Chandan Kumar Sah And Ors vs State Of Bihar

The present Appeal under Section 374(2) and 389 (1) of the Code of Criminal Procedure , 1973 (hereinafter referred to as the “Cr.P.C.â€) has

been preferred by the aforesaid three appellants against judgment of their conviction and sentence dated 26.6.2012 and 3.7.2012 respectively passed

in Sessions Trial No. 96 of 2012 [arising out of Sour Bazar (Patarghat O.P.) P.S. Case No. 73 of 2012] by learned 1st Additional Sessions Judge-

cum- Special Judge, S.C. / S.T. (Prevention of Atrocities ) Act , Saharsa ( hereinafter referred to as the “trial judgeâ€). By the said judgment the

learned trial judge has convicted the aforesaid three appellants for offence under Section 376(2)(g) of the Indian Penal Code, 1860 ( hereinafter

referred to as the “I.P.C.â€) and sentenced them to undergo rigorous imprisonment for life and fine of Rs. 10,000/- each and in default of payment

of fine, they have further been directed to undergo simple imprisonment for a period of six months.

Short fact of the case is that a written information with L.T.I of one Lakho Devi /P.W. 1 was submitted before the Officer -in- Charge, Patarghat

O.P. Police Station, in which it was disclosed that the informant/ wife of Chandra Kishor Ram /P.W. 2 of village: â€" Terasi, O.P. Patarghat, Police

Station:- Sour Bazar , District- Saharsa on 30.03.2012 with her husband had gone to watch Raslila in Tekanama Yagya-sthal in village: -Tekanama. In

the same night after witnessing the said Raslila at about 3.00 Hours in the night they were returning to their residence. However, on way, on Western

side of Yagya-sthal on a puliya (bridge) the informant noticed some persons. While informant arrived near the puliya (bridge); 1- Chandan Kumar Sah

[hereinafter referred to as “A-1â€] , S/o Hirday Sah, 2 â€" Md. Khursheed (A-2), S/o Md. Nabi and 3- Anil Ram (A-3), S/o Birendra Ram , all

residents of Tekanama surrounded the informant and her husband. Firstly, Md. Khursheed (A-2) carried her husband to a wheat field . Thereafter,

Chandan Kumar Sah (A-1) and Anil Ram (A-3) carried the informant to a bamboo orchard , and thereafter, both the accused raped her .

Subsequently, Chandan Kumar went near to her husband and Md. Khursheed came and raped her . After committing rape accused persons went

towards the Yagya place, then the informant raised hulla and on her hulla villagers who were witnessing raslila and returning back, after chase

apprehended the accused persons near the place of occurrence . The accused persons were handed over to Police. On the basis of the said written

report on 31.03.2012 at 11.00 A.M. a formal F.I.R. vide Sour Bazar ( Patarghat O.P. ) P.S. Case No. 73 of 2012 was registered for the offence

under Section 376(2)(g) of the I.P.C. against the three accused, who are appellants before this Court. Police thereafter sent the victim for medical

examination and after conducting investigation within 24 hour i.e. on 01.04.2012 charge- sheet was submitted against three accused persons i.e. the

aforesaid appellants. On 02.04.2012 learned Magistrate took cognizance of offences and the case was committed to the court of Sessions on

18.04.2012 and thereafter the case was numbered as Sessions Trial No. 96 of 2012. After commitment, on 27.04.2012 charges were framed under

Section 376(2)(g) of the I.P.C. and Section 3(2)(V) of the Scheduled Castes and the Scheduled Tribes ( Prevention of Atrocities) Act, 1989

(hereinafter referred to as the “S.C./S.T. Actâ€) . It is made clear that during investigation itself the penal provisions of the S.C. /S.T. Act was

added against appellant no. 1 and 2. During the trial to prove its case from the prosecution side altogether eleven witnesses were examined, out of

them Lakho Devi ( informant / victim) was examined as P.W. 1 and her husband- Chandra Kishor Ram was examined as P.W. 2, whereas Bharat

Ram ( father of the victim ) was examined as P.W. 3 as a hear say witness. Similarly, Renu Devi (mother of the victim) was examined as P.W. 5 as

a hear say witness. P.W. 4/ Dr. Bibha Rani who had medically examined the victim has proved the medical report in respect of examination of the

victim, which was marked as Exhibit -1. P.W. 7 / Nilambar Bharti was a police personnel and also witness to the seizure list relating to preparation of

seizure of saya of the victim and he has proved his signature on the seizure list, which was marked as Exhibit 4-1. P.W. 8 / Pankaj Kumar was

Officer- In- Charge of O.P. Patarghat and conducted investigation after submission of charge -sheet against the aforesaid appellants. P.W. 9/ Md.

Nazimuddin was Officer- In- Charge of Sour Bazar Police Station and he had proved the formal F.I.R., which was marked as Exhibit â€" 3/2 and he

also proved his endorsement on the fardbyan, which was marked as Exhibit -3/1 . P.W. 10/ Das Ashok Kumar was Senior Scientist in Forensic

Science Laboratory and he had proved the F.S.L. report, which was marked as Exhibit -5 and he also proved his short signature on the seal of

material exhibit , which was marked as Exhibit- 6. P.W. 11/ Ajay Kumar was a Technician in Forensic Science Laboratory and he has proved the

report on grouping and blood- mark and same was marked as Exhibit- 5/1. In the case Vinod Kumar, the main investigating officer, was examined as

P.W. 6 and he proved his forwarding endorsement on the written report which was marked as Exhibit- 2, endorsement by Nazimuddin / P.W. 9 on the

F.I.R., which was marked as Exhibit- 3 and he has also proved one signature on formal F.I.R., which was marked as Exhibit -3/1. He proved the

seizure list relating to saya and same was marked as Exhibit- 4 and he also proved the material exhibit (saya) as material exhibit no. I. After

completion of the prosecution evidence, on 23.05.2012 the circumstances and evidences collected during the trial were explained to the accused

persons and their statement under Section 313 of the Cr.P.C. was recorded and thereafter, defence to demolish the prosecution case also examined

one witness namely: Tarani Ram as D.W. 1.

Sri Bikramdeo Singh, learned counsel, assisted by Sri Md. Nafisuzzoha, learned counsel for all the three appellants, after placing the entire evidence

has argued that it was out and out a case of false implication and he submits that in any event, the appellants were required to be acquitted by way of

extending the benefit of doubt. He has argued that the informant appears to be not trust -worthy witness since in the F.I.R. she had given specific

statement as if she was raped by three appellants and after committing rape while she raised hulla villagers arrived and apprehended them, however,

during her evidence she has given entirely a different story and she has deposed as if after she was raped by the accused persons she along with her

husband went to the Police Station and gave information regarding the occurrence. Sri Bikramdeo Singh, learned counsel for the appellants has further

argued that the victim / P.W. 1 though in the F.I.R. had specifically stated that at the time of occurrence there were only three accused persons and

out of three, one of the accused, who is appellant no. 2 had firstly carried her husband to an another field and remaining two appellants carried the

informant to a bamboo orchard and thereafter, two accused raped her and subsequently, one accused went near her husband and the earlier accused

reached to the informant and he also committed rape with her. He submits that in the F.I.R. there was no whisper regarding any fourth person in the

occurrence, however, it appears that after pondering over the matter that it would be difficult to establish as to how only one accused had captured

her husband, the prosecution developed an another story and came out with a case that in the occurrence there were six accused persons and three

accused persons, who were not named in the F.I.R. had captured the husband of the informant and the present three appellants had committed rape

with her. It has been argued by learned counsel for the appellants that change of version by the informant / P.W. 1 itself creates serious doubt on the

prosecution case. It has further been argued by Sri Bikramdeo Singh that immediately after the case was instituted the victim was sent to the Medical

Officer for her examination and she was examined by P.W. 4 / Dr. Bibha Rani, however , Dr. Bibha Rani on her examination had found no sign either

external or internal on the person of the victim. In categorical term the doctor had stated that she had not noticed any sign of rape or recent

intercourse on the person of the victim. He submits that evidence of medical report, which is Exhibit- 1 and evidence of P.W. 4 / Dr. Bibha Rani

categorically falsifies the entire prosecution case. Besides this, it has been argued that once it was the case of prosecution that all the appellants were

apprehended immediately after committing rape, as per mandatory provision, it was necessary on the part of the investigating officer to get all the

apprehended accused persons medically examined, but it appears that purposely the investigating officer did not produce either of the accused persons

before the Medical Officer for their medical examination. He submits that had the accused persons been examined by the Medical Officer

immediately after their arrest, the prosecution case would have been falsified and this was the reason that purposely the investigating officer had not

produced three appellants for their medical examination. By way of referring to Section 53A of the Cr.P.C., learned counsel for the appellants has

argued that once there was statutory provision for getting medical examination of accused in a case of rape, it was mandatorily required on the part of

the investigating officer to get all the appellants examined by the Medical Officer, which has not been done in the present case. Besides this, it has

also been argued that under Section 54 of the Cr.P.C., which is a mandatory provision, it is necessary that immediately after arrest of the accused

person he must be produced for medical examination, but in the present case neither provision contained in Section 53A of the Cr.P.C. nor Section 54

of the Cr.P.C. has been followed. Sri Bikramdeo Singh has further argued that the seizure list relating to saya of the victim specifically suggests that

color of the saya was green, which was having stain of semen but the F.S.L. report suggests that the saya which was examined by the F.S.L. was

having yellowish color. On the saya besides mark of semen, there were number of blood marks available on the saya . He submits that in any event

colour of saya would not have been changed, nor at the time of its examination by the F.S.L. the saya would have got blood stain whereas, at the time

of seizure there was no indication of blood stain on the saya . After referring entire evidences he further submits that the appellants were made victim

due to village politics. It has been argued that the defence witness i.e. D.W. 1/ Tarani Ram has stated that the victim was earlier married to brother of

P.W. 2/ Chandra Kishor Ram, however, subsequently without any divorce she started living with brother of her own husband i.e. P.W. 2 / Chandra

Kishor Ram and thereafter, Panchayati was held in the village in which parents of all the three appellants besides other villagers had scolded P.W. 2

and this was the reason that on a trivial issue a false case was made out and they were implicated. According to learned counsel for the appellants

this fact has been corroborated by D.W. 1 / Tarani Ram. He further submits that the victim / informant ha started living with P.W. 2 after leaving her

husband, who was brother of P.W. 2 which was accepted by P.W. 2 during his evidence . In sum and substance it has been argued that keeping in

view glaring contradiction in the prosecution case it was a fit case for acquittal by way of extending benefit of doubt to all the appellants.

Sri Ajay Mishra, learned Additional Public Prosecutor has supported the impugned judgment and he submits that in a case of rape if there is testimony

of prosecutrix, then on the evidence of prosecutrix itself, one can be held guilty and he has argued that the victim/ P.W. 1 has deposed showing that

she was raped by three appellants and as such, the learned trial judge has committed no error in passing judgment of conviction and sentence.

According to Sri Mishra, the Appeal is liable to be rejected.

Besides hearing learned counsel for the parties, we have minutely examined both oral and documentary evidence. Before proceeding, it would be

necessary to notice what witnesses have deposed during the trial. In the present case victim/ Lakho Devi was examined as P.W. 1 and in her

evidence she had stated that on the date and time of occurrence while she along with her husband was returning after witnessing raslila and while

they reached near the pul (bridge) she noticed that six persons were sitting there. Out of six accused persons, three persons carried her husband and

rest three accused caught hold of the informant and carried her to a bamboo orchard and she also claimed to identify the accused persons and named

them with parentage and address. She stated that all the three aforesaid appellants subsequently raped her. She raised alarm whereafter villagers

arrived and apprehended the aforesaid three accused and the accused persons were carried to the Police Station . She stated that she also went to the

Police Station with her father and husband and lodged case. She stated that one unknown person on her dictate prepared an application , which was

read over to her and thereafter, she put her identification, however, in paragraph no. 16 of her cross-examination she stated that while fleeing away

from the place of occurrence all the accused persons were apprehended by the local people and at that very time her husband , father and mother

were not there. In paragraph no. 23 of her cross- examination she further stated that immediately after receipt of application of the informant Police

sent her to hospital. In paragraph no. 24 she accepted that her marriage was solemnized about three years back and about four days prior to the

occurrence her husband had come to her residence and both had enjoyed intercourse and she further stated that same clothes i.e. saya , saree she

was wearing, which she was wearing at the time of intercourse and while going to witness the raslila. She further accepted that in the occurrence she

was not at all assaulted. Meaning thereby, that she accepts that no force was used while the accused persons had committed rape on her. At this

juncture it is necessary to indicate that P.W. 1, who is the informant in the F.I.R. had made specific statement that in the occurrence there were only

three accused persons, however during her evidence she had taken U -turn and she stated that in the occurrence there were six accused persons. Out

of six, three accused persons who have been not named in the F.I.R. had allegedly captured her husband and thereafter, three appellants before this

Court had committed rape on her. The Court is in agreement with the submission of Sri Bikramdeo Singh that after pondering over the fact that it

would be difficult to establish as to how her husband was captured by one accused person, which was stated in the F.I.R. subsequently in her

deposition during the trial she had developed a story that three persons, who were not named in the F.I.R had captured her husband and three

appellants herein had committed rape on her.

P.W. 2/ Chandra Kishor Ram , who is stated to be husband of P.W. 1 / victim though has stated in similar line like P.W. 1, in paragraph no. 6 has

accepted that he is not resident of village- Tirasi and he was three brothers namely : Soti Kumar, Raj Kumar and he himself. He has denied the

suggestion that his elder brother- Raj Kumar was married to Lakho Devi (victim), however in his further examination he has made a different

statement and in paragraph no. 8 at running page no. 18 he has stated that Raj Kumar ( his elder brother) had divorced Lakho/P.W. 1 ( victim) and

thereafter he solemnized marriage with her. Meaning thereby, that this witness appears to be not truthful.

P.W. 3 / Bharat Ram is the father of the victim / P.W. 1 and he has deposed as only a hearsay witness; however, in his evidence he has stated that

on the date and time of occurrence he was at his residence and he heard hulla and thereafter , he went and noticed that his daughter was raped by the

aforesaid three accused persons. He claimed that he along with the villagers had apprehended the three appellants and carried them to his door from

where all the accused persons were produced to the Police Station. In paragraph no. 9 of his cross -examination he stated that all the three accused

persons (appellants) were apprehended from a place beneath the pul (bridge). In paragraph no. 11 he stated that after apprehending accused persons

within an hour they were carried to his door and they were kept at the door up to 8.00 Hours. Subsequently, in paragraph no. 13 he stated that

thereafter accused persons were brought to the Police Station and further stated in paragraph no. 15 that he along with his daughter (victim / P.W.1) ,

son- in- law /P.W. 2 had gone to the Police Station however, in paragraph 16 of cross examination of P.W. 1/ informant she has stated that while

accused persons were apprehended her husband, father in law and mother in law were not present. In paragraph no. 20 of his cross -examination he

has denied regarding the marriage of his daughter with Raj Kumar Ram, whereas the husband of the victim /P.W. 2 ( Chandra Kishor Ram ) had

made specific statement that the victim was earlier married with Raj Kumar and when she was divorced, he solemnized marriage with her. So this

witness also appears to be not truthful. Though in paragraph no. 13 and in his earlier version he had stated that he along with others had produced the

accused in the Police Station, in paragraph no. 32 of his cross-examination he has stated that Police had carried accused persons from his door. He

specified that Police reached to his door and thereafter, accused persons were carried on a Police Jeep. Further in paragraph no. 26 he has stated that

in the Police Station her daughter got complaint written by the Bara Babu of the Police Station , however P.W. 1 and P.W. 2 have stated that the

written information was got prepared by some unknown persons . In the present case evidence of P.W. 4 / Dr. Bibha Rani has got much importance.

This witness within 12 hours of the alleged occurrence had medically examined the victim and in said medical examination she had noticed no any

visible external injury on the whole body of the victim nor any mark of rape she could notice on the private part of the victim. There is no any visible

external injury on whole body. There was no any visible external injury on and around genital area.

It is necessary to indicate what she has stated, which is as follows:-

“There is no any visible external injury on whole body.

Per abdomen â€" abdomen soft.

Per vaginum â€" Hymen is not intact. Uterous antiverted, normal size. There is no any visible external injury on and around genital area

vulva and vagina are normal. Cervix is smooth. Pubic hair present.

As per report of pathologist Dr. U.C. Mishra no spermatozoa seen either dead or alive (2) epithelical cell 3-6 Cells / HPF (3) Pus Cell 4-

6/HPF (4) RBC 2-3 cell / HPF

Radiological report. As per report of radiologist Dr. U.C. Mishra age of the victim is 17-19 years.

On the basis of above examination in my opinion there is no any confirmatory evidence of rape although possibility of sexual intercourse

cannot be ruled out and age of victim is 17 to 19 years.

(2) This report is in my pen and signature and it is marked as ext. 1.

To court â€" I have not written history sheet of this victim and I can not say why I have not written history sheet. Bed head ticket of this

victim is available in hospital.

(3) Hymen of victim was not intact so the sign of sexual intercourse was present (with objection).

Cross â€" examination

(4) I have not written in my report that sign of sexual intercourse was present.

(5) Before examination I have not taken permission for examination from victim. I have also not written in report that on what basis I

examined victim.

(6) In my opinion, in the case of rape on hard soil surface, if body of victim is open, abrasion, laceration, bruise may be caused.

(7) Victim had not produced saree, saya before me at the time of examination.

(8) At the time of examination I had not found any sign of semen on any part of victim.

(9) After sexual intercourse semen remains on the body till 72 hours, I can not tell that semen in vagina alive or dead remained only 24

hours.

(10) I can not tell that semen, if any, found on victim, that semen is semen of her husband or accused persons.

(11) In the case of rape vagina will not normal and cervix also will not smooth.

(12) I have only written that sexual intercourse can not be ruled out. I have not written about rape.â€​

She proved the report, which was in her pen and signature and same was marked as Exhibit -1. On cross- examination she stated that “in her

opinion in the case of rape on hard soil surface if body of victim is open, abrasion, laceration, bruise may be causedâ€. She further stated

that “at the time of examination she had not found any sign of semen on any part of victim.†She further on cross -examination stated

that “after sexual intercourse semen remains on the body till 72 hoursâ€. On examination of her evidence it is very much clear that on the

person of the victim there was no sign of rape, whereas it is case of the prosecution that victim was repeatedly raped by the three appellants that too

in a field near bamboo orchard. In normal course if it was case of forcible rape, there was every possibility of finding external injury on the person of

the victim. In the case the victim, who was examined as P.W. 1 has categorically stated as to in which position she was lying on the Earth at the time

of rape. Had there been such forceful rape, there was every possibility of injury on her back or knee or hands itself, but no external injury was found

by P.W. 4. Even no mark of rape was found on the person of the victim. There was no sign of semen inside the person of the victim, which has been

noticed by P.W. 4. On examination of the oral evidence as well as medical evidence, there is no possibility of coming to the conclusion that it was

specifica case of rape. Of- course, it is true that in case of contradiction in between oral and medical evidence in a case of rape, weightage to the oral

evidence is to be given, but in view of the special facts and circumstances of the present case, i.e. change of story by the victim from earlier version

may not be treated as truthful evidence holding the appellants guilty beyond all reasonable doubt . So far seizure of the so- called saya of the victim is

concerned, it is a peculiar case that in the seizure list i.e. Exhibit -4 the color of saya has specifically been mentioned as green and it was indicated that

saya was having stain of semen, but the report of the Forensic Science Laboratory suggests that the said report was in relation to saya having

yellowish color and on the said saya besides mark of semen, it was indicated that saya was having number of marks of blood. This contradiction in

between the seizure list and report of the Forensic Science Laboratory certainly creates serious doubt on the prosecution case, rather it reflects

regarding the act of the investigating agency. In any event, once in the seizure list saya was having only mark of semen, it was impossible to indicate

marks of blood on the saya in the report of the Forensic Science Laboratory, and as such, on the evidence of P.W. 10 / Das Ashok Kumar, who was

Senior Scientist , Forensic Science Laboratory as well as its report Exhibit -5, there is no point to place any reliance. Similarly, evidence of Ajay

Kumar, Technician, Forensic Science Laboratory who was examined as P.W. 11 may not have any relevance in the facts and circumstances of the

present case.

Further it has rightly been argued by learned counsel for the appellants that once immediately after the alleged occurrence the appellants were

apprehended, it was duty on the part of the investigating officer to get them medically examined, but to the reasons best known to the investigating

officer none of the accused were got medically examined. At this juncture it is necessary to quote Section 53A and Section 54 of the Cr.P.C. which

are as follows:

“53-A. Examination of person accused of rape by medical practitioner.- (1) When a person is arrested on a charge of committing an

offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as

to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local

authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed, by

any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub -inspector , and for any person acting in

good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for

that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination

giving the following particulars, namely:-

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and

(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate

referred to in section 173 as part of the documents referred to in clause (a) of sub â€" section (5) of that section.

Examination of arrested person by medical officer. - (1) When any person is arrested, he shall be examined by a medical officer in the

service of Central or State Governments and in case the medical officer is not available by a registered medical practitioner soon after the arrest is

made:

Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical

officer, and in case the female medical officer is not available, by a female registered medical practitioner.

(2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning

therein any injuries or marks of violence upon the person arrested and the approximate time when such injuries or marks may have been inflicted.

(3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or

registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.â€​

The Court is in agreement with the submission of learned counsel for the appellants that in view of Section 53A of the Cr.P.C. it was required on the

part of the investigating officer to get the appellants examined by the Medical Officer. Besides this, there is mandatory provision under Section 54 of

the Cr.P.C. to examine the arrested accused before its production before the Magistrate, however in the present case no step was taken by the

investigating officer in this direction. We are in agreement with the submission of learned counsel for the appellants that it appears that purposely the

investigating officer did not produce any of the accused persons to be examined by the Medical Officer, otherwise had they been examined, there was

every possibility to falsify the prosecution case. Of -course, in a criminal trial much reliance is not required to be placed on the evidence of defence

witness, but in view of the facts and circumstances of the present case, this Court may refer to the evidence of D.W. 1 / Tarani Ram. This witness

has stated that much prior to the occurrence due to the reason that P.W. 2 had kept P.W. 1 as wife despite the fact that P.W. 1 was married with

elder brother of P.W. 2 a Panchayati was held in which parents of all the three appellants and others had scolded P.W. 2 for the said marriage. It

appears that this can be a reason for false implication of the appellants. Moreover, since there was specific contradiction in the evidence of the victim

/ P.W. 1 itself and the allegation of rape has not been corroborated by the medical evidence , certainly the appellants can be given the benefit of doubt,

and as such, by way of extending benefit of doubt, it is necessary to interfere with judgment of their conviction and sentence . Accordingly, the

judgment of conviction and sentence dated 26.6.2012 and 3.7.2012 passed in Sessions Trial No. 96 of 2012 by Shri Krishna Gopal Dwivedi, Ist

Additional Sessions Judge -cum- Special Judge, S.C. / S.T. (Prevention of Atrocities ) Act, Saharsa is hereby set aside and the Appeal is allowed.

Since all the appellants are inside jail and judgment of their conviction and sentence has been set aside, they are hereby directed to be released

forthwith, if not required any other case.