Bishnu Bhakat vs State of Jharkhand

The instant Criminal Appeal has been preferred against judgment of conviction dated 21.05.2004 and order of sentence, dated 22.05.2004, passed

by 1st Additional Sessions Judge, Jamshedpur, in Sessions Trial No. 244 of 2003 arising out of C/1 Case No. 721 of 2002, whereby the sole appellant

Bishnu Bhakat has been convicted for the offence punishable under Section 376 of the Indian Penal Code and awarded rigorous imprisonment for

seven years and also sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 498 A of the Indian Penal

Code and both the sentences are directed to run concurrently.Â

The prosecution case is based upon a complaint petition filed by complainant Kalyani Bhakat before the Chief Judicial Magistrate, Jamshedpur on

09.08.2002, against Bishnu Bhakat, brother-in-law, father-in-law and mother-inlaw, alleging therein, that her marriage was solemnized with Ashwani

Kumar Bhakat in the month of Baisaakh 1999, as per Hindu rites and customs, at Kalikapur, Potka. The marriage was a settled marriage by the

guardians of both the family. At the time of marriage, Rs. 50,000/- cash and various items were given, worth Rs. 40,000/-. Initially the complainant

stayed happily at her sasural but subsequently, she was shocked to know, that her husband Ashwani Kumar Bhakat is a weak and having unsound

mind but even then, like Indian Hindu women, she tolerated and tried to adjust herself but after one year of the marriage, the accused persons started

torturing by abusing in filthy language and she was confined in a room, assaulted and not provided food. The complainant has further alleged, that in

the middle of year 2001, in the absence of her husband, she was assaulted and threatened by the accused/appellant for demand of dowry, with

intention to outrage her modesty. The complainant objected but was brutally assaulted by the accused. In the month of January and March, 2002,

when her husband has gone out of village, the accused/appellant entered into the room and forcibly under threat, raped the complainant but due to

social prestige, she did not complained the same to anybody. Again on 14.07.2002 at about 11 p.m. in the night, the accused/appellant entered into her

room and under threat, committed intercourse with the complainant and threatened that, if she will disclose it to anyone, she will be killed. The

complainant has further stated, that her father-in-law and mother-in-law had always supported the accused/appellant. The complainant went to the

police station, on 16.07.2002 but no action was taken and thus, she filed a complaint case on 09.08.2002, before the learned Chief Judicial Magistrate,

Jamshedpur. On 13.08.2002, solemn affirmation of the complainant was recorded, where she has stated, that her marriage was solemnized with

Ashwani Kumar Bhakat in the month of Baisakh, 1999 and after that she could know, that her husband is abnormal. At the time of marriage Rs.

50,000/- cash and article of worth Rs. 40,000/- were given. She has also stated, that her father-in-law, mother-in-law and brother-in-law used to

torture her and when her husband used to go out, her brother-in-law used to behave badly with her. In January, 2001 to March, 2002, she was raped

by brother-in-law, who also gave threatening, that she should not disclose it to anybody, otherwise she will be killed. On 14.07.2002 at 11.00 p.m., she

was again raped by her younger brother-in-law. When she disclosed this fact to her father-in-law and mother-in-law, she was again tortured by them

and they dragged her out of the house. Thereafter, she went to the house of her elder sister, who is residing in the same village and she went to the

police station, on 16.07.2002 but no action was taken and thus, she filed a complaint case.Â

The witnesses, examined in this case, have been enquired under Section 202 Cr.P.C. and the cognizance of the offence under Sections 498 A and

376 of the Indian Penal Code against all the accused persons, and subsequently, the case was committed to the court of Sessions against the appellant

vide order dated 07.06.2003. The charge has been framed against the appellant under Sections 376 and 498 A of the Indian Penal Code, on

06.11.2003, to which the appellant has pleaded his innocence and thus was put under trial.

To prove the case of the complainant-prosecution, four witnesses has been examined including the complainant herself. Budheshwar Bhakat,

brotherin-law of the complainant has been examined as P.W. 1, the complainant herself has been examined as P.W. 2, Nishikant Bhakat, father of the

complainant has been examined as P.W. 3 and Kamal Lochan Bhakat, maternal uncle of the complainant has been examined as P.W. 4 and the

complaint petition, which is in five pages has been proved and marked as Exhibits- 1 to 1/4.

  After closure of the prosecution evidence the appellant was examined under Section 313 Cr.P.C. on 21.01.2004, to which the appellant has

denied the allegation levelled against him.  Â

After hearing the parties and on the basis of the materials available on record, the learned Trial Court passed the impugned judgment of conviction

and order of sentence. Being aggrieved and dissatisfied, the appellant has preferred the present appeal before this Hon’ble Court.

Heard, learned counsel for the appellant, Ms. Madhulika Dasgupta, Advocate assisted by Mr. D.K. Karmakar, Advocate. Learned counsel for the

appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned

counsel for the appellant has further submitted, that the learned Trial Court has passed the impugned judgment of conviction and order of sentence in

the mechanical manner without appreciating the evidence brought on record. Learned counsel for the appellant has further submitted, that the learned

Trial Court has not taken judicial notice with respect to delay in lodging the complaint case, as the initial occurrence took place in the year 2001itself

and subsequently in the month of January and March 2002 and lastly on 14.07.2002, for which a complaint case was filed on 09.08.2002. Learned

counsel for the appellant has further submitted, that before lodging the F.I.R., the complainant never informed any superior authority that an F.I.R. has

not been lodged by the police officer of the police station. Learned counsel for the appellant has further submitted, that the evidence adduced by

complainant, Kalyani Bhakat (P.W. 2), is an exaggerated version, which has been deposed in the court. She has never stated that, under threat and on

the point of a pistol, she was raped either in complaint petition or in her solemn affirmation in the Court but subsequently, while she was in the court,

she has exaggerated her case. The learned Trial Court ought to have taken judicial notice of the fact, that as the present case has been instituted, on

the basis of a complaint petition, where no investigation has been done by the police officer, and the court ought to have very cautious in appreciating

the evidence. Learned counsel for the appellant has further submitted, that there is no independent witness to support the case of the prosecution nor

the sister of the complainant, who is residing in the same village, to whom the complainant has disclosed about the occurrence, in the same night, has

been examined in this case. Learned counsel for the appellant has further submitted, that there is no medical report with regard to commission of rape

or any torture or assault made on the complainant, as alleged by the complainant in her complaint petition or her deposition in the court. Learned

counsel for the appellant, Ms. Madhulika Dasgupta, Advocate has further submitted, that from evidence of the complainant (P.W. 2) Kalyani Bhakat,

it is apparent, that she has admitted before the court that, whenever she (P.W.2) used to go to her parents house, she used to go along with Bishnu

Bhakat i.e. younger brother-in-law (accused/appellant). Learned counsel for the appellant has submitted that, if a person is committing rape with a

lady frequently, on the point of threatening then, definitely, the lady will not go along with that person, who is committing such heinous act upon her and

on the basis of such submission, learned counsel for the appellant has submitted, that it is a case, where for oblique motive a complaint petition has

been filed, in which the appellant has been convicted by the learned Trial Court. Learned counsel for the appellant has further submitted, that though

the case was instituted under Section 376 of the Indian Penal Code but a compromise petition was filed, which was not accepted by the learned Trial

Court but that is sufficient to establish, that no such offence has been committed by the appellant and for oblique motive, the present case has been

filed, in which the appellant has been convicted by the learned Trial Court.

Learned counsel for the State, Mr. Manoj Kumar, Additional Public Prosecutor has vehemently argued the case and has supported the impugned

judgment of conviction and order of sentence. Learned counsel for the State has submitted, that the learned Trial Court has rightly passed the

impugned judgment of conviction and order of sentence, on the basis of the materials available on record, as the lady has stated before the court, that

she has been raped frequently by the appellant and lastly on 14.07.2002, for which she went to the police station but no F.I.R. was lodged and thus,

she went to the court for filing the complaint petition and thereafter the case was committed and charge was framed against the appellant, under

Sections 376 and 498 A of the Indian Penal Code. Learned counsel for the State has further submitted, that a lady will not put her chastity on doubt by

falsely alleging against her own younger brother-in-law for committing rape against her will and as such, the learned counsel for the State has

submitted that the impugned judgment of conviction and order of sentence is sustainable in the eyes of law.

Heard, learned counsel for the appellant Ms. Madhulika Dasgupta, Advocate assisted by Mr. D.K. Karmakar, Advocate and Mr. Manoj Kumar,

Additional Public Prosecutor appearing for the State and on perusal of the record i.e. the complaint petition, which has been marked as Exhibits- 1 to

1/4 and the evidence of four witnesses examined on behalf of the complainant- prosecution.     Budheshwar Bhakat as P.W. 1, Kalyani

Devi, victim as P.W. 2, Nishikant Bhakat, father of the victim as P.W. 3 and Kamal Lochan Bhakat, brother-in-law of the victim-complainant, who is

residing in the same village as P.W. 4. Kamal Lochan Bhakat (P.W. 4) is a hearsay witness, who has admitted before the court, that in the same night

i.e. on 14.07.2002 Kalyani came to his house after commission of the rape and informed about the occurrence and on the next day, Kalyani went to

the police station to lodge a F.I.R. alone. This witness has further stated, that Kalyani has disclosed about the occurrence to his wife but his wife has

not been examined in this case. Nishikant Bhakat (P.W. 3) is the father of the victim, who is also a hearsay witness. This witness (P.W. 3) has stated,

that her daughter was raped at the point of pistol, on 14.07.2002, after hearing this information, P.W. 3 came to the village but he was also abused.

This witness has further stated, that her daughter has disclosed about the commission of rape against her will, twice by the appellant. In paragraph- 5

of cross-examination, this witness (P.W. 3) has further stated that, whenever his daughter used to come to his house from sasural, she used to come

along with her brother-in-law and only once she came along with her husband. Kamal Lochan Bhakat (P.W. 4) is the maternal uncle of the victim,

but he has not deposed anything about the case. The victim (P.W. 2), who has stated during her examination in court, has not been mentioned in the

complaint petition nor stated in her solemn affirmation, she has given a different story which is an exaggerated form, from what she has mentioned in

the complaint petition or stated during her solemn affirmation. She has stated in paragraph- 6 of her cross-examination, that in March, 2002, she has

been raped once again by appellant, in month of July, 2002 she was raped on the point of pistol by undressing her, she was made completely naked at

around 11.00 p.m. in the night and because of fear, she could not say anything and thus physical relationship was established. She has proved her

complaint- petition, and each page of complaint petition has been marked as Exhibits- 1 to 1/4. During her cross-examination, she (P.W. 2) has further

stated, that in the month of August, 2001, the appellant caught hold of her from back, torn her blouse and established physical relationship first time in

the year 2002 in the month of January. From month of January, 2002 to July, 2002, thrice physical relationship was established but in paragraph 9 of

her cross-examination, she has stated that in her sasural, there are total 21 family members and when physical relationship was established, she raised

hulla but because of fear of pistol, no one came for her rescue. These all facts are not stated in the complaint petition. These are exaggerated version

of the case, which has been developed during examination of the witness in the court. She (P.W. 2) has stated in paragraph- 16 of her cross-

examination that, whatever she has stated today in the court, all have been written in the complaint petition.Â

From perusal of the complaint petition, this court is of the opinion, that the evidence of the victim is not in consonance with her complaint petition or

her solemn affirmation, rather the victim seems to have exaggerated her version in the court and as such, in absence of any medical evidence or any

evidence to attract confidence of the court, this Court has serious doubts about the credential of the victim, whose statement does not seems to be

reliable. If a lady is being committed rape frequently by a male, who is none else than her younger brotherin-law, on the point of pistol or any type of

threat then, definitely, she will not go along with the said male, while she was going to her maika, but as per evidence of P.W.3, who is the father of

the victim, the victim once went along with her husband and subsequently on other times, she went along with her younger brother-in-law and as such,

this court has reason to believe, that the version of the lady, in absence of any legal material, is not acceptable to this Court.

Thus, considering the above discussions, the impugned judgment of conviction dated 21.05.2004 and order of sentence, dated 22.05.2004, passed

by 1st Additional Sessions Judge, Jamshedpur, in Sessions Trial No. 244 of 2003 arising out of C/1 Case No. 721 of 2002 is hereby set aside and the

appellant Bishnu Bhakat is acquitted of the charges under Sections 498 A and 376 of the Indian Penal Code.

The present criminal appeal is allowed.Â

The appellant, who is on bail, is discharged from liability of his bail bond.   Â

Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.Â