, but it means that the question should relate to
the whole case generally and should also be limited
to any particular part or parts of it. The question
must be framed in such a way as to enable the
accused to know what he is to explain, what are the
circumstances which are against him and for which
an explanation is needed. The whole object of the
section is to afford the accused a fair and proper
opportunity of explaining circumstances which
appear against him and that the questions must be
fair and must be couched in a form which an
ignorant or illiterate person will be able to
appreciate and understand. A conviction based on
the accused’s failure to explain what he was never
asked to explain is bad in law. The whole object of
enacting Section 313 of the Code was that the
attention of the accused should be drawn to the
specific points in the charge and in the evidence on
which the prosecution claims that the case is made
out against the accused so that he may be able to
give such explanation as he desires to give.”
Considering the aforesaid settled principle of law laid down
in the case of Sukhjit Singh (supra), it appears that in present case also
the requisites questions are not put to the accused and that will
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amount to non compliance of the statutory requirement of Section 313
Cr.P.C., as such, prejudice is deemed to have been caused to the
accused and this vitiates the entire trial and a conviction based on
such a vitiated trial is unsustainable. Learned trial court has not
considered this aspect of the matter and convicted the appellant under
Section 376 IPC.
17. Considering the above infirmities and inconsistencies
discussed above, the conviction of the appellant does not appear to be
sustainable.
18. Accordingly, this appeal is allowed. The impugned
judgment and order are set aside. As the appellant is on bail, he is
directed to be discharged from the liabilities of his bail bond.
(Vinod Kumar Sinha, J)
spal/-
AFR/NAFR
CAV DATE
Uploading Date 19.3.2018
Transmission 19.3.2018
Date
