Jhamia Devi vs Md. Kalim and Others

Pradeep Kumar, J.—The appeal is directed against the judgment of acquittal passed by Sri Mungeshwar Sahoo, 1st Additional Sessions Judge, Godda in Sessions Trial No. 173A 3/101/98 acquitting the accused persons from the charges levelled u/s 376 along with Sections 149 and 341 of the Indian Penal Code against the accused persons. Manoj Sah, Md. Kailii, Md. Haniff, Wakil Sail, Bhuttu Sah and Md. Fakir were charged u/s 376/109 of the Indian Penal Code in addition to charge under Sections 149 and 341 of the Indian Penal Code.

The prosecution case was started on the basis of the complaint filed by the appellant, Jharaia Devi stating therein that on 6.10.1997 at about 4 P.M. She along with her mother-in-law, Kisni Devi (P.W.1) were cutting grass on their own land which belonged to her father-in-law, Thakur Sah (P.W.2). Thakur Sah P.W.2) had taken in Blrogat Bandha the said land from accused Vakil Sah. It is allged that at that time all the. accused persons came to her and Shankar Sah, Pvahlad Sah and Md. Kalim caught her and the rest accused caught hold of her mother-in-law, Kisni Devi (P.W.I). The three accused persons named above took her to Bandh (pond) and her mother-in-law was taken by the other accused persons towards opposite direction by the other six accused persons, ll is further alleged that at the Bandh Sliankar Sah and Prahlad Sail threw her down and forcibly committed sexual intercourse against hen will. Thereafter Md. Kalim forcibly started committing rape upon her. Thereafter the witnesses came hearing bulla then the accused persons fled away. The complainant was weeping and the way she saw her mother-in-law whose mouth was closed. She came near her mother-in-law and soughted whereupon the accused persons fled away. Then she untied the mouth of her mother-in-law. Later she made a complaint to her husband-father-in-law and since the police station is in collusion with Vakil Sah and Md. Hanif so she did not go to the police station for filing case.

On the basis of the said complaint after examining witnesses u/s 202 Cr. P.C., congnizance was taken of the case and the case was committed to the court of Sessions. From the sessions court the case was transferred to the trial court where trial was held after the accused persons were charged.

The prosecution has examined five witnesses during trial. P.W.1, Kisni Devi, is mother-in-law P.W.2, Thakur Sah is father-in-law. P.W.3, Jhanvia Devi, is the victim lady-complainant. P.W. 4 Nagri Pd. Yadav is co-villager. P.W.5, Dr. Mrs. Lilly Singh, who examined the victim lady.

It is submitted by the learned Counsel for the appellant that the prosecution case has been fully supported by the evidence of P.W. 3-victim lady. Thereafter, the prosecution case has been corroborated by the evidence of P.W. 1, Kishni Devi, who had seen the occurrence as also supported by her father-in-law (P.W.2), Thakur Sah and Dr. Mrs. Lilly Singh, who found that rape cannot be ruled out. It is further submitted that the learned trial court was wrongly misdirected itself in coming to a finding that it is unnatural that persons related to the informant specially father, brother and sons will make plan for committing rape upon their own relative.

The learned trial court gave undue weight to small contradictions in the evidence of witnesses and acquitted the accused persons, as such the judgment of acquitted only fit to be set aside and the appellant should p388 % of the offences charged.

On the other hand, learned Counsel for the respondent submitted that the contradictions found by the trial court in the prosecution evidences arc vital in nature.

The prosecution has failed to prove the place of occurrence, moreover the accused persons are very closely related to the informant. The accused, Shankar Sah smd Manoj Sah are dever of the informant and as per the statement of informant the accused, Prahlad Sah is her uncle. Thus the court rightly found that there is chance of false implication due to land dispute. The learned trial court also considered the defence witnesses with regard to the land dispute between the parties and as such the learned trial court rightly gave a finding of acquittal which requires No interference by this Court in appeal.

After hearing both the parties and gone through the evidences, I find that in order to prove the prosecution case only two witnesses are important P.W.3, Jharaia Devi-complainant herself and P.W.I, Kishni Devi, the mother-in-law. These two witnesses were only present at the place of occurrence. P.W.3, Jhamia Devi-complainant stated in her complaint at para 2 that accused, Shankar Sah, Prahlad Sah and and Md. Kalim caught hold of her and took her to the Bandh. In para 3 she has stated that the accused, Shankar Sah and Prahlad Sah threw her on the ground and committed rape one by one. She was examined in court as P.W.3. She stated in para 2 that threee accused persons, namely, Shankar Sah, Prahlad Sah and Md. Kalim took her to the ezstern side and Md. Kalim took her to the eastern side and they threw her on the ground and committed rape upon her one by one. On Hullah Nagri Yadav, Jichhu Yadav and Bharat Paswan cams there and saw. As far as place of occurrence is concerned as per map, the place of occurrence is near the Bandh while in her statement before Court she stated that she was taken towards east in village map has been filed and proved as Ext A, A/3 and another part of the village map has been filed by the prosecution as Ext. 2 that where the ladies were cutting the grass is on plot No. 1317 admitted by her father-in-law (P.W.2), in his evidence, para 10 and as per the map there is No Bandh on the eastern side as per the map there is a big bandh on the western side, which totally falsify the statement made by the informant. The complainant in her complaint and subsequently in court, it is also relevant to note that it has come in the evidence of P.W,4 Nagri Yadav the only independent witnesses examined in this case that at the time of occurrence he along with witnesses, Shankar Sah and Prahlad Sah were cutting grass on their land and it is not acceptable in presence of so many witnesses, the accused persons committed rape and No body saw. Since, the prosecution failed to examine Jichhu Yadav, Bharat Paswan and P.W.7 who have been examined, does not support that three accused persons committed rape on the Baihar. Thus non-examination of the witnesses named by the complaintant-P.W.3 also crates great doubt in the prosecution, case.

The learned trial court has found that Dr. (P.W.5) has not supported the prosecution story of rape.

From perusal of the evidence of P.W.5, Dr Mrs. Lilly Singh shows that she examined the Jhamia Devi on 7.10.1997 at 3.30 P.M. her aged was about 30 years and there was No stain, of blood or mud on the saree which was owned by her, which she stated that she was wearing the same cloth at the time of occurrence. No external or internal injury was found in her private part and since she was married having children and she was used to sex.

Thus, the medical evidence does not support that the victim lady was raped by three accused persons that too by throwing her down on the Baihar. The prosecution case is full of doubt and has not been proved beyond reasonable doubt, I find nothing to disagree with the finding of the trial court.

The learned trial court in pat a 24 came to a finding that the case has not been proved beyond reasonable doubt, but came to a extreme conclusion that the appellants were falsely implicated and the complainant- P.W.3, Jhamia Devi, P.W.1, Kishni Devi and P.W.2, Thakur Salt should be prosecuted there is No evidence to come to such finding. It is the fact that the prosecution has not been able to prove the charge beyond reasonable doubt but does not mean tint there is evidence to conclude that a false case was set up.

In such a situation the finding of the trial court to prosecute the informant and witnesses, P.Ws. 1 and 2 is bad in law and is only fit to be set aside. The finding to prosecute is accordingly set aside.

After discussion above made, I have also found that the prosecution case is full of doubt and has not been proved beyond reasonable doubt.

I find No merit in the appeal. Accordingly, the appeal is dismissed without any cost.