Mahendra Singh vs State of Bihar

Hemant Kumar Srivastava, J.—Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State along with the counsel for the complainant (prosecutrix) and perused the record. This criminal appeal has been preferred, against the judgment of conviction dated 14-12-2001 and sentence order dated 16-02-2001 passed by learned Additional Sessions Judge-Vth. Rohtas at Sasaram in Sessions Trial No. 303 of 2000 by which and where-under. he convicted the appellant for the offence punishable u/S. 376 of the Indian Penal Code and, sentenced him to undergo rigorous imprisonment for a period of ten years under the aforesaid offence and imposed a fine of Rs. 5,000/- upon the appellant and in default of payment of the fine, the appellant was ordered to undergo rigorous imprisonment for six months.

The prosecution case, in brief, is that P.W. 2 Raj Kunwar Devi filed complaint case bearing Complaint Case No. 226 of 1999 against the appellant in the court of Chief Judicial Magistrate, Rohtas at Sasaram stating therein that on 16-10-1999 at about 3.00 p.m. while she was alone in her house and her husband had gone to village Karwandia whereas; her children were also not present in the house, the appellant came at her house and started searching her husband. She disclosed that her husband had gone to Karwandia but the appellant entered her house and caught her hand. She tried to raise alarm but the appellant gagged her mouth and threw her on the ground. The appellant took out a pistol and threatened to kill her and out of fear, she kept mum. The appellant closed the door of the house from inside and started removing her Sari. She made protest but the appellant again threatened her saying mat he would kill her husband and children. The appellant committed rape upon her and left her home giving threatening to her. She further stated in her complaint petition that on 18-10-1999 at about 8.00 p.m. while she had gone near Panchayat Bhawan to attend the call of nature, the appellant again caught her and took her in Panchayat Bhawan where he committed rape upon her. She did not disclose the above incidents to any person out of fear and when on 20-10-1999, her husband returned home from Karwandia, she disclosed the aforesaid incidents to her husband. Her husband made inquiry from the appellant about the aforesaid incidents but the appellant abused him and also threatened her husband and, thereafter, she along with her husband went to police station but her case was not registered and lastly, she filed the aforesaid complaint case.

After inquiry, prima facie case was found against the appellant and after ascertaining the appearance of appellant, the case of the appellant was committed to the court of sessions as Section 376 of the Indian Penal Code was exclusively triable by the court of Sessions.

The appellant was charged for the offence punishable under Sections 376 of the Indian Penal Code to which, he pleaded not guilty and claimed to be tried.

In course of trial, only two prosecution witnesses were examined. The statement of appellant was recorded u/s 313 of the Cr.P.C. in which, he reiterated his innocence and claimed his false implication. No evidence was adduced by the appellant in support of his defence.

The learned trial Court, having relied upon the testimony of prosecutrix as well as her husband, passed the impugned judgment of conviction and sentence order in the manner as stated above.

Learned counsel appearing for the appellant assailed the impugned judgment of conviction and sentence order arguing that according to complaint case itself, the alleged occurrence took place on two dates, i.e. 16-10-1999 and 18-10-1999 and the complaint petition was filed on 26-10-1999. Learned counsel for the appellant submits that there is no sufficient explanation regarding the delay in filing the complaint petition. It is further contended by him that the prosecutrix as well as her husband made contradictory statements and no reliance can safely be placed on the testimony of prosecutrix as well as her husband but learned trial Court committed error in placing reliance upon the testimony of prosecutrix as well as her husband. It is further contended by him that no doubt, solitary statement of prosecutrix is sufficient to pass judgment of conviction but before passing judgment of conviction on " solitary statement of prosecutrix; her statement should inspire confidence to the court. In support of his contention, he relied upon a decision reported in Shambu Shah Vs. The State of Bihar, in which, a Bench of this court has held that in cases of rape, the accused should be convicted on the sole testimony of prosecutrix if, her testimony is reliable and trust inspiring but if vital contradictions are noticed in the testimony of prosecutrix, the accused, deserves benefit of doubt. Another decision cited on behalf of the appellant is Joseph Poulo Vs. State of Kerala, in which, the Hon�ble Apex Court of this country has held that though injuries on the body of prosecutrix is not always a must or sine qua non to prove a charge of rape but when there is allegation of rape of a grown up lady, and no injuries were found indicating any resistances, the guilt of the accused is not conclusively proved. In the background of the aforesaid decision of the Apex Court, the learned counsel for the appellant submitted that no injuries were found on the person of the P.W. 2 and, therefore, non-presence of injuries on the person of P.W. 2 creates doubt about the genuineness of the prosecution story. He further submitted that the P.W. 2 (prosecutrix) was mother of five children at the time of alleged occurrence and, she was a lady of questionable character as admitted by herself in her deposition, so, no reliance can safely be placed on the deposition of P.W. 2.

On the other hand, learned Additional Public Prosecutor assisted by learned counsel for P.W. 2 (complainant) submitted that P.W. 2 (prosecutrix) as well as her husband (P.W. 1) supported the alleged occurrence and even if, there are minor contradictions in deposition of aforesaid two witnesses, then also, the aforesaid contradiction does not go to the root of the prosecution case and, therefore. the learned trial Court rightly convicted and sentenced the appellant.

As I have already stated that only two prosecution witnesses have been examined on behalf of prosecution. P.W. 1 Gaya Singh is husband of P.W. 2 and according to this witness, on the alleged date of occurrence, he was not present at his house and he came to his village after two days of the alleged occurrence and when he reached his village, his wife (P.W. 2) narrated the entire incident to him. This witness stated that after getting information about the alleged occurrence from P.W. 2, he went to ask from the appellant but the appellant became furious and after that, he along with P.W. 2 went to police station twice but police did not register his case and, then, the case was filed in court. This witness admitted that at the time of alleged occurrence, his wife was near about 40 years old. He further admitted in his cross-examination that all his children used to reside with his wife. At paragraph-6 of his cross-examination, this witness stated that after the occurrence, one Sheo Shankar Singh came at Karwandia and informed him and having got information from the aforesaid Sheo Shankar Singh, he came to his village. This witness further admitted at paragraph-7 of his cross-examination that when he came to his village, his wife informed him about the alleged occurrence after next day of his arrival. He further stated that after the occurrence, his wife was not medically examined nor this witness noticed any injuries on the person of his wife. He further stated that he narrated about the occurrence to one, Ramnandan Singh and Mangroo Singh. He further admitted that he did not give any written information to police nor disclosed anything about the occurrence before the police and after two or three days, he consulted his wife and came to the court and filed the case. He further stated that at the time of filing of the case, he could not understand what had been written in petition and after one month of filing of the case, he came to know about the nature of the case.

P.W. 2 is prosecutrix and, she stated that on the alleged date of occurrence, her children had gone to the field to graze the cattle and her husband had gone to Karwandia in connection with his work. She further stated that the appellant came to her home and at the point of gun, he committed rape upon her. Again, after two days of the first occurrence, at about 8.00 p.m. she had gone near the Panchayat Bhawan to attend the call of nature, then, the appellant caught her and took her in Panchayat Bhawan where he again committed rape upon her. She further stated that she sent information regarding the aforesaid occurrence to her husband through her co-villager and after two days of sending the aforesaid information, her husband came to home and then she narrated entire occurrence to her husband. She further stated that she along with her husband went to police station to lodge the case but her case was not lodged and then, she along with her husband came to court where the case was lodged. On being cross-examined by the defence, she admitted that she was married 40 years ago and she had given birth to five children after her marriage. At paragraph-7 of her cross-examination, she stated that she does not know the meaning of intercourse. She stated at paragraph-8 of her cross-examination that she does not have any relation with her co-villagers because they used to doubt her character. She further admitted at paragraph-10 of her cross-examination that earlier, she was residing at the house of her relative who ousted her doubting her character. At paragraph-11 of her cross-examination, she stated that she had no cattle and her son and daughter-in-law reside in the same house in which, she resides. She further stated that she had not disclosed to her daughter-in-law and son about the alleged occurrence though on the alleged date of occurrence, her son and daughter-in-law were present in the house. At paragraph-13 of her cross-examination, she stated that she never went inside the Panchayat Bhawan. She expressed her inability to state the distance between the Panchayat Bhawan and her house. She also expressed her inability to disclose this fact as to whether Panchayat Bhawan is situated towards south side of her village. She further stated at paragraph-16 of her cross-examination that she sustained injury in the occurrence and her treatment was done in the clinic of a private doctor at Sasaram but she did not disclose the name of aforesaid doctor. She stated that having consulted with her husband, she went to lodge the case in police station after two days of the alleged occurrence and she gave written report to police in respect of the alleged occurrence. She further stated that the aforesaid written report was prepared by police and she put her thumb impression on the aforesaid written report.

No doubt, it is well settled principle of law that the judgment of conviction can be passed on solitary statement of prosecutrix, if the statement of prosecutrix inspires confidence to the court but before passing the judgment of conviction on solitary statement of the prosecutrix, the statement of prosecutrix should be scrutinized with great care and caution. In the backdrop of above-said settled principle of law, now it has to be seen as to whether the testimony of P.W. 2 inspires confidence to this court or not.

Admittedly, the alleged occurrence took place in two phases. According to prosecution case; the first occurrence took place on 16-10-1999 at 3.00 p.m. whereas; second occurrence took place on 18-10-1999 at about 8.00 p.m. it is admitted position that between 16-10-1999 to 18-10-1999, no information regarding the first occurrence was given to police or any other person. Furthermore, it is an admitted position that the complaint case was filed on 26-10-1999 i.e. after eight days of the second occurrence.

P.W. 1 has admitted that having got information from one, Sheo Shankar Singh after two days of the alleged occurrence, he came to his village. He further admitted that after one day of the aforesaid information he left Karwandia and reached his village. Admittedly, the aforesaid Sheo Shankar Singh has not been examined. The P.W. 2 stated at paragraph-4 of her examination-in-chief that he sent information to P.W. 1 through her co-villager and the aforesaid information was sent by P.W. 2 after second occurrence. So, it is apparent from the aforesaid statements of P.W. 1 and P.W. 2 that for the first time, P.W. 2 disclosed the occurrence before-the above-said Sheo Shankar Singh after second phase of occurrence and P.W. 1 came at his village after two days of second phase of occurrence and therefore, it is apparent that P.W. 1 came at his village on 20-10-1999. P.W. 1 has admitted at paragraph-7 of his cross-examination that on the next day of his arrival in village, P.W. 2 disclosed about the occurrence to him and the aforesaid admission of P.W. 1 indicates that P.W. 2 disclosed about the alleged occurrence before P.W. 1 on 21-10-1999 at 4.00 p.m. it appears very surprising that daughter-in-law and son of the P.W. 2 were present in village at the time of alleged occurrence but she did not take pain to disclose the incident before her daughter-in-law and son and even she did not take pain to disclose about the alleged occurrence to her husband (P.W. 1) on 20-10-1999 on the date of arrival of her husband at village rather she disclosed about the alleged occurrence on 21-10-1999.

P.W. 1 has stated in his cross-examination that no treatment was given to P.W. 2 nor he noticed any injury on the person of P.W. 2 but P.W. 1 stated that after the, occurrence, she was medically examined and she had sustained injury on her whole body. The aforesaid contradiction relates to the occurrence and, therefore, aforesaid contradiction cannot be said to be of minor nature because the aforesaid contradiction goes to the root of the prosecution case.

Furthermore, P.W. 1 stated that he had not given any written report or information to police in respect of alleged occurrence nor any case was registered in the police, station but P.W. 2 stated that a written report was prepared in police station and she had put her thumb impression on the aforesaid, written report and therefore, the aforesaid contradiction also creates doubt about the genuineness of the prosecution case. Furthermore, P.W. 1 stated that having made consultation, he came to the court and case was lodged but he could not know about the nature of the case and after one month of filing of the case, he could know the nature of the case. Therefore, the aforesaid admission of P.W. 1 also creates doubt about the prosecution case because according to the P.W. 1, the case was lodged after having made much consultation.

Furthermore, the P.W. 2 stated that on the alleged date of occurrence, her children had gone to graze the cattle but in her cross-examination, she admitted that she had no cattle at the time of alleged occurrence and therefore, the aforesaid contradiction also creates doubt about the statement of P.W. 2.

On perusal of aforesaid omissions and contradictions of the statement of prosecution witnesses, in my view, the statement of P.W. 2 does not inspire confidence to the court and in absence of any corroboration of testimony of P.W. 2, it is unsafe to pass judgment of conviction and, furthermore, I am of the opinion that the learned trial Court committed an error in convicting and sentencing the appellant on the basis of above stated uncorroborated testimony of P.W. 2.

On the basis of aforesaid discussions, this Criminal Appeal is allowed and impugned judgment of conviction dated 14-02-2001 and sentence order dated 16-02-2001 are hereby set aside. The appellant is on bail. He is discharged from the liability of his bail bonds.