Shankar Pasi vs The State of Bihar

Honourable Mr. Justice Mandhata Singh

Statement/Fardbeyan of Raj Kumari Devi P.W.1 has been made basis for the F.I.R. of this case which, in brief, is that her (informant''s) five years'' old daughter Rina Kumari on 22.6.1993 at about 9.00 AM was coming home from Darwaza. In the way this accused appellant caught hold of her and took her to Basbitti. Her daughter P.W.6 cried. Informant came out from her house and found the appellant Shankar Pasi committing rape upon her daughter and her daughter was crying. On informant''s alarm villagers including Ramasis Mahto came but appellant had left the place of occurrence. There appeared blood stained. Shankar Pasi was searched by villagers but could not be traced. Victim P.W.6 was carried to Dalsingsarai Hospital where she was given medical treatment. Informant''s statement was recorded in the Hospital by ASI Ram Sharnagat Singh of Dalsingsarai Police Station.

Offence of rape had been committed within the jurisdiction of Bachhwara Police Station so, the F.I.R. was forwarded to Bachhwara Police Station. Matter was investigated and charge sheet also submitted in the case.

Trial ended in conviction and sentence to accused appellant for the offence u/s 376 of the Indian Penal Code.

In all six witnesses are examined in the case and they are P.W.1 Raj Kumari Devi mother of the victim and informant of the case, P.W.2 Baleswar Mahto father of the victim, P.W.3 Ramadhin Mahto, P.W.4 Ramasis Mahto, P.W.5 Parsuram Bhagat I.O. of the case and P.W.6 Rina Kumari victim of the case.

P.W.5 I.O. of the case has only investigated the matter if he is relevant on any point may be discussed whenever is needed.

P.Ws 3 and 4 including P.W.2 father of victim are there to state that they came to the place of occurrence only on alarm and heard about taking place of the incident. P.W.6 is victim of the case but states nothing on the point of commitment of rape upon her. Her age has been assessed by the court seven years and stated by her five years, if was able to reply the query made to her, opinion of the Trial Court is that P.W.6 could hardly answer to general questions. Her statement made u/s 164 Cr.P.C. has been accepted as prosecution evidence. Any statement u/s 164 Cr.P.C. would have been recorded one year and five months earlier as section 164 Cr.P.C. statement was recorded on 12.7.1993 and she was examined by the Court on 12.12.1994. No doubt statement u/s 164 Cr.P.C. is recorded while Judicial Magistrate performs his judicial/official act. In that case also statement u/s 164 Cr.P.C. is not substantive piece of evidence and in this case that is the statement of a child witness in no case above five years.

Now P.W.1 remains there if can substantiate the charge leveled against appellant. No doubt this witness in chief is clear on the point that on alarm of her daughter she came out from her house and saw the accused appellant committing rape upon the victim girl. She caught him also but succeeded to flee from there, after getting him free from her catch. This much is doubted basing her statement in paragraph 6 of her cross examination. It is made clear that paragraph- 6 is twice numbered in deposition, in first paragraph-6 this witness is stating that her son went first to the place of occurrence where her daughter narrated the incident and in second paragraph 6 she states that when she went to the place of occurrence her son and husband were present there. Son is not examined in the case and husband is examined as P.W.2 though states about going to the place of occurrence and finding blood from private part of the victim but he is not stating about his watching the incident of commitment of rape.

Doctor is not examined in the case to corroborate the injury if was found on the person of the victim. Basing such a weak evidence conviction to accused appellant for the offence u/s 376 of the Indian Penal Code is not sustainable.

On the observations made above, evidence on record and circumstances of the case, the appeal is allowed. Judgment and order dated 23.3.1995 passed in Sessions Case No. 561 of 1993 is set aside. Appellant is acquitted of the charges leveled against him, set at liberty and discharged from the liability of bail bond.

Let a copy of this judgment along with lower court records be sent back to the trial court forthwith. Let first page and last page of this judgment be handed over to learned Amicus Curiae appearing for the appellant for needful.